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[2021] ZAGPJHC 872
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First Rand Bank Limited v Madigage and Another (23569/2017) [2021] ZAGPJHC 872 (28 April 2021)
OFFICE
OF THE CHIEF JUSTICE
REPUBLIC
OF SOUTH AFRICA HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: 23569/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
DATE:
28/04/2021
In
the matter between:
FIRSTRAND
BANK LIMITED
Applicant
and
MADIGAGE,
ELIAS ASHTON
First Respondent
MADIGAGE,
LINAH MAKHAYA
Second Respondent
JUDGMENT
TERNENT AJ
1.
This matter came before me in the opposed
Motion Court and was allocated for hearing on Tuesday, 14 April 2021
at 10h00. Prior to
the commencement of the argument, I requested that
the counsel representing the applicant and the respondents (“the
first
and second respondents”) place themselves on record. Ms
Dénichaud confirmed that she represented the applicant. Ms
Hartzenberg advised me that she had recently been briefed in the
matter as Mr Francois Greeff (“Greeff”), the respondents’
counsel, who was going to argue the matter (and who had filed heads
of argument), was no longer able to do so. She advised me that
she
had been instructed to only appear on behalf of the first respondent.
I then enquired as to whether a notice of withdrawal
as the attorney
of record had been served on the second respondent and, if so,
whether she was aware of the opposed application
set down for today.
Ms Hartzenberg was unable to address these issues and the matter was
briefly adjourned for her to take instructions.
Having taken
instructions, she informed me that her instructions simply were to
represent the first respondent. I informed Ms Hartzenberg,
that she
should approach her instructing attorney and obtain an affidavit
explaining whether or not a notice of withdrawal of the
attorney of
record had been served on the second respondent, in accordance with
Rule 16(3), as the applicant’s counsel informed
me that no
notice of withdrawal had been served on the applicant and that the
impression that had been gleaned from the application
papers, heads
of argument and practice note was that both respondents were
represented.
2.
The answering affidavit recorded that the
respondents were husband and wife and their marriage was in community
of property. As
such, I called for an affidavit to be deposed to by
Greeff setting out why a notice of withdrawal had not been served and
filed
and why I should not make a costs order
de
bonis propriis
against him on the
punitive scale. It was apparent to me that the second respondent was
unrepresented and was unaware of the date
of set down of the opposed
application. I afforded Greeff an opportunity to file the affidavit
by the following morning,14 April
2021.
3.
The affidavit was delivered and the matter
proceeded on 15 April 2021.
4.
Ms Hartzenberg agreed that the notice of
set down had not been served on the second respondent. It was,
accordingly, common cause
that the application could not be dealt
with in her absence and, without her knowledge, and as a consequence
would have to be postponed
sine die
.
5.
The remaining issue was the appropriate
costs order to be made by me.
6.
On reading the affidavit that the court had
directed to be filed it became evident that:
6.1
the respondents’ attorney of record
was Ms Retha Du Plessis (“Du Plessis”) who practises
under the name and style
of Retha Du Plessis Attorneys;
6.2
in her affidavit, Du Plessis stated that
she had come on record as the attorney for the respondents (the first
and second respondents)
on 19 November 2020, after the withdrawal of
Greeff and Van Wyk Attorneys and, more particularly, Greeff;
6.3
Greeff was Du Plessis’ former
principal;
6.4
Greeff had also deposed to an affidavit
which would provide the information called for by me and she
confirmed and aligned herself
with the submissions that Greeff made
in his affidavit;
6.5
Greeff, in his affidavit, informed the
Court that he had ceased practising as an attorney at the end of
2019/beginning of 2020 and
had wound down his practice by 31 March
2020;
6.6
A notice of withdrawal as attorneys of
record had not been delivered in respect of the second respondent;
6.7
Du Plessis, the first respondent, and
Greeff were unable to confirm that they had a mandate from the second
respondent as she had
become estranged from the first respondent, and
they had lost contact with her. No explanation was furnished as to
what attempts,
if any, had been taken by either attorney to make
contact with the second respondent;
6.8
it was not disputed that a notice of
intention to oppose this application had been filed by Greeff, as the
erstwhile attorney, on
behalf of both respondents. He stated that the
first respondent had left a copy of the application at his office on
the morning
of 20
th
July 2017 and he had been telephonically advised, by the first
respondent, that he should oppose the application, which he
subsequently
did on the 21
st
of July 2017. He confirmed that because there had been a number of
previous applications between the parties it was not necessary
for
him to consult with the respondents. He had, in due course,
instructed his receptionist to arrange a consultation with both
the
respondents, to finalise the opposing affidavits, and this
consultation notably was handled by Du Plessis who was his
professional
assistant in his employ.
6.9
it was at this consultation, that Du
Plessis was advised that the relationship between the first and
second respondents had broken
down, and the second respondent had
abandoned the matrimonial home (which is the subject matter of the
application, the bank seeking
to foreclose on the home and obtain
leave to sell it in execution). It is self-evident from the affidavit
that was filed by the
first respondent that in granting the loan
finance, both the first and second respondents’ incomes were
considered and that
they are co - owners of the property and joint
bondholders;
6.10
Greeff explained that if he had withdrawn,
a default judgment could have been obtained against the second
respondent which, as the
parties were jointly and severally liable
for the debt due to the applicant, would be effective against the
first respondent, and
he would have been unable to defend the
application, as he is doing and his constitutional rights to a fair
and judicial hearing
would be infringed.
7.
The filing sheet to the opposing affidavit
in the main application, on closer reflection, makes specific
reference to the fact that
it is the first respondent’s
affidavit, and is being filed on behalf of the first respondent in
Greeff’s capacity as
his attorney of record.
8.
In the applicant’s replying affidavit
the applicant, not having been alerted to Greeffs lack of a mandate,
nor having received
a notice of withdrawal as her attorney of record,
pointedly states:
“
85.
The Second Respondent has failed to confirm the First Respondent’s
evidence. No confirmatory affidavit
has been deposed to by the Second
Respondent.”
9.
Ms Dénichaud correctly submitted
that on a reading of the opposing affidavit allegations were made for
and on behalf of the
second respondent. As such it appeared that
either the first respondent had been authorised to do so or the
second respondent had
given instructions to that effect, hence the
averment in reply.
10.
A practice note was filed by Greeff, on
behalf of both the respondents, on 18
th
November 2020.
11.
The
notice of set down, setting the opposed application down before me,
for 12
th
April 2021, was emailed to Retha Du Plessis Attorneys as the new
attorney of record for the respondents, by the applicant’s
attorney, on 4
th
March 2021, at the email addresses
mail@greeffvanwyk.co.za
and retha@rduplessis.co.za There was no response and no notification
that the second respondent was not represented by Du Plessis.
12.
Heads of argument, which also appear to
have been drafted by Greeff, were served on behalf of both
respondents and were uploaded
to CaseLines on 9 April 2021.
13.
Accordingly, at the hearing of the
application, neither the applicant nor the Court were alerted to the
fact that the second respondent
was unrepresented and had not been
notified of the notice of set down of the application.
14.
In
Advocate
S Sayed N.O. vs Road Accident Fund
[1]
,
Mahon AJ stated that:
“
[6] As
a general principle, but subject to certain exceptions, whatever the
nature of the matter in hand, a client is entitled
at any time to put
an end to the attorney and client relationship and upon his doing so
the attorney must accept the dismissal.
This is a long established
principle in England and has been followed in South Africa and
remarked upon as being implicit
in our system of administration of
justice.
[7] In the
handling of any matter which comes or is to come before any court, an
attorney must at all times act with proper
respect for that court so
as not in any way to impair its authority and dignity.
[8] An attorney
of record in litigation is no mere post box or conduit for the
receipt and dispatch of documents. He plays
a pivotal role in the
progress of litigation, the functioning of courts and the
administration of justice. The attorney’s
function is to
understand his client’s problem and, even where he knows that
counsel will be briefed, to go as far as he
reasonably can in the
time available, not only to grasp the facts but also to investigate
the legal questions involved. It
goes without saying that these
duties cannot be fulfilled where the attorney has washed his hands of
the matter and is present
in name only.
[9] It must
be remembered that an attorney owes duties, not only to his client,
but to the court and, indeed, to his opponents
and their clients.
[10] It is for
good reason, therefore, that an attorney’s role in the
representation of his client in litigation has been
regulated by the
Uniform Rules of Court.”
15.
Rule 16(4)(a) of the High Court Rules
provide:
“
(4)(a)
Where an attorney acting in any proceedings for a party ceases so to
act, he
shall
(my emphasis) forthwith deliver notice thereof to such party, the
registrar and all other parties: Provided that notice to the
party
for whom he acted may be given by registered post.
(b)
After such notice, unless the party formerly represented within 10
days after the notice,
himself notifies all other parties of a new
address for service as contemplated in subrule (2), it shall not, be
necessary to serve
any documents upon such party unless the court
otherwise orders: Provided that any of the other parties may before
receipt of the
notice of his new address for service of documents,
serve any documents upon the party who was formerly represented.
(c)
The notice to the registrar shall state the names and addresses of
the parties notified
and the date on which and the manner in which
the notice was sent to them.
(d)
The notice to the party formerly represented shall inform the said
party of the provisions
of paragraph (b).”
16.
The affidavit called for was silent about
this duty and the attorney’s non-compliance with the rule.
17.
The tenor of the affidavit was self-serving
and high handed, to my mind, and sought to deflect responsibility for
notification of
the set down to the applicant by suggesting that
because the Notice of Motion had been served on the second
respondent, the applicant
should know where she is. This, of course,
is unacceptable.
18.
Neither Du Plessis nor Greeff accepted any
responsibility for their failure to comply with Rule 16(4) and their
ethical duty to
the second respondent. Their failure to act
reasonably and timeously, knowing full well that their mandate was in
question, was
the sole cause of the postponement of the application,
and the wasted costs which had been incurred by the applicant, so too
the
inconvenience caused to this Court which was prepared to hear the
opposed application. Notably, no tender was made in the affidavit
to
pay the wasted costs.
19.
Glaringly, as stated above, not one letter
or allegation was made by Du Plessis or Greeff that they had made any
effort to contact
the second respondent. It became clear that they
had simply disregarded her rights, and their duty to her, the
applicants and this
Court.
20.
Ms Hartzenberg, at my request, took an
instruction as to whether a tender would now be made in respect of
the wasted costs. Having
done so, I was informed that Du Plessis
and/or her firm tendered payment of the wasted costs to the
applicant,
de bonis propriis
on the party party scale.
21.
Ms Dénichaud accepted the tender
conditionally in that she was instructed to persist in seeking that
the wasted costs be
paid on a punitive scale. In addition, she
submitted that Greeff who, also during his practise as an attorney,
materially failed
to comply with Rule 16(4) should be held jointly
and severally liable together with Du Plessis for these wasted costs.
22.
In
seeking a punitive costs order, Ms Dénichaud highlighted that
the manner in which the attorneys had dealt with the representation
of the second respondent suggested an unacceptable indifference as to
the consequences. Materially, Greeff
[2]
had stated that he did not file a notice of withdrawal terminating
his representation of the second respondent, because he sought
to
protect the first respondent’s rights, as stated above. The
argument for the applicant emphasised that, in so doing, he
had acted
unethically and deceptively, as he clearly had no mandate to continue
acting for the second respondent and yet held out
that he did so, a
position which was compounded by the fact that Du Plessis continued
to hold out that she too acted for the second
respondent.
23.
It is clear that an attorney can only
act on instructions from his/her client.
24.
In
the matter of
Kay-Pee
Ntila Attorneys v Minister of Safety and Security
[3]
,
a notice of withdrawal had been filed by the applicants who were the
attorneys firm and the attorney respectively, yet they had
not
delivered the notice of withdrawal to their client for which they
were penalised with a costs order. They sought to rescind
an order of
costs that had been granted against them
de
bonis propriis
,
on a punitive scale and in their absence.
25.
It is apparent from the judgment that
although they filed a notice of withdrawal as attorneys of record
they only faxed the notice
to the opposing attorneys and filed it at
the Registrar’s office, without having the notice delivered to
their client. The
issue was that the notice failed in a number of
respects to comply with Rule 16(4) of the Uniform Rules of Court.
26.
Kemp AJ stated:
“
9.
The fact that applicants did not give notice to Nodu
(their
client)
deprived
him of the right to elect whether or not to exercise any of the
rights provided for in sub rule (b), as a result of which
he may well
have been materially prejudiced.”
[4]
27.
The
judgment further made reference to
Transorient
Freight Transporters Corporation v Eurocargo Co-Ordinators (Pty) Ltd
,
a
judgment of Fleming J,
[5]
which
I repeat here:
“
Failure
to comply with the very explicit requirements of a notice of
withdrawal to the Registrar may then, on the lines which I
have
indicated, render an attorney liable to pay some compensation to the
opposite party. The position of an attorney clearly creates
obligations not only towards his own client but also towards the
Court and to some extent to the opposite party. However, the
interests to be guarded over by the Courts cannot be made dependent
upon the degree of activity of individual parties in respect
of
claims for compensation. It may well become appropriate mero motu to
order an attorney whose failure to comply with Rule 16(4)
causes
costs of additional service or postponements, to pay such costs de
bonis propriis.”
28.
Although there is no specific rule of
practice in this division, of interest are the rules in the Eastern
Cape High Court, Grahamstown,
which practice provides some
instruction. Rule 7 of that division’s Rules of Practice
provide that if an attorney withdraws
where a date of a hearing has
been allocated his notice of withdrawal should actually state
“
whether and in what manner the
client has been informed of the date of hearing”
and
furthermore, as I requested here, that in circumstances of a late
withdrawal that an affidavit be delivered to explain and provide
a
“
satisfactory”
explanation as to why the wasted costs occasioned by the late
withdrawal
de bonis propriis
should not be paid by the attorney
.
29.
I am inclined to agree with Ms Dénichaud
that the conduct displayed by Greeff and, to which Du Plessis aligns
herself, and
perpetuated, is unbecoming and unprofessional for two
attorneys of this division.
30.
Greeff and Du Plessis, knowing full well
that they had no instructions from the second respondent, and making
no effort to clarify
that this was so, continued to represent that
they were her attorneys of record over a period of many months, which
was the direct
result of the postponement of this application and the
consequent wasting of costs and the Court’s time. The
explanation
for their failure to do so materially exposes the
misrepresentation and is not excusable or satisfactory. Their ethical
obligations
are paramount.
31.
As a consequence, I have no hesitation in
finding that Du Plessis and Greeff, both attorneys of this division,
albeit that Mr Greeff
is a non-practising attorney, have conducted
themselves in a dishonest and unprofessional manner and should be
penalised with a
punitive costs order.
32.
In the circumstances, I make an order in
the following terms:
(1)
The application is postponed
sine die
.
(2)
Retha Du Plessis Attorneys shall deliver a notice of withdrawal as
the second respondent’s attorneys
of record, in compliance with
Rule 16(4) of the High Court Rules, within 5 (five) days of the date
of this order.
(3)
The applicant’s wasted costs occasioned by this postponement
shall be paid
de bonis propriis
by Retha Du Plessis, who is
practising under the name and style of Retha Du Plessis Attorneys and
Francois Greeff, the first respondent’s
erstwhile attorney of
record, jointly and severally, the one paying the other to be
absolved on the attorney client scale.
P V TERNENT
ACTING
JUDGE OF THE HIGH COURT
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
DATE
OF HEARING: 15 April
2021
DATE
OF JUDGMENT: 28 April 2021 (handed down
electronically, uploaded to Caselines and emailed to the parties)
APPEARANCES
Applicant’s
Counsel:
Ms C Dénichaud
Instructed
by:
Glover Kannieappan Incorporated
Mr L Kannieappan
First
Respondent’s Counsel: Ms I
Hartzenberg
Instructed
by:
Retha Du Plessis Attorneys
Ms Retha Du Plessis
[1]
Sayad
N.O. v RAF and others (50887/18;38403/17;33821/17;35970/18;
49128/18;23116/14;447/160 ZAGPPHC 76 (4 March 2021)
[2]
Paragraph
3 of Mr Greef’s affidavit
[3]
2012
JDR 0728 (ECG)
[4]
Kay-Pee
Ntila Attorneys v Minister of Safety and Security
(
supra
)
at para 9, page 4
[5]
1984
(3) SA 542
(W) at page 546A-C