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Mohalalelo v John Tsietsi Aphiri t/a Aprhiri Attorneys (67331/2018) [2022] ZAGPPHC 568 (27 July 2022)

80 Reportability
Personal Injury Law - Road Accident Fund
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Brief Summary

Recusal — Application for recusal of judge — Allegations of bias and hostility — Defendant's application dismissed — No reasonable grounds for suspicion of bias established — Costs awarded on party and party scale. The plaintiff, Joel Thabo Mohalalelo, brought a claim against the defendant, John Tsietsi Aphiri, who had previously represented him in a matter involving the Road Accident Fund. Following a settlement agreement, the defendant failed to make full payments to the plaintiff, prompting the plaintiff to issue summons. The defendant subsequently applied for the recusal of the presiding judge, alleging bias and hostility. The legal issue was whether the allegations of bias were substantiated and warranted the recusal of the judge. The court held that the application for recusal was dismissed as no reasonable grounds for suspicion of bias were established, and costs were awarded against the defendant on a party and party scale.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings took place in the High Court of South Africa, Gauteng Division, Pretoria, and concerned an interlocutory dispute arising on the trial date in an action under case number 67331/2018. The immediate application determined in the judgment was an application by the defendant for the recusal of the presiding acting judge.


The parties were Joel Thabo Mohalalelo as plaintiff and John Tsietsi Aphiri t/a Aphiri Attorneys as defendant. The defendant appeared in person. The plaintiff was represented by counsel, Mr Bouwer.


Procedurally, the matter had been set down for trial, allocated to Holland-Muter AJ on 2 June 2022, and the judge accessed the pleadings on CaseLines. Following issues raised regarding the defendant’s status as a former attorney and potential implications for the Legal Practitioners Council and possible criminal referral, the trial did not proceed on 2 June 2022 and the matter stood over to 8 June 2022. On 7 June 2022 the defendant sought to serve a recusal application in chambers, which the court declined to accept as proper service, and the application was then pursued in open court on 8 June 2022.


The general subject-matter of the underlying action (not finally determined in this judgment) concerned a dispute between a former client and his former attorney relating to the payment and alleged non-payment of Road Accident Fund monies received into the attorney’s trust account and a later alleged settlement arrangement. The judgment itself addressed the recusal application and the consequences of late interlocutory steps affecting trial readiness, including postponement and costs.


2. Material Facts


It was common cause that the defendant had previously been an admitted and practising attorney and had represented the plaintiff in litigation against the Road Accident Fund, which was finalised during 2015/2016. It was also common cause that the Road Accident Fund paid monies into the defendant’s trust account on behalf of the plaintiff, in an amount stated in the judgment as in excess of R1 600 000, comprising capital (approximately R1 400 000) and a costs/tax component (approximately R202 000).


The court recorded that difficulties arose between the plaintiff and the defendant concerning the payment out of the award to the plaintiff. The court further recorded that during 2018 the parties reached a form of agreement/settlement between the plaintiff and the defendant personally, after which the defendant was struck off the roll as an attorney in this division. The court noted payments said to have been made to the plaintiff after the agreement, namely a substantial payment of R200 000 and two smaller payments of R10 000 each, and that the plaintiff alleged the defendant failed to honour the agreement, prompting the issue of summons.


In relation to the recusal application, the court treated as relevant background that the presiding judge had raised questions with counsel regarding locus standi and whether the Legal Practitioners Council ought to have been joined, given the defendant’s struck-off status and the trust-account context. The court also regarded as relevant that the judge had expressed a concern that the matter might warrant referral to the Legal Practitioners Council and the Director of Public Prosecutions, in light of the nature of alleged trust-money misuse.


The facts material to trial readiness and costs were that the defendant had, at a late stage (stated as around 26 May 2022, less than 10 days before the trial date), delivered an application under Rule 36(2) for the plaintiff to undergo a medical examination, and had also given notice of an intention to amend the plea to introduce a special plea. The court also took into account that the defendant did not attend roll call on 2 June 2022, and that pre-trial minutes dated 13 May 2022 reflected the defendant’s stance that the matter was not ready because of pending interlocutory issues.


The court treated as disputed (or, at least, unsubstantiated on the papers before it) the defendant’s allegations that the presiding judge had displayed hostility, bias, or racism. The court found no factual basis in the conduct described for a reasonable apprehension of bias.


3. Legal Issues


The central legal question was whether the defendant had established grounds requiring the presiding judge to recuse herself on the basis of bias or a reasonable suspicion/apprehension of bias, framed by the defendant as hostility, expression of opinion indicative of bias, and conduct indicative of bias.


This issue primarily concerned the application of legal standards to facts, namely whether the facts relied upon by the defendant, viewed objectively, could found a reasonable perception that the judge might not bring an impartial mind to bear on the matter. It also involved an evaluative judgment by the court as to whether the alleged conduct and statements were capable, in context, of meeting the recusal threshold.


A further issue, arising consequentially, was what case-management and costs consequences should follow from the finding that the matter was not ready to proceed due to late interlocutory steps and the defendant’s conduct, including whether costs should be awarded on the attorney and client scale for the wasted trial attendance and postponement.


4. Court’s Reasoning


In addressing recusal, the court proceeded from the proposition (as reflected in the defendant’s own formulation) that recusal requires more than subjective dissatisfaction and depends on whether there exists a suspicion of bias that would be held by a reasonable person in the position of a litigant and founded on reasonable grounds. The court treated the defendant’s grounds of “hostility” and “expression of an opinion indicative of biasness” as overlapping in substance, focusing on whether any objective basis for reasonable apprehension of bias had been established.


On the facts advanced, the court rejected the suggestion that its conduct demonstrated hostility or partiality. It held that the judge’s telephone contact with plaintiff’s counsel was explained by the practical circumstance that the judge did not have the defendant’s contact details and sought to ensure the parties’ attendance so that the matter could potentially proceed. The court found that this did not support an inference of partiality.


The court also rejected the defendant’s allegation of racism as unsubstantiated, stating that nothing in the handling of the matter could support such an inference. The court further considered the judge’s earlier remark about possibly referring the trust-account issues to the Legal Practitioners Council and the Director of Public Prosecutions. It reasoned that raising that possibility was not improper or indicative of bias, given the general proposition (accepted in the judge’s experience of similar matters) that the use of trust monies for purposes other than those for which they were deposited may amount to theft, and that regulatory and criminal consequences may follow. The court thus treated its remarks as a legitimate concern arising from the nature of the dispute rather than a prejudgment against the defendant.


In addition, the court evaluated the broader litigation conduct relevant to readiness for trial. It noted the defendant’s very late Rule 36(2) application for a medical examination and the late notice to amend the plea by inserting a special plea, and found that the timing reasonably suggested a delaying effect. The court observed that the defendant was not a layperson and should have acted proactively rather than in a manner characterised as a “Stalingrad defence”. While the court indicated a prima facie view that the Rule 36(2) application might be without substance, it declined to determine the merits of those interlocutory issues in this judgment and instead afforded the defendant an opportunity to pursue them in the appropriate forum.


Having dismissed the recusal application, the court turned to costs and postponement. It considered that the matter could not proceed on the merits because the interlocutory steps remained unresolved and because the defendant’s conduct, including non-attendance at roll call and late procedural steps, caused wasted trial preparation and attendance. This justified a postponement and a punitive costs order for the wasted proceedings and postponement. Although the court had initially indicated reluctance and considered party-and-party costs for the recusal application, it ultimately made a more punitive costs order in relation to the postponement, reflecting the court’s assessment of the defendant’s responsibility for the matter not being ready for trial.


5. Outcome and Relief


The court dismissed the defendant’s application for the recusal of the presiding judge, ordering the defendant to pay the costs of that application on the party and party scale.


The court postponed the trial sine die to enable the defendant to proceed with and finalise the Rule 36(2) application and the proposed amendment of the plea.


The court ordered the defendant to pay the costs occasioned by the postponement on the attorney and client scale, expressly including the plaintiff’s necessary costs incurred in attending court on 2 June 2022 and 8 June 2022.


The court also declared the plaintiff to be a necessary witness.


Cases Cited


No cases were cited in the text of the judgment provided.


Legislation Cited


Constitution of the Republic of South Africa, 1996 (reference was made in argument to equality and to section 165 concerning judicial independence, as recorded in the judgment).


Rules of Court Cited


Uniform Rules of Court, Rule 23(1).


Uniform Rules of Court, Rule 30(2)(b).


Uniform Rules of Court, Rule 30.


Uniform Rules of Court, Rule 36(2).


Uniform Rules of Court, Rule 57(8).


Held


The court held that the defendant failed to establish, on reasonable grounds and from the perspective of a reasonable litigant, any basis to suspect that the presiding judge was biased or hostile or had acted in a discriminatory manner. The conduct complained of, including the judge’s practical communication to secure attendance and the expressed concern about potential regulatory or criminal implications of trust-money misuse, did not objectively support a reasonable apprehension of bias.


The court further held that the matter was not ready to proceed to trial due to late and unresolved interlocutory steps initiated by the defendant, justifying a postponement and an attorney-and-client costs order for the wasted hearing days and postponement.


LEGAL PRINCIPLES


The test for recusal applied in the judgment required that any alleged bias must be grounded in a reasonable suspicion/apprehension held by a reasonable person in the position of the litigant, and that such suspicion must rest on reasonable grounds rather than assertion or dissatisfaction.


Administrative or practical steps taken by a judge to facilitate the progression of proceedings, without more, do not establish bias. Similarly, judicial concern about potential professional-regulatory or criminal implications arising from apparent trust-account irregularities, expressed in context, does not without further facts amount to prejudgment or partiality.


Where a matter cannot proceed on the merits because of late and unresolved interlocutory applications and procedural steps attributable to a party who is not a layperson, a court may order a postponement and mark its disapproval through a punitive costs order on the attorney and client scale, including costs wasted by attendance on set-down dates.

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[2022] ZAGPPHC 568
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Mohalalelo v John Tsietsi Aphiri t/a Aprhiri Attorneys (67331/2018) [2022] ZAGPPHC 568 (27 July 2022)

IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION
,
PRETORIA
CASE
NO
:  67331-2018
DATE
:
2022-06-08
REPORTABLE:
YES / NO.
OF
INTEREST TO OTHER JUDGES:  YES / NO.
REVISED.
27
July 2022
In
the matter between
JOEL
THABO MOHALALELO
And
JOHN
TSIETSI APHIRI T/A APHIRI ATTORNEYS
JUDGMENT
HOLLAND-MUTER
AJ:
In this matter, case
number 67331/2018, it is the matter of Joel Thabo Mohalalelo versus
John Tsietsi Aphiri trading as Aphiri or
formerly trading as Aphiri
Attorneys.  The matter was allocated by the acting Judge
President to myself on 2 June 2022. That
is last Thursday.  When
informed by my registrar the case number as is practice in this
division I accessed the pleadings
in the matter on the CaseLines
system which is an operation in this division.
The reason why I had to
access the documents electronically is because no hard copies of the
filing system is any longer in operation
in this court.
During the course of
myself acquainting myself with what was the case, the pleadings
et
cetera
the plaintiff’s counsel Mr Bouwer accompanied by his
attorney and assistant as well as the defendant in person called to
my chambers to introduce themselves.
There a discussion
occurred between myself and the parties in particular with Mr Bouwer
at first with regard to the
locus standi
of the parties and as
to whether the Legal Practitioners Council should not have been
joined as a second defendant.
In view thereof that as
at that stage I determined that the plaintiff’s claim against
the defendant in person arises out of
when the defendant then still
an admitted and practicing attorney represented the plaintiff in
another case against the Road Accident
Fund.
It is common cause
between the parties that that case was finalised during 2015/2016, I
am not at the moment in possession of the
specific date but be that
as it may.  It is common cause that the Road Accident Fund made
certain payments towards the defendant’s
then trust account as
the attorney on behalf of the third party.
That amount was in excess
of R1 600 000 consisting of a capital of about 1 400 000
and 202 000 tax cost
amount.  Difficulties arose between
the now plaintiff, plaintiff in that matter then and his then
instructing attorney, the
defendant before Court of the payment of
the award being made and paid out on behalf of the plaintiff towards
the trust fund of
Mr Aphiri.
Without venturing into
much detail at some stage during 2018 there was an agreement, a
settlement agreement reached between the
plaintiff and Mr Aphiri in
person and just after that Mr Aphiri had the unfortunate repercussion
of being struck off the roll as
a practicing attorney by this
division.
Only one payment,
substantial payment was made, R200 000 and two small payments of
R10 000 subsequently was made towards
the plaintiff and the
plaintiff avers that the defendant not honouring the agreement, the
subsequent agreement between them forced
him to issue summons against
the plaintiff.
The fact that out of the
papers it came to my notice that Mr Aphiri was struck off the roll as
a matter of precaution I asked the
parties on Thursday 2 June to file
before close of business the following day, this is Friday 3 June
answers to the questions which
I posed.
Those questions
predominantly related to the position of the Fidelity Fund of the
Legal Practitioners Council, whether or not they
should be a party to
this and secondly I raised the concern and said that I may consider
reporting or handing over this matter
or directing it to be handed
over to the Legal Practitioners Council as well as the Director of
Public Prosecutions because it
may amount to theft of money, monies
which were paid into a trust account but were not in terms of trust
account regulations paid
to the person to whom it accrued.
During the late afternoon
of the 2
nd
after having discussion with a colleague of
mine, a judge in this division who was, before I was appointed
involved in the management
of the Legal Practitioners Council and the
Fidelity Fund I decided, and it is correct that Mr Bouwer indicated
that the rules are
there to serve the Court and the parties and I
decided that the parties must come today that is on the 8
th
so that we can continue with this matter.
I did not have contact
details of the defendant and without any other intention phoned Mr
Bouwer just to request him to arrange
with the defendant so that they
both be here today so that if possible the matter can proceed.
I have indicated that I
received written heads from both parties but yesterday afternoon
after lunch while my registrar was occupied
with other duties out of
her office there was a knock on the door and it was the defendant in
person who wanted to serve an application
for the recusal of myself
in the matter.
I refused to accept such
service because it is not how service is done.  It should be
served at the general office, not even
at the office of an individual
registrar ...[indistinct] a judge.
I directed Mr Aphiri that
he may have copies available today when proceedings proceed.
The gist thereafter of the discussion
and which I had to reprimand Mr
Aphiri several times with regard to the manner in which he addressed
the Court I was furnished
with the application of the notice of
motion in which requested that I recuse myself.
The application and the
affidavit accompanying the application, the affidavit is nine pages
and it is a two pager application.
Although the bundle which
was handed up to the Court today annexed thereto is a copy of the
combined summons, notice to defend,
plea, amended particulars of
claim, pre-trial minutes, the notice to amend though I do not know
what to amend and the defendant’s
notice in terms of rule 23(1)
and 30(2)(b) and then another notice of motion, the kind not known.
The application is
brought on three grounds.  Now if I can refer to paragraph 6 on
page 6 thereof.
5.1.  Hostility
towards the party.
5.2.  Expression of
an opinion indicative of biasness.
5.3.  The conduct
indicative of biasness.”
5.1 and 5.2 in my view is
mere semantical proposition.  It is basically the same aspect.
If you look at 4.6.1.1:
“
There
must be a suspicion that the judicial officer might be biased.”
That is basically 5.2 and
or 5.3.
“
4.6.2.
The suspicion must be that of a reasonable person in the position of
a litigant.
5.6.3.  The
suspicion must be based on reasonable grounds.”
That is the gist of the
application to recuse myself.  The applicant or the defendant in
this matter was granted more than
enough opportunity to argue his
matter and the Court allowed him to refer to certain clauses in the
Constitution.  Starting
with equality, no discrimination is to
be there and unfairness and in terms of section 165 of the
Constitution the independence
of the judges to the Constitution.
The independence of the
Court there was no grounds forwarded in the argument by Mr Aphiri to
this Court that the independence of
this Court is jeopardising
anything what I did as from last Thursday until this morning.
I see no factual averment
on this.  The fact that I called Mr Bouwer is only because I did
not have, and I still at this stage
do not have the personal contact
number of the defendant and I just made a courteousy call to Mr
Bouwer so that we can see if we
can advance the matter today.
The question of hostility
I reject such an allegation towards me; I reject an unsubstantiated
allegation of racism to such an extent
that I take exception to such
an accusation against myself.
I never in this matter in
any way directly or indirectly mentioned anything or did anything
from which it can be inferred that my
handling of the matter was
biased and or based on racism towards the defendant.
There is nothing about
that.  The fact that I mentioned that the matter, I consider
referring it to the National Director of
Public Prosecutions there is
nothing wrong with that because any trust money paid into a trust on
behalf of a recipient, in this
instance the plaintiff if it was not
paid out to him but utilised as it is done rather commonly by
practicing attorneys is to finance
other matters which they have and
then later to a recalculation that amounts to theft because they are
not allowed in terms of
the conditions of a trust account to use
trust funds which accrued to client A to finance and or to subside
the litigation of client
B, C or D.
It is quite clear that
that is theft.
In various instances in
my acting capacity since 2015 in this court where matters were
brought to this Court by the Legal Practitioners
Council or the then
Law Society it is an accepted fact that utilising trust monies for
other purposes than that for the purpose
of which it was deposited
into the trust account amounts to theft.
Be that as it may, and
that is why I considered it and I made the remark that it may be
referred to the Director of Public Prosecutions
and the Legal
Practitioners Council so that they can attend to this if necessary.
I have not done so but
the future will tell.  The defendant or the applicant in this,
the defendant gave a long, long, long
argument on his side to try and
show any biasness on my side.  I am not, I am not at all
persuaded in any way that I was hostile
or biased or discriminatory
towards any of the parties before the Court in particular the
defendant, now applicant.
The fact however is that
there is an application in terms of rule 36(2) by the defendant at a
very late stage, roundabout 26 May
2022, that is less than 10 days
before the trial had to proceed for the plaintiff to be subjected to
a medical examination, still
unresolved.
There is also the fact
that the defendant also gave notice of his intention to amend his
plea and that the 15 days awarded there
for by the plaintiff for him
to take the necessary actions to correct his documentation takes us
way beyond 2 June.
The only, the only
reasonable inference to be drawn for this late application and notice
to amend on behalf of the respondent can
be taken back to the
pre-trial of 13 May 2022 between the parties in paragraph, please
just bear with me, paragraph 6 where the
defendant was of the view
the estimation of the duration of the trial, plaintiff said one to
two days, defendant was of the view
the matter is not ready due to
pending interlocutory aspects regarding rules 30, 57(8) and so on and
...[indistinct].
When roll call was
conducted on the morning of 2 June Mr Aphiri does not deny that he
was not present, it was only Mr Bouwer and
the information which my
registrar received from the acting Judge President’s registrar
when the matter was allocated to
this Court is that it was, the view
was that it could be one to two hours and that is why I was not only
allocated one matter but
two matters because of the time frames which
were addressed to the acting Judge President.
To summarise then with
regard to the application that I must recuse myself I am not
convinced that any reasonable Court under the
circumstances would
consider it favourably and that application is dismissed.
The question of costs
with regard to the allegations made by the applicant or the defendant
in this matter I reluctantly will only
award party and party costs
against the applicant in this matter.
I have been considering a
cost order on an attorney and client scale but in view of everything
before the Court party and party
scale would suffice.
With regard to the new
aspects which now arose which was not mentioned at roll call, which
was not mentioned on Thursday the 2
nd
before me that the
outstanding, and in view thereof that the defendant orally indicated
to Court that he is subtracting his application
in terms of rule 30,
36(2) and rule 57 with regard to the
compos mentis
state of
the plaintiff it seems now from what he argued today and what is in
his heads of argument is that he has reconsidered
that position and
is persisting with that.
I am not going to
pronounce any verdict on that but my
prima facie
view is that
it is without substance such an application but also in all fairness
to grant him the opportunity with his application
to amend he will be
granted the opportunity and that can be, it is a small skirmish which
can take place in the interlocutory and
or motion court.
To conclude this matter
will not proceed today.  This matter will not proceed, not that
I am not willing to but I will grant
the defendant the opportunity to
bring these applications and as it works here the possibility of this
matter being awarded to
myself unless I specifically request to do so
is so remote that it can be neglected, the only aspect now to the
parties, I will
give you the opportunity starting with Mr Bouwer is
to address me on the costs, the wasted costs because of the
non-attendance
of roll call by the defendant to indicate to the
acting Judge President that the matter was not right for hearing and
his outstanding
issues with regard to the application or the
amendment notice of the plea and a special plea, to demonstrate my
fairness and un-biasness
towards the defendant I will grant him that
opportunity to have those applications heard but unless he convinces
me, and that is
why I am going to give both parties the opportunity
to address me, he knew long before 13 May 2022 when the pre-trial was
conducted
that he was of the opinion that the plaintiff may, or
should be assessed by a neurologist to determine whether he may or
may not
be in a position to give proper instructions.
That is not something
new, it has been coming for a long time and the conduct of the
defendant at this late stage being the spoke
into the wheel which
brings or grinds this matter to a halt that it cannot proceed to its
full conclusion on the merits, also in
view of certain admissions
made in the pre-trial minutes I am
prima facie
of the view
that the defendant should be liable for attorney and client costs
occasioned by the, the wasted costs occasioned by
the proceedings of
the 2
nd
and of today.  Mr Bouwer anything from your
side with regard to costs?
(ADDRESS TO FOLLOW)
---
- - - - - - - - - - -
In this matter, case
number 67331/2018, matter between Joel Thabo Mohalalelo and plaintiff
John Tsietsi Aphiri, defendant I have
already ruled that an
application for recusal of myself is dismissed with costs.  With
regards to the matter not being right
for trial I have read the
pre-trial minutes between the parties embodied in the document dated
13 May 2022.
It is also so that the
defendant at a very late stage filed a notice of intention to amend
his plea to bring in a special plea as
well as an application, in my
view but be that as it may, incorrectly in terms of rule 36(2) for
the plaintiff to be submitted
for medical examination.
I am not closing the
doors on the defendant with regards to this but it is also so that
the defendant is not a layperson.
He should know that there are
times when you act proactively and not as we have heard it over the
last couple of years, make use
of Stalingrad defence and that is
defence at number 99.
This could have been
done, the application to have the plaintiff examined by a medical
expert to determine whether he is of full
mental capacity to give
proper instructions and secondly the application which was at number
99 filed, or the notice which was
at number 99 filed by the defendant
to have his plea amended with the insertion of a special plea, there
is no other reasonable
inference that this is to a large extent
delaying and the fact that the matter or the reason that the matter
cannot proceed either
on last Thursday or today on the merits because
of the reluctance of the defendant to get out of the blocks and to do
things according
to the timeframe which is necessary of which he is
known to because of his previous experience.
Under these circumstances
it would be proper that the following order be granted:
1.
The Application for the Recusal is
dismissed with costs against the defendant on a party and party
scale;
2.
The matter is postponed sine die to enable
the defendant to proceed/finalise the Rule 36(2) application and the
amendment of his
plea;
3.
The defendant is to pay the costs
occasioned by the postponement on an attorney and client scale. The
costs is to include the costs
of 2 June 2022 and 8 June 2022, which
will include the plaintiff’s necessary costs incurred to attend
court on the aforementioned
dates.
4.
The plaintiff is declared a necessary
witness.
HOLLAND-MUTER AJ
JUDGE OF THE HIGH
COURT
DATE
:27
July 2022

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