The office of the chief justice (OCJ) is “assessing” a second incident of missing court papers at the Constitutional Court after it emerged at the start of proceedings in an excise case that the judges had not seen crucial legal submissions.
The hearing, scheduled for last week Tuesday, was first delayed because of the missing papers and then postponed because there was a water outage at the court building. Chief justice Raymond Zondo said it was “important to point out” that the postponement was due to the water cut and not the missing court papers.
The papers went missing despite new checks put in place by the OCJ after a similar incident in March, when a judgment had to be recalled because it was delivered without considering the written argument of one of the parties. The argument had been filed in the court’s general office but had not reached the justices.
Such snafus over court papers are not expected to happen at the apex court, which only had 10 cases set down for hearing in its August/September term.
In the case last week, counsel for the commissioner of the South African Revenue Service (Sars), one of five legal teams involved, had filed two sets of written legal argument but it emerged at the beginning of proceedings that the justices had received only one.
The case was about whether it was constitutional for the finance minister to amend schedules to the Customs Act and the VAT Act to limit the amount of duty- and VAT-free alcohol and tobacco that foreign diplomats can buy.
The missing submissions comprised 49 pages of dense legal argument — including references to the legislative tax schemes in Australia, Canada and the UK — that the justices had no prior opportunity to read. Zondo suggested that the hearing stand down for an hour, so judges could quickly read up.
There was a further delay on reconvening because the court’s sound equipment wasn’t working.
Next, Zondo informed the parties of the water outage. He said everyone could either go home, and the court could reconvene virtually, or the case could be postponed. The case was postponed to October 20.
Alan Edelstein, attorney for one of the parties involved, Ambassador Duty Free, said there were about 15 counsel in total, five of them senior counsel, and some had flown in from Cape Town. Each party also had at least two attorneys present.
We have to modernise and electronic filings could prevent the inherent challenges with e-mail submissions
— Marelize Potgieter, head of court administration in the OCJ
“The wasted costs of all parties in total for the postponement, which may not be recoverable and may have to be borne by the parties, could amount to approximately R2m in total. At this stage, unless a different ruling is made, each party bears its own costs,” Edelstein said.
Other parties declined to comment.
After the March incident, Zondo had asked for an urgent investigation “and to look into other challenges in the registrar’s office with a view to finding a permanent resolution”.
The investigation was conducted by Marelize Potgieter, head of court administration in the OCJ. She said that, since Covid, all submissions had been filed digitally to the general office’s e-mail inbox. This was collectively run by all the registrars and registrars' clerks.
Her assessment indicated that there was a lack of proper control — a case of “too many cooks” — and she instructed that there should at all times be one clerk in charge of the e-mail account and a manual register should be kept of every e-mail received.
After the latest incident, Potgieter checked the manual register but no e-mail with the submissions was found, though counsel for the Sars commissioner had proof that the submission had been sent.
The registrar said the inbox had been searched the day before the hearing after law clerks inquired about the missing submissions.
Zondo said this was not the first time clerks had inquired about the missing submissions.
“On July 26 one of the judges’ clerks inquired from the registrar’s office whether Sars’ [second] written submission ... had been filed and was told by one officer at the registrar’s office that those written submissions had not been filed,” he said.
Sars’ instructing attorney Kaamilah Thomas said her firm had “timeously filed two sets of heads of argument ... in compliance with the directive issued by the Constitutional Court”.
Zondo said staff at the registrar’s office found the submissions on the day of the hearing, “but they said they had checked the same inbox a number of times prior to the day of the hearing and the submissions had not been found”.
He said the OCJ was investigating and it was “hoped that the investigation will reveal if there was a human or network system error on either side”.
Potgieter said she could not fault her registrars and had requested a technical analysis to check for a possible network fault. There had been intermittent network challenges as a result of fibre breaks due to construction work in the area. The OCJ was procuring a network backup solution.
An electronic filing method is being piloted in the Gauteng Division of the High Court, she said. “We have to modernise and electronic filings could prevent the inherent challenges with e-mail submissions.”
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