(This scene follows up on the Fruits case against Zelda (where the Vice scene left off). A recap: Zelda has lost the case against Fruits. Then her attorney Jay advised her to appeal, which she was reluctant to do due to the mounting legal fees and heavy emotional toll it has been taking on her, but in the end she reluctantly agrees.)
I feel sick to my stomach when Jay phones me with the news. It feels all too much like déjà vu. We have lost our appeal against Fruits in the High Court of South Africa’s Western Cape Division. Now I have to, once again, cough up not only my own legal fees, but theirs too. I double over, clutching my stomach with one hand, relieved that Jay can’t see me through the phone.
As if he can sense my silent despair, he says: “But, Mrs. Costa, there is a silver lining.”
“There is?” I ask. “Please don’t keep me in suspense any longer.”
“One of the three judges ruled in our favour,” he says.
I feel a momentary frisson of excitement and relief that someone, at last, grasps the matter and agrees with us, for a change. “But that’s still just a minority ruling, which means I still lose.”
“True,” he says. “But this dear judge is so convinced that we are right, that he took the time and effort upon himself to submit a written verdict.”
This makes me sit up again and perk up a bit. Until he says: “This will make our case stronger when we appeal to the Supreme Court of Appellate.”
I sigh, my breath sounding shaky even to me. I’m so fucking tired of this fight that I didn’t even start. I can’t believe that it has been dragging on for so long and that there is seemingly no end in sight. I think of the mountain legal fees and the fact that this latest verdict is now holding me accountable for their court costs again as well. When I think how I’m already hanging on by my fingertips to try and stay afloat financially, I want to curl up under my duvet and just cry and cry and cry.
But I share none of this with Jay. Instead, I say: “Off to Bloemfontein and to the Supreme Court of Appellate with you then.”
He laughs. “Wow, so I don’t even have to talk you into it this time!” Then he turns serious. “Look, I know you’re probably beyond fed up about all of this. I am too. But so far, this has been such a travesty of justice on something that was supposed to have been a clear cut case.”
“Do you really still think that we stand a chance of winning it at the Appellate Court?” I ask him. “Because I am rapidly losing my faith, not only in the South African justice system as a whole, but in our judges! I can’t believe how breathlessly ignorant they have been with regards to this case.”
“While I agree with you,” Jay replies. “I’m truly heartened by the fact that we finally had one judge in our corner. Also that he took the unusual step and the time to write up his verdict, saying why he disagrees with his two colleagues and why he agrees with us. That will give us a strong case at Appellate.”
“Okay,” I say. “I trust you.”
“I’ll e-mail you his verdict to cheer you up,” he says.
I open the e-mail as soon as my phone pings its arrival in my inbox.
I skim over the first part. The ruling against us by the aptly named Judge Savage (you can’t make this stuff up if you tried!) and her colleague, Judge Yekiso. It makes me too angry to read through it, so I scroll through the PDF until I find Judge Veldhuizen’s statement.
“I have read the judgement of Savage J but, unfortunately, do not agree with her conclusion. These are my reasons. Her judgement contains the history of the matter and I do not find it necessary to repeat it.
“It is settled law that trustees of a trust must act jointly unless the trust deed provides otherwise.” I pump my fist in the air.
“The applicants relied on a resolution dated 8 March 2007 as authority for Mr. Costa to have entered into the PLA and SMA agreements. This resolution, which was signed by all three of the trustees for the time being, reads:
‘… Alberto Costa in his capacity as trustee of the Klein Botrivier Trust IT 852/2007 is hereby appointed and authorized to sign the necessary documentation.’
“The trial judge found that this resolution constituted actual authority for Mr. Costa to enter into the agreements. I do not agree. Although trustees may appoint someone to act on its behalf, it is clear to me that the resolution relied upon by the respondents could never have been brought into existence for the purpose of empowering Mr. Costa to conclude all and any agreements on behalf of the trust and more, especially the entering into the PLA and SMA agreements. It is significant that these agreements were only entered into more than two years after the resolution had been taken. This fortifies my view that the resolution was given for a different purpose and was not to serve as a general mandate to enter into the agreements on behalf of the trust. The plain language of the resolution, in any event, simply authorizes Mr. Costa to sign ‘the necessary documentation’. It refers to specific documentation and not all or any documentation. It is not a general authority empowering him to conclude agreements on behalf of the trust.”
I want to weep that there is a judge out there who have at last grasped all of this and states it so plainly. After dabbing the tears from my eyes, I read on:
“One must distinguish between the day-to-day running of farming operations and the entering into of agreements on behalf of the trust. Steenkamp states that Mr. Costa attended to ‘financial matters, contracts, etc.’ but does not give any facts to support this statement. In this matter, we know that Mr. Costa leased the farm from the trust and it is therefor not surprising that he would have attended to the day-to-day management of the farming operations. Without more information that does not justify the inference that he ha authority to enter into all and any agreements on behalf of the trust. This much the respondents must have realized. Why else would they insist on a written resolution authorizing Mr. Costa to enter into the PLA and SMA agreements?”
I suddenly feel despondent all over again, because one competent judge wasn’t enough to swing this case into our favour. I think about how needlessly complicated this bloody case has made my life and wonder, not for the first time, what on earth Alberto would have said about all of this.
Then again, we all know that none of this would have even happened had he still been alive.
- : Creative Non-Fiction
- : Some swearing
- : These scenes are not written in chronological order