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2023
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[2023] ZAKZPHC 139
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South African Securitisation Programme (RF) Limited and Another v Heartbeat Business Enterprise (Pty) Limited and Others (AR 285/22) [2023] ZAKZPHC 139 (17 November 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no: AR 285/22
In the matter between:
SOUTH AFRICAN
SECURITISATION PROGRAMME
(RF) LIMITED
(REG NO:
19[....]06) FIRST
APPELLANT
FINTECH UNDERWRITING
(PTY) LIMITED
(REG NO:
20[....]07) SECOND
APPELLANT
and
HEARTBEAT BUSINESS
ENTERPRISE (PTY) LIMITED
(REG NO:
20[....]07) FIRST
RESPONDENT
NATASHA CHUNDER
(ID NO:
7[....]7) SECOND
RESPONDENT
VISHAL SURENDRA
MAHARAJ
(ID NO:
7[....]3) THIRD
RESPONDENT
ORDER
1 The
appeal is upheld;
2 The
respondents’ attorney, Ms Ashika Maharaj of Ashika Maharaj and
Associates, is directed to pay
the costs of the appeal
de bonis
propriis.
3 The
orders of the learned magistrate granted on 4 July 2022 in the
Magistrate's Court, Durban under case
number 10152/2021 are set aside
and replaced with the following orders:
(a) The
trial is adjourned
sine die
;
(b) The
second and third defendants are directed to pay the costs of the
adjournment, including the costs
of counsel on brief, on the scale as
between attorney and client, jointly and severally, the one paying
the other to be absolved.
JUDGMENT
Shapiro
AJ (Henriques J concurring)
Introduction
[1]
This is an appeal against an order of
the learned Magistrate, Ms Mpontshana, who dismissed the appellants’
claim in rather
novel and somewhat unfortunate circumstances.
[2]
The appellants were the plaintiffs in an
action instituted in 2017 against the respondents, as defendants, in
the KwaZulu-Natal
High Court. The action was transferred to the
magistrate's court by agreement between the parties.
[3]
The appellants' cause of action was
based on a rental agreement concluded between Smart Finance (Pty) Ltd
and the first respondent,
with the second and third respondents being
cited in their capacities as sureties. Smart Finance ceded its right,
title, and interest
to the claims against the respondents to the
appellants, who sued the respondents for payment of R132,807.97 plus
interest and
costs arising out of the alleged failure of the first
respondent to make rental payments that were due.
[4]
Apart
from raising certain preliminary points, the plea delivered by the
respondents in January 2018 consisted of bare denials.
For what
follows it is necessary to record that the respondents
[1]
were represented by the same firm of attorneys throughout the course
of this matter.
[5]
The action was set down for trial in the
court below on 4 July 2022.
[6]
At the end of the week preceding the
trial, the parties agreed between themselves that the matter would be
adjourned. However, the
learned magistrate presiding refused to
adjourn the trial, and required an application for an adjournment to
be made. The court
below refused an application by the respondents to
adjourn the action and then refused a similar application by the
appellants.
The effect of that refusal was that the appellants were
not able to run the trial and closed their case without leading
evidence,
allowing the respondents an opportunity to seek the
dismissal of the action, with costs. The learned magistrate granted
that order,
and it is against that order that this appeal lies.
Factual
background leading to the dismissal of the appellants’ claim
[7]
The events of 4 July 2022 and the court
below’s attitude to them must be placed in their proper factual
and procedural context.
[8]
In the leadup to a judicial pre-trial
conference, which was held on 29 June 2022, the appellants’
attorneys tried, without
success, to engage with the respondents’
attorneys about convening a pre-trial conference and dealing with the
issues that
should be canvassed at such a conference.
[9]
At
the pre-trial conference the matter was certified as ready for trial
at the appellants’ instance. However, either at the
pre-trial
or later the same day, the respondents' attorneys indicated their
intention to amend the respondents' plea on the basis
that the bare
denials were "not sustainable".
[2]
The respondents tendered to pay the wasted costs of any adjournment.
[10]
Given what they saw as the probability
that the matter would be adjourned to permit the respondents to
effect amendments to their
plea, and being reluctant to incur the
costs of flying down their legal representatives and witnesses from
Johannesburg if the
trial was not going to run, the appellants agreed
to the adjournment.
[11]
The appellants’ attorneys
attempted to deliver a Notice of Removal on Friday 1 July 2022, but
the clerk of the court refused
to accept it and indicated that
adjournments were sparingly granted by the court after a matter had
been certified as ready for
trial.
[12]
The appellants’ attorneys notified
the respondents’ attorneys about this and received the
following reply:
‘
Dear
Madam…Historically the Courts do not intervene in a consent
order. We are persuaded that the trial will be adjourned
as we intend
amending our client’s plea’.
[3]
[13]
Both parties then appeared before the
court below on 4 July 2022, with the appellants represented by local
counsel who had been
briefed to attend to the adjournment, and who
was not briefed to run the trial. Both parties assumed that the
matter would be adjourned
with the respondents being directed to pay
the costs, because of their agreement in this regard.
[14]
The
court below saw things somewhat differently - a view in line with the
provisions of Rule 31 of the Magistrate's Court Rules.
[4]
I will return to this presently.
[15]
When the court below refused to grant an
adjournment by consent, it called upon the respondents' attorney to
then make application
for such adjournment.
[16]
During
that application, the respondents’ attorney referred to an
email sent by the appellants' attorneys on 30 June 2021,
[5]
calling upon the second and third respondents to deliver the notice
of intention to amend their plea within ten days.
[17]
The respondents’ attorney stated
that she thought that she had come on record for the respondents
"around 2020"
and "the plea was already done then, but
when my colleague raised it at the pre-trial, we were alerted to the
fact that the
plea was not a substantial plea".
[18]
In answer to a question from the learned
magistrate, the respondents’ attorney confirmed that she
accepted instructions in
the matter when there were already "papers
in place" and that she had advised the respondents to amend the
plea when
she came on record, but that they were not in a financial
position to give those instructions.
[19]
The appellants' counsel pointed out to
the court, and correctly so, that this was not correct, and that the
respondents’ attorney
had not only been on record for the
respondents since 2018 but had signed the plea in the first place.
[20]
Understandably, the court did not
appreciate being misled, and the absence of a cogent explanation
about why the plea still had
not been amended by the end of June
2022, no doubt influenced the court to refuse the respondents'
application to adjourn.
[21]
In argument before us, the respondents’
attorney submitted that the appellants' counsel had opposed her
application for an
adjournment which was one of the reasons why she
then “was instructed” to oppose the appellants’
application
which they were compelled to bring.
[22]
This too is incorrect. The record makes
clear that the appellants' counsel submitted to the learned
magistrate that she could not
"in good conscience argue against
the adjournment". All that she did was point out inconsistencies
in the respondents’
attorney's submissions that, on the face of
it, appeared calculated to create a misleading impression of the
history of the matter.
[23]
The court below refused the respondents'
application and delivered a detailed
ex
tempore
judgment. After that, the
learned magistrate made clear that the matter would not be adjourned,
which led the appellants' counsel
to ask that the matter stand down
so that she could obtain instructions, ahead of a fresh application
for adjournment, this time
at the instance of the appellants.
[24]
I have set out this chronology in
detail, given the view that I take of the subsequent conduct of the
respondents' attorneys in
ultimately arguing that the appellants'
claim should be dismissed with costs.
[25]
In argument before us, the respondents’
attorney stated that during the brief stand down, she obtained
instructions from her
clients to oppose the appellants' application
for an adjournment.
[26]
The respondents’ attorney made the
submission in her own defence and to demonstrate that she did no more
than act on instructions.
[27]
This cannot be so. Firstly, there was no
cause for the appellants' application to be opposed because their
counsel had done the
same to the respondents. This did not happen.
Secondly, the instructions to oppose the appellants' application
could only have
come after the respondents’ attorney had told
the second and third respondents what had happened and what the
current state
of play was. What she could not have done was tell her
clients that their application for an adjournment had been opposed by
the
appellants. So, what was discussed and what led to the
instructions to oppose the appellants’ application?
[28]
The respondents’ attorney must
have told the second and third respondents that their application for
an adjournment had been
refused, and that the court was obviously
unwilling to countenance the adjournment of the matter. In
circumstances where the respondents’
attorney knew that the
appellants did not have their witnesses present and were not in a
position to run the trial, she must have
told her clients this and
then must have sought specific instructions about whether to oppose
the application - instructions that
the second and third respondents
no doubt gave with alacrity.
[29]
When pressed on this during argument of
the appeal, the respondents’ attorney stated that she was
obliged to act in the interests
of her clients. Stripped to its core,
what the respondents’ attorney was submitting was that she saw
an opportunity to "snatch
a bargain" and no doubt then
advised her clients accordingly.
[30]
Consistent with this strategy, the
respondents’ attorney not only opposed the appellants'
application for an adjournment but
then went further and argued that
their claim should be dismissed with costs, because that they were
not ready to run the trial.
[31]
Without
irony, the respondents’ attorney accused the appellants'
counsel of "speaking with a forked tongue" and
then
proceeded to submit that the appellants should have "entertained
a very real possibility that the [respondents] would
act
[dis]ingenuously” and that the appellants should have adopted
the view that "irrespective of the nonsense that the
[respondents are] doing, I am going to be present and ready to
proceed. That was not done".
[6]
[32]
The respondents’ attorney then
made the startling submission that the respondents had "attended
court this morning with
its pants down and faced the consequence. Now
the plaintiff has its pants down and must so too face the
consequence".
[33]
It was on this basis, according to the
respondents’ attorney, that the appellants were not entitled to
the court's sympathy
and that it was therefore legitimate for the
court below to dismiss the appellants' claim.
[34]
As I recorded above, this is exactly
what the court below did and why ultimately the appeal served before
us.
Does
Rule 31(1) permit parties to adjourn an action by consent at any
stage?
[35]
Rule 31(1)(
a
)
does contemplate the trial of an action being adjourned by consent of
the parties or by the court. However, the right of the parties
to
secure an adjournment by consent is qualified by the provisions of
Rule 31(1)(
b
)(i)
and Rule 31(4).
[36]
In terms of the former, if parties have
agreed to adjourn proceedings, the plaintiff is obliged to deliver a
notice of that agreement
with the clerk of the court at least 15 days
prior to the date of the hearing (so that other cases can be
scheduled on the trial
role). In terms of the latter, and where an
action has been certified trial-ready and a trial date has been
allocated or arranged
at a pre-trial conference, a party seeking an
adjournment shall file a notice with the clerk of the court at least
15 days prior
to the allocated or arranged trial date requesting the
allocation of another trial date. Neither party complied timeously
with
these Rules.
[37]
The appellants have argued that the
court below erred in finding that it was vested with a discretion to
refuse an adjournment by
consent between the parties and have
submitted that the wording of Rule 31(1)(
a
)
unequivocally makes provision for a trial being adjourned merely by
the parties acting in agreement and without the consent of
the court.
[38]
Ms
Lombard
,
who represented the appellants in the appeal, argued that the time
limits contained in Rules 31(1)(
b
)(i)
and 31(4) were advisory at best and that nothing in the Rule could be
read as fettering the parties’ right to have a
matter adjourned
as long as they consented to it – at any stage of the
proceedings.
[39]
I
disagree. Whilst the Rule does contemplate an adjournment by consent
effectively being binding on a court, that entitlement only
arises if
the parties act timeously and deliver the requisite notice no less
than 15 days before the date of the trial. That this
is a peremptory
requirement is demonstrated not only by the use of the word "shall"
both in Rule 31(1)(
b
)(i)
and Rule 31(4) but also the context and purpose of the
requirement.
[7]
[40]
There
are reasonable and understandable policy considerations for this kind
of time limit: judicial resources are constrained, and
the
consequence of a last-minute adjournment is that other parties will
not be accommodated on the trial roll because of the legitimate
anticipation that a matter set down will proceed.
[8]
[41]
Taken to its logical conclusion, the
appellants' argument means that a court would never be entitled to
refuse an adjournment if
the parties, between themselves, had agreed
one. This is contrary to the court's obligation to ensure the speedy
and efficient
administration of justice and to guard against the
abuse of its process. More specifically, the interpretation advanced
by the
appellants would mean the parties were absolved from
compliance with the requirements of Rule 31 and that the word "shall"
in the Rule should be interpreted to read as "may".
[42]
It
is a settled principle of law that the legislature does not enact
superfluous or nugatory provision,
[9]
and
the express wording of Rule 31 does not permit the interpretation
advanced by the appellants.
[43]
In this case, the action had been
certified as trial ready at the instance of the appellants. This
meant that the party seeking
the adjournment was obliged to deliver a
notice in terms of Rule 31(4), something that neither party did.
[44]
In my view, the court below was correct
in refusing to "rubber stamp" the parties' agreement and to
require an application
to be made for an adjournment of the trial.
[45]
It follows that the appellants first
ground of appeal must fail.
Did
the court below exercise its discretion judicially in refusing to
adjourn the trial?
[46]
The next question to be considered is
whether, in requiring that an application be made, the court below
misdirected itself in then
refusing both applications for
adjournment.
[47]
The
legal principles applicable both to an application for the grant of
an adjournment by the court and to an appeal court's right
to set
aside any such decision were set out by Mahomed AJA in
Myburgh
Transport v Botha t/a S A Truck Bodies
,
[10]
a
decision referred to with approval by the Constitutional Court in
Shilubana
and Others v Nwamitwa (National Movement of Rural Women and
Commission for Gender Equality as Amici Curiae).
[11]
[48]
The relevant legal principles as set out
in
Myburgh
and referred to by the court below, are as follows:
‘
(1) The
trial Judge has a discretion as to whether an application for
a postponement should be granted or
refused…
(2) That
discretion must be exercised judicially. It should not be exercised
capriciously or upon any wrong
principle, but for substantial
reasons…
(3) An
appeal Court is not entitled to set aside the decision of a trial
Court granting or refusing a postponement
in the exercise of its
discretion merely on the ground that if members of the Court of
appeal had been sitting as a trial Court
they would have exercised
their discretion differently.
(4) An
appeal Court is, however, entitled to, and will in an appropriate
case, set aside the decision of
a trial Court granting or refusing a
postponement where it appears that the trial Court had not exercised
its discretion judicially,
or that it had been influenced by wrong
principles or a misdirection on the facts, or that it had reached a
decision which in the
result could not reasonably have been made
by a Court properly directing itself to all the relevant facts and
principles.…
(5) 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.…
(6) 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.…Where, however, fundamental fairness and
justice justifies a postponement,
the Court may in an appropriate
case allow such an application for postponement, even if the
application was not so timeously made.…
(7) An
application for postponement must always be
bona fide
and
not used simply as a tactical manoeuvre for the purposes of
obtaining an advantage to which the applicant is not
legitimately
entitled.
(8) Considerations
of prejudice will ordinarily constitute the dominant component of the
total structure
in terms of which the discretion of a Court will be
exercised. What the Court has primarily to consider is whether
any prejudice
caused by a postponement to the adversary of the
applicant for a postponement can fairly be compensated by an
appropriate order
for costs or any other ancillary mechanisms.…
(9) 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.
(10) Where
the applicant for a postponement has not made his application
timeously, or is otherwise to blame with respect
to the procedure
which he has followed, but justice nevertheless justifies a
postponement in the particular circumstances of a
case, the Court in
its discretion might allow the postponement but direct the applicant
in a suitable case to pay the wasted costs
of the respondent
occasioned to such a respondent on the scale of attorney and client.
Such an applicant might even be directed
to pay the costs of his
adversary before he is allowed to proceed with his action or defence
in the action, as the case may be.…’.
[49]
I agree with the sentiments expressed by
the court below when dealing with the respondents' application for an
adjournment.
[50]
Vague submissions of amending a plea
four years after it was delivered initially, and where it was
delivered by the same attorney
who continued to represent the
respondents were entirely unsatisfactory grounds for seeking an
adjournment. The application smacked
of dilatoriness, even if costs
were being tendered.
[51]
Quite obviously, a properly set out
defence (to the extent that one existed) would have been helpful both
to the court and to the
appellants, and one can understand the
perhaps resigned pragmatism of the appellants in agreeing to an
adjournment so that the
respondents' defence could finally be set out
in proper detail.
[52]
Given the non-responses by the
respondents to the appellants' Request for Further Particulars, the
hope was perhaps a vain one,
but it was understandable.
[53]
It was at this point that the
appellants' pragmatism collided with judicial reality. Surrendering
to the assumption that an adjournment
would be granted, the
appellants elected not to incur the costs of having their witnesses
and properly briefed legal representatives
at court. However, the
appellants' assumption was dangerous and did not consider the
potential that the court could refuse the
respondents' application
for an adjournment.
[54]
I accept that the matter had been set
down for trial for the first time, but the appellants placed
themselves in an invidious position
by proceeding as if the
adjournment was guaranteed.
[55]
Notwithstanding the court below
legitimately being critical of the appellants, in my view, it
misdirected itself materially by treating
the appellants and the
respondents equally.
[56]
The appellants had done everything that
they could to bring the matter to trial, even as late as the previous
week where the matter
had been certified over the obstruction of the
respondents and their attorneys.
[57]
Whilst the respondents certainly had
acted in an obstructive and dilatory fashion, the same could not be
said for the appellants.
[58]
In tarring them with the same brush, the
court below reached a decision which, in my view, could not
reasonably have been made by
a court properly directing itself to all
the relevant facts and principles. The court below misdirected itself
as to the facts,
in failing to distinguish between the parties and
failing to assign blame where it properly belonged.
[59]
The appellants explained why their legal
representatives and witnesses were not available. In the
circumstances of the case, the
explanation was reasonable.
[60]
The consequence of the court below’s
decision to refuse the appellants' application for an adjournment was
that the respondents,
who patently were not in a position to run the
trial and whose defence was described by their own attorney as
"unsustainable",
ended up with a final judgment in their
favour, and a dismissal of the appellants' claim with costs.
[61]
It seems to me that the effect of the
court below's judgment was fundamentally unfair and was not in the
interests of justice. In
those circumstances, I consider that we can
intervene on appeal and set the court below's decision aside.
[62]
In this respect, the appeal must
succeed.
Who
should pay the costs of the appeal?
[63]
The appellants have sought an order that
the respondents be directed to pay the costs of the appeal.
[64]
Although the respondents did not
participate in the appeal at all, and did not deliver Heads of
Argument, we nevertheless required
their attorney to ensure that
there was an appearance at the appeal to make submissions about the
costs of the appeal.
[65]
The
Constitutional Court recently has been obliged to consider the
consequences of a failure by legal representatives to act in
accordance with their ethical obligations and when orders
de
bonis propriis
are
appropriate.
[12]
[66]
Complaining
that the applicants’ legal representatives in that case
“abysmally failed in their duty to represent their
clients in
the manner required by their professional rules”,
[13]
the court held that a
de
bonis propriis
costs
order would only be appropriate where the individuals concerned acted
inappropriately and in an egregious manner and where
the conduct
complained of and in respect of which the court’s displeasure
was to be marked was that of the legal representative
and was not
attributable to the litigants.
[67]
Referring
to jurisprudence from the United Kingdom and Canada, the court
reminded us that counsel’s professional duties are
to both
their client and the court. Whilst there ought to be no conflict
between these duties, it was axiomatic that the duty to
the court was
the overriding one. Similarly, counsel’s duty was “to do
right by their clients and right by the court…In
this context,
‘right’ includes taking all legal points deserving of
consideration and not taking points not so deserving.
The reason is
simple. Counsel must assist the court in doing justice according to
law”.
[14]
[68]
By any metric, the respondents’
attorney failed to do right by the court and failed abysmally to
represent her clients in
the manner required by her professional
rules and ethical obligations.
[69]
The respondents’ attorney did the
opposite of assisting the court in doing justice according to law.
She attempted to mislead
the court, as she attempted to mislead us on
appeal. Her clients patently were not able to advance their defence,
and the trial
was being adjourned because of their conduct (or lack
thereof). It was therefore entirely unacceptable for the respondents’
attorney to advise her clients, or to act in such a way, that they
took advantage of the situation that arose.
[70]
I have already found that the
respondents’ attorney could not have been reporting any actions
by the appellants’ counsel
in opposing the respondents’
application to adjourn the trial. There was frankly no need for the
respondents’ attorney
to contact her clients and to obtain
instructions. She had instructions already – to seek the
adjournment of the trial and
to tender the costs on the attorney and
own client scale. If she did in fact contact her clients, it was
because she saw an opportunity.
If she sought a specific instruction,
it was arising out of a plan that she conceived.
[71]
Worse, the respondents’ attorney
aggressively attacked the appellants’ attorneys and suggested
that they should be held
to account for not anticipating the
respondents’ misconduct. The submissions were cynical and
opportunistic, especially where
it was the respondents’
attorney herself who had told them not to be concerned about the
refusal of the clerk to accept the
late notice and that the trial
would be adjourned.
[72]
The respondents’ attorney had an
ethical obligation to the court which, in this case, meant supporting
the application for
the adjournment and not taking any steps to
profit from the court’s attitude to an adjournment. It meant
advising her clients
that it was not appropriate to oppose the
application or to seek the dismissal of the appellants’ claim.
[73]
Instead,
and as was confirmed in argument before us,
[15]
the respondents’ attorney saw an opportunity to “take the
gap” and to benefit her clients.
[16]
This inappropriate and egregious decision was the genesis of the
dismissal of the appellants’ claim and of this appeal –
and there must be consequences that attach to it.
[74]
In
my view, the conduct of the respondents’ attorney was so
serious that it warrants the imposition of a
de
bonis propriis
costs
order in respect of the appeal. The respondents’ attorney
failed in her responsibility to maintain the high standards
that are
ultimately the guarantee of legitimacy of our legal system.
[17]
She is responsible for the advice she gave to her clients and the way
she executed her strategy. She cannot hide behind her clients
in this
regard or the “acting on instructions” fig leaf.
[75]
This court is obliged to follow the
timely direction of the Constitutional Court and to hold legal
practitioners to account when
they fail in their ethical and
professional duties.
[76]
In the circumstances, the following
orders will issue:
1 The
appeal is upheld;
2 The
respondents’ attorney, Ms Ashika Maharaj of Ashika Maharaj and
Associates, is directed to pay
the costs of the appeal
de bonis
propriis
.
3 The
orders of the learned magistrate granted on 4 July 2022 in the
Magistrate's Court, Durban under case
number 10152/2021 are set aside
and replaced with the following orders:
‘
(a) The
trial is adjourned
sine die
;
(b) The
second and third respondents are directed to pay the costs of the
adjournment, including
the costs of counsel on brief, on the scale as
between attorney and client, jointly and severally, the one paying
the other to
be absolved.’
SHAPIRO
AJ
I
agree,
HENRIQUES
J
JUDGMENT
RESERVED: 10
NOVEMBER 2023
JUDGMENT
HANDED DOWN: 17 NOVEMBER 2023
Appearances:
For
appellants: Ms
N Lombard
Instructed
by: KWA
Attorneys
Ref:
Mrs L Kriel/ec/MAT13881
Care
of Martin Law Inc
41
Westville Road, Westville
For
respondents: Ms
A Maharaj
Instructed
by: Ashika
Maharaj & Associates
Suite
250, 2
nd
Floor, Mansion House
12
Joe Slovo Street, Durban
Ref:
AMAH032/17
[1]
By the time of the trial in 2022, the first respondent had been
placed in liquidation.
[2]
This explanation was confirmed by the respondents’ attorney,
Ms A Maharaj, when she made submissions to the court below
when
seeking an adjournment of the trial.
[3]
Given the conduct of the respondents’ attorney on 4 July 2022,
this advice is important.
[4]
Amended with effect from 1 February 2022.
[5]
Almost a year before the pre-trial conference.
[6]
This submission must be seen in the light of the email sent by Ms.
Maharaj on Friday 1 July 2022. It was Ms. Maharaj who put
the
appellants’ attorneys at ease that the adjournment would be
granted regardless of the clerk of the court’s comments.
[7]
Waymark
and Others v Meeg Bank Ltd
2003 (4) SA 114
(TkH) paras 15 and 16.
[8]
As the Constitutional Court considered in
Grootboom
v National Prosecuting Authority and Another
2014
(2) SA 68
(CC) at 76A-B.
[9]
cf
African
Products (Pty) Ltd v AIG South Africa Ltd
2009 (3) SA 473
(SCA) para 19.
[10]
Myburgh
Transport v Botha t/a S A Truck Bodies
1991 (3) SA 310 (NmS) at 314F-315J.
[11]
Shilubana
and
Others v Nwamitwa (National Movement of Rural Women and Commission
for Gender Equality as Amici Curiae
)
[2007] ZACC 14
;
2007 (5) SA 620
(CC) para 11.
[12]
Ex
Parte Minister of Home Affairs and Others; In re Lawyers for Human
Rights v Minister of Home Affairs and Others
[2023] ZACC 34.
[13]
Ibid
para
97.
[14]
Ibid
paras 106-107.
[15]
By Ms Maharaj arguing that she acted in her clients’ interests
when opposing the application and arguing for the dismissal
of the
appellants’ claim
[16]
Even at the appeal, the respondents’ attorney showed no
contrition and instead sought to blame not only her clients but
her
opposition.
[17]
Ex
Parte Minister of Home Affairs
para
101.