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[2021] ZAGPPHC 166
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Tebeila Institute of Leadership, Education, Governance and Training v Minister of Justice and Correctional Services and Another (11708/2021) [2021] ZAGPPHC 166 (19 March 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO:
11708/2021
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
TEBEILA
INSTITUTE OF LEADERSHIP,
EDUCATION,
GOVERNANCE AND
TRAINING Applicant
and
MINISTER
OF JUSTICE
AND
CORRECTIONAL
SERVICES
First Respondent
SOUTH
AFRICAN LEGAL PRACTICE
COUNSIL
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
and
revisions thereof
The
judgment
and
order
are
accordingly
published
and
distributed
electronically.
DAVIS,
J
[1]
Introduction
1.1
This
is the judgment in
an
urgent
application
whereby
the
applicant
seeks
to have
a section
of the
Legal
Practice
Act, 28 of
2014
(the LPA)
declared
unconstitutional.
1.2
The impugned
section is
section
25(3)(a)(i) which
provides that newly admitted
legal
practitioners
enrolled
on the
roll
of
attorneys
need
to
be
in practice
for
a period
of three
years
before
attaining
right
of appearance
in the High
Court.
1.3
Newly admitted
legal
practitioners
enrolled
as
advocates
do
not
have
the same
limitation
placed
on
them
by the
LPA, and
have
immediate
rights
of
appearance
in
the
High Court
upon
admission. This
distinction, so
the
applicant
argues,
is a
violation
of the
right to
equality
enshrined
in
section 9
of the
Constitution.
1.4
What
must first be determined
is
whether the applicant has made out a case
that
the
relief
it
seeks
need
to
be
granted
on
an
urgent
basis
in order
to protect
its
rights.
[2]
The
parties
2.1
The
applicant
is
Tebeila
Institute
of
Leadership,
Education,
Governance
and Training.
It
is an educational
institute
based
in the rural
area of
Limpopo
and
is actively
involved
in organising
educational
training,
campaigns,
public
lectures
and career
exhibitions
in the communities
of
Limpopo
and elsewhere in the country.
2.2
The first respondent
is the Minister
of
Justice
and Correctional
Services
(the
Minister) and the second respondent is
the Legal Practice Council (the LPC)
2.3
The Minister
opposes
the
application
and the LPC
has
filed
an affidavit indicating that
it will abide the decision of
the court.
[3]
Background facts leading up to the application
3.1
On
20
January
2014
a
tragedy
of
shocking
proportions
occurred
at
the Mahlodumela Lower
Primary School
when a
six
years old
learner,
Michael
Komape,
fell into a pit latrine on the school
premises and passed away.
3.2
The
parents and family of
Michael
Komape
instituted action
in
the Limpopo Division of this Court in case number
1416/2015.
3.3
On 13
June
2016,
Mokgohloa J
admitted
the
applicant and
Equal Education as
amici
curiae
in
the
aforesaid
action.
They
were
granted
leave
to file written
submissions
and
present oral argument at the
hearing of the main
action.
Equal
Education was granted
leave to lead evidence in
respect of
issues highlighted in its founding
affidavit to its application to
be admitted as an
amicus curiae.
3.4
The
applicant
filed
no
written
submissions
and,
at
its own
request,
was discharged
as amicus soon after
the trial
commenced. This much is clear from
paragraph
[3] of the
judgment
of Muller J
delivered after the
trial on 23 April 2018.
Muller J further noted
that Equal Education had presented evidence by way
of
affidavits
and
its
counsel had
attended
the
trial
and made valuable submissions at the
conclusion of the evidence. It was also
awarded
its costs by Muller J.
3.5
The judgment
of Muller
J
was taken
on
appeal
and the judgment
of the Supreme
Court
of
Appeal
has
been
reported as
Komape and others v Minister
of
Basic
Education
and
others
2020
(2)
SA
349
(SCA). The applicant did not
feature in the appeal.
3.6
As
appears
from
the
abovementioned
judgment, no
appeal
was
lodged
against
the structural interdict granted by
Muller J. The interdict compelled the Minister of
Basic
Education and the MEC for
the Limpopo Department
of
Education to
take
certain steps
to
install
at
each
rural
school
then equipped with pit latrines in
the
Limpopo Province, a sufficient number of
toilets
for each school for use of
the learners. Certain
ancillary aspects were
also dealt with in the
interdict.
3.7
The structural interdict has not been
fully
complied with and litigation is currently
pending
in
the
Limpopo
Com1to
compel
compliance
with
the
interdict.
A notice of set down served in February 2021 indicated
that this litigation will proceed on 24 May 2021.
3.8
On 3 March 2021, the applicant's then attorneys delivered
a
notice of
withdrawal. It
is
the applicant's case that it then
"urgently
requested the
service
of
a number of attorneys who may be willing to
do
the
matter
pro
bono
and to
appear on
behalf
of the
applicant on
24
May 2021".
3.9
It
is further stated that an attorney willing to
appear
"will have to make
appearance
on
24
May 2021 without the
involvement of
counsel".
On
the
same
day,
3
March
2021,
the
applicant
was
advised
to
approach
a
Mr
Israel
Maenetja
with
a request
that
he
acts
as
its
attorney. On the
same
day
Mr
Maenetja respondent as follows:
"we are willing to assist
your
institute
with
legal
assistance
on
apro bona
basis. However,
due
to
the provisions
of
section
25(3)(a)(i)
of
the
Legal
Practice Act
28
of
2014
,
...
I
will
therefore not be able to appear
in
Court on 24 May 2021 on behalf of the institute
...
we wish you
all the
best in your
case and we are hoping
to be
of assistance
to your
institute in
future ".
3.10
Whilst the applicant
accepts that,
should
an order of Constitutional invalidity
be
granted
in respect
of the
above section
of the LPA, such an
order
would still need
to be confirmed by the
Constitutional
Court.
Even
with this in mind, the applicant stated that its only recourse is
to this court on an urgent
basis
and that "...
should
this application not be heard after
24
May 2021, the applicant will not
get
substantial redress in
due course".
[4]
Evaluation
4.1
On behalf
of the
Minister
is was
submitted
that
the
starting point
in
the enquiry
as to
whether
this
matter
should
merit
a
hearing
on
this
court's
urgent motion court
roll, is
whether,
if
the order is
not granted,
the
applicant's
rights
to
participate
in
the
hearing
on
24
May
2021
will
be unduly infringed or
curtailed.
I agree with this submission.
4.2
The
first
aspect
is
then to
evaluate
the
nature
of
the
right which
the applicant seeks
to enforce
or
protect.
The
applicant was
previously
admitted as an amicus curiae.
The role of an
amicus has been described as follows in
Re
Certain Amicus Curiae Applications: Minister of
Health
and
Others v Treatment Action
Campaign and others
2002
(5) SA 713
(CC) at 715F:
"The role
of
the
amicus
is
to
draw
the
attention
of
the
court
to relevant matters of law and fact
to
which attention would not otherwise be drawn.
In
return
to
the
privilege
of participating
in
the proceedings without
having
to qualify as a
party,
an amicus
has
a special
duty to the court
...
to
provide
cogent
and
helpful
submissions
that assist
the court.
The amicus must not
repeat argument already made but must raise new contentions".
4.3
Having
been
previously
discharged
as an
amicus
at its own request,
the applicant
has
not
brought
an
application
to
be
re-admitted
as such.
The
"right" which is seeks to enforce or protect
on an urgent basis, is therefore open
to some
serious doubt.
The extent of such doubt
is
exemplified
by what
happened
in the
SCA
in
the
appeal
against
Muller
J's judgment.
There,
another
prospective
amicus
sought
to
be
admitted
as
such. Its
application
for
admission
was
refused
after the learned judges
of
appeal had referred to the following dictum of Moseneke DCJ
in
National
Treasury v Opposition to
urban Tolling Alliance and Others
2012 (6) SA
223
(CC):
"I
do
not
propose
to
revisit the ideal attributes of a
party
that seeks to
be
admitted as
a friend
of
the
court.
It is
sufficient to
observe
that
an amicus
must
make submissions
that will
be
useful
to the Court and which
differ from those
of
the parties. In
other
words,
the submissions
must
be
directed at
assisting the
Court
to
arrive
at
a proper and just
outcome in
a
matter
in
which
the
friend
of
the
court
does
not
have
a
direct
or substantial interest
as
a
party or
litigant".
4.4
Even
if
the
applicant
still
qualifies
as
an
am1cus
despite
its
previous discharge, as it
contends it does, not
only has no
submissions
been made by it
to
the
court,
but
neither
has
it
even
indicated
what
those
(new)
submissions
would be.
The
applicant
has
also
not
indicated
why
Mr Maenetja could not have formulated those submissions,
irrespective of
the issue of the alleged
Constitutional
invalidity
of
the impugned
section. In simple
terms,
the
question
of
what
it
is that
the
applicant
says
it
that
it would want to bring to a
Court's attention, has not been answered.
4.5
Even
if
the
argument
may
be
that,
in
order
for
such
submissions
to
be acceptable to or by a
High Court,
they must be made by a legal practitioner with the requisite
right of appearance,
no reason
has been furnished
why Mr
Maenatja could not draft the submissions and they then
be settled by an advocate.
The applicant's
alleged lack of
access
to
such counsel is
gainsayed
by
the facts: in the urgent
application
before
me, the applicant was
represented by no less than four advocates, all qualified and acting
pro bono.
Any one
or
all of
them could have (and
notionally still
can) complete whatever
submissions
the
applicant
would
wish
to
deliver,
even
if those
advocates are unavailable for the hearing of 24 May 2021.
4.6
As to the actual appearance in 24 May 2021, the applicant is not in
the
position
of
a
participating
party
or
an
accused
person
whose
rights
of
access
to
court
might be unduly infringed if
it
is
denied
access
to
legal
representation,
the
applicant
seeks
to
enjoy
a
privilege
as
referred
to
earlier.
Even
if
that
privilege
or
the
exercise
thereof
may
be
of
beneficial
use
to
the
court,
the
applicant
has
failed
to
indicate
the
content
of
that
benefit. In
oral
argument
it
was
submitted
that
the
extent
of
any
envisaged
assistance
will
only
become
apparent
once
the
other
parties
have
filed
their
submissions, but
the
applicant
has
failed
or
refrained,
to
date
at
least,
to
engage
with
the
other
parties
at
all,
including
the
other
(existing)
amicus.
The
applicant
is
therefore
asking
the
court
to
consider
its
request
for
an
indulgence
to
have the matter heard as one of urgency as envisaged in
Rule 6(12)
, without furnishing evidentiary material on
which
the
court
must
base
its
decision
or
exercise
its
discretion. Counsel
for
the
Minister
has,
in
his
written
heads
of
argument,
rightly
argued in
this
regard
that
a discretion
to
condone
non compliance with the rules
(which is
what is
required
in
urgent applications)
"cannot
be
exercised in
the
air".
4.7
In
this
regard, reference was
made to
the
following
apposite dictum in State Information
Technology
Agency
SOC
Ltd
v
Gijima
Holding
(Pty)
Ltd
2018
(2)
SA
23
(CC)
at [49]:
"...
we
see that no
discretion can
be
exercised
in the air. If
we
are to exercise a discretion to overlook
the
inordinate delay in
this matter, there must be
a basis for
us to
do
so.
That
basis
may
be gleaned from
the
facts placed
before us by
the
parties
or
objectively available
factors.
We
see
no
possible basis for
the
exercise
of
the
discretion here.
That
should be
the
end of
the
matter".
4.8
Lastly,
insofar
as
it
may
be
argued
that
the
employment
of Mr Maenetja
with the current disqualification
by way of a
lack of a right of appearance, might constitute facts upon which this
court is called
upon to exercise
its
discretion,
this basis
is too
tenuous to
assist
the
applicant: no particulars have or could be furnished
about how many alternate attorneys have been approached on 3 March
2021 before
the conclusion had been reached that Mr Maenetja
was the only available
legal
practitioner.
No reasons were or
could
be furnished why
the
applicant
has
not
to date
approached the local attorneys
association for
assistance, or
the
pro
bono offices
at
either Polokwane or Pretoria or any of the constituent
associations of advocates or Pabasa or any other
independent association of advocates, Lawyers for Human
Rights
or any
of the
legal
clinics of any
of the
law
schools.
No reasons have been
advanced
why
such
approach
in the next two months would not yield
results.
4.9
The
simple allegation that the only practitioner
which had been found on 3 March 2021 willing to assist but
unable to appear on 24
May 2021,
thereby requiring the determination of constitutional
validity on an urgent basis, is simply
not
enough
to
merit
a
hearing
on
the
urgent
roll.
The
court's attention has
(very appropriately) been drawn to
the
following statement in
Hotz and Others v
University of Cape Town 2018 (1) SA369 (CC) at [15]:
"The
applicants
aver
that
a
significant
degree
of
urgency
attends
this
application
because
the
matter
concerns
the exercise
of
constitutional rights and the
manner in which the boundaries of the exercise should be interpreted,
particularly
in the context of student protests'.
They have, however,
not
established
urgency".
[5]
Conclusion
I
therefore
conclude
that
the
applicant
has
not
established
the
requisite degree of urgency as
claimed
by it.
Having reached this conclusion, I
need
not
even
traverse
the
failure
to
comply
with
rule 16A
or
whether
the applicant
has
the
necessary
locus
standi
to
request
the
relief it
seeks subsequent to its
previous discharge as
amicus.
The
only outstanding issue is
that of
costs.
Counsel for
the
Minister
argued that
the
Biowatch
exception to the customary
rule that costs should
follow the event, should not
apply
in
this
instance.
However,
having
regard
to
the
nature
of the applicant
itself,
its
current
reliance
on
pro
bono
counsel
and
apparent
impecunity,
in the exercise of my discretion, I determine that it would be
proper in the circumstances that each party pays its own
costs.
[6]
Order
1.
The matter is struck from the roll.
2.
Each party is ordered to pay its own costs.
N
DAVIS
Judge
of the High Court
Gauteng
Division, Pretoria
Date
of Hearing:
17
March
2021
Judgment
delivered:
19
March 2021
APPEARANCES:
For
the Applicant:
Adv. S S Tebeila with Adv T A MakoJa,
Adv L V Mafokane and Adv
Lb Moshoeu
Attorney
for Applicant:
Delport van den Berg Inc., Pretoria
For
the 1st
Respondent:
Adv. V D Mtsweni
Attorney
for 1st Respondent:
State
Attorney,
Pretoria
For
the 2nd Respondent:
Adv. D Bekker (on watching brief)
Attorney
for 2nd Respondent:
South African Legal Practice Council
c/o
Gauteng Legal
Practice Council