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[2021] ZAKZDHC 30
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Naidoo v KwaZulu-Natal Law Society and Another (D9060/2018D) [2021] ZAKZDHC 30 (31 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: D9060/2018D
In
the matter between:
Govindsamy
Venkatasami
Naidoo Applicant
and
The
KwaZulu-Natal Law
Society First
Respondent
Sivi
Pather Second
Respondent
JUDGMENT
Lopes
J
[1]
This
is a review application is brought by Govindsamy Venkatasami Naidoo
(‘Mr Naidoo’) against the KwaZulu-Natal Law
Society (‘the
Law Society’). He lodged a complaint against his erstwhile
attorney, the second respondent, Mr Sivi Pather.
The allegations were
considered by the Complaints Committee (‘the committee’)
of the Law Society, and dismissed. Mr
Naidoo seeks to review that
decision and have the matter returned to the Law Society for
reconsideration.
[2]
In
the original notice of motion which was issued on the 6
th
August 2018, the principal relief sought by Mr Naidoo was an order
compelling the Law Society to provide him with what he described
as
‘comprehensive reply as in addressing all of the elements and
aspects of my evidence and complaint as tabulated in my
submissions’.
In the alternative, he sought an order that this Court review the
findings of the committee, and compel the
Law Society to rehear the
complaint afresh by a different committee. He further sought to be
allowed to continue making submissions
in person, which submissions
were initiated with Ms Pearl Mfusi ‘the Director of the Law
Society’ or for further relief
to be determined by this Court.
[3]
In
Mr Naidoo’s heads of argument, the relief sought is that his
complaint be remitted to the Law Society for reconsideration.
In a
joint statement of issues delivered by Mr Naidoo and the Law Society,
he contends that the issue to be decided is whether
the committee’s
decision to dismiss his complaint against Mr Pather falls to be
reviewed and set aside because:
(a)
irrelevant
considerations or evidence in the form of the findings of the learned
magistrate in the Regional Civil Court in Durban
in an application to
stay his prosecution were taken into account; and/or
(b)
relevant
considerations and/or evidence, in particular two letters written by
Mr Pather on the 3
rd
and 30
th
March
2009 were ignored or not properly dealt with by the committee.
[4] Mr
G J M Randles
, who
appeared for Mr Naidoo, clarified that Mr Naidoo sought only the
review of the committee’s decision, and in the alternative,
that I should make an order striking Mr Pather from the roll of
attorneys.
[5] The
history of this drawn-out and unfortunate matter may be summarised as
follows:
(a)
Between April, 2005 and February, 2006, Mr Naidoo was employed as the
Managing Director of Afripath Medical
and Research Laboratory (Pty)
Ltd (‘Afripath’).
(b) In
February, 2006 Afripath was placed into provisional liquidation.
(c)
During May, 2006, two creditors of Afripath, the Ithala Development
Finance Corporation Limited (‘Ithala’)
and the Industrial
Development Corporation of South Africa (‘the IDC’)
commenced investigations into allegedly fraudulent
conduct by Mr
Naidoo in the operations of Afripath.
(d) On
the 6
th
June,
2006, Ithala caused a summons to be issued against Mr Naidoo for
payment of the sum of R1 495 287.84. The cause
of action
was an alleged fraud, committed by Mr Naidoo.
(e)
During August 2006 the liquidators of Afripath commenced an enquiry
into the affairs of the company, in terms
of s 417 of the Companies
Act, 1973. Mr Naidoo was required to attend the s 417 investigation,
and he did so and was legally represented.
(f)
During April of 2007, Mr Pather, as the erstwhile legal
representative of Mr Naidoo, received a summons
and subpoena to
attend the s 417 Enquiry. He appeared at the enquiry and handed over
a number of documents, apparently to Mr Rikhotso,
the attorney who
represented the IDC. These documents are contained in the papers
before me. Mr Pather contends that he handed
over no more than copies
of the front cover of various ‘closed matters’ dealt with
by him on behalf of Mr Naidoo, together
with a copy of the inside of
each of those covers containing fees charged by Mr Pather, and
payments made to Mr Pather by Mr Naidoo
in each matter. Apparently,
some payments were made to Mr Pather directly from Afripath.
(g) Mr
Naidoo and Mr Pather were related by marriage, Mr Naidoo having
married Mr Pather’s first cousin.
During Mr Naidoo’s
tenure as Managing Director of Afripath, Mr Pather represented him in
various matters, apparently concerning
both his business and personal
life. One of those matters was the conduct of Mr Naidoo as Managing
Director of Afripath.
(h) The
relationship between Mr Naidoo and Mr Pather soured, to the extent
that in 2006 Mr Pather’s mandate
to represent Mr Naidoo was
terminated. It appears from the voluminous record of the proceedings
in this matter that this was because
a fee dispute arose between
them, with Mr Naidoo refusing to pay Mr Pather’s fees. The
matter was eventually resolved when
Mr Pather decided to write off a
portion of the fees in order to maintain peace in the family
environment. This was in approximately
December of 2006.
(i)
Mr Naidoo maintains that he and Mr Pather parted company because Mr
Pather wished to join the attorneys’
panel of the IDC, who were
intent on proceeding against him. Mr Pather’s firm did join the
attorneys’ panel of the
IDC, but only two years’ later,
and after a protracted and difficult application process. The
allegations regarding Mr Pather’s
alleged motive were never
established by Mr Naidoo.
(j)
At this stage, criminal investigations were continuing into the
conduct of Mr Naidoo during his tenure
at Afripath.
(k)
After parting ways with Mr Pather, Mr Naidoo then instructed Mr Anil
Rabinath, a legal practitioner in this
division. Mr Pather handed
over to Mr Rabinath all the ‘live matters’ concerning Mr
Naidoo, and which were in his possession
at the time his mandate was
terminated. In addition to those files, Mr Pather was in possession
of a number of ‘closed files’
– a reference to
matters which had been finalised by Mr Pather and which would not, in
the normal cause, have been sent to
Mr Naidoo’s new attorney.
(l)
On the 7
th
April
2008 Mr Naidoo was criminally charged with fraud, the complainant
being Ithala. On the 17
th
December 2008, he was again criminally charged with fraud, and the
IDC was the complainant.
(m) The
Ithala criminal trial was set down for hearing in the early part of
March, 2009. At the outset of the criminal
trial, Mr Naidoo sought an
adjournment on the basis that Mr Pather still had in his possession a
number of documents which were
important to the conduct of Mr
Naidoo’s defence.
(n)
Between March of 2009 and March 2014 both criminal trials were
repeatedly adjourned. There were two main reasons
for this:
(i)
Mr
Naidoo adamantly refused to accept Mr Pather’s statement that
he had no further documents belonging to Mr Naidoo in his
possession,
and that he had revealed privileged information in the documents
which Mr Pather handed over at the s 417 Enquiry.
(ii)
A
fee dispute had arisen between Mr Naidoo and his then (third)
attorney Mr Vengtas, which affected the legal representation of
Mr
Naidoo.
(o) It
was alleged in the record that Mr Naidoo had also fallen-out with his
erstwhile attorney, Mr Rabinath over
the non-payment of his fees, and
the same was to happen with Mr Vengtas and his later attorney, Mr van
der Merwe.
(p) On
the 13
th
March
2014, Mr Naidoo brought an application for a permanent stay of
proceedings in the Ithala criminal prosecution. On the 3
rd
July 2014, Mr Naidoo brought another application, this time in the
IDC matter. No relief was set out in the notice of motion, which
was
prefixed to his affidavit. His affidavit contained prayers for the
following relief:
(i)
Ordering the prosecution to furnish him forthwith with a list
itemizing each and every document of his
handed to Mr Rikhotso.
(ii)
Ordering the prosecution to render assistance for the recovery of his
documents from the possession of his
erstwhile attorneys Messrs
Vengtas and Rabinath.
(iii)
Ordering the prosecution to preserve each and every document of his,
which was handed to Messrs Rikhotso
and Vengtas.
(iv) Ordering
Mr Vengtas to produce his files and documents.
(v)
Ordering Mr Rikhotso to produce all the files and documents handed to
him by Mr Pather.
(q)
Despite the headings to the notice of motion and his affidavit, no
relief was sought in either document for
a stay of prosecution. In
his affidavit Mr Naidoo states that in the event that his documents
are lost, he would be ‘constrained’
to make an
application for a permanent stay of the IDC prosecution. Answering
affidavits were delivered by Mr Rikhotso, who denied
having ever
received from Mr Pather, the documents which Mr Naidoo alleges he
did. He annexes to his affidavit a letter sent to
him on the 10
th
July 2007, attached to which were the documents he received from Mr
Pather. They are, not surprisingly, the same documents which
Mr
Pather alleges that he gave to Mr Rikhotso.
(r)
On the 17
th
October 2014 the learned magistrate ordered that Mr Naidoo’s
legal representatives could cross-examine Mr Pather. The matter
dragged on in a desultory fashion until the 10
th
April 2017. The learned magistrate, exhibiting the patience of Job,
listened to tedious and repeated arguments about the trial
prejudice
suffered by Mr Naidoo, and various excuses for adjourning the matter
from time to time. She eventually ruled that the
application for a
permanent stay of prosecution be dismissed. During these proceedings,
Mr Pather endured cross-examination on
various days from the 21
st
November 2014 to the 24
th
February 2016, covering 171 pages of the record.
(s) On
the 10
th
July 2017
Mr Naidoo then lodged a complaint with the Law Society against Mr
Pather. Affidavits were exchanged in due course, and
during December
2017 Mr Naidoo’s complaint was dismissed by the committee.
(t)
Mr Naidoo was, nonetheless, dissatisfied, because no reasons had been
given by the committee. He had
been merely informed by email that the
committee had decided that Mr Pather had not acted unprofessionally.
Pursuant to further
complainants by Mr Naidoo, the matter was
referred to the Executive Committee of the Law Society, which
resolved that the committee
should draft a comprehensive report
dealing with the dismissal of Mr Naidoo’s complaint.
(u) On
the 10
th
May 2018
a document entitled ‘Report from members of the ad hoc
complaints committee’ (‘the report’) was
delivered
by the Law Society members who presided. They were Mr C T James and
Mr O D Hart, both highly experienced and long-standing
legal
practitioners in Pietermaritzburg.
(v) Mr
Naidoo was still not satisfied that the report was ‘comprehensive’.
Correspondence was exchanged
between Mr Naidoo and the Law Society,
with the latter eventually suggesting on the 19
th
December 2017 that should Mr Naidoo still be dissatisfied, he should
approach the High Court to review or appeal the decision of
the
Committee. This, of course, was not an indication that the Law
Society agreed with his complaint, as Mr Naidoo, somewhat strangely,
later averred. It was rather an indication that the law Society could
not and would not take any further steps to continue the
complaint.
The Law Society clearly felt that it had done its duty.
(w) On the
10
th
May 2018 the
applicant then instituted this application.
[6] The
record in this matter extends to over 900 pages, containing as it
does the record of the unfortunate application
in the Regional
Magistrates’ Court, and is replete with duplications of various
documents. Ultimately, the relief sought
before me by Mr Naidoo is to
have his complaint remitted to the Law Society for reconsideration
(the alternative relief requested
of striking Mr Pather off the roll
of attorneys is not within my jurisdictional powers
See
:
Practice Manual of the Kwa-Zulu Natal Division – practice
directive 24). Mr
Randles
accepted that in order for Mr Naidoo to succeed in the review, I must
be satisfied that the complaint of Mr Naidoo meets the requirements
set out in sub-sec 6(2) of the Promotion of Administrative Justice
Act, 2000, (PAJA) which provides;
‘
(2) A
court or tribunal has the power to judicially review an
administrative action if –
(a)
The
administrator who took it –
(i)
was
not authorised to do so by the empowering provision;
(ii)
acted
under a delegation of power which was not authorised by the
empowering provision;
(iii)
was
biased or reasonably suspected of bias;
(b)
a
mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c)
the
action was procedurally unfair;
(d)
the
action was materially influenced by an error of law;
(e)
the
action was taken –
(i)
for
a reason not authorised by the empowering provision;
(ii)
for
an ulterior purpose or motive;
(iii)
because
irrelevant considerations were taken into account or relevant
considerations were not considered;
(iv)
because
of the unauthorised or unwarranted dictates of another person or
body;
(v)
in
bad faith; or
(vi)
arbitrarily
or capriciously;
(f)
the
action itself –
(i)
contravenes
a law or is not authorised by the empowering provision; or
(ii)
is
not rationally connected to –
(aa)
the purpose for which it was taken;
(bb)
the
purpose of the empowering provision;
(cc)
the
information before the administrator; or
(dd)
the reasons given for it by the administrator;
(g)
the
action concerned consists of a failure to take a decision;
(h)
the
exercise of the power or the performance of the function authorised
by the empowering provision, in pursuance of which the administrative
action was purportedly taken, is so unreasonable that no reasonable
person could have so exercised the power or performed the function;
or
(i)
the
action is otherwise unconstitutional or unlawful.’
[7] Mr
Randles
emphasized
that Mr Naidoo’s case was based only on the provisions of
sub-sec 6(2)(e)(iii) of PAJA. A large part of the Mr
Naidoo’s
complaint, as set out in his papers, was that the committee never
provided him with what he referred to as a ‘comprehensive’
reply to his allegations. This is contained in both his affidavit and
in some of the annexures thereto. Mr
Randles
recorded that Mr Naidoo no longer relied upon the following:
(a)
That the report of the committee was not comprehensive.
(b)
That there was no merit in the committee claiming that it was
functus
officio.
(c)
That the committee or the Law Society exercised any bias in arriving
at its decision.
Mr
Randles
also confirmed
that Mr Naidoo accepts that no documents fell into the hands of the
prosecuting authorities as a result of any breach
of ethics by Mr
Pather.
[8] Mr
Randles
submitted that
the committee relied too heavily upon the decision of the learned
regional magistrate in dismissing the application
for a stay of
prosecution. He pointed to the discrepancies between the evidence of
Mr Pather and the letters which he wrote, particularly
those of the
3
rd
and 30
th
March, 2009 addressed to Mr Vengtas, and submitted that the learned
magistrate should have disbelieved the evidence of Mr Pather.
[9] The
two issues for ultimate consideration by the committee were whether
Mr Pather breached the principle of
attorney and client privilege,
and in that regard whether he prejudiced Mr Naidoo by providing the
prosecution in the criminal
case with Mr Naidoo’s documents
which were privileged and confidential. The committee sets out in its
report why it found
that there was no compelling evidence that Mr
Pather was guilty of any unprofessional, dishonourable or unworthy
conduct and they
accordingly dismissed the complaint.
[10]
Mr
Randles
submitted that
the answers to the issues are to be found in the two letters dated
the 3
rd
March 2009
and 30
th
March
2009. The high watermark on the attack on Mr Pather was that he
conceded in cross-examination that he could not remember
all of the
events which had occurred, because he was testifying some 10 years’
after they had taken place. Mr
Randles
submitted that in those circumstances the letters should be taken at
their face value, and in preference to the
viva
voce
evidence of Mr Pather.
[11]
Those
letters are not in the affidavit of Mr Naidoo to lead his complaint.
The affidavit very briefly sets out his complaint in
nine short
paragraphs. Annexed to his affidavit is the entire application for
delivery of documents in the IDC prosecution, referred
to above,
supplemented with the addition of Mr Pather’s letter of the 3
rd
and 30
th
March
2009. He records in his affidavit that he relies on the advice of his
erstwhile counsel in placing the entire record before
the Law
Society, allegedly ‘So as to avoid prolixity and compromise the
context of in which my complaint is made’ (in
my view, a most
unfortunate piece of advice!). He continues;
‘
I have been
advised that the evidence contained in my complaint is compelling and
overwhelming and further weighted on account of
Mr Sivi Pather lying
under oath, threated (sic) my attorneys; Anil Rabinath, Attorney Carl
van der Merwe, threated (sic) Adv Scheltema
SC and me.’
Mr
Randles
did not seek
to rely on any of these allegations made by Mr Naidoo, save the issue
of privilege.
[12]
The
two letters were not specifically referred to in the report. That
does not mean that they were ignored or not considered by
the
committee. The decision of the committee makes it clear that on an
overall conspectus of the evidence, the members were not
satisfied
that there was any compelling evidence that Mr Pather was guilty of
any unprofessional, dishonourable or unworthy conduct.
The members
also concluded that there was no credible evidence that privileged
documents were disclosed by Mr Pather to the prejudice
of Mr Naidoo.
[13]
Nor
were either of those letters dealt with by the learned magistrate in
her judgment dismissing the application for a stay of prosecution.
The letter of the 3
rd
March 2009 is addressed to Mr Vengtas by Mr Pather. It deals with a
request by Mr Naidoo that Mr Pather confirm that he is still
searching for a document relating to the dismissal of a Mr Pillay
from the employment of Afripath. In this regard, Mr Naidoo had
requested Mr Pather to contact Mr Rikhotso. Mr Pather confirms having
perused all the files in his possession without success.
He also
confirms having contacted Mr Rikhotso to enquire whether he had the
letter, which he did not. Mr Pather then stated that
all the
documents were given to Mr Naidoo when Mr Pather’s mandate was
terminated. In closing he suggests that Mr Naidoo
and Mr Vengtas
continue to liaise with Mr Rikhotso.
[14]
It
is significant that the letter of the 3
rd
March 2009 was sent to Mr Pather on the morning after the beginning
of the Ithala trial. Mr Naidoo had sought an adjournment of
the
hearing on the basis that Mr Pather was in possession of important
documents needed for his defence. The request for the document
was
made the previous day, in an attempt to bolster Mr Naidoo’s
application to adjourn the trial. Why this was requested
from Mr
Pather at so late a stage, and over two years after the termination
of Mr Pather’s mandate, is never dealt with by
Mr Naidoo.
[15]
The
letter of the 30
th
March 2009 is a reply to a detailed follow-up on the letters of the
2
nd
and 3
rd
March 2009. The follow-up letter was addressed by Mr Vengtas to Mr
Pather on the 19
th
March 2009. Various allegations were made on behalf of Mr Naidoo,
which are fully dealt with by Mr Pather. It was in this letter
to Mr
Naidoo that Mr Pather stated:
‘
. . . our files
were handed to Attorney Bibi Rikhotso. We were subpoenaed to deliver
all our files to Court in the interrogation
matter and we complied.’
It
was this reference to ‘files’ which led to a great deal
of cross-examination, with Mr Pather explaining exactly what
he had
meant by using those words – ie. that it was no more than the
documents annexed to a letter sent by him to Mr Rikhotso
on the 10
th
July 2007. Those documents were the front covers of files, and the
inside pages of the covers reflecting charges to, and payments
by, Mr
Naidoo of fees due to Mr Pather. They contained no privileged
information.
[16]
Mr
Chetty
, who appeared
for the Law Society, submitted that first step which has to be taken,
is for this Court to find that the committee
ignored relevant
material, as alleged. Only then can the Court assess the allegedly
privileged documents which Mr Naidoo alleges
were disclosed by Mr
Pather, but were never identified by him. Accordingly, the committee
could not have failed to take into account
relevant matters –
they were never revealed. Mr
Chetty
pointed to the fact that the letter of the 2
nd
March 2009 requesting documents from Mr Pather, was sent on the
morning of the beginning of the trial. No particular document is
sought, but rather ‘the file pertaining to the above matter’
(the criminal trial), and no particular document is identified
–
the letter relating to the dismissal of Mr Pillay – was only
revealed in a phone call from Mr Pather to Mr Naidoo.
[17]
Mr
Chetty
submitted that
there is no evidence in the record of proceedings or anywhere else,
which demonstrates that Mr Pather handed over
documents which were
privileged and accordingly prejudicial to Mr Naidoo in the conduct of
his criminal proceedings. That is the
nub of the complaint to the Law
Society and that is what the committee dismissed.
[18]
Mr
Chetty
further
submitted that it is important to note that nowhere in Mr Naidoo’s
evidence and the extensive arguments by his counsel
in the Regional
Court, has he identified any documents other than those which were
annexed to the letters referred to above as
being prejudicial to his
criminal case and which were neither delivered to the prosecution,
nor to the IDC representatives at the
s 417 Enquiry.
[19]
Mr
Chetty
alluded to the
onus borne by Mr Naidoo in the stay of prosecution application to
demonstrate that he would not get a fair trial
because the documents
which has been disclosed were prejudicial to him. He was unable, even
to identity those documents generally,
let alone in detail. This was
despite repeated requests from the learned magistrate that he do so.
Mr
Chetty
pointed out
that it is only in instances where the committee makes a finding of a
prima facie
case of
unprofessional conduct, that an enquiry will ensue. The committee
declined to make such a finding in this matter.
[20]
With
regard to costs, Mr
Chetty
referred to the matter of
Law Society of the
Northern Provinces v Dube
[2012] 4 All SA 251
(SCA), para 33, where Mhlantla JA stated:
‘
The final issue is
costs. The general rule in matters of this kind, is that the
respondent has to pay the costs of the law society
on an attorney and
client scale. This is so because the appellant is not an ordinary
litigant as it performs a public duty. It
is obliged to approach the
court when a complaint, in particular one involving an act of
dishonesty, is lodged against an attorney.
The appellant in this
matter did not act on its own frolic. It was accordingly entitled to
an appropriate costs order. There was
no reason for the court below
to depart from the general rule. In the result, the court below erred
and should have ordered the
respondent to pay the costs of the
application on a punitive scale. The appellant is also entitled to
its costs on appeal notwithstanding
the fact that the order of the
court below has not been set aside and replaced with an order
striking the name of the respondent
off the roll.’
[21]
Mr
Broster
, who appeared
for Mr Pather
pro bono
,
submitted that Mr Rikhotso only requested a limited number of
documents, as contained in the summons in terms of s 417 of the
Companies Act, 1973. He submitted that legal privilege was not
envisaged here, and Mr Pather acted correctly and properly in
obtaining
legal advice prior to delivering any documents to the
enquiry. In this regard he referred to
A
Company and others v Commissioner, South African Revenue Service
2014 (4) SA 549
(WCC) paras 22-36. I am in respectful agreement with
the views of the learned judge in that case.
[22]
Mr
Broster
referred to
the dicta in
Bogoshi v Van Vuuren NO
and others; Bogoshi and another v Director,
Office for Serious Economic Offences, and others
[1995] ZASCA 125
;
1996
(1) SA 785
(A) at 793G-I, that privilege is not set in stone, and
there are limitations, one of which is that it is for the client to
raise
the privilege. I did not understand Mr
Broster
to be suggesting that Mr Pather had no duty to protect his client –
on the contrary, that Mr Pather had such a duty, and
did so, even to
the extent of obtaining legal advice in advance. The point is that
the privilege was always available to Mr Naidoo,
and he could have
raised it at any time.
[23]
Mr
Broster
also submitted
that Mr Naidoo was obliged to have deposed to a further affidavit
setting out the contentions he sought to have
advanced in this
review. It is not open to a litigant to raise matters for the first
time in heads of argument, when they have
not been canvassed in the
pleadings – in this review, those are the affidavits.
See
:
Minister of Land Affairs and Agriculture and
others v D & F Wevell Trust and others
2008
(2) SA 184
(SCA) at 200C-D. In
Molusi and
others v Voges NO and others
2016 (3) SA 370
(CC) Nkabinde J stated:
‘
[27] It
is trite law that in application proceedings the notice of motion and
affidavits define the issues between the parties
and the affidavits
embody evidence. As correctly stated by the Supreme Court of Appeal
in
Sunker
:
“
If an
issue is not cognisable or derivable from these sources, there is
little or no scope for reliance on it. It is a fundamental
rule of
fair civil proceedings that parties . . . should be apprised of
the case which they are required to meet; one of the
manifestations
of the rule is that he who [asserts] . . . must . . . formulate his
case sufficiently clearly so as to indicate
what he is relying on.”
[28] The
purpose of pleadings is to define the issues for the other party and
the Court. And it is for the Court to adjudicate
upon the disputes
and those disputes alone. Of course, there are instances where the
court may, of its own accord (
mero
motu
), raise a question of law that
emerges fully from the evidence and is necessary for the decision of
the case as long as its consideration
on appeal involves no
unfairness to the other party against whom it is directed.
In
Slabbert
the
Supreme Court of Appeal held:
“
A party
has a duty to allege in the pleadings the material facts upon which
it relies. It is impermissible for a plaintiff to plead
a particular
case and seek to establish a different case at the trial. It is
equally not permissible for the trial court to have
recourse to
issues falling outside the pleadings when deciding a case.”
[29] The
section 9(2) notice makes no mention of the reliance on ownership or
common law reasonable notice. These grounds were
impermissibly raised
for the first time in argument before the Land Claims Court. This
much was noted by that Court and the Supreme
Court of Appeal. I do
not agree that the respondents were “perfectly entitled to rely
. . . on such common law grounds as
availed [them] in support of the
pleaded claim for eviction as a single cause of action”.
Section 9(1) is manifest that “notwithstanding
the provisions
of any other law, an occupier may be evicted
only
in
terms of an order of court under this Act.” The phrase “any
other law” includes the common law.’
(footnotes omitted).
[24]
In
this regard, Mr
Broster
also relied upon the dicta of O’Regan J in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and others
[2004] ZACC 15
;
2004 (4) SA 490
(CC), para
27:
‘
Where a litigant
relies upon a statutory provision, it is not necessary to specify it,
but it must be clear from the facts alleged
by the litigant that the
section is relevant and operative. I am prepared to assume, in favour
of the applicant, for the purposes
of this case, that its failure to
identify with any precision the provisions of PAJA upon which it
relied is not fatal to its cause
of action. However, it must be
emphasised that it is desirable for litigants who seek to review
administrative action to identify
clearly both the facts upon which
they base their cause of action, and the legal basis of their cause
of action.’
and
Minister
of
Cooperative
Governance
and
Traditional
Affairs v De Beer and another
(538/2020)
[2021] ZASCA 95
(1 July 2021), where the court
stated
:
‘
[87]
Likewise, in
Fischer
v Ramahlele,
it
was stated:
‘
Turning
then to the nature of civil litigation in our adversarial system it
is for the parties, either in the pleadings or affidavits,
which
serve the function of both pleadings and evidence, to set out
and define the nature of their dispute and it is for the
court to
adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic human rights
guaranteed by
our Constitution, for “it is impermissible for a party to rely
on a constitutional complaint that was not pleaded.” There
are cases where the parties may expand those issues by the way in
which they conduct the proceedings. There may also be instances
where the court may
mero
motu
raise
a question of law that emerges fully from the evidence and is
necessary for the decision of the case. That is subject
to the
proviso that no prejudice will be caused to any party by its being
decided. Beyond that it is for the parties to identify
the
dispute and for the court to determine that dispute and that dispute
alone.
It
is not for the court to raise new issues not traversed in the
pleadings or affidavits, however interesting or important they
may
seem to it, and to insist that the parties deal with them. The
parties may have their own reasons for not raising those
issues. A
court may sometimes suggest a line of argument or an approach to a
case that has not previously occurred to the parties. However,
it is then for the parties to determine whether they wish to adopt
the new point. They may choose not to do so because of its
implications for the further conduct of the proceedings, such as an
adjournment or the need to amend pleadings or call additional
evidence. They may feel that their case is sufficiently strong as it
stands to require no supplementation. They may simply wish
the issues
already identified to be determined because they are relevant to
future matters and the relationship between the parties.
That is for
them to decide and not the court. If they wish to stand by the
issues they have formulated, the court may not
raise new ones or
compel them to deal with matters other than those they have
formulated in the pleadings or affidavits.
This
last point is of great importance because it calls for judicial
restraint.’
(footnotes
omitted).
[25]
Mr
Broster
submitted that nowhere in his affidavits had Mr Naidoo set out for
debate, the issues raised in the heads of argument prepared
by Mr
Randles.
In addition, Mr Naidoo had not set out which documents had been
wrongfully disclosed by Mr Pather, and how they could have impacted
on his criminal trial.
[26]
Mr
Broster
recorded that
Mr Pather did seek any order for costs against Mr Naidoo in this
review. He sought only to have the review dismissed.
[27]
I
agree with the submissions of both Mr
Chetty
and Mr
Broster
. In my
view, Mr Naidoo has not begun to establish that Mr Pather had
disclosed privileged documents to either the representatives
of the
IDC or the National Prosecuting Authority. The purpose of raising
these matters in an application for a permanent stay of
prosecution
was solely to avoid Mr Naidoo having to endure a criminal trial. An
inordinate amount of time, money and effort has
been fruitlessly
wasted on this pursuit. If Mr Naidoo is unable to identify even the
category of disclosed documents (let alone
identify particular
documents) which were actually possessed by Mr Pather, and in respect
of which Mr Pather failed to assert Mr
Naidoo’s privilege, he
cannot begin to demonstrate any kind of unprofessional conduct on the
part of Mr Pather. In so far
as it may be suggested that the letter
of dismissal of Mr Pillay may have been a contributing factor to
disclosure of a privileged
document, it was never established that Mr
Pather had the document to give to the representatives of the IDC.
[28]
Mr
Naidoo’s suggestion that the committee failed to take into
account the letters of the 3
rd
and 30
th
March
2009, lacks any substance given the report of the committee. It was
neither necessary nor desirable that the committee had
to troll
through every document in its report. Nor was it ever established
that Mr Pather had possession of the allegedly privileged
documents
to be able to disclose them.
[29]
The
decision of the committee does not, in my view, fall foul of any of
the provisions of sub-sec 6(2) of PAJA. I am in agreement
with Mr
Chetty
with regard to
the question of the scale of costs applicable to the costs to be paid
by Mr Naidoo. Given the general attitude of
Mr Naidoo throughout the
process followed by him to have Mr Pather struck off the roll of
attorneys, I would, notwithstanding the
position of the Law Society,
have made a punitive order of costs against Mr Naidoo anyway. His
actions were clearly not motivated
by a desire to see that the proper
administration of justice was followed. He used a combination of
evasiveness in addressing the
hearing of his criminal trial, coupled
with a vindictiveness towards Mr Pather in order to attempt to
achieve his aims.
[30]
In
the circumstances I make the following order:
(a) The
application for the review of the decision of the Complaints
Committee of the Law Society is refused.
(b) The
applicant is directed to pay the costs of the first respondent on the
scale as between attorney and client.
(c) I
make no order for costs as between the applicant and the second
respondent.
Lopes
J
Date
of hearing: 13
th
August 2021.
Date
of Judgment: 31st
th
August 2021.
For
the applicant: Mr
GJM Randles (instructed by Van Nierop Attorneys).
For
the first respondent: Mr
S Chetty of S Chetty Inc.
For
the second respondent: Mr JP Broster
(instructed
pro bono
by Pather & Pather Attorneys).