By making a decision a lawyer said he had never seen before in 33 years of practice, controversial Western Cape Judge President John Hlophe has been placed in the centre of a row over the delayed legal challenge against the ban on cigarette sales brought by tobacco giant British American Tobacco SA (Batsa).

Hlophe overturned an agreement to hear the matter on Tuesday last week and instead postponed it by more than a month, without giving reasons, which, according to a Sunday Times report, left the litigants fuming and threatening to take the case to another court.

They also accuse the State Attorney, representing Co-Operative Governance & Traditional Affairs Minister Nkosazana Dlamini-Zuma and President Cyril Ramaphosa, of first having agreed to schedule the matter for Tuesday before backtracking, claiming Batsa and the others introduced ‘substantially new material’ in their responding affidavits, which would take time to respond to.

E-mails between Lizette Potgieter, Registrar in the chambers of the Western Cape Judge President, and the applicants' lawyers, show all the parties agreed the matter should be heard on an urgent basis on 30 June, a date they then proposed to Hlophe.

This date was arrived at after the applicants' lawyer, Mike Evans, of Webber Wentzel, having been told by Potgieter that Hlophe wanted the lawyers to agree to a hearing date, noted that the State Attorney had agreed on the date.

However, on Thursday, Potgieter stunned the litigants when she told them Hlophe would schedule the matter before a full Bench only in six weeks' time.

Evans responded, telling Potgieter to ask Hlophe to reconsider his decision because the matter was urgent and he had allowed the state and the applicants to decide on a date, which they had done, and all papers had been filed.

The applicants later found out that the State Attorney had written to Hlophe without consulting them, agreeing the case be delayed on the basis that the litigants had included ‘substantial new matters’ in their responding affidavits, including testimony from two experts.

But the applicants insist that no new matters were introduced and everything they included was in response to what Dlamini-Zuma had raised.

Evans later wrote to his clients, telling them what happened: ‘In my 33 years of practice I have never seen a situation like this before, where the parties are given the go-ahead in urgent application to agree on a date, they do so, all the papers are filed, and two days later that decision is reversed.’

He said they had thought about transferring the application to the Gauteng High Court (Pretoria) on an urgent basis, but the State Attorney's Office did not agree.

‘This is a unique scenario which I cannot explain,’ he wrote.

Evans reportedly told the Sunday Times: ‘What prompted the Judge President, when he had said we could agree on a date, to suddenly shift the date to 4 August? The second question is, assuming the Minister needed more time to reply to our papers, why six weeks and not two weeks?’

Evans said his clients had no choice but to abide by Hlophe's decision. Three judges have been assigned to hear the matter in August.

On Friday, Lunga Mtshali, spokesperson for Dlamini-Zuma, rejected ‘misleading public comments by Batsa’ that the government had caused a delay in the matter, notes the Sunday Times.

‘The comments attributed to Batsa's spokesperson in the media to the effect that the government is the cause of the delay in the hearing are inexplicable, and are incorrect. It was the Judge President alone who decided the matter should be heard in early August. The Judge President took that decision (on Thursday) morning before the State Attorney had raised the issue of the new matter in the applicants' replying papers. The Judge President affirmed that decision (on Friday) morning after considering representations from both Batsa's attorneys and the State Attorney.’ Mtshali said in a statement.

Full Sunday Times report (subscription needed)