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[2022] ZALMPPHC 41
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Mokgaha and Others v Road Accident Fund (7188/2017,229/2019,2315/2019,2307/2019) [2022] ZALMPPHC 41 (25 July 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO:
7188/2017,229/2019,2315/2019,2307/2019
REPORTABLE:
YES
OF
INTEREST TO OTHER JUGDES: YES
REVISED.
25/7/22
In
the matter between:
MOKGADI
FLORA MOKGAHA
PLAINTIFF
JOHN
GEORGE MAHLADISA
PLAINTIFF
YVETTE
MASINDZ TAUYATSOALA
PLAINTIFF
SELEKA
RICHARD
PLAINTIFF
And
ROAD
ACCIDENT FUND
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The four matters were set down for trial for the 16
th
May
2022. The plaintiffs’ attorneys of record in all the four
matters is Kwata attorneys. In all the four matters, the plaintiffs’
attorneys had filed the reports of Dr Malaka the industrial
psychologist as one of their expert witness. The plaintiffs’
attorneys have further filed the expert affidavits duly signed and
commissioned allegedly by Dr Malaka. However, the signatures
on all
the four expert affidavits were not similar. On the date of hearing
counsel for the plaintiffs in all the four matters could
not give
clarity as to whether it was Dr Malaka who had signed those expert
affidavits. The four matters were postponed for Dr
Malaka to come and
verify whether indeed it was his signatures that appeared on those
expert affidavits.
[2]
The four matters came back before court on 18
th
July 2022
wherein Dr Malaka testified under oath. He denied that the signatures
that appears on the four affidavits were his, and
further stated that
he had no knowledge of the four affidavits. That he had terminated
his relationship with other employees where
he previously practiced
during 2018. That the report that he had compiled is that of Mokgadi
Flora Mokgaha under case no 7188/17,
whilst for the other three
matters the reports were not compiled by him. He further testified
that even though the reports under
case no 2307/19 and 229/2019
purports to be compiled by him and also bears his electronic
signatures, they were not compiled by
him. Further that the
electronic signatures on those reports were used without his consent.
Further that both reports were compiled
on 12
th
August
2020, long after he had terminated his relationship with those
employees at 10 Bendigo Avenue, Selcourt, Springs.
[3]
In addressing court, counsel for the plaintiffs conceded that
things were not done properly. That
the instructing attorney only
picked up these discrepancies after they were raised by the court.
That they were not aware that
the reports were not that of Dr Malaka,
and that in an endeavour to rectify that, they have engaged the
services of another industrial
psychologist, and that his reports
will be filed in court soon. They are therefore applying that the
matters be removed from the
roll to enable them to file the proper
reports.
[4]
A legal practitioner being an officer of the court is expected to act
with intergrity, reliability and
honesty at all times. The duties of
an attorney were summarised by Kirk-Cohen J in
Law
Society, Transvaal v Mathews
[1]
as follows:
“
The attorney is a
person from whom the highest standard are exacted by the profession
and this court. If an attorney wishes to digress
from that standards
he may do so but he must first cast aside his profession by resigning
and then pursue his chosen course. He
cannot serve two masters. In
this regard the standards are admirably dealt with in the founding
affidavit as follows:
‘
An attorney is
a professional man whose independence and freedom in the conduct of
his practise are recognised and preserved. Within
the limits of the
law and the rules of professional conduct an attorney conducts, and
in fact should so conduct, his practice with
a high degree of
independence. The profession itself is not a mere calling or
occupation by which a person earns his living. An
attorney is a
member of a learned, respected and honourable profession and, by
entering it, he pledges himself with total and unquestionable
intergrity to the society at large, to the courts and profession …
only the very highest standard of conduct and repute
and good faith
are consistent with the membership of the profession which can indeed
only function effectively if it inspires the
unconditional confidence
and trust of the public. The image and standing of the profession are
judged by the conduct and reputation
of all its members and, to
maintain this confidence and trust, all members of the profession
must exhibit the qualities set out
above at all times.
The attorneys’
profession can only fulfil its obligations to the community and
comply with this role in the administration
of justice in the land if
it inspires and maintains the unconditional confidence of the
community and if its members devote their
absolute intergrity to the
conduct of their profession and to the fulfilment of all the
requirements demanded of the profession
and its members. The
intergrity of an attorney should inter alia manifest itself in a
situation where he must prefer the interest
of his client above his
own. It is required of an attorney that he observes scrupulously, and
complies with the provisions of the
Attorneys Act and rules.’”
[5]
When these matters were adjourned for doctor Malaka to come and
appear physically in court, the court
was only concerned about the
signatures on the expert affidavits of doctor Malaka which looked
suspicious. However, when doctor
Malaka appeared in court, he
disavowed not only the expert affidavits as his, but went further to
dispute two of the expert reports
filed by the plaintiffs’
attorney as been compiled by him. That makes this matter to be more
serious that court initially
thought.
[6]
Counsel for the plaintiffs’ argued before court that they were
under the impression that doctor
Malaka was the one who had compiled
those reports, and that they only realised that after this court
raised the issue of the suspicious
expert affidavits, and that they
have since compiled new proper reports. However, that does not make
sense at all. The plaintiffs
on their own would not have known doctor
Malaka. It will be the attorney or any person delegated by the
attorney who handles those
matters who will make an appointment with
the expert. When the appointment is made, the attorney will be told
the date, time, place
and expert whom his/her client is to meet. In
most cases the attorney or any person delegated by the attorney will
personally transport
their client to the place of the expert. The
attorney when he wants to file an expert affidavit, he/she will
prepare it and communicate
with the expert regarding the signing and
commissioning of that expert affidavit.
[7]
The reports under case number 2307/2019 and 229/2019 were compiled on
12
th
August 2020 allegedly by doctor Malaka. However,
doctor Malaka disputed those two reports as his, and also the four
expert affidavits
in the four matters as his. On 16
th
March 2022, the plaintiffs’ counsel wanted to obtain default
orders on the basis that the two reports were compiled by doctor
Malaka, and also that doctor Malaka was the one who had signed and
commissioned the four expert affidavits, whilst in reality that
was
not the case. Counsel for the plaintiffs only gave an explanation
about the expert reports, and has failed to explain who had
fraudulently signed and commissioned the expert affidavits. Doctor
Malaka was not challenged when he disputed the four expert affidavits
as his.
[8]
Even though legal practitioners are required to put the interest of
their clients above theirs, in achieving
that they must not at any
stage try to deceive the courts. They are expected to act in a
trustworthy and reputable manner at all
times. In
Vassen
v Law Society of the Cape of Good Hope
[2]
Eksteen JA held that the profession of an attorney, as other officer
of court, is an honourable profession which demands complete
honesty,
reliability and intergrity from its members. For the courts to
function properly, it relies on legal practitioners when
appearing in
courts to act in a reliable and honest manner.
[9]
In the Judiciary Annual Report for 2017/18 it was reported that there
is a prevalence of fraudulent
activities relating to court orders on
both superior and magistrates’ courts. Further that this is a
serious threat to access
to justice and undermines the very
intergrity of the judicial system and the public confidence in the
courts. It seems now that
the problem of fraudulent activities might
have escalated to expert reports, even though this court has not
determined to what
extent. If this practice is allowed to continue,
that will affect the credibility of the orders that the courts grants
in cases
where experts reports are involved. To eradicate these types
of conduct and behaviour, it must be dealt with harshly whenever it
is discovered.
[10]
In the four matters before court, there are serious issues which goes
into the intergrity, reputation, reliability and
honesty of the of
the legal practitioners who represent the plaintiffs. Since doctor
Malaka has disputed the two expert reports
and the four expert
affidavits filed his, it is clear that they were generated
fraudulently. However, for fairness purposes, that
will need to be
properly investigated to determine who was responsible for generating
and filing of the fraudulent expert affidavits
and reports, and
whether it was done deliberately, and intended to deceive the courts
in obtaining the orders they were seeking.
It is the duty of the
Legal Practice Council to initiate such an investigation. At this
stage this court could not detect anything
to doubt the validity of
the claims. However, that does not absolve the defendant to conduct
its own investigation should it have
doubts in these matters. The
plaintiffs’ attorneys are at liberty to file genuine expert
reports and expert affidavits, and
proceed to reinstate the matters
for trial should they so wish.
[11]
In the result I make the following order:
11.1 The four matters
under case numbers 2307/2019, 2315/2019, 229/2019 and 7188/2017 are
removed from the roll.
11.2 No order as to
costs.
11.3 Copy of this
judgment to be sent to the Legal Practice Council for their
attention.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
For
the plaintiffs
:
Kwata Attorneys
For
the defendants
:
In default
Date
heard
:
18
th
July 2022
Electronically
circulated on
:
25
th
July 2022
[1]
1989
(4) SA 389
(T) at 395F – 396B
[2]
[1998] ZASCA 47
;
1998
(4) SA 532
(SCA) at 538G