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[2023] ZAKZPHC 116
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Bandra Investments CC and Another v Chetwynd-Palmer and Others (17574/2022P) [2023] ZAKZPHC 116 (18 October 2023)
FLYNOTES:
PROFESSION – Complaint to LPC –
Instructions
not followed
–
Instructions
to oppose application for postponement and to oppose rescission of
separation order – LPC dismissing complaints
– SCA
case had to be followed and presiding judge had to grant
postponement – Concession by counsel that the
case was law –
Not disobeying client’s instructions but in accordance with
duty to court – Consolidation
was optimal way of dealing
with issues in trial – Applications for postponement and
condonation of late filing of review
dismissed.
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No: 17574/2022P
In the matter between:
BANDRA INVESTMENTS
CC
FIRST APPLICANT
MERCHANT
MOHAMMED
SECOND APPLICANT
and
SIMON
CHETWYND-PALMER
FIRST RESPONDENT
LEGAL PRACTICE
COUNCIL
SECOND RESPONDENT
S. NAIDOO INVESTIGATOR
LPC
THIRD RESPONDENT
Coram:
Davis AJ
Heard:
5 October 2023
Date
of order: 5 October 2023
Reasons:
18 October 2023
REASONS FOR ORDER
Davis AJ:
[1]
This is an opposed application in terms of
which the applicants seek the following relief:
(a)
Condoning the late filing of an application for the review and appeal
of the dismissal by
the Legal Practice Council, the second
respondent, of the complaints of the applicants, Bandra Investments
CC and Merchant Saleh
Mohammed, against the first respondent, Simon
Chetwynd-Palmer.
(b)
An order that the respondents pay the costs of the application, if
opposed.
It is clear that although
the applicants seek to appeal and to review the decision of the Legal
Practice Council, the correct remedy
sought in law is a review in
terms of section 7(1) of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA).
Parties
[2]
The first applicant is Bandra Investments
CC, a duly registered closed corporation, and the second applicant is
the sole member
of the first applicant, who is duly authorized to
bring this application on behalf of the first applicant. He can be
described
as the alter ego of the first applicant. He appears in
person.
[3]
The first respondent is a practising
attorney, who conducts his practice from a home office located at
Nyala Road, Kloof and who
has been an admitted attorney since 27
January 1977. He is represented by Mr Campbell.
[4]
The second respondent is the Legal Practice
Council and the third respondent is S Naidoo who conducted the
investigation into the
complaints made by the applicants. The second
and third respondents do not participate in the proceedings at all,
and they abide
by the decision of the court. For convenience, I will
refer to the first and second applicants as the applicant, the first
respondent
as the respondent and the second and third respondent as
the LPC.
Background
[5]
The
genesis of this application is the complaints filed by the applicant
with the LPC, following the postponement of a trial that
was due to
be heard on 3 to 5 May 2021, wherein the applicant was the
plaintiff.
[1]
Three days prior
to the hearing of the action, which had been instituted in 2008, the
defendants filed an application to amend
their plea and requested
that the matter be postponed for this purpose.
[6]
The
respondent was the attorney who had been instructed by the applicant
in respect of this application to amend. The applicant’s
instruction to the respondent was to strenuously oppose any
application for a postponement. The applicant had witnesses in court
ready to proceed should the application to amend the plea be refused.
The matter was, as is apparent from the record but not acknowledged
by the applicant, indeed opposed by counsel for the applicant.
[2]
A detailed history was placed before the trial judge of the delays
occasioned by the conduct of the defendants and that the applicant
wished to proceed.
[7]
Olsen
J, hearing the application to amend the plea, after being referred to
Stand
242 Hendrik Potgieter Road Ruimsig v Göbel NO and others
[3]
by the defendants’ counsel, and after taking time to read and
consider it, granted the postponement to allow for the amendment
of
the pleadings by the defendants. Counsel for the applicant, quite
properly in line with his duty as an officer of the court,
conceded
the following:
‘
M’Lord,
that is the law as I understand it . . . So that’s the reality,
a legal reality, which I cannot get away from
despite my
instructions, but that I am not seen in any way conceding to a
postponement.’
[4]
[8]
The second issue that generated the
complaints from the applicant was the role of the respondent in the
decision of the trial judge
to rescind the Uniform Rule 33(4) order
made in 2016. This order was to separate various issues pertaining to
the action. It is
common cause that the second applicant had passed a
piece of paper to the respondent instructing him to oppose the
rescission of
the 2016 separation order.
[9]
It is apparent from the record that the
consolidation of issues was only done after the postponement had been
granted by the court.
The record reveals that this unforeseen
occurrence was met with the following response by counsel for the
applicant:
‘
I
have no instructions on that but the second plaintiff objects to such
an order.’
[5]
To which the presiding
judge responded:
‘
Is
the second plaintiff not in a hurry to get his property?’
[10]
The
record thereafter reveals that both counsel for the applicant and the
defendants agreed that the consolidation of the matter
was the most
optimal way of dealing with the issues in the trial and more
importantly, of shortening the trial. The learned judge
[6]
then directly engaged with the applicant after the applicant asked
the court to stand down. The learned judge explained in considerable
detail why rescinding the order to separate the issues would expedite
the trial and ends his explanation as follows:
‘
So
if we can get rid of separated issues and have one hearing, that
suits this court. Why would it not suit you? You are the person
seeking relief in this case.’
[11]
Notwithstanding Olsen J’s
explanation, the applicant was extremely disappointed by the events
in court and shortly afterwards,
the respondent ceased to act as the
attorney for the applicant. Various disputes followed and six weeks
later, on 18 June 2021,
the applicant filed complaints against the
respondent with the LPC. These complaints, in summary, included inter
alia:
(a)
Counsel on brief, contrary to his express
instructions, presented arguments in favour of an adjournment.
(b)
Counsel on brief did not oppose the
rescission of the order of 2016.
(c)
There is a complaint over fees.
(d)
There is a complaint about the unlawful use
of trust funds by the respondent.
(e)
There is a complaint over the payment of
fees to counsel that was made
(f)
contrary to the express instructions of the
applicant.
(g)
That the respondent leaked privileged
information to an attorney.
(h)
That the respondent gave advice which
potentially exposed the applicant to a criminal charge.
(i)
That the respondent, and counsel instructed
by the respondent, failed to act in the best interests of the
applicant.
[12]
On
29 March 2022, the LPC dismissed the complaints against the
respondent and advised the applicant of the right to approach the
high court for a review of the Investigating Committee’s
decision.
[7]
On 9 June 2022, the
LPC notified the applicant that his submissions made to the LPC for
it to reconsider its original dismissal
of the complaints were
unsuccessful and once again notified him of his recourse to the high
court by way of review or appeal.
[8]
On 28 August 2022, the minutes of the directors’ meeting of the
first applicant reflect the authorisation to appeal or review
the
decision of the LPC.
[13]
On
15 December 2022, the applicant instituted the current
application.
[9]
[14]
On 4 April 2023, the registrar allocated 5
October 2023 for the matter to be heard on the opposed roll. On 22
September 2023, the
respondent filed his practice note and heads of
argument and served these on the designated address of the applicant.
The applicant
failed to file heads of argument or a practice note.
Application for
postponement
[15]
At the hearing on 5 October 2023, the
applicant appeared in person, armed with an affidavit seeking a
postponement of the hearing,
in order that he could instruct a legal
representative to afford him a chance to file papers in response to
the heads of argument
and practice note filed by the respondent. The
application for a postponement, six months after the matter was set
down, with less
than 48 hours’ notice to the respondent, was
strenuously opposed by the respondent. The application was not filed
with the
registrar and the affidavit was handed to the court at the
time of the hearing of the application.
[16]
Generally, if a bona fide reason is
furnished for such a postponement, and if the counter-side will not
be unduly prejudiced by
a postponement, such an application is
granted, provided of course that there is any point to the
postponement. As will appear,
it is both aspects which form the basis
of the opposition to the postponement application and the court’s
decision to refuse
the application.
[17]
In
Erasmus:
Superior Court Practice
,
[10]
the following is said with regard to postponements:
‘
The
legal principles applicable to an application for the grant of a
postponement by the court are as follows:
(a)
The
court has a discretion as to whether an application for a
postponement should be granted or refused. Thus, the court has
a
discretion to refuse a postponement even when wasted costs are
tendered or even when the parties have agreed to postpone
the
matter.
(b)
That
discretion must be exercised in a judicial manner. It should not be
exercised capriciously or upon any wrong principle, but
for
substantial reasons. If it appears that a court has not
exercised its discretion judicially, or that it has been influenced
by wrong principles or a misdirection on the facts, or that it has
reached a decision which could not reasonably have been made
by a
court properly directing itself to all the relevant facts and
principles, its decision granting or refusing a postponement
may be
set aside on appeal.
(c)
An
applicant for a postponement seeks an indulgence. The applicant
must show good and strong reasons, i e the applicant
must
furnish a full and satisfactory explanation of the circumstances that
give rise to the application. A court should be
slow to refuse a
postponement where the true reason for a party’s
non-preparedness has been fully explained, where his unreadiness
to
proceed is not due to delaying tactics, and where justice demands
that he should have further time for the purpose of presenting
his
case.
(d)
An
application for a postponement must be made timeously, as soon as the
circumstances which might justify such an application become
known to
the applicant. If, however, fundamental fairness and justice
justify a postponement, the court may in an appropriate
case allow
such an application for postponement even if the application was not
so timeously made.
(e)
An
application for postponement must always be bona fide and not used
simply as a tactical manoeuvre for the purpose of obtaining
an
advantage to which the applicant is not legitimately entitled.
(f)
Considerations
of prejudice will ordinarily constitute the dominant component of the
total structure in terms of which the discretion
of the court will be
exercised; the court
has to consider whether
any prejudice caused by a postponement can fairly be compensated by
an appropriate order of costs or any
other ancillary mechanism.
(g)
The
balance of convenience or inconvenience to both parties should be
considered: the court should weigh the prejudice which
will be
caused to the respondent in such an application if the postponement
is granted against the prejudice which will be caused
to the
applicant if it is not.’ (Footnotes omitted.)
[18]
The application was set down for hearing
just over six months ago, at the instance of the respondent.
Documents were served on the
applicant at his nominated address. In
the applicant’s affidavit, he states that the person nominated
to receive the documents,
a friend, failed to forward the documents
or even to notify him of their arrival.
[19]
According to the averments in the
affidavit, he only became aware of the matter 48 hours before the
hearing, and was surprised to
find that the condonation application
was opposed because, as a lay person, he believed that such an
application was a mere formality
and would not be opposed. He was
surprised when he finally received the notification that condonation
was opposed and the cases
cited in support of the respondent’s
opposition. He, however, was constrained to concede that he had
received the opposing
affidavit of the respondent, to which he had
replied, and he cannot thus be said to have reasonably not known that
the application
was opposed.
[20]
His belief that condonation was a mere
formality and his surprise that it was opposed is unsustainable: the
applicant was fully
appraised of the respondent’s contention
that the applicant was acting mala fide and that he had previously
used forged medical
documents to mislead the court. The applicant
could not have laboured under any illusion. The respondent strongly
resisted the
application for condonation. Condonation is an
indulgence. The applicant, before Olsen J, had himself opposed any
indulgence in
a previous court hearing. He is being economical with
the truth when he stated under oath that he believed that the
condonation
application was a formality.
[21]
The
applicant maintains that the failure by the recipient of the court
papers to forward them to him or to inform him of the contents
thereof, should be sufficient and that as a person not trained in
law, his failure should be condoned. The explanation is clearly
unsatisfactory. The applicant must show good and strong reasons why
he should be granted an indulgence and he must furnish a full
and
satisfactory explanation of the circumstances that give rise to the
application for a postponement.
[11]
He fails to do so by a considerable margin. The applicant is the
litigant, who is under a duty to oversee his application, and
he
cannot lay the blame on the person nominated by him to receive the
documents: he is the party responsible and accountable for
this
failure.
[22]
The applicant omits to deal with the fact
that from the time that the final exchange of all the papers had
taken place, he had for
six months failed to take a single step to
prosecute the application. If he had taken steps to progress the
hearing of his application,
he would almost inevitably have known
about the court date.
[23]
The
applicant maintains that he had some discussions with the respondent
in the matter, including the possible settlement of the
matter but
maintains the date of set down of the application was not
communicated to him by the respondent nor did the subject
of the
hearing date ever arise. With respect, on the facts of this matter,
this is unacceptable. The applicant, although a lay
person, is not a
stranger to litigation in the high court. He was the driver of this
application and was obliged to diligently
pursue it. On his own
version, he failed to do so. The applicant maintains that he never
found out about the set down date but
when the practice note and
heads of argument of the respondent are sent to the same address,
then the applicant hears about it.
The explanation is, with respect,
too convenient. It is clear that the inability or lack of
preparedness of the applicant in this
case is entirely due to his
conduct and handling of the matter and generally this should not form
the basis of a postponement.
[12]
[24]
On his own explanation, the applicant acted
recklessly as to the consequences of a complete oversight on his part
to manage the
application he instituted. Seen in the context of this
matter as a whole, and considered against all the material on record,
it
is in all likelihood mala fide and designed to prejudice the
respondent.
[25]
There is obvious prejudice to the
respondent, both financially and to his reputation, in the granting
of any postponement. There
is also a bill of costs awaiting taxation
that has been delayed by these proceedings. The respondent fairly
logically seeks closure.
[26]
A
court should exercise its discretion to grant a postponement
judiciously
[13]
and after
considering what is fair and just to both parties and balancing it
with the interests of justice.
[14]
It has also been stated that when making this decision, the court
should, where appropriate, also take into account the broader
public
interest. The legal profession is a noble profession and misconduct
by members of the profession should be addressed and
decisively dealt
with.
[27]
However, a proper reading of the papers on
record, and in particular the affidavits of the applicant, reveals
that the complaints
of the applicant are actually based on two false
assertions. The first being that the respondent failed to oppose the
application
for a postponement in the original trial when the record
reveals unequivocally that he in fact did so. The second being that
the
respondent was responsible for, and suggested, the rescission of
the order in respect of the separation of issues in the trial,
when
that rescission in fact emanated from the trial judge. In these
circumstances, the applicant’s approach to this court
may well
be mala fide and an abuse of the processes of court.
[28]
The
applicant has fallen woefully short of meeting the requirements for
an application for a postponement to be successful and it
is for
these reasons that I refused to grant the application for the
postponement.
Condonation
[29]
Section 7(1) of PAJA provides that
applicants are to institute review proceedings ‘without
unreasonable delay and not later
than 180 days’ after the
applicants were informed of the decision, in this instance 180 days
after the original notification
on 29 March 2022. It is not in
dispute that condonation is required, as according to section 7(1) of
PAJA, the delay on the face
of it is unreasonable, as the period out
of time exceeds 180 days.
[30]
Section 9 of PAJA provides as
follows in connection with the late filing of review applications and
condonation:
‘
9. Variation
of time.
—
(1) The period
of—
(
a
)
. . .
(
b
)
90 days or 180 days referred to in sections 5 and 7 may
be extended for
a fixed period,
by agreement between the
parties or, failing such agreement, by a court or tribunal on
application by the person or administrator
concerned.
(2)
The court or tribunal may grant an application in terms of subsection
(1) where
the interests of justice so require’
[31]
The
applicant has suggested that the interests of justice warrant the
condonation of the failure to comply with the prescribed time
period.
The SCA, in
Price
Waterhouse Coopers
Inc
v Van Vollenhoven NO,
[15]
stated
as follows in connection with PAJA condonation applications:
‘
[6]
The concept “interests of justice” has been considered by
the Constitutional Court on a number of occasions in the
context of
applications for condonation. Most recently, in
Van
Wyk v Unitas Hospital and another
(
Open
Democratic Advice Centre as Amicus Curiae
),
the court expressed itself as follows:
“
This
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 not 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.”
[7] With regard to the
explanation for the delay, the court further held:
“
An
applicant for condonation must give a full explanation for the delay.
In addition, the explanation must cover the entire period
of delay.
And, what is more, the explanation given must be reasonable.”’
(Footnotes omitted.)
[32]
Dealing
with condonation applications in terms of the Uniform rules, the
Constitutional Court in
Grootboom
v National Prosecuting Authority and another,
[16]
stated that
‘
It
is axiomatic that condoning a party's non-compliance with the rules
of court or directions is an indulgence. The court seized
with the
matter has a discretion whether to grant condonation.’
[33]
The court further reiterated that
‘
In
this court the test for determining whether condonation should be
granted or refused is the interests of justice. If it is in
the
interests of justice that condonation be granted, it will be granted.
If it is not in the interests of justice to do so, it
will not be
granted. The factors that are taken into account in that inquiry
include:
(a)
the
length of the delay;
(b)
the
explanation for, or cause for, the delay;
(c)
the
prospects of success for the party seeking condonation;
(d)
the
importance of the issue(s) that the matter raises;
(e)
the
prejudice to the other party or parties; and
(f)
the
effect of the delay on the administration of justice.’
[17]
[34]
After
the application for a postponement was refused, the applicant
declined to address the court on the merits of the application.
The
court is thus confined to the evidentiary material contained in the
court bundle. In this matter, condonation is strenuously
opposed and
the applicant’s explanation for the delay has been assailed by
the respondent. The reasons for not complying
with the time frames
within which to note a review, as contained in the founding affidavit
of the condonation application, can
be described as follows:
[18]
(a)
He was seeking full and better reasons for
the decision of the LPC and the composition of the members of the
enquiry.
(b)
He was overseas for a period.
(c)
Various attorneys refused to assist him in the matter.
(d)
He became severely ill from the fourth week of September 2022 until 2
November 2022.
(e)
He maintains that the delay was also exacerbated by the fact that he
is not a trained lawyer.
(f)
In his condonation application, he does not engage this court on the
prospects of
success.
[35]
It suffices to note that Mr Campbell, for
the respondent, opposed the application with considerable vigour,
pointing out the lengthy
delay, in excess of 180 days, which is in
terms of section 7 of PAJA automatically deemed to be unreasonable.
The first letter
addressed to the applicant by the LPC notified the
applicant of his right of recourse to the high court. Any further
postponement
was strongly opposed.
[36]
The riposte from the applicant is a weak
one. There is no affidavit from the medical doctor, Dr Jadwat, who
examined the applicant,
and the documents filed in support of the
applicant’s contention constitute hearsay evidence, the
probative value of them
depending on the evidence of the applicant’s
doctor confirming them under oath.
[37]
This
is significant, for in motion proceedings, a real, genuine and bona
fide dispute of fact properly raised by the respondent,
and the reply
thereto by the applicant being so inadequate, means that the issue
falls to be decided on the basis of the facts
averred in the
respondent’s affidavit.
[19]
[38]
The
applicant is unrepresented and has not dealt with the prospects of
success in his application for condonation. I am mindful
that as a
layperson, he is at a disadvantage and I am reluctant as a result to
impose upon him the standards expected of a legal
professional. It is
trite law that where an application for condonation does not traverse
the prospects of success, then the application
for condonation might
fail on that point alone.
[20]
Indeed, for purposes of this application for condonation, I will take
heed of the submissions he made in his papers but even doing
so, the
prospects of success are remote on nearly all aspects.
[39]
There
is a far more compelling reason for the court not to grant
condonation, as the applicant has initiated the entire proceedings
on
two false assertions; two assertions that he knew were false at the
outset when he lodged the complaints. His complaint that
the
respondent and counsel on brief failed to oppose the postponement is
false. The applicant knew it was false, as he was in court
and the
record permits no other conclusion. The binding precedent of a
decision of the Supreme Court of Appeal that had to be followed
prevailed. The law of precedent which forms part of the rule of law,
dictated to the presiding judge that the postponement had
to be
granted.
[21]
Counsel for the
applicant’s concession that the Supreme Court of Appeal
decision was the law on this issue, did not amount
to disobeying a
client’s instructions but was in accordance with counsel’s
first duty, which is to the court.
[22]
[40]
The second complaint that the respondent,
together with counsel, facilitated or engineered the consolidation of
the trial action
after the postponement and failed to comply with his
instruction that it be opposed, is also false. Counsel on brief by
the respondent
informed the court that the applicant objected to the
consolidation but that he had no specific instructions in that
regard. The
surrounding evidence in this matter was that counsel
would have been passed a note that he should oppose the consolidation
order.
[41]
Quite properly, counsel then conceded that
the consolidation would shorten proceedings but informed the learned
judge that the applicant
objected to this. The learned judge then
ordered the consolidation of issues. Illuminatingly, Olsen J then, in
detail, addressed
the applicant and explained to him why he was doing
so and why he chose to manage the trial going forward in this manner.
It was
for the benefit of the applicant. The explanation is in plain
language and brooks no misunderstanding. The allegation that the
respondent ignored his instructions in this regard is without doubt
unfounded and in all likelihood made mala fide.
[42]
There is no indication in the record of any
bias by the LPC. The applicant has not referred this court to any
examples of breaches
of the rules governing misconduct investigations
by the LPC. On receipt of the applicant’s complaints, the
applicant made
representations that were considered and the decision
remained unaltered. The prospects of success are miniscule and, with
respect
to the applicant, eviscerated by the way in which he has
conducted the application.
[43]
In conclusion:
‘
.
. . 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 not
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.’
[23]
[44]
By
a considerable margin, the conduct of the applicant demands that
condonation of the late filing of the application be refused.
Costs
[45]
It has been suggested by the respondent
that a punitive costs order should be made against the applicant
because of his conduct.
While there might be some merit in the
argument, I am of the view that the applicant, as a lay person,
should be spared the financial
burden of a punitive costs order.
Order
[46]
It was for all of these reasons that the
following order was granted:
1.
The application for a postponement to allow
the applicant to obtain legal representation and to file a practice
note and heads of
argument is refused.
2.
The application for condonation of the late
filing of the review is dismissed.
3.
The applicant is ordered to pay the costs
of the suit.
____________________________
DAVIS
AJ
APPEARANCES
For the applicant:
In person
c/o
Imran Cassim
92
Dartnell Road
Mountain
Rise
Pietermaritzburg
3201
KwaZulu-Natal
For the
respondent
Mr G Campbell
Instructed
by
Simon Chetwynd–Palmer
c/o
Stowell & Company
295
Pietermaritz Street
Pietermaritzburg
KwaZulu-Natal
Date of
hearing: 5
October 2023
Date of
order: 5
October 2023
Date of furnishing of
reasons: 18
October 2023
[1]
Bandra
Investments CC v Reflect All 1200 (Pty) Ltd, case number 13329/2008.
[2]
The following submission appears from the record:
‘
M’lord, if
I may make my position very clear on this one, my instructions are
to contest the postponement with everything
at my disposal. So if in
that processor as part of that process, what is rational and stares
one in the eyes appears to miss
me, that is because I have certain
instructions which I have to follow.’
[3]
Stand
242 Hendrik Potgieter Road Ruimsig (Pty) Ltd and another v Göbel
NO and others
[2011] ZASCA 105; 2011 (5) SA 1 (SCA).
[4]
Transcript,
at page 23, line 22.
[5]
Page
67 of the court bundle, volume 1, pages 30 and 31 of the record of
the application to amend the plea.
[6]
Olsen
J, at page 31 of the record of the application for leave to appeal.
[7]
Volume 1, at
pages
15-16.
[8]
Volume 1, at
page
21.
[9]
Volume 1, at
pages
1-4.
[10]
D
E van Loggerenberg
Erasmus:
Superior Court Practice
(RS
21, 2023) at D1-553
.
[11]
Imperial
Logistics Advance (Pty) Ltd v Remnant Wealth Holdings (Pty) Ltd
[2022]
ZASCA 143
para 6.
[12]
Persadh
and another v General Motors South Africa (Pty) Ltd
2006 (1) SA 455
(SE) para 3.
[13]
National
Coalition for Gay and Lesbian Equality and others v Minister of Home
Affairs and others
[19999] ZACC 17;
2000 (2) SA 1
(CC)
para
11.
[14]
Investec
Bank Limited v O'Shea NO
[2020] ZAWCHC 71
para
19.
[15]
Price
Waterhouse Coopers Inc and others v Van Vollenhoven NO and another
[2009]
ZASCA 166
;
[2010] 2 All SA 256
(SCA) paras 6-7.
[16]
Grootboom
v National Prosecuting Authority and another
[2013] ZACC 37
;
2014 (2) SA 68
(CC) para 20.
[17]
Ibid
para 50, per Zondo J.
[18]
Founding
affidavit, volume 1, at pages 5-14.
[19]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E–635C. See also
Wightman
t/a JW Construction v Headfour (Pty) Ltd and another
[2008]
ZASCA 6
;
2008 (3) SA 371
(SCA) para 12, where the court held that:
‘
.
. . an applicant who seeks final relief on motion must, in the event
of conflict, accept the version set up by his opponent
unless the
latter's allegations are, in the opinion of the court, not such as
to raise a real, genuine or bona fide dispute of
fact or are so
far-fetched or clearly untenable that the court is justified in
rejecting them merely on the papers.’
[20]
De
Witts Auto Body Repairs (Pty) Ltd v Fedgen Insurance Co Ltd
1994 (4) SA 705
(E) at 711D-E:
‘
The
correct approach is not to look at the adequacy or otherwise of the
reasons for the failure to file a plea in isolation.
Instead,
the explanation, be it good, bad, or indifferent, must be considered
in the light of the nature of the defence, which
is an all-important
consideration, and in the light of all the facts and circumstances
of the case as a whole. In this way the
magistrate places himself in
a position to make a proper evaluation of the defendant's
bona
fides
. . .’.
[21]
Ayres
and another v Minister of Correctional Services and another
[2021]
ZACC 12
;
2022 (2) SACR 123
(CC) para 16:
‘
As
this court noted in
Camps Bay
Ratepayers' and Residents' Association
,
the doctrine of precedent is “not simply a matter of respect
for courts of higher authority. It is a manifestation of
the rule of
law itself, which in turn is a founding value of our Constitution.”’
(Footnote omitted.)
[22]
In
S
v Khathutshelo and another
2019
(1) SACR 480
(LT) para 21, the court stated as follows with regard
to the ethical duties of an advocate:
‘
The
ethics of the legal profession say an advocate is an officer of the
court. As an officer of the court he is required to assist
the court
in the administration of justice. Inasmuch as counsel has a duty to
advance his/her client's case with zeal, vigour
and determination,
he should always remember that his primary duty is to the court. His
role in court is not only to push his
or her client's interests in
the adversarial process.’
This
quite obviously requires a practitioner to acknowledge binding
precedent.
[23]
Van
Wyk v Unitas Hospital and another (Open Democratic Advice Centre as
Amicus Curiae)
[2007]
ZACC 24
;
[2007] ZACC 24
;
2008
(2) SA 472
(CC) para 20
.