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2023
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[2023] ZAFSHC 80
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South African Legal Practice Council v Mokhele (5511/2022) [2023] ZAFSHC 80 (17 March 2023)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case no:
5511/2022
Reportable: NO
Of Interest to other
Judges: YES
Circulate to
Magistrates: YES
In the matter between:
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
Applicant
and
LEBOHANG
MICHAEL MOKHELE
Respondent
In
re:
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
Applicant
LEBOHANG
MICHAEL MOKHELE
1
st
Respondent
LM
MOKHELE INCORPORATED
2
nd
Respondent
CORAM:
JP DAFFUE, J
HEARD ON:
06 March 2023
DELIVERED ON:
17 March 2023
Summary:
Contempt of court – respondent fully aware of his
temporary suspension from practice as attorney – non-compliance
with
the court order established beyond reasonable doubt –
elements of wilfulness and mala fides also proved as the respondent
failed to establish reasonable doubt – respondent declared to
be in contempt of court and a suspended order for committal
to
imprisonment granted.
ORDER
1. The applicant’s
non-compliance with the requirements pertaining to form, process,
service and time periods is condoned
and the matter is heard as one
of urgency in terms of rule 6(12) of the rules of court.
2. It is declared that
the respondent is in contempt of the order of this court granted on
23 November 2022 under case number 5511/2022.
3. The respondent is
committed to imprisonment for a period of one month which committal
is suspended on condition that he immediately
complies with the order
mentioned in paragraph 2 above.
4. Should the respondent
fail to comply with this order, the sheriff is hereby directed, with
the assistance of members of the South
African Police Service, to
arrest and commit the respondent to prison.
5. The respondent shall
pay the applicant’s costs of the application on an attorney and
client scale.
JUDGMENT
INTRODUCTION
[1]
The
respondent in this contempt of court application, Mr Lebohang Michael
Mokhele, has been temporarily suspended from practice
as a legal
practitioner under the same case number by the Honourable Justice C
Reinders and Acting Justice Boonzaaier on 23 November
2022 (the
suspension order).
[1]
The
respondent is cited in the main application as the first respondent
and his professional company of which he is the sole director,
LM
Mokhele Incorporated, is cited as the second respondent.
[2]
In
terms of the suspension order a rule nisi was issued returnable 20
April 2023, calling upon the respondents to show cause, inter
alia
why Mr Mokhele should not be suspended from the practice of legal
practitioner pending an application to be launched by the
applicant
to have his name struck from the roll of legal practitioners.
[2]
[3] It is common cause
that the respondent continues to practise as a legal practitioner (an
attorney) and has done so since the
time that he has filed his
application for leave to appeal the suspension order. He claims that
he is entitled to carry on practising
as such and that he is not in
contempt of court. Whether he is entitled to practise at this stage
is the crux of the issue to be
considered in this application as it
has a direct bearing on the relief sought, ie that he be held in
contempt of court and committed
to imprisonment, conditionally
suspended.
ISSUES IN DISPUTE
[4] The respondent raised
several issues in his answering affidavit, his written heads of
argument as well as in oral argument.
The issues in dispute are the
following:
a.
the
application is not urgent and in any event, the applicant created its
own urgency as it learned on 5 December 2022 that the
respondent
would continue appearing in various courts on the basis that he had
filed an application for leave to appeal on 2 December
2022.
[3]
The contempt of court application was issued and served on 17
February 2023, ie more than two months later.
b.
The
application is defective in that the applicant’s attorney of
record has been instructed as early as 1 February 2023 which
preceded
the resolution of the Executive Committee; consequently, the mandate
and authority to launch the present application is
defective.
[4]
c.
The
order suspending the respondent is final in effect, barring the
respondent to operate as an attorney and to earn a living and
this
final and definitive order is not susceptible to alteration by the
court of first instance.
[5]
d.
The
noting of the appeal by the respondents suspended the operation and
execution of the suspension order pending the outcome of
the appeal
and in this regard reliance is placed on the common law restated in
subsec 18(1) of the Superior Court Act 10 of 2013.
[6]
Therefore, the respondent is not acting wilfully and mala fide.
URGENCY
[5]
Where
a delay in hearing a matter will prejudice the public’s
interest, it should ordinarily enjoy the urgent attention of
the
court as stated in
Victoria
Park Rate Payers Associations v Greyvenouw CC:
[7]
‘
All matters in
which an ongoing contempt of an order is brought to the attention of
a court must be dealt with as expeditiously
as the circumstances and
the dictates or fairness allow.’
[6]
More
recently the Constitutional Court reaffirmed the aforesaid principle
in
Secretary
of the Judicial Commission Inquiry into allegations of State Capture,
Corruption and Fraud in the Public Sector including
Organs of State v
Zuma and Others
(
the
State Capture
judgment)
[8]
when it inter alia stated:
‘
The ongoing
defiance of this Court’s order, by its very nature, renders
this matter urgent.’
In casu the respondent is
an officer of the court who should be protecting the Constitution and
the rule of law.
[7]
The
respondent complained early on in his answering affidavit that the
affidavit was prepared in haste and that he was ‘extremely
prejudiced in that I am not able, in this answering affidavit, to
place all the “arsenal” of facts that, would otherwise
have been at my disposal as well as proffer adequately researched
legal submissions. I respectfully submit that, had it been otherwise,
my factual and legal submissions would certainly swing the pendulum
in my favor.’
[9]
I quoted
this paragraph to the respondent at the start of the proceedings and
enquired from him whether he wanted a postponement
in order to either
file a supplementary affidavit, or to consider further legal
argument. However, he made it clear that he was
prepared to argue the
application on the basis of the documents before me and that he was
fully prepared to make submissions of
a legal nature.
ALLEGED DEFECTIVE
APPLICATION
[8]
The
respondent’s allegation is misguided. It is apparent that the
applicant’s attorneys were instructed on 1 February
2023 to
bring a contempt of court application. This instruction was given
based on a resolution by the applicant’s Executive
Committee
via round robin communication. The round robin decision was ratified
by the Executive Committee on 6 February 2023 as
is evident from the
letter by applicant’s Executive Officer dated 14 February
2023.
[10]
The founding
affidavit was deposed to by Ms JK Myburgh in her capacity as the
National Chairperson of the applicant. Nothing more
needs to be said
about the respondent’s contention, save to state that the
applicant as
custos
morum
is
the guardian of morals of the legal practitioners’ profession
that acts in the public interest in these proceedings.
FACTS NOT IN DISPUTE
[9] The following facts
are not in dispute:
a. That the
suspension order was issued on 23 November 2022.
b. The
respondent opposed the relief sought in the main application and also
filed heads of argument.
c. He was in
court when the suspension order was read out and he also received a
copy thereof from the judge’s
secretary.
[11]
d. Although
the respondent denied that the sheriff had served the suspension
order on him personally, submitting during
oral argument that this
requirement for contempt had not been met, he admitted that it was
served at his office by the sheriff
who also attached the relevant
property in terms of the order, removed same and handed them over to
the curator.
[12]
e. The
respondent appeared in two criminal matters on 6 December 2022 and 23
January 2023 respectively and on his own
admission continues to
practise as an attorney. He also made it clear that he would continue
to practise as such and I quote:
[13]
‘
It is stated by
the Applicant that there are flagrant disregard of the order herein
by the Respondent, instead, the Respondent is
compliant with the said
order in that, he only started operating only after the institution
of the Application for Leave to Appeal
and up until same has been set
aside by a competent court, it remains the Respondent’s stance
that, he will continue operating
normally as the order suspending him
from practice has been suspended by the institution of the
Application for Leave to Appeal.’
f. The respondent has not
been issued a Fidelity Fund Certificate for the present year and is
therefore practising contrary to the
provisions of subsec 93(8) of
the Legal Practice Act 28 of 2014 (the LPA).
[14]
In this regard it is his case that the applicant had blocked his
profile and as a result it is impossible to apply for such a
certificate.
THE RESPONDENT’S
ATTITUDE TOWARDS THE APPLICANT
[10] I was quite
perturbed when reading the answering affidavit as well as
respondent’s heads of argument. There can be no
doubt that the
respondent has no respect for the professional body to which he
belongs. I do not intend to quote each and every
sentence or
paragraph in support of my contention, but a few examples will
suffice:
a. ‘At
the outset, I vouch that the application of the Applicant is ill
conceived, ill-fated, misplaced and/or
bad in law.’
[15]
b.
When
responding to the applicant’s allegation that the application
was urgent as the respondent’s conduct undermined
the justice
system by continuing to practise contrary to a court order, he
referred to this as an ‘outlandish averment which
only exists
in the figment of the imagination of the Applicant and is not
supported by any objectively verifiable evidence.’
[16]
c.
The
respondent also made the following comment: ‘What is quite
shocking from the Applicant’s version is the fact that,
they
are failing to take the Honorable Court’s (sic) in their
confidence by stating was is causing (sic) the delay on their
part to
have brought this application timeously.’
[17]
d.
Later
on the respondent seeks a costs order ‘de bonis propriis
against the applicant’s deponent.’
[18]
e.
The
respondent further commented as follows: ‘What is shocking,
alarming and which must be frowned upon is the conduct of
the
Applicant on how they have been handling this matter to the total
disregard of the rights of the Respondent to the self-created
protection of the public interest and which interest has never been a
course (sic) of concern.’
[19]
f.
Another example is the
following: ‘It is a shame that, the Applicant with such vast
resources at their disposal they stoop
low and use frivolous
application such as the present one to personally attack the
Respondent’s persona and standing in the
legal profession.’
[20]
[11]
Some
years ago the Supreme Court of Appeal referred to the common
occurrence that practitioners accused of wrongdoing elect to attack
the professional bodies to which they belong. The following dictum in
Law
Society, Northern Provinces v Mogami
and
Others
is
apposite
[21]
although that
case dealt with dishonest conduct in striking off applications which
is not the case in casu:
‘
[26]
Very serious, however, is the respondents' dishonest conduct of the
proceedings. Instead of dealing with the issues they launched
an
unbridled attack on the appellant. It has become a common
occurrence for persons accused of a wrongdoing, instead of
confronting
the allegation, to accuse the accuser and seek to break
down the institution involved. This judgment must serve as a warning
to
legal practitioners that courts cannot countenance this strategy.
In itself it is unprofessional.’
CONTEMPT OF COURT
[12]
The
requirements to be satisfied to hold a party in contempt of court are
well-known and once again confirmed in
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others
;
Mkhonto
and Others v Compensation Solutions (Pty).
[22]
These are:
‘
(a)
the existence of a court order; (b) service or notice thereof;
(c) non-compliance with the terms of the order; and (d) wilfulness
and
mala
fides
.’
[13]
Once
an applicant has established the existence of the order, service or
notice thereof and non-compliance, the respondent bears
the
evidential burden in relation to wilfulness and mala fides. It is
settled that the onus is on the applicant to prove all these
requirements beyond reasonable doubt where committal of the
respondent as a sanction is sought.
[23]
[14]
The
court held in
Fakie
NO v CCII Systems (Pty) Ltd (Fakie)
that
the refusal to obey a court order should be both wilful and mala fide
and that the unreasonable non-compliance with the order,
provided it
is bona fide, does not constitute contempt of court. Consequently,
the offence of contempt of court is committed ‘
not
by mere disregard of a court order, but by the deliberate and
intentional violation of the court’s dignity, repute or
authority that this evinces. Honest belief that non-compliance is
justified or proper is incompatible with that intent.’
[24]
[15]
Cameron JA provided the
following summary in
Fakie
:
[25]
‘
To sum up:
a. The civil
contempt procedure is a valuable and important mechanism for securing
compliance with court orders, and survives
constitutional scrutiny in
the form of a motion court application adapted to constitutional
requirements.
b. The respondent
in such proceedings is not an ‘accused person’, but is
entitled to analogous protections as
are appropriate to motion
proceedings.
c. In particular,
the applicant must prove the requisites of contempt (the order;
service or notice; non-compliance; and
wilfulness and mala fides)
beyond reasonable doubt.
d. But once the
applicant has proved the order, service or notice, and
non-compliance, the respondent bears an evidential
burden in relation
to wilfulness and mala fides: should the respondent fail to advance
evidence that establishes a reasonable doubt
as to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.
e. A declarator
and other appropriate remedies remain available to a civil applicant
on proof on a balance of probabilities.’
[16]
It
is also important to quote the following dicta of the Constitutional
Court in
Pheko
v Ekurhuleni City:
[26]
‘
[36]
…
Therefore
the presumption rightly exists that when the first three elements of
the test for contempt have been established,
mala
fides
and
wilfulness are presumed unless the contemnor is able to lead evidence
sufficient to create reasonable doubt as to their existence.
Should
the contemnor prove unsuccessful in discharging this evidential
burden, contempt will be established.
[37]
However, where a court finds a recalcitrant litigant to be possessed
of malice on balance, civil contempt remedies other than
committal
may still be employed. These include any remedy that would
ensure compliance such as declaratory relief, a mandamus
demanding
the contemnor to behave in a particular manner, a fine and any
further order that would have the effect of coercing compliance.’
[17]
There
is a public interest element in each and every case where it is
alleged that a party has wilfully and in bad faith failed
to comply
with a court order, especially so where a legal practitioner is
alleged to be the guilty party. The effectiveness and
legitimacy of
the legal system will come under threat if nothing is done to prevent
these kind of abuses. The Constitutional Court
recently made this
very clear in the
State
Capture
Judgment
referred to above.
[27]
[18]
Courts
are the guardians of the Constitution and assert their authority in
the public interest. Their dignity and authority must
be upheld.
Court orders will be effective only if there are assurances that they
will be enforced.
In
Pheko v
Ekurhuleni City
the
Constitutional Court with respect correctly held that ‘disobedience
towards court orders or decisions risks rendering
our courts impotent
and judicial authority a mockery.’
[28]
ANALYSIS AND
EVALUATION OF THE EVIDENCE AND LEGAL PRINCIPLES
[19] The respondent
argued his own case, and apparently drafted his own answering
affidavit and heads of argument. Let it be clear:
the respondent who
is in practice for 11 years is clearly fully conversant with the
facts of this matter and if one considers the
detailed manner in
which he drafted the heads of argument, there can be no doubt that he
should be fully acquainted with the legal
principles pertaining to
judgments and orders, the finality thereof as well as the legal
principles applicable to appeal procedure.
[20]
The
respondent stated that the order of 23 November 2022 was never served
upon him or upon a person older than 16 years and apparently
because
this is a status application, personal service should have taken
place. Consequently, he argued that in the light of the
improper
service, one of the requirements of contempt of court has not been
met.
[29]
This version is
untenable, bearing in mind that he quoted the full court order in his
application for leave to appeal.
[30]
As mentioned, he also confirmed during oral argument that he was made
aware of the suspension order in court when it was read out.
He also
received a copy of the order in court.
[21]
It
is common cause that the respondent decided to carry on practising as
an attorney notwithstanding his suspension. Over and above
what was
stated earlier herein, the respondent made his stance quite clear in
the answering affidavit. He stated that ‘he
only started
operating only after the institution of the application for leave to
appeal and up until same has been set aside by
a competent court, it
remains the respondent’s stance that, he will continue
operating normally as the order suspending him
from practice has been
suspended by the institution of the application for leave to
appeal.’
[31]
The first
three requirements for contempt of court have been established beyond
reasonable doubt.
[22]
The
position under s 16 of the Superior Courts Act pertaining to appeals
is in accordance with the general rule laid down in
Zweni
v Minister of Law and
Order of the Republic of South Africa.
[32]
The three attributes of a
‘judgment or order’ subject to an appeal are the
following:
a. it must be final in
effect and not susceptible of alteration by the court of first
instance;
b. it must be definitive
of the rights of the parties, ie it must grant definite and distinct
relief; and
c. it must have the
effect of disposing of at least a substantial portion of the relief
claimed in the main proceedings.
It is accepted that an
interlocutory order with a final and definitive effect on the main
application is a ‘judgment or order’
which is appealable.
The real question is whether it can be altered and/or corrected on
the return date or whether it can only
be attacked on appeal. Having
said this, there is scope for a finding that an interim interdict is
appealable on the basis that
it has the effect of a final
judgment.
[33]
This is not such
a case.
[23] Although the return
date of the rule nisi in casu has been set to be 20 April 2023, and
thus about five months after the suspension
order was granted, I have
no doubt that the order of 23 November 2022 does not have the effect
of a final judgment although the
respondent is temporarily prevented
from practising as an attorney. He and his company are called upon to
show cause on the return
date of 20 April 2023, a month from now why
the interim orders should not be made final. Contrary to his version
such orders are
susceptible to alteration by the court of first
instance. If the respondent really believed that he was entitled to
practise in
the meantime, he could have applied for relief to obtain
his books and files confiscated by the applicant, to unfreeze his
trust
bank account with Standard Bank and to direct the applicant to
allow him to apply for a Fidelity Fund Certificate. He failed to
take
any of the steps in this regard.
[24]
The
respondent made it clear during oral argument that he specifically
relied on the judgment of
Ntlemeza
v Helen Suzman Foundation and another
[34]
as
well as the wording of subsecs 18(1) and 18(3). The reference to
paragraph 19 in
Ntlemeza
is
of no assistance as the court merely referred to the common law
principles enunciated in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd.
[35]
[25] It is important to
quote subsecs 18(1) to 18(3) of the Superior Courts Act:
‘
18
Suspension of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the decision
of
the application or appeal.
(2)
Subject to subsection (3), unless the court under exceptional
circumstances orders otherwise, the
operation and execution
of
a decision that is an
interlocutory order not having the effect of
a final judgment
, which is the subject of an application for
leave to appeal or of an appeal,
is not suspended
pending the
decision of the application or appeal.
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise,
in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not so order and
that the
other party will not suffer irreparable harm if the court so orders.’
(emphasis added).
[26] The respondent is
wrong. Subsection 18(1) deals with the operation and execution of a
decision which is appealable and the
suspension thereof in the
circumstances contained in the subsection. This subsection is not
applicable in casu.
[27] Subsection 18(2)
deals with interlocutory orders not having the effect of a final
judgment. In such a case the operation and
execution of such an
interlocutory order is not suspended pending the decision of the
application for leave to appeal or the appeal,
unless the court under
exceptional circumstances orders otherwise. This subsection is
applicable in casu.
[28]
In
Knoop NO
v Gupta (Execution)
[36]
the Supreme Court of
Appeal held that the effect of subsections 18(1) and 18(3) is that an
applicant seeking an execution order
must prove three things: (a)
namely
exceptional circumstances; (b) that it will suffer irreparable harm
if the order is not made; and (c) that the party against
whom the
order is sought will not suffer irreparable harm if the order is
made. Contrary to the situation in subsec 18(1), and
as mentioned,
subsec 18(2) provides that the operation and execution of an
interlocutory order not having the effect of a final
judgment which
is the subject of an application for leave to appeal or an appeal is
not suspended pending the decision of the application
or appeal,
unless the court under exceptional circumstances orders otherwise. In
casu, no application has been made by the respondent
to suspend the
suspension order issued on 23 November 2022. In any event, it is not
the respondent’s case that it was necessary
for him to apply
for such an order and consequently no issue of exceptional
circumstances arise for consideration.
[29]
Ntlemeza
is no authority for the submission advanced by the respondent. In
that case the decision by the High Court directing that
Ntlemeza
should not be permitted to continue in his post as National Head of
the Directorate for Priority Crime Investigation was taken
on appeal
by way of an application for leave to appeal. Clearly the order of
the High Court was final in effect and that court
was
functus
officio
pertaining to the decision arrived at. Consequently, the
Supreme Court of Appeal had to consider the application of subsec
18(1)
read with subsec 18(3) and concluded eventually that
Ntlemeza’s
appeal should be dismissed.
[30]
In
Samancor
Chrome Ltd v Bila Civil Contractors (Pty) Ltd and Others,
[37]
the Supreme Court of Appeal considered the legal advice allegedly
provided to the respondents. The court held that they were obliged
to
state the full details of the alleged advice which in an ordinary
course included details about the nature of the advice, when
it was
received, by whom it was received and by whom it was given.
[38]
In that case the respondents intended to lodge an application for
leave to appeal to the Supreme Court of Appeal, but in the meantime
and prior to the lodging of the application, continued transgressing
the High Court order prohibiting them from carrying on with
mining
activities. The court referred to subsec 18(5) of the Superior Courts
Act and concluded that the mere intention to file
an application for
leave to appeal was not enough insofar as the aforesaid subsection
refers to the lodging of the application
with the registrar in terms
of the rules. The court held that the respondents’ version was
not only untenable, but also far-fetched
[39]
and concluded that the respondents did not advance credible evidence
to give rise to reasonable doubt and therefore non-compliance
was
found to have been wilful and mala fide.
[40]
[31]
Having
referred to the first
Samancor
Chrome
judgment
of the SCA, it is necessary to consider the second
Samancor
Chrome
judgment,
to wit
Samancor
Chrome Ltd v Bila Civil Contractors (Pty) Ltd.
[41]
In that case the
respondent relied on legal advice to the effect that the application
for leave to appeal automatically suspended
the order of the High
Court. The Supreme Court of Appeal held that the legal advice
provided was clear and that ‘it is hard
to conclude that Bila
as a lay litigant did not genuinely accept the advice given by its
legal representatives, albeit uncritically
so, that the interim order
could be appealed against.’
[42]
Therefore, the court could not ignore this and held that reasonable
doubt was raised as to whether the order was disobeyed wilfully
and
mala fide.
[43]
[32]
The
second
Samancor
Chrome
judgment
is distinguishable from the facts in casu for the following reasons.
The respondent relies on his own opinion. Firstly,
his reliance on
the
Ntlemeza
judgment is totally wrong
and any reasonable attorney would have noticed that. Secondly, he
failed to consider the provisions of
subsec 18(2) at all, but
steadfastly tried to rely on subsecs 18(1) and (3). I am not prepared
to find that the respondent as an
experienced attorney could honestly
believe that he could ignore the clear provisions of subsec 18(2) and
tried to make out a case
based on subsecs 18(1) and 18(3). I accept
that in opposed motion proceedings, as in casu, the well-known
Plascon
Evans
test
must be applied as again reiterated in
Director
of Public Prosecutions v Zuma
[44]
and that it is often
difficult to reject a respondent’s version on the papers
especially when motive is to be considered.
It is therefore not
surprising that contempt of court orders are often set aside on
appeal. Notwithstanding this observation, I
am still convinced that
the respondent is transgressing the suspension order wilfully and
mala fide.
[33] Having come to the
conclusion in the previous paragraph, it is necessary to say
something about the respondent’s two
previous appearances in
the High Court. It is not good enough to say that he appeared before
two judges of this court who allowed
him to act accordingly. In both
matters the criminal cases were merely postponed. The first matter is
a part-heard criminal matter
that was postponed to 5 December 2022 to
arrange new trial dates and the second matter was a pre-trial
conference which was merely
postponed. In the first matter the
presiding judge emphasised during oral argument by the State Advocate
and the respondent, after
having been informed of the suspension
order and the filing of the application for leave to appeal, that he
did not have the benefit
of legal argument relating to the finality
or otherwise of the suspension order and refused to make a final
determination. He ruled
in favour of accused 2 before him that the
respondent should not be barred from appearing on his behalf in the
postponement proceedings.
Consequently, the trial was postponed for
further hearing from 15 May to 2 June, the dates being beyond the
return date in the
present matter.
[34]
Contrary to the
respondent’s viewpoint that he is entitled to practise as an
attorney, he failed to seek relief against the
applicant to allow him
to apply for a Fidelity Fund Certificate, bearing in mind that his
profile had been blocked which prevents
him from applying for such a
certificate. The respondent also threatened with litigation if all
his ‘office tools’
which presumably refers to his files
and books were not returned to him before the 7
th
of December 2022, but
notwithstanding such threats, he failed to execute them. Contrary to
the advice of the applicant he continued
as follows:
[45]
‘
We do not intend
to get into the reasons and grounds why we are stating with braveity
(sic) that we are continuing on practicing
normally but be pleased to
take notice that, we will never cease operating and appearing in
various courts and in various matters
that we have.’
In the same letter the
respondent stated that the application for contempt of court with
which he was threatened would be vigorously
opposed and a punitive
costs order would be sought against the applicant’s
director.
[46]
[35] I conclude by
reiterating that the respondent failed to persuade the court that he
bona fide and honestly believed that he
could continue practising as
an attorney pending the return date of the interim suspension order
granted on 23 November 2022. I
am satisfied that the applicant has
established his wilfulness and mala fides beyond reasonable doubt.
During oral argument the
applicant’s counsel sought a term of
six months’ imprisonment, duly suspended as set out in the
notice of motion. Such
a sanction is too severe. In my view a period
of one month will suffice. I need to mention at this stage that I
detected a typing
error in paragraph 3 of the notice of motion, being
the reference so the order mentioned in paragraph 1 of the notice of
motion,
which is clearly a typing error as it should read paragraph
2. When I pointed this out before argument, applicant’s counsel
sought an amendment, but the respondent objected thereto without
indicating any prejudice. I dismissed the objection and granted
the
amendment.
COSTS
[36]
The
applicant is substantially successful and as the successful litigant
it is entitled to a costs order in its favour. The general
rule in
striking off applications and applications of this nature is that the
respondent (the practitioner) has to pay the costs
of the
professional body (in casu the applicant) on an attorney and client
scale, the reason being that the applicant is not an
ordinary
litigant as it performs a public duty.
[47]
There is no reason not to follow the general rule.
ORDER
[37] The following order
is issued:
1. The applicant’s
non-compliance with the requirements pertaining to form, process,
service and time periods is condoned
and the matter is heard as one
of urgency in terms of rule 6(12) of the rules of court.
2. It is declared that
the respondent is in contempt of the order of this court granted on
23 November 2022 under case number 5511/2022.
3. The respondent is
committed to imprisonment for a period of one month which committal
is suspended on condition that he immediately
complies with the order
mentioned in paragraph 2 above.
4. Should the respondent
fail to comply with this order, the sheriff is hereby directed, with
the assistance of members of the South
African Police Service, to
arrest and commit the respondent to prison.
5. The respondent shall
pay the applicant’s costs of the application on an attorney and
client scale.
J P DAFFUE, J
On
behalf of the Applicant:
Adv
MS Mazibuko
Instructed
by:
Faizel
M. Amade
BLOEMFONTEIN
On
behalf of the Respondent:
Mr
Mokhele
Instructed
by:
In
Person
BLOEMFONTEIN
[1]
The court order is annexed as
annexure
“X” to the notice of motion, pp 5 – 11 of the
record.
[2]
Paragraph
2.1 of the court order to be read with para 3 thereof which reads as
follows: ‘The orders in paragraphs 2.1 –
2.12 and 2.14
above shall operate as interim orders with immediate effect’.
[3]
Answering affidavit: para 18, p 115.
[4]
Applicant relies on
the
resolution taken at the Executive Committee meeting of 6 February
2023 which was confirmed in a letter dated 14 February 2023:
annexures “FA1A” & “FA1B” to the
founding affidavit.
[5]
Paragraphs
40 and 41 of the answering affidavit, p 123.
[6]
The
respondent made it clear in his answering affidavit, written heads
of argument and specifically in oral argument that reliance
is
placed on subsecs 18(1) and (3) of the Superior Court Act as well as
Ntlemeza
v Helen Suzman Foundation and another
2017
(5) SA 402
(SCA) at para 19.
[7]
2004 JDR 0498 (SE) at paras 26 & 27.
[8]
2021
(5) SA 327 (CC).
[9]
Answering
affidavit para 12, p 113.
[10]
Annexures FA1A and FA1B to the founding affidavit, pp 36 & 37.
[11]
Founding Affidavit para 49 on p 26; he
confirmed
this in court during argument on 6 March 2023.
[12]
Annexure
FA5 to the founding affidavit p 76 read with annexure FA6 p 77 to
79, being a letter of the respondent to the applicant.
[13]
Answering
affidavit para 68, p 132.
[14]
This
subsection reads as follows: ‘
Any
person who contravenes sections 84(1) or (2) or section 34, in
rendering legal services— (a) commits an offence and
is liable
on conviction to a fine or to imprisonment for a period not
exceeding two years or to both such fine and imprisonment;
(b) is on
conviction liable to be struck off the Roll; and (c) is not entitled
to any fee, reward or reimbursement in respect
of the legal services
rendered.’
[15]
Answering
affidavit para 6, p 111.
[16]
Answering
affidavit para 27, p 119.
[17]
Answering
affidavit para 29, pp 119 & 120.
[18]
Answering
affidavit paras 31 & 33, p 120 & p 121.
[19]
Answering
affidavit para 118, p 144.
[20]
Answering
affidavit para 126, p 146.
[21]
2010 (1) SA 186
(SCA) para 26; also Law Society, Northern Provinces
v Sonntag
2012 (1) SA 372
(SCA) at paras 17 & 18.
[22]
2018 (1) SA 1
(CC) para 73.
[23]
Ibid
para
74.
[24]
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
para
10.
[25]
Ibid
para 42.
[26]
2015
(5) SA 600
(CC) at paras 36 & 37 with reference to
Fakie;
see
also
Matjhabeng
Local Municipality v Eskom Holdings Limited and Others
;
Mkhonto
and Others v Compensation Solutions
(Pty)
2018 (1) SA 1
(CC) at para 67.
[27]
Fn 8 at
para
34 of the judgment; see also
Public
Protector or South Africa v The Speaker of the National Assembly and
others
[2023]
1 All SA 256
(WCC) para 24.
[28]
Pheko
loc cit para 1.
[29]
Answering
affidavit paras 105 – 106, pp 140 – 141.
[30]
Annexure
“FA2” to the founding affidavit pp 38 – 52.
[31]
Answering
affidavit para 68, p 132.
[32]
1993
(1) SA 523
(A) at 532 i – 533 b; see also
SA
v JHA
2022
(3) SA 149
(SCA) para 23 and numerous other judgments since
Zweni
.
[33]
Mathale
v Linda and another
2016
(2) SA 461
(CC) paras 25 – 30, which case is clearly
distinguishable bearing in mind that the eviction order was found to
have an
immediate and devastating effect upon a homeless person.
[34]
2017 (5) SA 402
(SCA) at para 19.
[35]
1977
(3) SA 534
(A) at 544 h – 545 g.
[36]
2021
(3) SA 135
(SCA) para 45.
[37]
(Case no 159/2021)
[2022]
ZASCA 154
(7 November 2022).
[38]
Ibid
,
para 53 with reference to
S
v Abrahams
1983
(1) SA 137
(A) at 146 F – H.
[39]
Ibid
,
para 60.
[40]
Ibid
,
para 64.
[41]
(Case no 810/2021)
[2022]
ZASCA 163
(8 November 2022);
see
in general paras 57 to 70 of the judgment.
[42]
Ibid
,
para 67.
[43]
Ibid
,
para 68.
[44]
[2009] ZASCA 1
;
2009
(2) SA 277
(SCA) para 26.
[45]
Paragraph 4, p 83.
[46]
FA8,
p 82 to 84.
[47]
Law
Society of the Northern Provinces v Dube
[2012]
4 All SA 251
(SCA) para 33.