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[2010] ZAGPPHC 556
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Law Society of the Northern Provinces v Dykes and Others (32233/2008 , 77720/09) [2010] ZAGPPHC 556 (12 February 2010)
REPUBLIC
OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: 32233/2008
77720/09
DATE:
12 FEBRUARY 2010
NOT
REPORTABLE
NO
OF INTEREST TO OTHER JUDGES
THE
LAW SOCIETY OF THE NORTHERN PROVINCES
(Incorporated
as the Law Society of the
Transvaal)
..............................................................................
Applicant
and
PETER
ARTHUR
DYKES
........................................................................................................
First
Respondent
CHERYL
RAMSAMY
..........................................................................................................
Second
Respondent
PHASUDI
DOCTOR
SEGOGOBA
.........................................................................................
Third
Respondent
JOHAN
VAN
HEERDEN
......................................................................................................
Fourth
Respondent
DYKES
VAN HEERDEN
INC
.................................................................................................
Fifth
Respondent
JUDGMENT
VICTOR.
J
:
INTRODUCTION
[1]
On 14 July 2008 the applicant launched an application for the
striking off of the respondents from the roll of attorneys as
defined
in the Attorney's Act No 53 of 1979 (the Act).
[2]
The application before court today relates solely to the condonation
application by the respondents for the late filing of the
answering
affidavits and the costs thereof. The applicant opposes the late
filing and seeks an order for costs.
RELEVANT
BACKGROUND FACTS
[3]
Some 6 months after the launch of the application, the applicant in
December 2008 filed a further supplementary affidavit. This
made the
papers voluminous. Well after the launch of the application, the
applicant attended to a full forensic investigation into
the
respondents’ affairs and the report of Mr Swart was only
forthcoming in February 2009.
[4]
Throughout, the respondents attempted to meet with the applicant to
try and resolve matters to no avail. They were only advised
on 23
December 2008 on a formal basis that the applicant was not prepared
to meet with them. The applicant did not hold a full
enquiry thereby
giving the respondents an opportunity to explain their case. The
respondents justifiably felt aggrieved by this
refusal.
[5]
Finally the then President of the Law Society, Mr Mnisi, was prepared
to meet with them and this meeting took place on 16 January
2009. He
allowed the respondents to make written representations which they
did on 12 March 2009.
[6]
The respondents took the view that there would be no need to file
answering affidavits whilst these representations were ongoing.
They
were represented by Attorneys Webber Wentzel and clearly the decision
not to file answering affidavits at that stage was not
taken lightly.
[7]
On 11 May 2009 the respondents advised the applicant that they would
bring an application to stay the striking off proceedings.
[8]
By 27 July 2009 the applicant indicated that was still obtaining
instructions as to whether it would be prepared to stay the
application for the striking off whilst the matter was being dealt
with to the Competition Commission. In August 2008 the respondents
referred the subject matter of the applicant’s complaint
against them to the Competition Commission.
[9]
The respondents took advice from Mr Mervin Dorasamay, the Senior
Legal Adviser, of the Competition Commission. On 31 July 2009
advised
them that in terms of section 65(2) of the Competition Act the High
Court was not entitled to consider the matter pending
the outcome of
the complaint.
[10]
By 31 August 2009 the applicant advised that it would not stay the
proceedings until the investigation was completed before
the
Competition Commission.
[11]
The respondents still hesitated in filing answering affidavits
presumably hoping for resolution by virtue of the intervention
of the
Competition Commission. On 1 September 2009 the respondents had
contact with the Competition Commission to try and expedite
matters.
It soon became clear that the matter before the Competition
Commission would take time.
[12]
It is noteworthy that the respondents were represented by attorneys
Webber Wentzel and by senior counsel. The decision not
to file
answering affidavits even at this stage could not have been taken on
a frivolous basis. In addition some of the very transgressions
which
the respondents were charged with were being challenged by the Law
Societies of South Africa (LSSA) before the Competition
Commission.
[14]
What is clear however that by 31 August 2009 the applicant advised
the respondents that it was not prepared to place the matter
in
abeyance and that their affidavits had to be filed.
[13]
Despite this demand by the applicant the respondents took the view
that notwithstanding the attitude of the applicant towards
the
Competition Commission investigation, because there were no
allegations of theft, fraud and the misappropriation of money,
the
public interest was not being prejudiced, so they could pin their
hopes on an application to the High Court based on section
65(2) of
the Competition Act i.e to stay the striking off proceedings.
[14]
Various correspondence was exchanged but it was quite clear by 3
September 2009 that the stay application had to be launched
pending
the outcome of the Commissioner’s decision.
[15]
The respondents continued to address correspondence to the applicant
and on 29 September 2009 again requested a stay of the
application
proceedings in order to avoid unnecessary costs. On 8 October 2009
the Competition Commission indicated that a letter
would be addressed
to the Judge President of this court regarding the stay of
proceedings.
[16]
The applicant continued to refuse that the striking off application
be stayed.
[17]
The application for a stay of proceedings was launched and enrolled
for 3 November 2009. The applicant filed an answering affidavit
to
the stay application and the respondents replied. At no stage did the
respondents file their answering affidavits in the striking
off
application.
[18]
When the matter came before court on 3 November 2009 the court found
that the stay application and the striking off application
had to be
heard together.
[19]
A further incident occurred to delay the filing of answering
affidavits. On 16 November 2009 the applicant wrote to the
respondents’
attorney advising that the applicant objected to
the fact that Attorneys Webber Wentzel represented the respondents in
this matter.
Because of facts not pertinent to the adjudication of
this condonation application, the applicant took the decision that
representation
of the respondents by Attorneys Webber Wentzel created
a conflict of interests. No reasons were given. The very next day the
respondents
requested the reason for this stance. No substantive
explanation has yet been given by the applicant.
[20]
On 23 November 2009 Webber Wentzel sent a letter to the applicant and
took the view that they would continue representing the
respondents
and also mentioned that the drafting of the answering affidavits
would be delayed. Ultimately Webber Wentzel agreed
to withdraw as
attorneys of record.
[21]
Clearly the applicant's stance on Webber Wentzel representing the
respondents caused some delay. The respondents expected that
their
affidavits would be delivered by 27 November 2009.
[22]
The respondents took the view that the applicant had contributed to
the delay by the last minute objection against Webber Wentzel
representing them. This also meant they would not have the benefit of
senior counsel to assist in settling their answering affidavits.
[23]
In order to prepare the answering affidavits it was necessary to
trace a former member of staff. This took time. By 27 November
2009
it was clear that the answering affidavits would not be ready and a
letter was sent advising the applicant of this. The respondents
stated that the answering affidavits and condonation application
would be served by 30 November 2009. This deadline was not met
by the
respondents. The documents were filed in the week of the hearing of 3
December 2010
EVALUATION
[24]
The question to be determined is whether condonation should be
granted for the late filing of the answering affidavits for
the
striking off application. It is manifest that failure to condone the
late filing of the answering affidavits to the striking
off
application would have dire consequences for the respondents. The
material facts relating to the condonation application have
been set
out in some detail above. In Byron v Duke Inc
1
have been summarised.
"the principles
governing condonation applications and the factors which weigh with
this Court are well-known and have been
often restated. The main
principles are succinctly formulated in Federated Employers Fire &
General Insurance Co Ltd
and Another v McKenzie
1969 (3) SA 360
(A)
at 362F - H as follows:
'(T)he factors usually
weighed by the Court include the degree of non-compliance, the
explanation therefor, the importance of the
case, the prospects of
success, the respondent's interest in the finality of his judgment,
the convenience of the Court and the
avoidance of unnecessary delay
in the administration of justice"
[25]
The degree of non compliance by the respondents needs to be assessed
as from 31 August 2009. It is clear that the respondents
were tardy
in preparing their answering affidavits. They must have hoped that
circumstances would overtake the necessity for filing
answering
affidavits in the striking off application. The respondents are
attorneys and should have reacted to the applicant’s
refusal to
grant further indulgences for the filing of answering affidavits.
[26]
On the other hand the respondents were confident that the referral to
the Competition Commission would indeed result in their
vindication.
The support of the issues before the Competition Commission was
widespread, throughout the legal profession. It is
not as if the
respondents were on a frolic of their own and referred the matter for
the purpose of delay.
[27]
The respondents were also represented by very senior practitioners in
the attorney’s profession. The respondents did
not sit back and
do nothing. They had a meeting with the Senior Legal Adviser of the
Competition Commission and also had subsequent
meetings. The
respondents took steps to commence drafting the stay application and
finally served and filed same when it became
clear to them that they
had no alternative.
[28]
The issues are of great importance to the respondents. Some of the
respondents are young practitioners who did not introduce
the
practices complained of. The respondents took active steps to
progress their defence in the matter. This of itself is an important
factor to grant condonation.
[29]
A confounding factor was introduced by the applicant at a late stage.
The applicant forced the withdrawal of Attorneys Webber
Wentzel at a
very late stage and this contributed to delay. The matter had already
been placed on the roll on 3 November 2009 and
it was a mere seven
days prior to the hearing of the application that the applicant
advised finally that it would not allow Webber
Wentzel to represent
the respondents. This is manifestly unfair. The respondents are
entitled to a fair legal process and this
is a further ground for the
granting of the condonation.
[30]
I am satisfied that the application for condonation should be
granted.
COSTS
OF CONDONATION
[31]
The question of costs requires analysis. Mr Labuschagne SC on behalf
of the applicant submitted that these respondents had
since 31 August
2009 failed to file their answering affidavits. As officers of the
court they should have known better. It did
not behove them to simply
sit back and rely on
section 65(2)
of the
Competition Act No 89 of
1998
. Furthermore it was not proper to await the outcome of a stay
application as a basis upon which not to file answering affidavits
in
the striking off application. The applicant is a statutory body which
acts in the interests of the public as well as the legal
profession.
The court ultimately has a duty to facilitate the applicant’s
role in this important task. This litigation is
sui generis.
[32]
The applicant has a duty to the entire legal profession to ensure
that its rules are adhered to. Timeous filing of affidavits
answering
the allegations justifying the launch of a striking off application
is essential for the proper administration of its
affairs. Ultimately
the respondents are seeking an indulgence and the applicant was
entitled to oppose this application and is
therefore entitled to
costs of the opposed hearing of 3 December 2009.
[33]
Once a bill of costs is taxed it is payable immediately. I take into
account that the respondents had to incur the additional
costs of
briefing a new team of legal representatives at very short notice.
The respondents will have to bear the costs of several
further rounds
of litigation to test very important issues for the legal profession
as a whole.
[35]
In doing justice to the unique set of circumstances as set out above
I take the view that the costs must be paid once the litigation
has
been completed.
The
order that I would make is the following:
1. The respondents are
granted condonation for the late filing of the answering affidavits
in the striking off application.
2. The costs associated
with the condonation application as well as the hearing of 3 December
2009 are to be paid by the respondents.
The
said costs are to be taxed and paid upon the completion of the
striking off application including any appeal processes
M
VICTOR
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered:
SAPIRE
AJ
ACTING
JUDGE OF THE HIGH COURT
1
2002
(5) SA 483
(SCA)