AfriForum's statement factually incorrect - Barnabas Xulu

Defence minister's lawyer says Willie Spies is indulging in petty grandstanding

1. Under normal circumstances we would not respond to the statements issued by AFRIFORUM about the Minister of Defence and Military Veterans because it is not our policy to litigate our matters through sound bites and media statements. The statement posted by Mr Spies of AFRIFORUM (see here) is petty grandstanding and intended to inflate its ill-fated attempt at obtaining legally untenable orders against the Minister of Defence. Mr Spies knows that the statement issued does not correctly reflect the true state of affairs as regards yesterday's proceedings. As an attorney of the High Court, Mr Spies would know and appreciate the elementary ethical requirements relating to integrity and credibility. The correct facts are simple and are the following;

2.1. AFRIFORUM precipitously launched a legally unsound and untenable application for various orders against the Minister relating to the national youth service programme. The matter was set down for hearing on 14 September 2010.

2.2. The Minister filed an opposing affidavit challenging the legal basis on which the AFRIFORUM had constructed its case.

2.3. On receipt of the opposing affidavit, AFRIFORUM unilaterally removed the matter from the roll in the afternoon of Thursday, 9 September 2010 and thereafter unilaterally set the matter down for hearing on the issue of costs on a date in January 2010. In January 2010, the only issue between the Minister and AFRIFORUM is that of costs. Explicit in this is the following:

2.3.1. AFRIFORUM is not persisting with the relief that it was seeking in its application. It will in January 2010, contend that it should not be saddled with a cost order of its ill-fated application. 

2.4. Mr Spies does not tell the public why AFRIFORUM precipitously and without following normal procedure for the removal of matters from the Court roll. The reason is simple and it is that the application against the Minister was doomed to fail.

2.5. The statement posted by AFRIFORUM is also misleading for another reason. The unilateral removal of the AFRIFORUM's application from the roll was not binding on the Minister, in particular where AFRIFORUM did so without a tender for costs. The Minister was entitled to seek the dismissal of AFRIFORUM's case with an order for costs.

2.6. Heaping praise on Justice Legodi's judgement on the basis that it was a failure on the Minister to recover the costs for successfully opposing the urgent application is simply irresponsible and misleading. Justice Legodi postponed the application sine die. The postponement order made by the Judge was not a victory for AFRIFORUM which had removed the matter off the roll. The order was also not a loss for the Minister since the issue of costs was not determined. Our client's rights are reserved.

Statement issued by Barnabas Xulu, XuluLiverSage Attorneys, Cape Town, September 15 2010

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