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2023
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[2023] ZAFSHC 453
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Coetzee and Another v South African Legal Practice Council and Others (6055/2023) [2023] ZAFSHC 453 (21 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: YES
Circulate
to Magistrates: YES
Case
no: 6055/2023
In
the matter between:
REHAN
COETZEE
First
Applicant
IZAK
JACOB STEENKAMP
Second
Applicant
And
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
First
Respondent
STEENKAMP
& JANSEN INCORPORATED
Second
Respondent
THEUNIS
GOOSEN
Third
Respondent
CORAM:
REINDERS ADJP
et
OPPERMAN J
HEARD
ON:
17
NOVEMBER 2023
DELIVERED
ON:
21 NOVEMBER 2023
[1]
On 26 September 2023 this court (Naidoo J and Mahlangu AJ presiding)
under civil case number 6176/2022
granted two identical orders (the
“suspension/court order/s”) in respect of the applicants
now before court. In terms
of the court order the applicants are
suspended from practice as legal practitioners of the High Court of
South Africa pending
the finalisation of investigations against them
by the South African Legal Practice Council (the “LPC”)
and subsequent
disciplinary proceedings which may be instituted. Both
applicants were to surrender and deliver to the Registrar of this
Court
their certificates of admission and enrolment as attorneys.
[2]
The applicants intend to appeal against the aforementioned orders and
have filed a notice of application
for leave to appeal, setting out
various grounds upon which they base the latter.
[3]
It is common cause that the aforementioned application for leave to
appeal has not been adjudicated
yet. The applicants aver that they
engaged in correspondence with the LPC on whether it shares their
view that the filing of the
notice of application for leave to appeal
suspends the operation and execution of the suspension order.
[4]
In initial correspondence the LPC held the view that the filing of
the application for leave does
not suspend the execution and
operation of the order. Ostensibly it indicated that this aspect
would be discussed at a meeting.
According to the applicants
however, no answer had been forthcoming.
[5]
The applicants ultimately launched this application (the “main
application”) seeking
an order declaring the notice to have the
effect of suspending the operation and execution of the suspension
order pending the
outcome of the application for leave to appeal.
[6]
The LPC opposes the main application. It avers that the court order
is interlocutory and interim
in nature and therefore not appealable.
It contends that for an order to be final it must not be susceptible
of alteration by the
court of first instance, it must be definitive
of the rights of the parties and it must have the effect of disposing
of at least
a substantial portion of the relief claimed in the main
proceedings.
[7]
The LPC filed a conditional-counter application in the event of this
court granting the declarator
as sought by the applicants and further
a counter-application seeking relief which we consider in essence to
be ancillary to the
suspension order of 26 September 2023.
[8]
The relief sought by both parties is premised thereon that we condone
non-compliance with Uniform
Rule 6(12). As the matter is of
importance to both parties and as the parties contended the matter to
be urgent, we took the matter
on the roll.
[9]
Recently our brother Daffue J in
South African Legal Practice
Council v Mokhele
(5511/2022) [2023] ZAFSHC (17 March 2023) dealt
comprehensively with the principles regarding the finality or not of
interim orders
(although the application dealt primarily with
contempt of court)
.
I quote the following paragraphs from
Daffue J’s judgment (footnotes are not in accordance with the
judgment):
“
[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.
[1]
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, i.e., 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…”
[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).
[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)
[2]
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…”
[10]
The applicants in the main application sought to distinguish Daffue
J’s judgment on the basis that
therein the court order included
a
rule nisi
whereas the order under consideration
in casu
,
does not have a return date. In my view such distinction does not
alter the consideration in following the principles laid down
as
above. The suspension order is clear. It is not for this court to
pronounce its views on whether the order could or should have
been
granted. We are not sitting as a court of appeal and in respect of
the applicants, we are simply to adjudicate whether the
order is
interim or final in its operation. In respect of both applicants, the
relevant orders granted stipulates that such orders
are operational
pending the finalisation of the investigation against them and
subsequent disciplinary proceedings. The effect
thereof is that the
order will terminate on conclusion thereof.
[11]
I agree with the respondent that the order would, if need be,
susceptible to changes from time to time should
any party make out a
proper case for such amendment. Should the LPC therefore drag its
feet in its investigations, same might constitute
grounds for the
applicants to approach this court to reconsider the order.
[12]
I am therefore of the view that the relief sought by the applicants
cannot be granted. Likewise, I am not
prepared to grant the
counter-application. As indicated herein above we hold the view that
the relief sought by the LPC herein
is ancillary to the suspension
order, with some of the orders sought not being moved for ultimately
and others superfluous having
regard to the effect of the said court
order.
[13]
Accordingly the following orders are granted:
13.1
The main application is dismissed.
13.2
The counter-application is dismissed.
13.3
Each party to pay its own costs.
C
REINDERS ADJP
I
agree.
M
OPPERMAN J
On
behalf of the Applicants:
Mr R
Coetzee
Mr IJ
Steenkamp
In
person
BLOEMFONTEIN
On
behalf of the Respondent:
Adv N
Snellenburg SC
Instructed
by:
Symington
& De Kok Attorneys
BLOEMFONTEIN
[1]
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
.
[2]
2021
(3) SA 135
(SCA) para 45.