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[2022] ZALMPPHC 38
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Mohale v Road Accident Fund (7257/2019) [2022] ZALMPPHC 38 (14 July 2022)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 7257/2019
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUGDES: YES/NO
REVISED.
In
the matter between:
MATOME
JEALOUS PITSO MOHALE
PLAINTIFF
And
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
On 18
th
May 2022 advocate Mojamabu appeared for the
plaintiff in case number 6476/2018 in the matter between Advocate
Brian Ramotlane Matlhape
v Road Accident Fund. In that matter
advocate Mojamabu wanted to hand in an expert affidavit of one doctor
Peter Tingini Kumbirai
which was only signed but not commissioned or
affirmed. Advocate Mojamabu informed the court that according to the
instructions
from his instructing attorney, doctor Kumbirai does not
believe in taking oath. However, it was brought to the attention of
advocate
Mojamabu that this court has already seen the affidavits of
doctor Kumbirai in other matters in which his expert affidavits were
signed and commissioned. However, on that date the court could not
remember the specific files in which those affidavits have been
filed. The court rejected to accept the expert affidavit of doctor
Kumbirai as it was neither commissioned or affirmed, and proceeded
to
grant a default judgment on the basis of other expert affidavits.
[2]
On 6
th
June 2022 Mr Mphahlele appeared in the current
matter of Mr Mohale and handed in the expert affidavit of doctor
Kumbirai which
was signed and commissioned, and informed the court
that doctor Kumbirai believes in the taking of an oath. Since there
were two
conflicting versions of whether doctor Kumbirai believes in
the taking of oath or not, the matter was postponed to 1
st
July 2022 for doctor Kumbirai to come and clarify the court on that
issue. Advocate Mojamabu was also invited to attend court on
that
particular date.
[3]
On 1
st
July 2022 doctor Kumbirai
attended court, took an oath and testified. Advocate Mojamabu also
attended court. Doctor Kumbirai testified
that he believes in the
taking of an oath. He conceded that the signatures on the two
affidavits of which one was only signed but
not commissioned, and the
other signed and commissioned were both signed by him. He stated that
the way he signs and commission
affidavits is that he determines
whether they were urgent or not. If the affidavits were not urgent,
he will let them pile and
an attorney whom he is having an
arrangement with, will later come to his practice and assist him in
commissioning the affidavits.
That if the affidavit was urgent, he
will sign and commission it immediately. He stated that in relation
to the affidavit Maphosa,
the commissioner of oath might have missed
it when he commissioned other affidavits.
[4]
Under cross examination by advocate Mojamabu, doctor Kumbirai
conceded that the affidavit that was not
commissioned, was sent to
his practice by Shiviri Manzini Masetla INC attorneys on 10
th
May 2021 by email. Further that in that email he was requested to
have the affidavit signed and commissioned, and that he was further
informed that the matter has been set down for trial on 16
th
May 2022. When it was put to the doctor that on the date of
collection of the affidavit, his secretary had informed the messenger
from Shiviri Manzini Masetla INC attorneys that he does not believe
in the taking of an oath, he stated that the said messenger
should
have verified with him. He denied that he had told anyone that he
does not believe in the taking of an oath.
[5]
Musa Moses Chabalala testified under oath. He testified that he is a
messenger at Shiviri Manzini Masetla
INC attorneys. On 12
th
May 2021 he was sent to Pretoria to take one of their clients for
assessment, and also to collect an expert affidavit from doctor
Kumbirai’s practice. On arrival at his practice, the
receptionist gave him an envelope that contained the affidavit. When
he checked the affidavit he found that it was only signed but not
commissioned. He enquired from the receptionist why it was not
commissioned, and the receptionist told him that the doctor does not
commission affidavits. He took the affidavit and left. Again
on 24
th
May 2021 he went to Kumbirai’s practice where he collected
another expert affidavit in relation to Monareng’s matter.
That
affidavit was also only signed by doctor Kumbirai and not
commissioned. Under cross examination by Mr Mphahlele the witness
conceded that on both occasions that he had visited doctor Kumbirai’s
practice, he did not see the doctor, and also that
the doctor did not
say anything to him.
[6]
In this case the issue is about the conduct of the legal practitioner
who is an officer of the court.
No one can be compelled to take an
oath if he/she does not believe in taking an oath. If that person
does not believe in taking
an oath, he/she may make an affirmation if
he/she wanted his/her evidence to be admitted in court. If the
document was only signed,
but not commissioned or affirmed that
document will not be admissible as affidavit, but as a mere
statement.
[7]
The issue before me is not whether doctor Kumbirai should have
commissioned or affirmed the affidavit,
but the version been put
before court by counsel for the plaintiff which seems to be
misleading the court. Legal practitioners
are officers of the court
and are expected to act in an ethical manner at all the times and not
to deceive the court. They are
therefore expected to act with
intergrity and honesty at all times. A high standard of
professionalism is expected of them at all
times, and that standard
will in no way be compromised.
[8]
In
Pretoria
of Society of Advocates v van Zyl
[1]
it was held that the proper administration of justice relies heavily
on the
ipse
dixit
of
advocates and attorneys. It was further held that whilst a legal
practitioner owes a duty to represent his or her client fearlessly
and vigorously, there is a concomitant, equally important, duty as an
officer of the court to serve the interest of justice by
acting
honesty at all times.
[9]
For the 2
nd
term of 2022 I have been in the civil trial
roll I have observed a practice that have developed where expert
affidavits that have
not been properly commissioned been filed in
most of the files that were on the roll for trial. In some instances,
an expert will
sign his/her affidavit in another town on a different
date, and that affidavit will be commissioned in another town on
another
date and not the same date it was signed by the expert. In
some of the affidavits the commissioner of oaths will commission copy
of an affidavit which seems to have been faxed, and the possibility
is that the expert was not present when the affidavit was
commissioned. In one matter, the plaintiff’s attorney stated
under oath that the expert affidavit was signed by his paralegal
who
pretended to be the expert. In those matters I have rejected to
accept the affidavits as evidence as they have not been properly
commissioned, and the counsel did not attempt to deceive the court,
but have conceded that they were not properly commissioned.
However,
in the one signed by the paralegal, I have found an element of
dishonesty and referred the matter to the Legal Practice
Council for
their investigation.
[10]
In the case at hand, doctor Kumbirai’s testimony was not
satisfactory, the unsigned affidavit had three
questions which the
commissioner of oath had to ask him before he appended his signature.
There are no answers which have been
recorded on the three questions,
which in my view, there is a possibility that they were never asked,
or that there was no commissioner
of oaths when he signed that
affidavit. It might be that he had signed it and handed it over to
the messenger to go and commission
it on his own, in the same manner
I have alluded to above that some expert affidavits were signed in a
different town and commissioned
in a different town on different
dates. Doctor Kumbirai denied that he had told her secretary that he
did not believe in taking
oaths. If indeed doctor Kumbirai did not
believe in taking oath, there was nothing wrong with that, and the
plaintiff’s attorneys
under case no 6476/2018 could have
requested him to make an affirmation and not to present the court
with a version that may seem
to have been intended to deceive the
court. If it was the plaintiff’s attorney intention in case no
6476/2018 to deceive
the court, that will amount to serious
misconduct which goes into the plaintiff’s attorney’s
fitness to be a legal
practitioner. This court will not be in a
position to determine whether the conduct of the plaintiff’s
attorney in case no
6476/2018 was intentional as full facts were not
placed before it. It will need the Legal Practice Council to
investigate this
matter.
[10]
Doctor Kumbirai has confirmed that he believes in taking the oath and
that he is the one who had signed and
commissioned the expert
affidavit under case no 7257/2019. The plaintiff’s attorneys in
that matter are free to re-enroll
the matter for trial. The expert
affidavit of doctor Kumbirai under case number 6476/2018 did not
affect the granting of the default
judgment as it was rejected by the
court and not accepted as evidence.
[11]
In the result I make the following order:
11.1 The plaintiff’s
attorneys under case no 7257/2019 may re-enroll the matter for trial.
11.2 Copy of this
judgment should be sent to the Legal Practice Council.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
plaintiff
: Mr Mphahlele
Instructed
by
: Mphahlele & Makhumbila attorneys
Defendant
: In default
Date
heard
: 1
st
July 2022
Electronically
circulated on
: 14
th
July 2022
[1]
[2019] ZASCA 13
(14 May 2019) at para 25