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[2021] ZAGPPHC 2
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Matsi Mailula Incorporated v Mailula and Another (93439/2020) [2021] ZAGPPHC 2 (15 January 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 93439/2020
(1)
REPORTABLE: NO.
(2)
OF INTEREST TO OTHER JUDGES: NO.
(3)
REVISED.
DATE:
15 JANAURY 2021
In
the matter between:
MATSI
MAILULA INCORPORATED
Applicant
(Now:
Matsi Law Chambers)
and
LESIBA
JEREMIAH MAILULA
First
Respondent
LESIBA
MAILULA INC ATTORNEYS
Second
Respondent
J
U D G M E N T
This
matter has been heard in terms of the Directives of the Judge
President of this Division dated
25
March 2020, 24 April 2020 and 11 May
2020
in open court. The judgment and order are published and
distributed electronically in accordance with these Directives.
DAVIS,
J
[1]
Introduction
This is the judgment in an urgent application which came
before the urgent court earlier this week, on 12 January 2021.
It
deals with the consequences of a split-up between two attorneys of
this court who had previously practised in the same firm.
[2]
The parties
2.1
The two attorneys are Mr M.L Matsi and Mr L.J
Mailula. Due to the various applications between them and the
different names
of firms under which they respectively practise or
have practised, they shall be referred to as Mr Matsi and Mr Mailula
to avoid
confusion. To also avoid confusion, the heading of the
main application, as more fully referred to hereunder, has been
retained.
2.2
The two attorneys have practised as
co-shareholders and co-directors of Matsi Mailula for nine years.
On 1 February 2019,
Mr Mailula resigned as director and employee of
Matsi Mailula Inc and “withdrew” his shareholding of that
firm.
2.3
Recently, Mr Matsi has changed the name of the
firm to Matsi Law Chambers. He is the sole director and
shareholder of this
firm where he still practises as an attorney.
2.4
Mr Mailula, in the meantime, practises as an
attorney the sole director of Lesiba Mailula Inc.
2.5
Both attorneys’ practices are in Pretoria.
[3]
The main application
3.1
On
18 December 2020, Mr Matsi’s firm obtained an order from this
court whereby Mr Mailula was ordered to return to Mr Matsi’s
firm some 116 original client case files that Mr Mailula had removed
and taken with him subsequent to his resignation referred
to in
paragraph 2.2 above. He was also ordered to furnish copies of
termination of mandates to Mr Matsi’s firm and
notices of
substitution whereby Mr Mailula and his firm had been appointed.
3.2
Mr Matsi did not deny clients’ rights to
choose which attorney they preferred after the split from each other
but demanded
the return of the files, being his firm’s
property, primarily to recover the fees and disbursements earned and
expended up
to date of termination of his and his firm’s
mandates. For this reason, he also obtained an order
restraining Mr Mailula
from submitting bills for taxation prior to Mr
Matsi’s fees and disbursements having been properly catered
for.
3.3
The main application referred to above, served
before Baqwa, J. It was preceded by a notice in terms of Rule
30A (1), delivered
by Mr Mailula, claiming dissatisfaction with
compliance or lack of compliance with certain Rules, the contents of
which notice
are no longer of any moment in this application.
3.4
Mr
Matsi had, prior to the hearing of the main application, delivered a
response to the Rule 30A notice.
3.5
Mr Mailula had not, after receipt of the response
to his Rule 30A notice, proceeded with any application as
contemplated in Rule
30A (2).
3.6
Mr
Mailula had also, by choice, refrained from delivering an answering
affidavit. At the hearing of the main application,
he was
represented by counsel and sought to rely on the issue of his
complaint raised in his Rule 30A (1) notice. When, due
to his
failure to have proceeded as contemplated in Rule 30A (2), this point
was rejected, he did not ask for a postponement or
any other relief.
Consequently, the orders referred to above, were granted.
[4]
The current application
4.1
The two week period within which Mr Mailula had
to comply with the order of Baqwa, J expired on 4 January 2021 (the
first of January
being a public holiday, followed by Saturday 2
January 2021 and Sunday 3 January 2021). Rather than comply
with the order,
Mr Mailula launched the current application, on an
urgent basis, on that day.
4.2
In the current application, Mr Mailula seeks, in
terms of part A of the Notice of Motion, an order suspending the
operation of the
order granted in the main application, pending the
determination of a rescission thereof, claimed in Part B of the
Notice of Motion,
still to be enrolled in due course.
4.3
The urgent application for the relief claimed in
part A of Mr Mailula’s Notice of Motion is opposed.
[5]
Suspension of court orders
5.1
Rule 45A provides that a court may suspend the
executive of its orders “for such period as it may deem fit”.
5.2
Mr
Mailula argues that part B of the current application (and his
affidavit in support thereof), being a claim for a rescission
of the
initial order in the main application, constituted good grounds for
the ordering of a suspension. In short, he says
that the files
which he took, formed the subject matter of an agreement between the
parties reached in 2018. He disputes
the cause relied on by Mr
Matsi in the main application.
5.3
Mr
Mailula’s argument is similar to the following statement in
Firm Mortgage Solutions (Pty) Ltd v Absa Bank
Ltd
2014 (1) SA 168
(WCC) at 170 F – G:
“
It is clear that what was intended in this
case was that, where the cause for the execution is a judgment, and
that judgment is
placed in dispute because an application for
rescission has been brought, grounds may well exist for a favourable
discretion by
a court
”.
5.4
The
general principles for the granting of a stay in execution were
summarized as follows in
Gois t/a
Shakespeare’s Pub v Van Zyl
2011 (1) SA
148
(LC) at 155H – 156B:
‘
(a) A court will grant a
stay of execution where real and substantial justice requires it or
where injustice would
otherwise result.
(b) The court will be guided
by considering the factors usually applicable to interim interdicts,
except
where the applicant is not asserting a right, but attempting
to avert injustice.
(c) The court must be
satisfied that:
(i) the applicant has a
well-grounded apprehension that the execution is taking place at the
instance
of the respondents(s); and
(ii) irreparable harm will
result if execution is not stayed and the applicant ultimately
succeeds in establishing
a clear right.
(d) Irreparable harm will
invariably result if there is a possibility that the underlying causa
may ultimately
be removed, i.e where the underlying causa is the
subject-matter of an ongoing dispute between the parties.
(e) The court is not
concerned with the merits of the underlying dispute – the sole
enquiry
is simply whether the causa is in dispute
’
.
5.5
Although the court need not at this stage assess
the merits of Mr Mailula’s grounds upon which he claims
rescission, the affidavits
indicate that those grounds raise serious
doubts as to the success of his application for rescission and, at
best, he faces the
hurdles of overcoming numerous factual disputes.
To this must be added the procedural difficulties – the
rescission
application clearly cannot be entertained in terms of Rule
31. At best, it might be entertained in terms of Rule 42, which
brings one back to the seriously contested issue of whether the
initial order had been erroneously sought. Clearly it had
been
brought on the basis of Mr Mailula’s admitted resignation in
February 2019.
5.6
In
circumstances where the right sought to be asserted by Mr Mailula is
open to doubt, the further requirements to be satisfied,
similar to
those for an interim interdict, are: 1) whether there is a
well-grounded apprehension of irreparable harm to him if
execution is
not stayed should he be ultimately successful in rescinding the order
of Baqwa, J, 2) whether the balance of convenience
favours him and 3)
that he has no other satisfactory remedy.
5.7
All the above considerations have been addressed
by the following statement by Mr Matsi in his answering affidavit
(and which has
been confirmed in open court on his behalf) and which
also addresses the possible irreparable harm and prejudice to him,
should
the order not be executed:
“
The balance of convenience will be maintained
if Mr Mailula and the second applicant simply make copies of the
files and return
the originals … . in the case of
matters where they have received mandates from clients to take over,
they must return
the files accompanied by terminations of mandate.
In respect of terminated matters the Respondent [Mr Matsi] will
prepare
its bill of costs and claim its fees and disbursements as per
procedure known to Mr Mailula. What harm can the applicants
possibly suffer in doing that?
”
5.8
It does appear that, apart from the absence of
irreparable harm should the order be executed in this fashion, Mr
Mailula has an
alternative remedy. This alternative remedy,
catering for a “seamless” transition in matters where Mr
Mailula
received substituting mandates from clients, had been on the
table both prior to and subsequent to his resignation. It
appears
that he has simply not availed himself of it. All he
needed to do, was make copies of what he wanted to retain and then
return
the originals with copies of terminations of mandate.
5.9
On
these facts and considerations, I find that execution of the order by
Baqwa, J should not be granted, save, in the exercise of
my
discretion, for the granting of a further period to Mr Mailula to
comply therewith.
[6]
Costs
6.1
Ordinarily, costs of interlocutory proceedings
are costs in the final proceedings, in this case, the intended
rescission application
contemplated in Part B of the Notice of
Motion. However, in this application, Mr Mailula brought the
urgent application on
short notice, on the last day on which he had
to comply with the existing order, in circumstances here he had, on
his own version,
been aware of his alleged grounds for rescission the
very same day that the order was granted on 18 December 2020.
Moreover,
he is the one who was in default or wilfully decided not to
deliver an answering affidavit to the main application.
Furthermore,
his response to Mr Matsi’s statement quoted in
paragraph 5.7 discloses absolutely no reason or justification why the
procedure
mentioned therein could not be followed. In fact, Mr
Mailula’s paragraph in his replying affidavit, dealing with
this
aspect, concludes inappropriately for an officer of this court:
“
the allegations in this paragraph are
not supported by any evidence, unable to confront the allegations
directly absent any supporting
documents. It is nice to know
”.
6.2
Taking all of the above into account as well as
the fact that ample measures had been available whereby the whole
urgent application
could have been avoided, I intend exercising this
court’s discretion in relation to costs against Mr Mailula and
his firm,
on the same scale as which he had claimed costs against Mr
Matsi.
[7]
Order
1.
The relief sought in
part A of the urgent application is refused.
2.
The respondents in the
main application are granted until 26 January 2021 to comply with the
order of Baqwa, J dated 18 December
2020.
3.
The applicants in the
urgent application are ordered to pay the costs thereof incurred to
date, jointly and severally, on the scale
as between attorney and
client.
N
DAVIS
Judge
of the High Court
Gauteng Division, Pretoria
Date of
Hearing: 12 December 2021
Judgment
delivered: 15 January 2021
APPEARANCES:
For
the Applicant:
Adv. K Mokwena
Attorney for
Applicant:
Matsi Mailula Incorporated, Pretoria
For the Respondents:
Adv. M R Maphutha with Adv K Mvubu
Attorney for
Respondents: Khorommbi Mabuli Attorneys
Inc., Pretoria