About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2023
>>
[2023] ZAECELLC 11
|
|
Gqomo v Legal Practice Council (1340/2022) [2023] ZAECELLC 11 (4 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE
NO. 1340/2022
In
the matter between:
MZINGAYE
GQOMO Applicant
and
LEGAL
PRACTICE COUNCIL Respondent
REASONS
FOR JUDGMENT
LAING
J
[1]
This was an application for the review and setting aside of a
decision taken
by the respondent. The applicant also sought an order
remitting the decision back to the respondent for reconsideration by
an investigating
committee. In the alternative, the applicant sought
an order declaring the decision invalid and replacing it with the
court’s
own decision.
[2]
The parties settled the merits of the application prior to argument.
The court
subsequently directed each party to pay its own costs. The
applicant has requested written reasons for the order.
Applicant’s
case
[3]
On 19 May 2021, the applicant lodged a complaint with the
respondent’s
Eastern Cape provincial office about the conduct
of an East London legal practitioner, Mr Bernardus Niehaus. It is
unnecessary
to set out the details thereof, save to mention that it
pertained to the authenticity of an affidavit deposed to by a Mr
Siyabulela
Mananga, who had instructed Mr Niehaus to institute action
proceedings against the applicant in relation to a claim previously
brought against the Road Accident Fund.
[4]
The provincial office referred the matter to an investigating
committee, which
dismissed the complaint. On 7 July 2022, the
provincial office informed the applicant of the decision and advised
him that he was
entitled to appeal the findings of the investigating
committee. An internal appeal was not available to the applicant,
however,
because the appeal tribunal established by the respondent
was not yet operational.
[5]
The applicant then launched the present application, challenging the
investigating
committee’s decision. The basis of the challenge
was that available evidence demonstrated that Mr Mananga had no
capacity
to sign the affidavit by reason of the injuries that he had
sustained in a motor vehicle accident.
Respondent’s
case
[6]
The respondent filed its answering papers. It pointed out that the
director
of its provincial office, a Mr Alfred Hona, had contacted
the applicant and indicated that the respondent was amenable to
settlement
of the matter as follows:
‘…
The
decision of the investigation committee dated 9 June 2022 is set
aside, and the Applicant’s complaint shall be referred
to a new
Investigation Committee appointed by the Director of the Respondent’s
Eastern Cape Provincial Office for investigation
in accordance with
Rule 40 of the Rules promulgated under the Legal Practice Act, with
the investigation committee to consist of
at least two suitably
qualified legal practitioners; and
…
each party shall
pay its own costs.’
[1]
[7]
The applicant accepted the proposal but insisted that the respondent
pay the
costs of the application on an attorney-and-client scale. The
parties reached a deadlock on the issue.
[8]
The respondent averred that it had made the proposal for pragmatic
purposes,
to avoid the costs of litigation. In any event, no internal
appeal was available because the appeal tribunal was not yet
operational.
In
reply
[9]
The applicant asserted that the respondent had failed to comply with
rule 53
of the Uniform Rules of Court (‘URC’) since it
had failed to deliver the record of the investigating committee’s
decision. This had created prejudice.
[10]
He admitted that he had accepted the respondent’s proposal,
save for the question of costs. The
real reason why the respondent
made the proposal, said the applicant, was because it had not
properly investigated his complaint
before reaching its decision.
Issues
to have been decided
[11]
The parties were
ad idem
, at the commencement of argument,
that the only issue before the court was that of costs. The merits
had already been settled.
[12]
It is necessary to discuss, briefly, the principles that were
relevant to the decision.
Legal
framework
[13]
A court
enjoys a wide discretion when making a costs order. Van Loggerenberg
has this to say about the subject:
[2]
‘
It has frequently
been emphasized that in awarding costs, the court has a discretion to
be exercised judicially upon a consideration
of the facts in each
case, and that in essence the decision is a matter of fairness to
both sides. In leaving the court a discretion,
the law contemplates
that it should take into consideration the circumstances of each
case, carefully weighing the issues in the
case, the conduct of the
parties and any other circumstance which may have a bearing on the
issue of costs and then make such order
as to costs as would be fair
and just between the parties.’
[3]
[14]
The
standard rule is that the successful party is entitled to his or her
costs. However, in deciding who is the successful party,
a court must
consider the substance of the judgment and not merely its form.
[4]
[15]
In a
situation where the merits of the dispute have been disposed of, such
as here, the principle is that the question of costs
must be decided
along broad, general lines. The court must not decide the question
along lines that would necessitate a full hearing
of the merits.
[5]
[16]
The application of the above legal framework to the facts of the
matter is addressed in the paragraphs
that follow.
Application
to the facts
[17]
The applicant refuted, at the outset, the respondent’s
assertion that the settlement proposal
had been made for pragmatic
purposes. He contended, rather, that the respondent’s
settlement proposal was a concession that
it had not properly
investigated his complaint. He provided no substantiation for this.
[18]
The court could not decide whether there was a basis for the
applicant’s contention without a
full and proper hearing of the
merits. The merits were, however, not before the court. In the
circumstances, the applicant was
constrained to rely primarily on the
standard rule that he was entitled to his costs because he had been
substantially successful,
overall, in his application. The proposal
made by the respondent was the main relief that the applicant had
sought originally.
[19]
To have asserted that the standard rule should have been applied was
incorrect. It ignored the obvious,
viz. that the respondent had not
made any concession regarding the merits of the applicant’s
claim. Moreover, no court had
made any findings thereon.
[20]
The
applicant was confronted, too, by the issue of non-joinder. The test
for joinder was clearly stated in
Henri
Viljoen (Pty) Ltd v Awerbuch Bros
.
[6]
The court in that regard affirmed earlier authority to hold that a
person is a necessary party and should be joined if such person
has a
direct and substantial interest in any order that the court might
make; alternatively, if such an order cannot be sustained
or carried
into effect without prejudicing such person, unless he or she has
waived the right to be joined.
[7]
[21]
In the present matter, the respondent pointed out that the Eastern
Cape Provincial Council was a statutory
body that had been
established in terms of section 23(1) of the Legal Practice Act 28 of
2014 (‘the LPA’). It was distinct
from the respondent and
had the power to establish investigating and disciplinary committees.
The applicant had failed to join
it as a party to the proceedings.
Furthermore, the investigating committee whose decision formed the
subject of the application
was also a distinct legal entity,
established under section 37(1) of the LPA. This, too, had not been
joined. Both the Eastern
Cape Provincial Council and the
investigating committee had a direct and substantial interest in any
order that reviewed and set
aside a decision taken regarding a
complaint lodged against a legal practitioner.
[22]
Possibly of most concern to the court, however, was the applicant’s
failure to have joined the
legal practitioner himself, Mr Niehaus. He
was the object of the applicant’s complaint. The investigating
committee had previously
invited him to submit a response to the
complaint, which he had done. At the least, it can hardly be said
that Mr Niehaus would
have suffered no prejudice if an order had been
made that reviewed and set aside the decision and remitted it back to
the investigating
committee for reconsideration, alternatively,
replaced it with the court’s own decision. He would have been
entitled to participate
in the proceedings and to defend the matter.
The applicant never afforded such an opportunity to Mr Niehaus.
[23]
The
applicant referred, in argument, to
Legal
Practice Council v Craddock
.
[8]
That matter is distinguishable from the present, however, since it
pertained to an application for an order striking the respondent
from
the roll of attorneys.
Relief
and order
[24]
Having considered the circumstances of the matter, the court was not
persuaded that the applicant was
entitled to his costs. It was clear
that the respondent had merely made the proposal in view of the
practical requirements and
likely consequences of proceeding further
with litigation. It was a matter-of-fact approach to a situation
where, in the absence
of an internal appeal process, the delays and
expenses of litigation were best avoided by both parties. The
respondent made no
concessions whatsoever in relation to the merits.
[25]
The failure of the applicant, moreover, to have joined the Eastern
Cape Provincial Council, the investigating
committee, and (most
importantly) Mr Niehaus, would have created difficulties for him at
any hearing of the merits. Such difficulties
could have proved fatal
for the applicant. As with the merits of the matter, however, the
issue of non-joinder was not before the
court.
[26]
The court, overall, was satisfied that it would have been fair and
just to both parties simply to have
directed them to pay their own
costs. This was, in the end, the order that was made.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
For
the applicant:
Adv Kilani, instructed
by F. Myaiza Attorneys,
East London.
For
the respondent:
Adv Watt,
instructed by Wheeldon
Rushmere & Cole Inc,
Makhanda c/o Lionel
Trichardt & Associates, East London.
Date
of hearing:
16 February 2023.
Date
of delivery of reasons for judgment: 04 May 2023.
[1]
Sic.
[2]
DE v
an
Loggerenberg,
Erasmus:
Superior Court Practice
(Jutastat e-publications, RS 20, 2022), at D5-6.
[3]
The
principles were set out in
Fripp
v Gibbon & Co
1913 AD 354
and have been followed consistently. See, more recently,
Public
Protector v South African Reserve Bank
2019 (6) SA 253
(CC), at 298E; and
Central
Energy Fund SOC Ltd v Venus Rays Trade (Pty) Ltd
2022 (5) SA 56
(SCA), at paragraph [78].
[4]
DE van Loggerenberg,
op
cit
,
at D5-7.
[5]
DE
van Loggerenberg,
op
cit
,
at D5-36D. See, too,
Jenkins
v SA Boilermakers, Iron & Steel Workers & Ship Builders
Society
1946 WLD 15
, at 17-18; and, more recently,
Eloff
v Road Accident Fund
2009 (3) SA 27
(C), at 35D-I.
[6]
1953
(2) SA 151 (O).
[7]
Kethel
v Kethel’s Estate
1949
(3) SA 598
(A), at 610;
Amalgamated
Engineering Union v Minister of Labour
1949 (3) 637 (A), at 659. The principle continues to be followed as
apparent from, more recently,
Watson
NO v Ngonyama
2021 (5) SA 559
(SCA), at paragraph [52].
See,
too, the discussion in
DE
van Loggerenberg,
Erasmus:
Superior Court Practice
(Jutatstat, RS 16, 2021), at D1-124.
[8]
2022
JDR 2317 (ECMA).