About the only way to get back at a lawyer is to get the court to issue a de bonis propriis order against him. What it comes down to, is that he himself, as a human being (doubtful in some cases), will pay all the wasted legal costs for the trial / application which he lost. It is punishment for wasting the court's time.
It is not done easily and is quite rare for it is usually the client (you) who pays for the costs and not the attorney who gets paid, win or lose. As you probably know the legal profession (which kicked me out with all due ceremony about ten years ago) is not known for taking any risks with their own money. Hence the lawyer is almost always paid before the trial / application starts just to ensure that the client don't feel he should not pay for services not properly rendered, for example, where his case is thrown out of court and hear my words, it happens a lot.
If you bothered to read any of my legal books (very boring for sane people I assure you) you would know that there is no such thing as an 80% chance of winning or whatever you lawyer tells you...in court it is 50/50. You either win or you lose and in very rare cases have something called "in absolution of the instance" where you can go back to court to prove your case at a later stage. However, that is not a cost order which we are talking about today and it is important for we can make a lot of smart deductions from cost orders.
Historically, to stop the courts from being flooded with spurious claims (hallo American Lawyers) we follow the English Legal Tradition whereby the losing side of the civil claim almost automatically pays for the other side also. And I absolutely assure you the bill is then loaded as far as you can get away with it. In fact it is so important to lawyers that many highly experienced legal secretaries (severely underpaid too) do nothing else but bills of cost...the same as a private hospital where every pill is counted and charged for. In the legal profession time is money at a ridiculous fee rate and every letter / email / telephone conversation etc is added up...they even count the words in every letter and charge you for it.
You can read my book Tricks of Trade - Memories of a Rogue Lawyer to see how these costs are artificially (but legally) increased to your detriment. Yes there are balances in place to prevent too obvious buggery but you will still pay dearly for losing a civil court case...it ruins people financially so must not be lightly undertaken. The reason though is as stated above - to prevent too many cases and especially spurious ones where you never had a case to begin with.
The law deals with spurious people also. You get those strange fellows who want to sue and keep on suing because they have mental problems. Hence their right to sue is taken away in a rather complex procedure where they cannot sue anyone unless a High Court Judge agrees he actually has a case. This happens very rarely indeed, but is necessary.
Then you get a no-costs order where the Judge decides it was touch and go who won and has more sympathy for you than is stated in open court. At such times each party pays his own costs. It shows you almost won and is the best way to lose a civil court claim if losing can ever be good.
Now to obtain a cost order you must not only win your case but ask (in law it is called a prayer) for the cost order to be awarded to you. You will notice at the end of each summons or application there is a prayer clause in which you will ALWAYS find the words "order of costs" or similar. Hence you will not find a cost order taken lightly by anyone. It is serious money.
Then we have the lawyer's nightmare, the de bonis propriis order. It is not so much about the money - you can always find a client to pay for it, even if he does not know it yet, but a slap in the face. It points toward professional incompetence; for the court felt its time was wasted so much with a spurious claim that the Judge decides that particular lawyer needs a wakeup call. This is not always the case, though it is seen as such by everyone else.
At times it is used as revenge by banksters on a lawyer who decides to take them on as happened recently in the R699 car scheme in Port Elizabeth. Now I don't know the merits of the case and I do know the cost order may or will be challenged (appealed) later on, but from what I read on the side the banksters must have gotten the fright of their lives and hence this order against the attorney who led an application to sue them en massa (class action). It was in my opinion done to prove a point, though they will of course deny it - probably a computer ordered them to do so, for banksters are the only people in the world I know of who subject themselves to the rule of a computer. You always hear them say "the computer declined your application" or whatever other nonsense they spout when cornered. On the other hand, I take my hat off to that attorney to even attempt to take the high and mighty servants of mammon on. That shows guts we don't usually find in that profession, which is only about "me, my bank account and my ego."
In my book about banksters or your worst enemy as I refer to banks (and to be fair, all other creditors) I often say it is a well-known tactic to use highly overpaid lawyers to keep hammering you (did it myself). Hence you run out of money at some stage and they win by default and the balance is restored to their favour for no bankster ever makes a mistake in your favour. It is all very legal and an excellent tactic which is why I wrote the book - so you can defend yourself. Note also that I said many times in the book if you owe money, and can afford to pay so, then do so. Or make some sort of a settlement for they will come after you.
By the way, the ridiculous fees did not stop the civil courts from being flooded - it will take you almost 5 years to get your hearing in court because of the back log. And so it is and will be. We can deduce a lot from what the Judge does with an order to costs - for the legal scholar, it tells its own story - but let us wait and see what happens now.
A client asked me the other day what did the new South Africa bring for me? I was sorely tempted to explain that corruption was not nearly as bad as now. Hence it brought a lot of corruption and with it the detestable newly rich & infamous.
I suppose we could have talked about our once proud Army, which is now a joke to international observers, but in all honesty I don't mind that. A weak Army also means no coup d'état's so I am secretly convinced that it is part of the government's attempts to keep power. Clever thinking indeed, or is it just plain old incompetence as everyone else says? As a former member of the South African Police I don't care that much about the Army anyway....the Navy and Air Force? Nah, will not even mention them here - I mean do they still exist? Last time I checked we had grounded a submarine and had almost no pilots left. Our fancy new fighter jets are in storage, except for a few to fly ceremonial duties now and then to show the world what? I don't know.
So what did the new South Africa bring to me? Well, a lot actually. The security industry is booming and will keep on booming for many decades to come. That is good news for the former-members who got fed-up and decided to leave the services. Many are making serious money and good for them too.
Then there are the potholes when you leave the national highways and the road sort of disappears. That made me buy a Nissan Sani 4wd when I still could afford the petrol price. No doubt I will do so again in the future and some poor client will pay for the petrol for my prices will just go up as I have noted the clever lads of the grocery stores & petrol stations do week for week. Yep, should have thought of this before. No need to struggle lads - just increase your fees and try your customer's patience.
What else? Well the yellow reflector tape behind trucks is an excellent idea. It has certainly saved me a few times where they have had no rear lights. Naturally the traffic police only concentrate on the ones exceeding the speed limits, for reasons I cannot publish for fear of being sued. It brings in a lot of revenue for cities and sometimes for themselves. Tax free also in the last instance...but fair enough, you must support private initiatives or so we are told by the long haired liberals.
I also noted that despite all the bitter complaints against the new South Africa from the older generation, that their pensions and medical aids are paid every month. Now let us be clear on this, it is not something which usually happens where a former terrorist organisation (from my view at the time) take over.
Then we have a very nice and legally progressive human rights bill, which is working despite the constant complaints. Anyone who has read any of my books will know of my sceptical views on human rights in general and especially when it is taken so far that the community loses respect for the police and courts, and you have violent vigilante actions. Reminds me of a song by that guy with the deep voice - Leonard Cohen "The Captain..."
"And I've read the Bill of Human Rights
And some of it was true
But there wasn't any burden left
So I'm laying it on you."
But I have to admit; thus far we are not in camps of re-education. We do live in self-imposed prisons in our houses (if you have one) though.
On the constant complaining about the SA Police Services - I don't agree they are that bad, having seen other African Police Forces first hand. I have to ask, as I did in my Mean Streets book, why are the jails so overcrowded and the criminal courts so far behind on caseloads? This does not indicate such a pathetic police service at all, but we do have the bad apples. They are dealt with, for we read about it in the newspapers all the time. Hence, I will not join this constant moaning & groaning & jumping to conclusions every time we heard of a murder. Who else must we go to anyway?
We had the Australian invasion for our newly acquired 4wd vehicles (potholes you know) with every conceivable add-on at vast expense and pointless too. I have to wonder since when the rugged outdoors man became such a wanker that he needs to tow a caravan into the veldt? Or must replace a nice working suspension with the Aussie product? Well fair enough, they got many of our right wingers who are still complaining from far away...why I would not know, for once you have emigrated you lose your right to b-tch at every forum.
We have no less than nine parliaments now, to be better exposed to the shenanigans of long haired liberals. Excellent job creations scam that one, for I have no real clue what good they do there except waste tax money. I also read one member thought she would be elected (and she was for many years) because she has nice blue eyes. Fair enough, you get the long haired liberals you deserve.
Even better, we can freely listen to rubbish known as rap and it seems every second pretty girl has decided she is the next Juanita and so we are bombarded with mediocre (almost as bad as my efforts as an author) voices. In the old days oom Ge and oom Bles were good enough with that rooi-skoen fellow for the liberals amongst us. Now we have such a wide variety to be grateful for.
Ah and then the McDonalds burger chains, which we only saw in the movies then and now at every second corner and in every single mall in existence. We subsequently learned that the Greek or Portuguese oom at the corner cafe actually made much better (sure as hell bigger) burgers, though my late wife may have called me on that one. Well I know she would have on the McDonalds French fries which she loved to eat at breakfast of all times. "Us colonials don't do such things Honey but let me join you then."
And let us not forget the right to be humiliated by the All Blacks every time we play against them in a rugby match. Or the strange names our proud teams now have for reasons I don't get, but may have to do with the god of mammon. At least I don't need to bother to even watch anymore - it is not the same and I know who will win next year's cup anyway.
Lastly, we are particularly blessed with all the Nigerian drug dealers who are to be found in our cities. That is very nice for us working in Nigeria where our skills are highly valued and I, for one, felt very welcome. They exported their criminal element to us and overtook our economy in 2012.
So the answer to the question? I get to complain online without fear of the Security Branch arresting me in the middle of the night. And that my friend is called FREEDOM.
I don't know about you, but we had a couple of issues at school which were guaranteed to lead to a fatherly talk afterwards behind the bicycle shed. Why we took the disputes so seriously I cannot remember, but it was mainly about Ford v Chev, which Ford won since Chev left the country in sympathy with the anti-apartheid struggle, or so I was told.
In Suidwes (Namibia today) where I grew up in a small place called Welwitchia and then renamed Khorixas, the grown-ups all seemed to agree that the Chev K10 (or something) was a better 4wd vehicle than the Ford F150. This was in the early seventies and the vehicles huge with no real comforts like power steering or air-conditioning. Hence the ooms were big men with thick & powerful forearms, ready to do battle with terrorists, lions and of course their wives who were rather large (and ancient) tannies who took no nonsense from them or anyone else. That was long before every second accountant caught onto the double cab craze (there were no double cabs) and the veldt was left for men who belonged there, and not the wannabes we see today. Nor were the vehicles over-equipped with all sorts of "look good and have no practical value" add-ons, sold to them by smooth talking "wild life experts" in the city. And no one towed a caravan into the veldt. In fact you were lucky to find a nice cosy spot for your sleeping bag next to the fire with your rifle next to you which brings me to another argument of epic proportions.
The 308 & 303 caliber versus 30-06...man that caused many a fist fight between us, since we would not believe the other side who were just plain wrong. It was good legal training and also excellent lessons in life, as we formed ad hoc partnerships to turn on anyone who had weird ideas like a 375 magnum. This included one fellow in particular (he came from a more pacifist family) who could not name a single caliber to support and hence declared neutrality. Yeah we soon educated him for his own good, that self-declared neutrality is not respected by all parties involved. As said, it was good legal training and he hastily chose the 308 caliber because his dad's G3 rifle was of that caliber.
I myself hold on to the 30-06 caliber as the best all-round caliber, being able to shoot from a terrorist, to a lion, to kudu with it. An elephant too, if you could get close enough and had a real death wish - I saw that once but the oom used a 485 caliber rifle which sounded like a cannon. The recoil knocked him back and the elephant front feet lifted from the ground (just an inch or two). Being a meticulous fellow he had a mate with a backup 375 magnum and then us admiring the scene from 100 yards away. *The elephant in question was wounded by what we suspected terrorists and causing much harm and danger to the locals so it had to be culled - we still have its foot which dad made into a chair. Still a sad state of affairs and we swore vengeance on the first terrorist we could find. Is not right to harm a noble elephant without reason and if he happened to attack them he was just doing his duty anyway or so the argument went.
The real sharpshooters amongst us (and there were many), used the 243 caliber and patiently explained the merits of the faster bullet against a slower but heavier bullet we supported. Personally I never believed that, and still believe a nice hollow point 38 special will do a lot more good against a criminal than a smaller 22 since most household shootouts are at a very close range. Anyway, that is a discussion you can follow in my book Mean Streets - Life in the Apartheid Police. Unlike other kids, we never played with marbles but used empty cartridge shells for a similar game since we had access to empty cartridges...marbles were for the rich kids in the city.
Then one day a fellow arrived with a 50 Browning cartridge he stole from the Army and that settled all arguments for a week until he failed to produce the rifle with which to shoot it with and was duly disqualified by popular vote. Another round of arguments soon started and may still be ongoing in the platteland (rural areas) as far as I know.
To get back to the Ford v Chev debate, my father held the opinion that the Chev is better than the Ford and had the opportunity to tell the Ford executives (no idea what they were doing there except hunting) to copy it. I remember a distinctly shocked silence from them at this advice, but they could not really argue - my father's government issued Chev never broke down, whilst the Fords did all the time on that trip. Thinking back, I believe that was more due to the lack of off-road driving ability of those long haired liberals from Ford. However, I shocked my dad to no end by supporting the only other alternative - Land Rover.
Now those Land Rovers were the Series 3 and had three gear levers...something designed to make one happy (never took that much according to my late wife). The normal black one to change gears, the red one for low range (proper low range unlike today's versions which is not low enough) and a yellow one for high range. They also had a slide window like a World War 2 Heinkel bomber and steps to get into the vehicle, unlike the Ford & Chev where you took a running jump or climbed it like a tree to get access. They also had built in recovery points and no, they seldom broke down, though all vehicles overheated, including them. Some had the Fairey overdrive in and double petrol tanks with a lever between the legs at the driver's side to switch. Somehow that made me always smile. There were no Toyota's for the Japanese invasion came later.
It was in many ways the last of the great wilderness experience...I remember standing on my dad's Chev watching herds of 3000 plus Springbok (antelope) rushing past. He told me to take a good look for that is something I will probably never see again. And I did not and so I think back of days in the sun where corruption was relatively unknown and life probably better than now. No BEE and no long haired liberals who could bother us too much. Men were men and women were women.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a practicing commercial law attorney for eight years. He also wrote several books on business, law, counter terrorism and security issues. He is a widower and lives in Bloemfontein, South Africa.