In calling for a de bonis propriis cost order against the lawyers who fronted Thabo Bester and Nandipha Magudumana’s failed attempt to block the Netflix documentary, senior counsel for the respondents, Thembeka Ngcukaitobi, did not mince his words: “This litigation has flouted the rules, shown discourtesy to the judge and ignored the prejudice caused to the respondents.”
A de bonis propriis cost order in South African law holds a legal representative or public official personally liable for litigation costs, rather than shifting that burden onto their client or the state entity they represent. This extraordinary and punitive remedy – literally meaning “from one’s own pocket” – is imposed only in exceptional circumstances. Courts reserve it for instances of improper, unreasonable or dishonest conduct, gross negligence or a serious dereliction of duty. Its issuance conveys the court’s strongest censure, underscoring its profound disapproval of the conduct in question.
Given the bizarre arguments advanced by the applicants’ lawyers – such as claiming it was unproven that Bester had escaped lawful custody and likening Netflix to Dutch colonisers who arrived centuries ago – it was widely expected that the court would accede to Ngcukaitobi’s call for a de bonis propriis cost order.
Furthermore, it is likely that, given the incarcerated applicants’ dire financial standing, Netflix regarded the most realistic prospect of recovering its legal costs as lying in the court holding their lawyers personally liable.
While the court allowed the highest permissible fees in favour of the defence lawyers for the legal work performed in the matter, it declined to grant Ngcukaitobi’s prayer for a de bonis propriis costs order.
Even so, it was evident that Pretoria high court judge Sulet Potterill does not suffer fools and quickly saw through the applicants’ legal teams’ flimsy, politicised litigation strategy. What stood out is the uncanny resemblance between the applicants’ legal team’s tactics and those of senior counsel Dali Mpofu – marked by theatrical bluster, habitual disregard for decorum and courtroom antics better suited to a Netflix spectacle than serious advocacy.
While the applicants' legal teams may have sighed a collective relief after escaping what seemed an inevitable financial censure, their conduct, as observed by Ngcukaitobi, undoubtedly flouted the rules, displayed discourtesy towards the judge and disregarded the prejudice inflicted on the respondents.
Nothing is lost, however. If anything, this dismal courtroom performance may well find enduring value in academia, where law professors are likely to cite it as a cautionary example in trial advocacy lessons. Future law students may study it not for its persuasive force, but as a textbook illustration of how not to conduct litigation – underscoring the importance of preparation, respect for the court and fidelity to sound legal argument.
The application itself was destined to collapse under the weight of its own contradictions. At its core, the applicants sought to gag a global broadcaster from screening a documentary rooted in events already widely ventilated in the public domain. This, despite the constitutional entrenchment of both freedom of expression and the public’s right to information – rights which our courts have consistently defended with zeal. To attempt to muzzle Netflix was not only legally unsound but also practically impossible in a digital age where content circulates across borders and platforms with breathtaking speed.
What made the spectacle even more troubling was the manner in which the applicants’ lawyers pursued the case. Their submissions betrayed a startling disregard for the court’s time and the profession’s standards. To suggest, for instance, that Bester’s escape from lawful custody was “unproven” beggared belief, especially when the very fact of his recapture has been seared into the public consciousness. The Dutch-coloniser analogy advanced against Netflix’s global reach was not only historically tone-deaf but legally irrelevant – a clumsy attempt to politicise what was essentially a straightforward matter of law.
This courtroom theatre, reminiscent of counsel more invested in sound bites than substance, risks corroding public confidence in the legal profession. Courts are not stages for political grandstanding; they are forums for sober reasoning, designed to uphold the rule of law. When officers of the court treat litigation as performance art, they diminish both their clients’ prospects and the dignity of the judiciary.
It is little wonder, then, that Ngcukaitobi pressed the court to invoke the extraordinary remedy of a de bonis propriis cost order. Such an order is never granted lightly. It signals that the court has lost patience with legal representatives who abandon professionalism and lapse into recklessness, dishonesty, or gross negligence. Even though Potterill ultimately exercised restraint in declining to grant such punitive costs against the lawyers, her handling of the matter left no doubt that she had seen through the applicants’ flimsy, politicised litigation strategy.
In the end, perhaps the most enduring legacy of this ill-fated application will be its pedagogical value. It stands as a reminder that not all courtroom dramas are noble battles for justice.
- Khaas is chairperson of Public Interest SA.
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