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2024
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[2024] ZAFSHC 36
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Radebe v Legal Practice Council (2252/2022) [2024] ZAFSHC 36 (13 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no: 2252/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SEBABATSO
JEREMIA RADEBE
APPLICANT
and
THE
LEGAL PRACTICE COUNCIL
RESPONDENT
CORAM
:
VAN RHYN, J
et
BUYS, AJ
HEARD
ON
:
08 FEBRUARY 2024
DELIVERED
ON
:
13
FEBRUARY 2024
JUDGMENT BY
:
BUYS, AJ
[1]
This is a judgment in the opposed application by the applicant to set
aside the court order issued
on 8 September 2022 in terms of which
the applicant’s name was struck off the roll of attorneys.
[2]
Over and above the relief sought referred to
supra
, the
applicant seeks leave that the respondent’s application be
heard “on the opposed Court’s roll” and
leave be
granted to the applicant to file an opposing affidavit in the said
application. It is evident from the papers that reference
to the
“respondent’s application”
supra
, refers to
the application lodged by the respondent under case number 2252/2022
to strike the applicant’s name off the roll
of attorneys of the
Free State High Court. The above application was heard as an
unopposed application on 8 September 2023, whereafter
the court order
referred to
supra
was issued. I will refer to the said
application as the main application
infra
.
[3]
It is common cause that the main application was personally served on
the applicant. It is evident
from the Sheriff’s return of
service dated 25 August 2022 that the court order dated 12 August
2022, in terms of which the
main application was postponed to 8
September 2022, was personally served on the applicant on 25 August
2022.
[4]
In his explanation for failing to oppose the main application, the
applicant tendered the following
reasons:
[4.1] He was
incarcerated at the Kroonstad Correctional Centre from 12 February
2021 until 16 October 2023.
[4.2] For the
period he was incarcerated, the applicant had no “movements”
and financial means to secure
a consultation with an attorney to
oppose the main application. According to the applicant, access to
telephonic communication
was restricted to five minutes only on some
weekends.
[4.3] Because
of his incarceration, it was impossible for the applicant to comply
with the directives issued by the
respondent in the main application
relating to the filing of a notice of intention to oppose and the
subsequent answering affidavit.
[5]
The applicant states further in his founding affidavit that the
failure to oppose the main application
is not wilful or intentional,
and the application to set aside the court order of 8 September 2022
is not an abuse of judicial
process or to waste this Court’s
time.
[6]
The explanations tendered by the applicant dealing with the various
convictions which resulted
in the respondent lodging the main
application are summarised as follows:
[6.1] The
applicant acknowledges the complaint by Busisiwe Sheila Madlala.
However, he downplays the misconduct as a
mere “serious
blunder” and that he was not convicted of theft, but of
contravening the “Attorneys Act”.
[6.2] Dealing
with the convictions of theft, he denies that he committed the
offences and that the complainants were
his clients. The applicant
also attempts to downplay the convictions of theft by relying on
explanations that he was inexperienced
and young at the time when he
“transferred monies to the wrong beneficiary”. It should
be mentioned that the offences
of theft on which the applicant was
convicted relate to monies in a deceased’s estate.
[7]
The respondent opposed the applicant’s application for
rescission of judgment. I will refer
to the grounds of opposition
infra
when I discuss and analyse the applicant’s case.
[8]
The applicant seeks in paragraph 1 of the notice of motion that the
court order of 8 September
2022 “be set aside”. It is
evident, when considering the application as a whole, that the
applicant in fact seeks an
order to rescind the court order of 8
September 2022.
[9]
It is not clear from the application if the application is lodged in
terms of the common law or
in terms of Rule 31(2)(b) of the Uniform
Rules of Court (“the Rules”) or in terms of Rule 42 of
the Rules. However,
it is evident from the facts that the applicant
attempts to make out a case for rescission either based on the common
law or Rule
31(2)(b).
[10]
The approach adopted by courts in deciding on an application for
rescission has been described in
De
Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd
[1]
as follows:
“
An application for
rescission is never simply an enquiry whether or not to penalise a
party for its failure to follow the rules
and procedures laid down
for civil proceedings in our courts. The question is, rather, whether
or not the explanation for the default
and any accompanying conduct
by the defaulter, be it wilful or negligent or otherwise, gives rise
to the probable inference that
there is no
bona fide
defence,
and that the application for rescission is not
bona fide
. The
magistrate’s discretion to rescind the judgment of his court is
therefore primarily designed to enable him to do justice
between the
parties.”
[11]
It is tried, in applications for rescission of judgment of this
nature, the applicant:
[2]
[11.1] Must give a
reasonable explanation of his default. If it appears that his default
was wilful or that it was due to
gross negligence the court should
not come to his assistance.
[11.2] Must be
bona
fide
without the intention to delay the relief sought by the
respondent.
[11.3] Must show
that he has a
bona fide
defence to the relief sought by the
respondent. It is sufficient if the applicant makes out a
prima
facie
defence in the sense of setting out averments which, if
established at the trial, would entitle the applicant to the relief
asked
for.
[12]
“
Good
cause
”
includes, but is not limited to, the existence of a substantial
defence. The party applying for the judgment to be rescinded
must at
least furnish an explanation of his/her default sufficiently full to
enable the court to understand how it really came
about, and to
assess his/her conduct and motives.
[3]
[13]
The applicant needs not show a probability of success on the merits,
it suffices if he shows a
prima
facie
case in the sense of setting out averments which, if established at
the trial, would entitle him to the relief asked for. The grounds
of
the defence must be set forth with sufficient detail to enable the
court to conclude that there is a
bona
fide
defence, and the application is not merely for purpose of harassing
the respondent.
[4]
[14]
Over and above what is required from an applicant referred to
supra
,
applications of this nature, if not lodged within the time period
prescribed in Rule 31(2)(b) of the Rules, alternatively, within
a
reasonable time in terms of the common law or Rule 42 of the Rules,
an applicant is required to approach the court on application
to
condone the late filing of the application for rescission of
judgment.
[15]
No application for condonation for the late filing of the rescission
of judgment application is before this
Court, nor is any facts placed
before this Court showing that the respondent consented to such
condonation. For this reason alone,
the application for rescission of
judgment should not succeed.
[16]
In the applicant’s explanation as to why he did not oppose the
main application he proffered the excuse
that, although he was aware
of the main application, he was not able to oppose the said
application because of him being incarcerated
at the time. During
argument before this Court, the applicant indicated that he is
married and has three children (only one is
still in school), but his
wife and children never visited him while he was incarcerated. The
applicant also conceded during argument
that he did receive visits
from relatives during the time he was incarcerated and furthermore
that he still has friends in the
legal profession. However, the
applicant submitted that his relatives did not have money at the time
to assist him and his friends
in the legal profession would have
insisted on payment if they were requested by the applicant to assist
him. It should be noted,
these aspects submitted in argument have not
been canvassed by the applicant in his founding affidavit.
[17]
The respondent, in opposition of the application
for rescission of judgment, denies the applicant’s
alleged
inability to have obtained legal representation and to attend the
court proceedings on 8 September 2022 while being incarcerated.
I
agree with the respondent’s contention and I find it difficult
to believe that the applicant would not have been afforded
an
opportunity by Correctional Services to contact an attorney or Legal
Aid SA for assistance and furthermore to attend the court
proceedings
on 8 September 2022.
[18]
The applicant furthermore did not take this Court into his confidence
by providing full and sufficient particulars
regarding the steps he
took to request Correctional Services to contact an attorney and/or
Legal Aid SA and to attend the hearing
of the application on 8
September 2022. The applicant in argument conceded that
representatives of Legal Aid SA visited the Correctional
Services
facilities in Kroonstad on a regular basis. Even with this knowledge,
the applicant failed to approach the representatives
for assistance
and guidance.
[19]
In an attempt to show that he has a
bona fide
defence to the
relief sought by the respondent, the applicant stated as follows:
[19.1] Regarding
the Busisiwe Sheila Madlala-complaint and conviction to which he
pleaded guilty for contravening the provisions
of s 84 of the
Attorneys Act,
[5]
namely that he
misappropriated trust funds, the applicant attribute his actions to a
“
serious
blund
er”
on his side. However, during argument, the applicant submitted
that he did not refund the misappropriated money
and he only became
aware of the misappropriation of trust funds when criminal charges
were instituted against him.
[19.2] Regarding
the conviction on the four charges of theft and consequent sentence
on 12 February 2021 to six years imprisonment,
the applicant persists
that he is not guilty and that the so-called “clients”
referred to were never his clients. It
is the applicant’s case
that he was approached by one “Mr Pitso” to help him with
a deceased’s estate.
In argument, the applicant confirmed that
Mr Pitso was in fact his client. The applicant admitted that he did
receive the monies
referred to in the charges, but, according to him,
he paid the monies to a “wrong beneficiary”. However, in
argument
the applicant acknowledged that the monies were paid to Mr
Pitso. The applicant furthermore blames his young age and
inexperience
as an attorney, including his inexperience in estate
matters, as the reason why the monies were paid to the wrong person.
The fifth
charge
[6]
which the
applicant was convicted on, relates to the charges of theft referred
supra
,
and although the applicant did not refer specifically to this
conviction in his founding affidavit, it is accepted that his
explanation
on the charges of theft is similarly applicable to the
fifth charge.
[19.3] In argument,
the applicant made mention of his intention to appeal the convictions
of theft and consequent sentence
of imprisonment. However, no
reference of such intention, the grounds therefor and the progress of
the intended appeal have been
referred to by the applicant in his
founding affidavit.
[19.4] The
applicant did not deal with the conviction of the sixth charge,
namely defeating or obstructing the course of justice
in that he
failed to comply with a court order directing him to hand over an
estate file to the executor of the said estate.
The applicant
was sentenced to twelve months direct imprisonment for this offence.
[20]
I am not satisfied that the applicant showed good cause why the
judgment dated 8 September 2022 should be
rescinded. The applicant
failed to give a reasonable explanation of his default and he failed
to show a
bona fide
defence. The offences committed by the
applicant are criminal offences and serious in nature. Mr Phalatsi on
behalf of the respondent
correctly submitted that a higher standard
of conduct is expected from an attorney and the applicant should be
judged based on
this higher standard. For the above reasons, the
application should not succeed.
[21]
Mr Phalatsi on behalf of the respondent argued that the respondent is
entitled to a cost order in its favour
on an attorney client scale.
Mr Phalatsi substantiated his contention in argument that the
respondent, being a statutory body overseeing
the conduct by legal
professionals, should not be out of pocket when defending
applications of this nature. I agree with the submissions
made by Mr
Phalatsi. The respondent exercised its statutory duty in opposing
this application and the general rule is that the
respondent is
entitled to costs, and the appropriate scale should be on an attorney
client scale.
[7]
[22]
Accordingly I propose the following order:
The application is
dismissed with costs on the scale as between attorney client.
J
J BUYS, AJ
I
concur
I
VAN RHYN J
On
behalf of the Applicant:
Mr.
S.J. Radebe
C/o
Ponoane Attorneys
Bloemfontein
On
behalf of the Respondent:
Mr.
N.W. Phalatsi
NW
Phalatsi & Partners
Bloemfontein
[1]
1994 (4) SA 705
(E) at 711E-G.
[2]
See Grant v Plumbers (Pty) Ltd
1949 (2) SA 470
(O) at 476-477 and De
Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd
supra
at 708H-709D.
[3]
See Silber v Ozen Wholesalers (Pty) Ltd
1954 (2) SA 345
(A) at
352G-353A.
[4]
See Brown v Chapman
1928 TPD 320
at 328; Grant v Plumbers (Pty) Ltd
supra
at
476-477 and Silber Ozen Wholesalers (Pty) Ltd
supra.
[5]
Act
53 of 1979.
[6]
Contravention
of s 102(1)(f), read with s 35(12) and
s 102(1)(l)(iii)
of the
Administration of Estates Act 66 of 1965
.
[7]
See
Law Society, Northern Provinces v Mogami and Others
2010 (1) SA 186
(SCA) at par [31].