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[2023] ZAFSHC 374
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Joubert v South African Legal Practice Council (5220/2022) [2023] ZAFSHC 374 (22 September 2023)
THE HIGH COURT OF
SOUTH AFRICA
FREE STATE
PROVINCIAL DIVISION
Case
No: 5220/2022
Reportable:
yes/no
Circulate
to other Judges: yes/no
Circulate
to Magistrates: yes/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
1
st
Respondent
KRAMER
WEIHMAN INCORPORATED
2
nd
Respondent
JOHANNES
ANDREAS KRAMER
3
rd
Respondent
JACOB
LODEWYK WEIHMAN
4
th
Respondent
JAQCUES
NORTJE
5
th
Respondent
CINDY
LEE
DICKENS
6
th
Respondent
ANDRIE
LOUIS VISSER
7
th
Respondent
DANIEL
MULLER
8
th
Respondent
HEARD
ON
:
15 MAY 2023
CORAM
:
BERRY AJ
DELIVERED
ON
:
22 SEPTEMBER 2023
INTRODUCTION
[1]
The Applicant in the interlocutory Applications is the 1
st
Respondent in the main application. The Respondent is the Applicant
in the main Application.
[2]
The Applicant in the main application is seeking an order to suspend
or to strike
the 1
st
Respondent from the roll of Legal
Practitioners in terms of the Legal
Practice Act, No. 28 of 2014
(“the LPC Act”).
[3]
The 1
st
Respondent brought an Application in terms of
Uniform Rule 30(A) for the following interlocutory orders:
(i)
That the Applicant be compelled to comply with the 1
st
Respondent`s notice in terms of Rule 7 which was served on 16
November 2022.
(ii)
That leave be granted to the 1
st
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 that the Applicant’s main Application be struck off
the roll.
[4]
The 1
st
Respondent brought a further Application in terms
of Uniform Rule 30(1) for the following interlocutory orders:
(i)
That Applicant’s main Application be stayed pending compliance,
alternatively set aside due to the following
irregularities.
(A)
On 16 November 2022 the 1
st
Respondent delivered his notice in terms of Rule 7 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 Rule 7 within the prescribed time 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 these Applications.
(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 so authorises to act.
(D)
On 28 November 2022, subsequent to 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.
[5]
The Court
a quo
held:
“
[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 (sic) 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.”
[6]
The appeal lies against this decision.
[7]
The Rule 7 notice was given three days prior to the hearing of the
Rule 30(A) and
30(1) Applications.
GROUNDS
OF APPEAL
[8]
The main grounds of appeal are that the Court
a quo
erred in
finding that the deponent to the Answering Affidavit as well as the
Founding Affidavit in the main Application, is duly
authorised to
depose to the Affidavit on behalf of the Applicant.
[9]
That the attorney acting on behalf of the Applicant is duly
authorised and that the
Rule 7 Notice was filed out of time, thus
necessitating a Condonation Application.
[10]
That the set down of the main Application does not constitute an
irregular step in terms of Rule
30(1).
[11]
That the Applicant was not compelled in terms of
Rule 30(A) to Respond to the Rule 7 Notice, before setting
the main
Application down for hearing.
ANALYSIS
[12]
The main thrust of the appeal is that the Provincial Council is not
empowered by the
Legal Practice Act 28 of 2014
to bring an
Application to suspend or remove an attorney from the roll of legal
practitioners and that the Application can only
be brought by the of
the National Legal Practice Council.
[13]
The grounds of appeal would entail that only the
National Legal Practice Council is be empowered to bring
Applications
of this nature, thus disempowering the Provincial Legal Practice
Councils to act against attorneys acting in the jurisdiction
of the
Court they are situated.
[14]
The Provincial Council is empowered under
section 40(3)(a)(iv)
, read
with
section 43
and
Sec 44(1)
of the
Legal Practice Act, to
bring an
Application for the striking off the roll or suspension from practice
of a legal practitioner.
[15]
Sec 44
provides that the provisions of the Act do not derogate in the
power of the High Court to adjudicate upon and make orders in respect
of matters concerning the conduct of a legal practitioner.
[16]
The Provincial Council has the following powers and functions in
terms of the
Legal Practice Act:
“
Regulation
5(2) 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.“
[17]
Section 17(1) of the Superior Court’s Act 10 of 2013 provides
that leave to appeal may
only be granted if the judge concerned is of
the opinion that:
1.
The appeal would have a reasonable
prospect of success or if there are some compelling reasons why leave
should be granted.
2.
The decision sought on appeal does not
fall within the ambit of s16(2)(a) of the Act.
3.
Where the decision sought to be appealed
does not dispose of all the issues in the case, the appeal would lead
to a just and prompt
resolution of the real issues between the
parties.
[18]
In
Matoto
v Free State Gambling and Liquor Authority and Others
[1]
the Court held:
“
There
can be no doubt that the bar for granting leave to appeal has been
raised. Previously, the test was whether there was a reasonable
prospect that another court might come to a different conclusion.
Now, the use of the word ‘would’ indicate a measure
of
certainty that another court will differ from the court whose
judgment is sought to be appealed against.”
[19]
In
S
v Smith
[2]
the Court dealt with the question of what constitutes reasonable
prospects of success as follows:
“
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial Court. To succeed, therefore, the appellant
must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not remote but
have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success, that
the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound, rational
basis for
the conclusion that there are prospects of success on appeal.”
[20]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[3]
the Court held:
“
[16]
Once again it is necessary to say that leave to appeal, especially to
this court, must not be granted unless there truly is
a reasonable
prospect of success. Section 17(1)(a) of the Superior Court Act 10 of
2013 makes it clear that leave to appeal may
only be given where the
judge concerned is of the opinion that the appeal would have a
reasonable prospect of success; or there
is some other compelling
reason why it should be heard.
[17] An applicant for
leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic
chance of success on appeal. A
mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There
must be sound, rational basis to
conclude that there is a reasonable prospect of success on appeal.”
[21]
The issues raised in this Application for leave to Appeal deals with
interlocutory matters which
are nothing more than an effort to delay
the main Application.
[22]
The mere fact that the Rule 7 Notice was filed three days before the
interlocutory Applications
were set down to be heard, is indicative.
[23]
The bar has been raised for granting leave to appeal.
[24]
The Appeal does not have reasonable prospects of success.
[25]
ORDER
The
following order is made:
1.
The Application for leave to appeal is
dismissed with costs.
AP BERRY, AJ
For the Applicant:
Adv. A Sander
Instructed by:
Peyper Attorneys
BLOEMFONTEIN
For
the Respondent:
Adv N
Snellenberg SC
Adv
MS Mazibuko
Instructed
by:
Amade
& Company Inc.
BLOEMFONTEIN
[1]
(4629/2015)
[2017] ZAFSHC 80
(8 June 2017).
[2]
2012(1)
SACR 567 (SCA) par [7].
[3]
(1221/2015[2015]
ZASCA 176(25 November 2016).