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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION: PRETORIA)
Date: 15 March 2024
Case number: 121487-2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
DATE:15 MARCH 2024
SIGNATURE
In the matter between:
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL APPLICANT
And
GODFREY MALUMANE RESPONDENT
(ID number: 7[...])
JUDGMENT
______________________________________________________________
MINNAAR AJ,
[1] On 22 December 2023, I delivered judgment in terms of which the
respondent was suspended from practising as an attorney of this
Court. The suspension was ordered to be in place until the applicant
satisfies the Court that he is a fit and proper person to resume practise
as an attorney. Further ancillary relief was also included in my order
dealing with the practise of the applicant and what was expected of him
to comply with the order of suspension.
[2] The applicant, through his attorneys, Maesela Incorporated, launched
an application for leave to appeal on 9 January 2024.
[3] On 29 January 2024, the applicant delivered an application in which, in
essence, an amended application for leave to appeal was delivered.
This application was delivered by Zehir Omar Attorneys.
[4] On 4 March 2024, Maesela Incorporated delivered a notice of
withdrawal of attorneys of record.
[5] No formal notice of substitution as attorneys of record was delivered by
Zehir Omar Attorneys. On the day of hearing the application for leave
to appeal , Mr Zehir Omar appeared and confirmed that Zehir Omar
Attorneys has the mandate to appear on behalf of the applicant. This
submission by Mr Omar was accepted and an undertaking was
provided that a formal notice of substitution as attorney of record be
uploaded. Despite this undertaking by Mr Omar, such formal notice of
substitution as attorney of record has not, as of the date of this
judgment, been uploaded. For all purposes of the application for leave
to appeal, it is accepted that Zehir Omar Attorneys is duly mandated to
represent the applicant herein.
[6] On the date of hearing of the application for leave to appeal, Mr Omar
confirmed that the applicant is relying on the amended notice of
application for leave to appeal and that the application for leave to
appeal, delivered on 9 January 2024 should be disregarded.
[7] The application for leave to appeal is mainly premised thereon that the
provisions of the Promotion of Administrative Justice Act 3 of 2000 find
application to the striking or suspension of attorneys and that this court
erred in not considering and applying same. It was further submitted
that, in terms of section 33(3) of the Constitution of the Republic of
South Africa, the applicant has t he right to review the respondent’s
decision to approach the Court to apply for the suspension of the
applicant. It is further the case of the applicant that an inquiry had to be
conducted into the financial position of the applicant to determine
whether the applicant had at his disposal a liquid fund large enough to
enable him to pay, if necessary, the money which he supposed to have
accrued to the benefit of the applicant’s trust clients. It is further alleged
that the Court erred in not taking into account that the suspension of
the applicant would materially and adversely affect members of the
public, and more specifically so, the more than one hundred clients that
the applicant was doing work for on the date of suspension. An attack
on the jurisdiction of the Court, to entertain the respondent’s application
was also levied. It was further alleged that the Court misdirected itself
by over-emphasizing the seriousness of the applicant’s alleged
misconduct.
[8] Applications for leave to appeal are dealt with in terms of the provisions
of Rule 49 of the Uniform Rules of Court read with sections 16 and 17
of the Superiors Courts Act 10 of 2013 (“the Superior Courts Act”).
[9] Section 17(1) of the Superior Courts Act provides the test applicable to
applications for leave to appeal. Section 17(1) reads as follows:
“(1) Leave to appeal may only be given where the judge or judges
concerned are of the opinion that-
(a) (i) the appeal would have a reasonable prospect of success;
or
(ii) there is some other compelling reason why the appeal
should be heard, including conflicting judgments on the
matter under consideration;
(b) the decision sought on appeal does not fall within the ambit of
section 16 (2) (a); and
(c) 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.”
[10] Section 17(1)(a)(i) of the Superior Courts Act was dealt with in
the decision of the Land Claim Court in The Mont Chevaux Trust v Tina
Goosen & 18 Others 2014 (JDR 2325 (LCC); 2014 JDR 2325 in which
Bertelsmann J held that the use of the word “would” (as opposed to
could) in the provisions is an indication that the threshold for leave to
appeal has been raised. It was further held that the word “would”
indicates a measure of certainty that another court will differ from the
judgment appealed against.1
[11] On the rigidity of the threshold, Plaskett AJA (as he then was) in
which Cloete JA and Maya JA (as she then was ) concurred, wrote the
following S v Smith 2012 (1) SACR 567 (SCA) ([2011] ZASCA 15) at
paragraph 7:
'What the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law that the Court of
Appeal could reasonably arrive at a conclusion different to that of the
trial court. In order 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
1 Mont Chevaux Trust at par 6. See further Acting National Director of Public Prosecutions
and Others v Democratic Alliance In Re: Democratic Alliance v Acting National Director of
Public Prosecutions and Others (1957/09) [2016] ZAGPPHC 489 (24 June 2016) par 25
must, in other words, be a sound, rational basis for the conclusion that
there are prospects of success on appeal.'
[12] Under section 17(1)(a)(ii) of the Superior Courts Act the Court
determining an application for leave to appeal ought to enquire whether
there is a compelling reason for the appeal to be heard. 2 The enquiry is
factual and, therefore, each application ought to be decided on its own
facts.
[13] Other considerations beyond the abovementioned statutory
provisions would include where the material case is of substantial
importance to the appellant and where the decision sought to be
appealed against involves an important question of law 3 or where
required by the interests of justice.4
[14] If regard is had to my judgment, read with the application for
leave to appeal , then it is my conclusion that , although subjectively to
the applicant the case might be of substantial importance, the
application lacks any semblance of prospect of success, let alone
reasonable prospect of success.
[15] No other compelling reason is advanced as to why the appeal
should be heard and the interest of justice is not implicated. Neither is a
valid important question of law raised.
[16] As the provisions of section 17(1)(a) of the Superior Courts Act
clearly demand, the application must be dismissed, as leave to appeal
may only be given when the Court believes that the intended appeal
“would have” a reasonable prospect of success. The applicant has
failed to make out a case that another Court would reach a different
conclusion or outcome to the judgment in casu.
2 Erasmus, Superior Court Practice (2021) A2-56 to 57
3 Erasmus, Superior Court Practice (2021) A2-56 to 57
4 City of Tshwane v Afriforum 2016 (6) SA 279 (CC) par 40
[17] On the approach as to costs, it was held in Ferreira v Levin NO &
Others; Vryenhoek & Others v Powell NO and Others 1996 (2) SA 621
(CC) at paragraph 3:
“The Supreme Court has, over the years, developed a flexible
approach to costs which proceeds from two basic principles, the first
being that the award of costs, unless expressly otherwise enacted, is in
the discretion of the presiding judicial officer, and the second that the
successful party should, as a general rule, have his or her costs. Even
this second principle is subject to the first. The second principle is
subject to a large number of exceptions where the successful party is
deprived of his or her costs. Without attempting either
comprehensiveness or complete analytical accuracy, depriving
successful parties of their costs can depend on circumstances such as,
for example, the conduct of parties, the conduct of their legal
representatives, whether a party achieves technical success only, the
nature of the litigants and the nature of the proceedings. I mention
these examples to indicate that the principles which have been
developed in relation to the award of costs are by their nature
sufficiently flexible and adaptable to meet new needs which may arise
in regard to constitutional litigation. They offer a useful point of
departure. If the need arises the rules may have to be substantially
adapted; this should however be done on a case by case basis. It is
unnecessary, if not impossible, at this stage to attempt to formulate
comprehensive rules regarding costs in constitutional litigation.”
[18] I can see no basis upon which another Court would differ from
the costs order made in my judgment.
[19] There is no basis upon which the respondent should be out of
pocket in opposing this application for leave to appeal and as such the
respondent is entitled to the costs of this application on the scale as
between attorney and client.
[20] Consequently, I make the following order:
1. The application for leave to appeal is dismissed with
costs on the scale as between attorney and client.
Minnaar AJ
Acting Judge of the High Court
Gauteng Division, Pretoria
Heard on : 8 March 2024 (virtually)
For the Applicant : Mr Z Omar
Instructed by : Zehir Omar Attorneys
For the Defendant : Adv. Z Muhamed
Instructed by : Mothle Jooma Sabdia Inc.
Date of Judgment : 15 March 2024