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[2023] ZAFSHC 70
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Joubert v South African Legal Practice Council (5220/2022) [2023] ZAFSHC 70 (16 March 2023)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: 5220/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between: -
PETRUS
JOHANNES JOUBERT
Applicant
and
THE
SOUTH AFRICAN LEGAL PRATICE COUNCIL
Respondent
In
re: the matter
between:
THE
SOUTH AFRICAN LEGAL PRATICE COUNCIL
Applicant
and
PETRUS
JOHANNES JOUBERT
First Respondent
KRAMER
WEIHMAN INCORPORATED
Second Respondent
JOHANNES
ANDREAS KRAMER
Third Respondent
JACOB
LODEWYK
WEIHMAN
Fourth Respondent
JAQCUES
NORTJE
Fifth
Respondent
CINDY
LEE
DICKENS
Sixth Respondent
ANDRIE
LOUIS VISSER
Seventh Respondent
DANIEL
MULLER
Eighth Respondent
CORAM:
BOONZAAIER AJ
JUDGMENT
BY:
BOONZAAIER, AJ
HEARD
ON:
16 FEBRUARY 2023
DELIVERED
ON:
16 MARCH 2023
INTRODUCTION:
[1]
The Applicant in the interlocutory applications is the First
Respondent in the main
application. The Respondent, in these
applications is the Applicant in the main application. For ease of
reference, I refer further
to the Applicant
in casu
as the
First Respondent and the Respondent as the Applicant.
[2]
Applicant in the main application is seeking an order to suspend or
to strike the
First Respondent from the roll of Legal Practitioners
in terms of the Legal
Practice Act, No. 28 of 2014
(“the
LPC Act”).
[3]
The First Respondent is approaching this court-
A.
in terms of
Uniform
Rule R30 A
for the following
interlocutory orders:
(i)
That the Applicant be compelled to comply
with the First
Respondent`s notice in terms of
Uniform Rule 7
which was
served on
16 November 2022;
(ii)
Leave be granted to the First Respondent, should the Applicant fail
to comply with the order in terms
of prayer 1, to approach the Court
on the same papers, amplified where necessary for an order in terms
whereof
Applicant’s main application be struck off the roll
.
B.
in terms of
Uniform
Rule R30(1)
for the following
interlocutory orders:
(i)
to have the Applicant’s application stayed pending
compliance, alternatively set aside due to the following
irregularities:
(a)On
16 November 2022
the First Respondent delivered his notice in terms of
Uniform
Rule R7
– which challenged the
authority of Martus de Wet (“de Wet”)- the deponent to
the Applicant’s founding
affidavit and Attorneys’ Amade &
Company (“Amade”) as follows:
(b)The
Applicant failed to comply with the provisions of
Uniform
Rule 7
within the prescribed time or
at all. More specifically in that the Applicant failed to satisfy the
court that the deponent to
the Applicant`s founding affidavit, as
well as the Applicant`s appointed attorney has the necessary
authority to represent and
act on behalf of the Applicant in the
above application, and seeking the relief that is sought therein on
behalf of the Applicant;
(c)
The provisions of
Rule
7
provide that where a person`s
authority is disputed, such person may no longer act unless he
satisfies the Court that he is indeed
so authorises to act.
(d)On
28 November 2022
,
subsequent the filing of the
Rule 7
notice, the Applicant served and filed a notice of set down,
purporting to set the matter down for
16
February 2023
.
(e)In
the premises, the Applicant `s notice of set down constitutes an
irregular step as contemplated in
Rule
30.
THE
FACTUAL BACKGROUND
[4]
The Applicant issued it`s main, application on
20 October 2022
against the First Respondent wherein the Applicant seeks
inter
alia
that the First Respondent be suspended from the practice of
legal practitioners alternatively, that the First Respondent, be
struck
off the roll of legal practitioners.
[5]
It is common cause that on
26 October 2022
the First
Respondent delivered a notice of appointment as attorney of record
and a notice in terms of
Rule 30
relating to the time period
afforded to the First Respondent to deliver a notice of intention to
oppose as contained in the Applicant`s
notice of motion.
[6]
It is also undisputed that The First Respondent’s
Rule 7
notice was served on Applicant on
16 November 2022
and
Applicant required to establish their authority to the satisfaction
of the court by
30 November 2022.
The
Applicants case:
[7]
de Wet is the Chairperson of the Free State provincial constituent
(“PC”)
of the South African Legal Practice Council (“LPC
“). He was the deponent to the founding affidavit in the main
proceedings
and has the necessary authority to act on behalf of the
LPC. Amade was appointed in terms of a resolution taken by the PC of
the
LPC.
[8]
The facts contained in the opposing affidavit falls within de Wet`s
knowledge and
are to his best knowledge true and correct.
[9]
The
Rule 30(1)
should fail for the following reasons:
(i)
The application of First Respondent
was not preceded by a mandatory notice envisaged in
Rule
30(2)(b),
notifying the
Applicant that the application constitutes an irregular step and
affording the Applicant an opportunity to correct
it.
(a)
Rule 30(2) (b)
affords the Applicant the opportunity
within 10 days to remove the cause of compliant.
(b)
Rather, on
2
December 2022
the First Respondent
elected to give the Applicant a notice wherein he complained that the
notice of set down served on him by
the Applicant constitutes an
irregular step;
(c)
The First Respondent does not seek to
have the said notice of set down set aside as an irregular step but
instead apply to have
the entire application set aside.
(ii)
neither the Applicant`s main application nor its notice of set
down dated
28 November 2022
constitutes an
irregular step;
Firstly:
(a)
No valid and timeous challenge to de Wet
and Amede’s authority has being filed by first Respondent;
(b)
Rule 7
Provides as follows:
“
Power
of attorney subject to the provisions of subrules (2) and (3) a power
of attorney to act need not be filed, but the authority
of anyone
acting on behalf of a party may
, within 10 days after it has come
to the notice of a party
that such person is so acting,
or
with the leave of the court on good cause shown at any time before
judgment
, be disputed, whereafter such person may no longer act
unless he satisfied the court that he is authorised so to act, and to
enable
him to do so the court may postpone the hearing of the action
or application.” (own emphasis)
(c)
The First Respondent was served with the main application on
20
October 2022.
His attorneys of record filed their notice of
appointment on
26 October 2022
, hence became aware that Amade
was acting in this matter on 20 October 2022. No dispute to authority
was filed.
(d)
First Respondent’s notice was served on Applicant on
16
November
2022
, which was outside the 10 -day prescribed
period.
(e)
The 10-day period time to object was running from
20 October 2022
in terms of the Rules.
(f)
On
18 November 2022
the First Respondent was made aware by
Amade that the
Rule 7
was out of time. No application for
condonation was applied for since then. Only three days before the
hearing of this application
on
16 February 2022
was the First
Respondent`s application for condonation filed.
(g)
therefore, there is no procedural impediment to the setting down of
the main application.
(iii)
The First Respondent is in no way prejudice by the LPC`s
application itself nor by the notice of set down.
(a)
No prejudice has been caused to the
First Respondent by either the main application or the notice of set
down.
(b)
The Applicant relies on the case of
Janse
van Rensburg v Obiang
and
Another
[1]
, where Binns- Ward J said
the following pertaining to the promptitude with which a challenge to
authority should be made:
“
Challenges
to the authority of an attorney to represent a litigant, if they are
to be raised at all, should be raised promptly at
the earliest
opportunity, and once raised, taken to a determination without delay.
Indeed, that, no doubt, is why there is a 10
-day time limit in terms
of the rule 7(1).”
(c)
The Applicant also submitted that in
Kaap
– Vaal Trust (Pty) Ltd v Speedy Brick & Sand CC
[2]
,
the court aptly held:
“
The
ten-day time period within which the authority of another can be
challenge, is not merely superfluous. The time period is set,
so as
to bring certainty to the litigants that no challenge will be mounted
against their authority, and where this challenge is
mounted outside
the 10- day period on notice, that this challenge can only be mounted
with leave of the Court on good cause shown.
The rule this gives
direction and permission that a challenge can still be mounted
outside of this 10-day period but only with
leave of the Court on
good cause shown. In the present instance, no leave was also sought
by the applicant. This is not an insignificant
point merely be
ignored by a Court, as it would mean that on a mere whim of an
opponent, the mandate of an attorney concerned may
be challenged.
Where a litigant fails to adhere to any time limit provided for in
any rule of court, R 27(3) specifically permits
such litigant to seek
condonation.”
Secondly:
[10]
Rule 7
is unnecessary and an abuse of the Courts time. In this
matter the PC resolved to bring the main application as is evident
from
a resolution appended to the founding affidavit in the main
application as “FA1”.
[11]
In terms of the resolution Amade was authorised to act on behalf of
the LPC in the main application.
Consequently, there is no need that
de Wet ought to have been additionally authorised to act in the main
application.
[12]
The Applicant contents that a resolution taken by a juristic entity
which entails that these
proceedings have been properly authorised.
The
First Respondent:
[13]
The First Respondent argued that he is severely prejudiced by the
Applicant`s non- compliance.
Applicant is trying to bring the main
application to finality without establishing the disputed authority
without the First Respondent
having had the opportunity of delivering
his answering affidavit and accordingly oppose the relief sought by
the Applicant in the
main application.
[14]
This would have as a result dire financial and reputation damage,
given the relief sought.
[15]
I intend, hereunder, to deal first with the application for
condonation in respect of Rule 7,
for if I find that the First
Respondent has not made out a case for such condonation, it can be
argued that I will not be necessary
to decide the Rule 7 application.
The
First Respondent `s case for condonation
[16]
The First Respondent’s case for condonation is stated as
follows in its founding papers:
(i)
First Respondent seeks the Court (only to the extent necessary-)
to
condone and indulge the late service of the First Respondent`s notice
in terms of uniform
Rule 7
.
(ii)
First Respondent explains his delay as follows:
(a)
Applicant issued the main application on
20 October 2022.
(b)
First Respondent`s notice to oppose was electronically served on
4
November 2022;
(c)
Given the fact that the First Respondent`s notice of opposition was
served on Friday,
4 November 2022
, the first available
opportunity to consult with counsel was Monday,
7 November 2022
.
(d)
Following the consultation and consideration of the position,
instructions were given for the preparation
of the First Respondent`s
notice in terms of
Rule R7
.
(e)
The 10 -days provided for in terms of
Rule 7
pertains to the
date which a party becomes aware that the authority of a party to act
is disputed. Hence the 10 day- period only
to commence on
7
November 2022
and the
R 7
Notice was not out of time.
(f)
There was no prejudice for the Applicant, it was informed as far back
as
22 August 2019
about the alleged possible misappropriation
of the trust monies and applicant did not issue the main application
until
20 October 2022.
[17]
I find it necessary to mention that the the
Applicant did not have time to give arguments in opposition
of the
condonation except to argue that it was very late to apply for
condonation at the last minute.
FOR
THE COURT TO DECIDE:
[18]
It is for the court to decide:
(a)
If the
Rule 7
notice was given timeously.
(b)
If, it was out of time should condonation be sought.
(c)
Did the First Respondent shown good cause for condonation to be
granted at the time they sought condonation.
(d)
Did the set down of the main application constitutes an irregular
step in terms of
R 30(1).
(e)
Was Applicant compelled in terms of
Rule 30 A
to respond to
the
Rule
filed out of the 10- day period.
(f)
Was the
Rule 7
raised promptly at the earliest stage.
(g)
Was the
R 7
necessary, taking into account that an
authorisation/ (resolution) was presented.
THE
APPLICABLE LEGAL FRAMEWORK:
For
purposes of this judgment,
I
find it necessary to visit the powers and functions of the SALPC and
the PCLPC.
[19]
The
PC is empowered under
section
40(3)(a)(iv)
read
with
section
44(1)
and
section
43
of
the
Legal
Practice Act
(“PA”)to launch an application for the striking off the
roll or suspension from practice of a legal practitioner.
If the
court is satisfied that the legal practitioner is not a fit and
proper person to continue to practice, the provisions of
the Act do
not derogate in any way from the power of the High Court to
adjudicate upon and make orders in respect of matters concerning
the
conduct of a legal practitioner, candidate legal practitioner or a
juristic entity.
“
Section
40(3) (a)(iv) of the LPA
: Advise the
Council to apply to the high Court for-
(aa)
an order striking his or her name from the Roll;
(bb)
an order suspending him or her from practice;
(cc)
an interdict prohibiting him or her from dealing with trust monies;
or
(dd)
any other appropriate relief;”
“
Section
43 of the LPA
: Urgent Legal
proceedings-
Despite
the provisions of this Chapter, if upon considering a complaint, a
disciplinary body is satisfied that a legal practitioner
has
misappropriated trust monies or is guilty of other serious
misconduct, it must inform the council thereof with the view to
the
Council instituting
urgent legal proceedings in the High Court
to
suspend the legal practitioner from practice and to obtain
alternative interim relief.” (own emphasis)
[20]
The PC of the LPC has the following powers and functions in terms of
the LPA:
“
Regulation
5(2)(o)
to
institute urgent legal proceedings in the High Court in order to
suspend a legal practitioner from practice and to obtain alternative
interim relief, as contemplated
in
section 43 of the Act;
“
[21]
It
is trite that an application of this nature in the main action
constitutes a disciplinary inquiry by the court into the conduct
of
the practitioner concerned. These proceedings do not constitute
ordinary civil proceedings but are in their nature
sui
generis
with
the LPC fulfilling the role of
amicus
curiae.
Accordingly,
the LPC is not an ordinary litigant in this application. As
custos
morum
of
the profession, the LPC places the facts and its views for this court
to take appropriate action in the exercise of its
discretion using
its disciplinary powers. Significantly, the court’s power
is inherent in nature over and above the
provisions of the Act.
[3]
[22]
The
LPA came into operation in stages on 1 February 2015, 31 October 2018
and 1 November 2018.
[4]
The
entire Act is now in operation. The Act, 2014 introduced an
entirely new regime for the legal profession in South
Africa. In
addition, the Act introduced significant changes for persons who wish
to apply be admitted and authorized to be enrolled
or to be suspended
or struck off the roll
by
the court.
[23]
The powers and
functions of: the LPC and PC`s and the Minister are clear from:
“
Section
3©
provides that one of the
objects of the Act is to:
“
[c]reate
a single unified statutory body to regulate the affairs of all legal
practitioners and all candidate legal practitioners
in pursuit of the
goal of an accountable, efficient and independent legal profession”.
[24]
That
unified statutory body is the LPC.
Section
4
establishes the LPC as a body corporate with full legal capacity,
and, provides that the LPC exercises jurisdiction over all legal
practitioners and candidate legal practitioners as contemplated in
the Act.
[25]
Section
5(d)
provides
that one of the objectives of the LPC is to regulate all legal
practitioners and all candidate legal practitioners.
[26]
Section 6
provides the powers
and functions of the LPC. Section 6(1)(a)(xx) is pertinent in this
matter. It provides for the delegation of
the LPC’s powers to
the PC’s as follows: The LPC may-
“
Delegate
any of its powers and functions to its committees or Provincial
Councils, subject to any conditions it may impose, which
delegation
does not—
(aa)
divest the Council of the power or function so delegated; and
(bb)
preclude the Council from varying or setting aside any decision made
under a delegation; …..”
[27]
Section 21
provides for a
general delegation (including to PC’s) of powers and the
assignment of functions of the LPC. In terms of
sub-section
21(1)(d),
[a delegation or assignment in terms of subsection (1)] “.…does
not divest the Council of the responsibility for the
exercise of the
power or the performance of the duty or function.”
[28]
Section
23(1)
provides
as follows:
“
The
Council must establish Provincial Councils the areas of jurisdiction
of which must correspond with the areas under the jurisdiction
of the
Divisions of the High Court of South Africa as determined by the
Minister, from time to time, in terms of section 6 (3)
of the
Superior Courts Act, 2013 (Act No. 10 of 2013), and may delegate to
the Provincial Councils such powers and functions which,
in the
interests of the legal profession are better performed at provincial
level.”
CONDONATION:
[29]
The sub-rule authorises the court to, on “good cause shown”,
condone any non-compliance with the Rules of Court.
The court is said
to be vested with a wide discretion in this respect, but with the
added safeguard for the applicant to show good
cause, for the court
to exercise the discretion.
[5]
[30]
Courts have consistently refrained from attempting
to formulate an exhaustive definition for what constitutes
“good
cause”. The Appellate Division (as it then was) in its judgment
in
Melane
v Santam Insurance Co Ltd,
[6]
had this to say in its explanation of the phrase “good cause
shown”:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the court has a discretion, to be exercised judicially
upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are
the
degree of lateness
,
the
explanation therefore
,
the
prospects of success
, and
the
importance of the case
.
Ordinarily these facts are interrelated: they are not individually
decisive, for that would be a piecemeal approach incompatible
with a
true discretion, save of course that if there are no prospects of
success there would be no point in granting condonation.
Any attempt
to formulate a rule of thumb would only serve to harden the arteries
of what should be a flexible discretion. What
is needed is an
objective conspectus of all the facts. Thus, a slight delay and a
good explanation may help to compensate for prospects
of success
which are not strong. Or the importance of the issue and strong
prospects of success may tend to compensate for a long
delay. And the
respondent`s interest in finality must not be overlooked.” (own
emphasis)
[31]
In recent years the Constitutional Court
in Van
Wyk v Unitas Hospital
,
[7]
relying on a previous decision of the same court in
Brummer
v Gorfil Brothers Investments (Pty) Ltd and Others
[8]
set
a standard for the court`s consideration of an application for
condonation along the following lines:
‘”
The
Court has held that the standard for considering an application for
condonation is
the interests of
justice
. Whether it is in the interests
of justice to grant condonation depends on the facts and
circumstances of each case. Factors that
are relevant to this enquiry
include but are limited to
the
nature of the relief
sought,
the
extent and cause of the delay
,
the
effect of the delay
on the
administration of justice and other litigants, the
reasonableness
of the explanation for the delay
,
the
importance
of
the issue
to be raised in the
intended appeal and
the prospects
of success
.” (my emphasis)
[32]
It follows, therefore, that in order to succeed in its application
the Applicant for condonation
must show that, it is in the interests
of justice, that the application be granted. In proving the interests
of justice, the applicant
must prove “good cause”. It is
trite that “good cause” requires the applicant to furnish
a full, reasonable
and acceptable explanation, for the full period of
delay including the cause of the delay.
[33]
The general principle is that the court has a wide discretion to
grant condonation on good cause
shown. Two requirements in this
regard have crystallized, namely, firstly the requirement that the
applicant should furnish a sufficient
explanation for her or his
default, to enable the court to understand how it really came about
and to assess her or his conduct
and motives. Secondly, the
requirement that the applicant should satisfy the court that she or
he has a
bona
fide
defense.
[9]
[34]
There is no comprehensive definition of what constitutes good or
sufficient cause for the granting
of the indulgence of an extension
of time. The overriding consideration is that the matter rests in the
judicial discretion of
the court, to be exercised with regard to all
the circumstances of the case.
[10]
[35]
The principles upon which the court exercises its
discretion have been stated as follows:
[11]
“
[2]
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 the judgment,
the convenience of the
Court and the avoidance of unnecessary delay in the administration of
justice; . . .” (my emphasis)
ANALYSIS:
[36]
An applicant for condonation must give a full
explanation for the delay which must not only cover the entire
period
of delay but must
also be reasonable.
[37]
The condonation was sought three days prior to the hearing of the
interlocutory applications.
The Applicant could not even respond
properly.
[38]
The most important period is that between the
16 November 2022
and the
13 February 2023
when the Applicant brought the
Condonation Application.There was no reason given for the late filing
of the condonation application.
[39]
The explanation tendered by the First Respondent, is far from
satisfactory It does not cover
the whole period of the delay and is
inadequate for purposes of this application. The result is that on
the basis of the unexplained
periods alone, the applicant has failed
to set out good cause and the application should fail.
[40]
The First Respondent has, also, not bothered to set out other
requirements to show good cause
except an attempt to explain the
requirement of delay. The court in Van Aswegen v
Kruger
[12]
, held that the
requirement of a
bona
fide
defence
in
Rule
7
applications:
"would
be adequately satisfied where the defendant avers that he has a bona
fide defence, and he makes averments which if proved
would constitute
a defence."
[41]
This, the First Respondent failed to do. He did not touch on a
bona
fide
defence in the main action.
[42]
In addition, the First Respondent has failed to satisfy the
requirement of
bona-fides.
Nothing is proffered
about this requirement in the First Defendant`s papers.
[43]
Uniform
Rule 7
provides a mechanism to establish the mandate
of the attorney concerned and to prevent persons launching
proceedings in the name
of litigants who never authorised or are
unaware of same and provides that the authority of anyone acting on
behalf of a party
may, within ten (10) days, be disputed where after
such person may no longer act unless she/he satisfies the court that
she/he
is so authorized.
[44]
First Respondent, in this instance, is challenging
the authority of the attorney to act on behalf of the
Applicant in
the main action. The challenge as I understand relates to the
authority to institute the present application. Ordinarily
the
authority of an attorney is challenged in respect of the action as a
whole. It is not normally so that an attorney`s authority
would be
challenged when an interlocutory application is launched.
[45]
What, in this instance, makes the First Respondent
want to challenge the authority of the Applicant`s attorney,
is
because the founding affidavit to the application is deposed to by de
Wet, who professes to be the chairperson of the PC on
behalf of the
Applicant in this application.
[46]
It is trite that a notice of motion can be supported by any person
who is in a position to provide
the necessary material to support the
claim, and any person who can lawfully be a witness can execute an
affidavit.
[47]
Therefore,
it is not necessary that the person who is to depose to the founding
affidavit should be authorised to do so. The First
Respondent`s
argument that because the applicant is the LPC, the person who
deposes to the founding affidavit must also be authorized
to
represent the National LPC , is without merit, because, any person
who professes to have personal knowledge of the facts deposed
to in
that affidavit, can depose to such affidavit.
[48]
Uniform
Rule
7 (1)
is said to be only concerned with the mandate of an attorney to act
in instituting or defending legal proceedings on behalf of
a party
and to act in matters incidental to such proceedings
[13]
, which
would include interlocutory applications.
[49]
Therefore, if an attorney provides proof that he has the authority to
act on behalf of a client
and an interlocutory application is
launched in such proceedings, it would not be necessary for the
applicant to provide a fresh
mandate. The original mandate provided,
authorises the attorney to act in all matters incidental to such
proceedings which will
be inclusive of all interlocutory applications
that may be launched.
[50]
The sub-rule does not provide a hard and fast rule how to establish
authority, where it is challenged.
The sub-rule only requires such
person to satisfy the court that she/he has been so authorised.
Production of a power of attorney
or a resolution of a company or
close corporation is normally produced in order to establish the
authority of the attorney so to
act
. In casu
the resolution
was attached as “FA1”.
CONCLUSION:
[51]
The resolution suffices as proof that Mr Amade & Company Inc. had
been authorised to act
on behalf of the applicant.
[52]
I am, thus, satisfied that Amade as well as De Wet were authorised by
the Applicant to defend
the action and to act in matters incidental
to such proceedings (interlocutory applications), on its behalf.
[53]
From the above and caselaw the following is clear:
(a)
The
Rule 7
notice was not given timeously.
(b)
the
Rule 7
notice was out of time and condonation should have
been sought.
(c)
The overriding
consideration in evaluating condonation is that the matter rests in
the flexible judicial discretion of the court,
to be exercised with
regards to
all the circumstances, even if the good cause was not shown.
In casu
it would be in the interest of justice to condone the non-
compliance. It would also be essential to finalise the main action as
soon as possible. (own emphasis)
(d)
The set down of the main application does not constitutes an
irregular step in terms of
R 30(1).
(e)
Applicant was not at the time compelled in terms of
Rule 30 A
to respond to the
Rule 7
filed out of the 10- day period.
(f)
The
Rule 7
was not raised promptly or at the earliest stage.
(g)
It was not necessary for the First Respondent to launch the
Rule 7
application due to the fact that an authorisation (resolution) was
presented.
COSTS:
[54]
When the court considers costs, the court has a judicial unfettered
discretion to bring about
a fair result.
[55]
The First Respondent was as far back as
18 November 2022
alerted by the Applicant that his notice was out of time. This,
notwithstanding the First Respondents persisted in bringing the
application. The condonation application for the Court`s leave to
allow the
Rule 7
application was brought very late, only 3
days before the hearing of this matter.
[56]
Any litigant must refrain from embarking on a
time -wasting route that may tie himself and the opponent up in
litigation for months
to come. This type of litigation does not take
the main matter any further but to waste costs.
[57]
The First Respondent`s interlocutory applications have no merits. It
should never have been brought.
[58]
I do not know if the First Respondent, by taking a technical route,
ever entered into this litigation
with the firm belief in the justice
of his cause. The Applicant should not be burdened with costs in
having to deal with litigation
of this nature.
[59]
First Respondent`s stance is ill conceived and clearly with the
intention to protract from the
main matter intentionally.
[60]
It is not in the interest of Justice that the court entertain these
type of cases where a party
abuses the court rules like the defendant
did in this case.
It
clogs the court rolls and is the cause that other deserving cases
cannot be heard.
[61]
In considering whether costs should be awarded on a punitive scale I
am sensitise to the fact
that such an order is not awarded lightly.
If a party however acted in such a reprehensible manner, the court
may show its displeasure
with the Respondent`s conduct in awarding a
punitive cost order.
ORDER:
[62]
The following order is made:
1.The condonation
application is granted with no order as to costs.
2. Rule 30 (1)
application is dismissed with costs on an attorney client scale.
3. The Rule 30 A
application is dismissed with costs on an attorney client scale.
A.S.
BOONZAAIER, A J
For
the Applicant:
Adv Mazibuku
Chambers Bloemfontein
Instructed
by:
Amade & Company Inc.
BLOEMFONTEIN
For
the Respondent:
Adv. A Sander
Chambers Bloemfontein
Instructed
by:
Peyper Attorneys
[1]
[2014]
ZAWCHC 53
at para 17
[2]
[2021]
ZAGPPHC 668 at para 17-20
[3]
Law
Society of the Cape of Good Hope v C
1986
(1) SA 616
(A).
[4]
Section
120 of the Act , Proclamation No. R.2in Goverment Gazette 38412 on
23 January 2015.and Goverment
Proclamation
R.31in Goverment Gazette 42003 on 29 October 2018.
[5]
See
Erasmus: Superior Court Practice 2
ed
Volume
2 pD1-326.
[6]
1962
(4) SA 531
(A)
at 532B-E.
[7]
Van
Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
Curiae) 2008 (2) SA
472
(CC).
[8]
2000
(3) SA 837
(CC).
See also Grootboom v National Prosecuting Authority and Another
2014
(2) SA 68
(CC C) para 23.
[9]
Mynhardt
v Mynhardt
1986
(1) SA 456
(T)
at 461 and Kritzinger v Northern Natal Implement Co (Pty) Ltd
1973
(4) SA 542
(N)
at 546.
[10]
Mynardt
supra, as well as Jones & Buckle: The Civil Practice of the
Magistrates Courts in South Africa 10ed vol. 1 p600.
[11]
Byron
v Duke Inc
2002
(5) SA 483
(SCA)
para 2.
[12]
1974(3)SA204[OPD]
[13]
Eskom
v Soweto City Council
1992(2)
SA 703
(W).