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[2020] ZALMPPHC 81
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Limpopo Provincial Council v Gadabeni (5909/2020) [2020] ZALMPPHC 81 (18 September 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES: YES/
NO
(3)
REVISED.
CASE NO:
5909/2020
In
the matter between:
LIMPOPO
PROVINCIAL COUNCIL
APPLICANT
and
REMBULUWANI DOLBY
GADABENI
RESPONDENT
JUDGMENT
NAUDE
AJ
[1]
This is an urgent application wherein the
Applicant applies for
urgent relief in the following terms:
1.
That the matter be
heard as urgent and that the Applicant`s non-compliance with the
rules of the above Honourable Court relating
the service, time
periods and forms be condoned;
2.
The Respondent is as an
interim measure suspended from practicing as a legal practitioner
pending a disciplinary enquiry concerning
his professional conduct,
and the final determination of the Application under Part B;
3.
That the Respondent
immediately surrenders and hand over to the Registrar of this
Honourable Court, HIS Certificate of Admission
as Advocate of this
Honourable court;
4.
That in the event of
the Respondent failing to comply with the terms of this order
detailed in the previous paragraph within 2 (two)
weeks from the date
of this order, the sheriff of the district in which the certificates
are, be authorized and directed to take
possession of the
certificates and to hand them to the Registrar of this
Honourable Court;
5.
The parties may
supplement their papers, if so advised, on the matters emanating from
the enquiry for final adjudication of the
application in Part B.
6.
Cost of this part of
the application on and attorney and client scale.
[2]
The Applicant`s application is based on two formal complaints lodged
against the Respondent. The first
complaint is by Magistrate
Kellerman concerning the matter of S v Rilinde Vumani, Case Number
MRC 87/2017. The Respondent appeared
on behalf of the accused in the
Regional Court held at Musina on 30 November 2017 and informed the
court that he was instructed
by an attorney, Mr Nemukongwe from
Nemukongwe Inc. Attorneys. The Respondent handed up a written brief
on the letterhead of Nemukongwe
Inc. Attorneys, in which it was
stated that the Respondent was instructed by the said attorneys to
represent the accused, together
with a fidelity fund certificate, a
copy of the Identity document of the Respondent and the admission
certificate of the Respondent.
Neither the instructing attorney
nor any representative of the attorneys were present in court. The
Magistrate requested the Respondent
to make sure that at the next
appearance, his instructing attorney is also present, as the Criminal
Practice Directives for Regional
Courts in South Africa 2017, 5
th
Revision read together with Rule 49.15 of the Rules of Attorneys,
made provision that instructing attorneys must be present at
court
together with instructed advocates.
[3]
On the 2
nd
of March 2018, the Respondent failed to appear
and merely sent the State Prosecutor an electronic message via
Whatsapp indicating
that he will not attend due to a medical
problem. At an appearance at court on the 13
th
of
April 2018, the Respondent indicated to the Magistrate that his
instructing attorney will not appear as his client cannot afford
his
travelling costs from Pretoria to Musina. The Respondent
further insulted the court and State Prosecutor and further
insisted
that the court acted irrationally in requesting that the instructing
attorney appear.
[4]
Mr. Nemukongwe, in a written reply dated 15 October 2018 to the
complaint laid by Magistrate Kellerman,
confirmed that he did not
know the accused in the relevant matter and neither has the accused
ever instructed Mr. Nemukongwe or
the firm Nemukongwe Attorneys Inc.
to represent him in any matter and in any court. Mr. Nemukongwe
also confirmed that
he did not instruct the Respondent to represent
the accused, Vumani Rilindi. Mr. Nemukongwe further stated that the
letterhead
which was used by the Respondent and the brief submitted
by him to court, was not from him or his firm. The attorney
further
states in his written reply that the brief submitted to court
by the Respondent and the submissions/addresses to the court
was meant to deceive or mislead the court, fraudulent and
abusing the court time and possibly contempt of court. It
was
further also stated that he was never informed by the Respondent of
the requests of the Magistrate to appear in court.
[5]
Magistrate Kellerman further complained about the Respondent’s
contemptuous behavior against the
court. At the appearance on
26 March 2018, the Respondent alleged a relationship between the
state prosecutor and the magistrate
implying something improper and
impugning the dignity of court. On 13 April 2018 the Respondent
stated that the court is
acting irrational and unreasonable, while he
blatantly ignored a direct and clear instruction for the instructing
attorney to be
present. The Respondent further refused to sit
down despite the court requesting him to do so and kept on arguing
with the
court and not giving the court an opportunity to talk.
The Respondent made utterances like “you are a disappointment”,
and he is “dangerous, dangerous to the community”, “a
disappointment to the profession.”
The Respondent even attempted to impugn a racist attitude of the
Magistrate by stating “Maybe it is because I’m black.”
On 28 May 2018, the Respondent alleged that the only reason why the
court is insisting on having his instructing attorney present
is to
disrespect the Respondent, he made threats to declare war and to
engage in war by stating “I am going to fight with
you.”
He further accused the Magistrate of unbecoming conduct. All
these remarks were completely out of order and were
aimed at
disparaging the magistrate and therefor the whole judicial process.
[6]
The second complaint against the Respondent was laid by ADJP Kgomo,
Judge of the High Court of South
Africa, Limpopo High Court,
Thohoyandou on 9 September 2020. The Respondent appeared before
the said Kgomo ADJP on the 7
th
of September 2020.
The Judge had a meeting in chambers with all the counsel representing
the parties beforehand to determine
if there were any preliminary
issues. The parties including the Respondent indicated that
they were ready to proceed. When
the matter was ready to proceed and
called in open court, the Respondent appearing on behalf of the
Applicant, suddenly indicated
that they want a postponement as there
was a problem with the mandate that they were furnished with from the
First Respondents.
After the court heard argument from both the
Respondent and counsel for the First Respondent in the matter, the
judge made a ruling
that the matter should proceed. After a
short adjournment, the matter was supposed to proceed but the
Respondent unexpectedly
started insulting the judge and levelling
profanities at him. A few of the remarks made by the Respondent
to the court were
the following:
“…
you
are very stupid. You do not look on the law.”
“
You
are a just a stupid. You are just a stupid. Stupid Judge. You
are so stupid.”
“
A
judge who cannot even look on the law and you want me to proceed with
your stupidity.”
“
I
am not going to listen to appear before your stupidity judgments. I
am not going to do. It is nonsense.”
“
I
will also be reporting you on your stupidity.”
“
Your
nonsensical judgment.”
“
I
am not insulting you. You see how stupid you are? You do not even
know the definition of stupid. Go and check the definition
of
stupid.”
[7]
On 9 September 2020 the Black Lawyers Association, Limpopo wrote a
letter to its members condemning
the actions of the Respondent
insulting the judge. The following was stated in the letter:-
“
This
is without doubt, a deplorable conduct, demeans our noble profession
and the integrity of the Judiciary.”
and further:
“
We
call upon the Legal Practice Council (LPC) to do whatever is
permissible in terms of the Legal Practice Act (LPA) and the rules
to
frown upon conduct such as the one displayed in the audio.”
[8]
The Respondent replied to the letter by the Black Lawyers Association
in writing on 11 September 2020. From
the content of the letter by
the Respondent, he clearly has no regrets for his actions and fails
to see anything wrong with it.
The Respondent states as follows
in his letter:-
“
It
is true that I referred to Acting Deputy Judge President Honourable
N.F. Kgomo as “stupid” and “nonsensical
judge”.
It was not a mistake and/or a faulty committed act, I meant what I
have said about him and I am still saying what
I have said about him,
no mistake about it and I am willing to face the consequences of my
actions.”
The
Respondent then continues and states in his last paragraph of his
letter, and might I add, in this court’s view very arrogantly:
“
Bring
it on, I will be waiting for any action lodged against me by any
institution and I advise you further to use this letter as
evidence
against me as I am also lodging the complaint against both the stupid
judge and the stupid Adv. Sikhwari.”
[9]
It is extremely worrisome that the Respondent, even after having had
time to reflect on his actions
and conduct, did not show any remorse,
did not give any reasonable explanation therefore and does not
apologise for his actions
and in fact it is clear that it is his
intentions to continue with such unbefitting and unprofessional
conduct and actions.
The Respondent shows total disrespect to
the judiciary, court and the legal profession.
[10] At
the hearing of this urgent application, the Respondent’s
Counsel, Mr. Maluleke attempted every delaying
tactic in the book in
order for this matter not to proceed. First an attack was made
and did he insist on the court giving
him an explanation as to why
police officers were present at court, thereafter the counsel on
behalf of the Respondent applied
for the court’s recusal
despite having been afforded an opportunity on 15 September 2020 to
file such an application before
10h00 am on 16 September 2020, which
the Respondent failed to do and only at approximately 13h00 on 16
September 2020 attempted
to do at the Registrar clerk of the court.
In court during the proceedings, Adv Maluleke handed the application
for recusal
up in court and insisted to proceed with the application,
but despite the court having afforded him ample opportunity on the
15
th
of September 2020, as well as during the proceedings
on 16 September 2020, did not proceed with the application.
After it
became clear that the Counsel is not going to proceed with
the application for recusal, the court afforded the Applicant’s
Counsel to proceed with the urgent application. The Respondent`s
counsel when afforded the opportunity to answer to the argument
by
the Applicant’s Counsel then proceeded with his application for
recusal. The court entertained the recusal application.
[11] In
President of the Republic of South Africa and others v South
African Rugby Football Union and others
[1999] ZACC 9
;
1999 (4) SA 147
(CC)
the
court held as follows:-
“
It
follows from the foregoing that the correct approach to this
application for the recusal of members of this court is objective
and
the onus of establishing it rests upon the Applicant. The
question is whether a reasonable, objective and informed person
would
on the correct facts reasonably apprehend that the Judge has not or
will not bring an impartial mind to bear on the adjudication
of the
case, that is a mind open to persuasion by the evidence and the
submissions of counsel. The reasonableness of the
apprehension
must be assessed in the light of the oath of office taken by the
Judges to administer justice without fear or favour;
and their
ability to carry out that oath by reason of their training and
experience. It must be assumed that they can disabuse
their
minds of any irrelevant personal beliefs or predispositions. They
must take into account the fact that they have a duty to
sit in any
case in which they are not obliged to recuse themselves. At the same
time, it must never be forgotten that an impartial
Judge is a
fundamental prerequisite for a fair trial and a judicial officer
should not hesitate to recuse herself or himself if
there are
reasonable grounds on the part of a litigant for apprehending that
the judicial officer, for whatever reasons, was not
or will not be
impartial.” The Respondent failed to
establish any reasonable grounds that
the court would not bring an impartial mind to bear on the
adjudication of the case and as
a result the application for recusal
was refused.
[12]
After the refusal of the application for recusal, the Respondent’s
counsel further proceeded with every possible
delaying tactic in
order not to proceed with the Urgent Application. The
Respondent’s counsel then, without instruction
to do so,
voluntarily withdrew as counsel and requested to be excused by the
court. The Respondent proceeded in person and
requested a
postponement to obtain new legal representation. The request
was refused as this matter before court was an urgent
application and
was the Respondent’s request in this court`s view nothing but a
further delaying tactic in order for this
application not to
proceed. The Respondent then summarily walked out of court
without having been excused and the matter
proceeded on an unopposed
basis.
[13]
Despite the matter having proceeded on an unopposed basis, the court
did have regard to and considered the Respondent’s
answering
affidavit. The Respondent in his answering affidavit raised a point
in limine
in that the Applicant failed to comply with the
provisions of Section 39, 40, 41 & 43 of the Legal Practice Act
and brought
this urgent application pre-mature in that the Respondent
has not been served with any documentation and/or papers whatsoever,
in relation to complaints that may allegedly have been lodged by any
member of the public and/or members of the judiciary and/or
members
of the legal profession, nor has he been asked or called upon to
answer to any of the alleged complaints raised herein.
The
Respondent further stated that there are currently no sanctions meted
out against him which automatically renders the present
application
against him premature.
[14] The
Applicant brought this urgent application in terms of Section 43 of
the Legal Practice Act, which reads as
follows:-
“
Despite
the provisions of this Chapter, if upon considering a complaint, a
disciplinary body is satisfied that a legal practitioner
has
misappropriated trust monies or is guilty of other serious
misconduct, it must inform the Council thereof with the view to
the
Council instituting urgent legal proceedings in the High Court to
suspend the legal practitioner from practice and to obtain
alternative interim relief.”
In
this court’s view there is no merit in the point
in
limine
raised by
the Respondent in his answering affidavit.
[15] The
Supreme Court of Appeal in the matter of
The Law Society of the
Northern Provinces v Morobadi (1151/2017)
[2018] ZASCA 185
(11
December 2018) in paragraph 4
thereof held as follows:
“
Applications
for the striking off of an attorney’s name from the roll of
practitioners are not ordinary civil proceedings,
they are
proceedings of a disciplinary nature and are sui generis. In Solomon
v Law Society of the Cape of Good Hope
1934
AD 401
at
408-409 the following was said regarding the nature of disciplinary
proceedings:
‘
Now
in these proceedings the Law Society claims nothing for itself. . .
It merely brings the attorney before the Court by virtue
of a
statutory right, informs the Court what the attorney has done and
asks the Court to exercise its disciplinary powers over
him. . . The
Law Society protects the interests of the public in its dealings with
attorneys. It does not institute any action
or civil suit against the
attorney. It merely submits to the Court facts which it contends
constitutes unprofessional conduct and
then leaves the Court to
determine how it will deal with this officer.’”
The
Supreme Court of Appeal further in
paragraph
5 in the Morobadi case
supra
held as follows:-
“
It
is now settled that an application for the removal from the roll, or
suspension from practice, of an attorney involves a three-stage
enquiry. First, the court has to determine whether the alleged
offending conduct has been established on a balance of probabilities.
It is a factual enquiry. Second, consideration must be given to the
question whether, in the discretion of the court, the person
concerned is not ‘a fit and proper person to continue to
practice as an attorney’. This involves a weighing up of the
conduct complained of against the conduct expected of an attorney and
is a value judgment. Third, the court is required to consider
whether, in light of all the circumstances, the name of the attorney
concerned should be removed from the roll of attorneys or
whether an
order suspending him or her from practice would suffice. In
Summerley
the
following was said:
‘
the
exercise of the discretion at the second stage “involves, in
reality, a weighing up of the conduct complained of against
the
conduct expected of an attorney and, to this extent, a value
judgment” . . . The third enquiry again requires the Court
to
exercise a discretion. At this stage the Court must decide, in the
exercise of its discretion, whether the person who has been
found not
to be a fit and proper person to practise as an attorney deserves the
ultimate penalty of being struck from the roll
or whether an order of
suspension from practice will suffice.’”
[16] In
Johannesburg Society of Advocates v Snoyman (11844/2018) [2019]
ZAGPJHC 451 (15 April 2019) at paragraph 12 and 13
it was held:
“
[12]
Applications for striking off are considered to be sui
generis (Jiba and Another v General Council of the Bar
of South
Africa and Another; Mrwebi v General Council of the Bar of South
Africa (141/17; 180/17)
[2018]
ZASCA 103
;
[2018]
3 All SA 622
(SCA);
2019
(1) SA 130
(SCA);
2019
(1) SACR 154
(SCA)
(10 July 2018); Law Society of the Free State v
Majola (4776/2015)
[2016]
ZAFSHC 145
(12
August 2016). They are proceedings of a disciplinary nature and not
subject to the strict rules that govern ordinary civil
proceedings
(Jiba para [6]; Hepple and Others v Law Society of the
Northern Provinces
[2014]
3 All SA 408
SCA
para [9]). In the light of the kind of proceedings, the Supreme Court
of Appeal confirmed the duty resting on an attorney
(and likewise on
an advocate [Jiba para [6]] in these kinds of proceedings, in
the following dictum as follows (para
[9]):
‘
It
follows therefore that where allegations and evidence are presented
against an attorney they cannot be met with mere denials
by the
attorney concerned. If allegations are made by the law society and
underlying documents are provided which form the basis
of the
allegations, they cannot simply be brushed aside; the attorneys are
expected to respond meaningfully to them and to furnish
a proper
explanation of the financial discrepancies as their failure to do so
may count against them.’
(See
also: Malan and Another v Law Society of the Northern
Provinces
[2008]
ZASCA 90
;
2009
(1) SA 216
(SCA
paras [27] - [28]). The dictum appears to be
applicable to all allegations of misconduct.
[13]
Where prima facie evidence of unprofessional conduct exists
whether as alleged by the applicant or, more conclusively
as in the
present matter, admitted by the respondent, it is for the respondent
to present the court with a satisfactory explanation
of his conduct.
The applicant’s role in applications of this nature, as custos
morum of the advocates’ profession,
is that of a nuntius:
it is merely required to place facts relating to the alleged
unprofessional conduct before the court
for the court to exercise its
discretion as to the appropriateness of the order sought (Hassim v
Incorporated Law Society of Natal
1977
(2) SA 757
(AD)
767C - G).”
[17] The
Respondent did not offer any explanation for his unprofessional
conduct in his answering affidavit, nor did
he raise any defence and
in fact continued to justify himself and his unbefitting and
unprofessional conduct as correct.
[18] In
paragraph 38 of the
Morobadi
case
supra
it was held as
follows:
“
In
light of what has been said in the preceding paragraphs the high
court as custos mores ought, on the admitted misconduct
in
order to protect the public, to have postponed a final decision, but
also at the same time protect the public with an interim
order of
suspension pending a final decision on whether the respondent should
be struck off the roll or some other sanction should
follow. This it
did not do.”
[19] In
this court’s view it is very important to jealously protect the
dignity of the courts and to deter disparaging
remarks calculated to
bring the judicial process into disrepute. It is not the
self-esteem, feelings or dignity of any judicial
officer, or even the
reputation, status or standing of a particular court that is sought
to be protected, but the moral authority
of the judicial process as
such. In this court’s view the Respondent cannot be
allowed to continue with his actions
as set out here above and it is
imperative that the court act immediately and decisively in the
interest of justice and the broader
public to curtail any further
damage. In this court’s view this application is indeed
very urgent and must succeed.
[20]
There is in this court’s view no reason why costs should not be
granted as prayed for by the Applicant on
an attorney and client
scale having consideration to the fact that the Respondent is a legal
practitioner who knows the rules of
court and the ethical and
professional conduct and standard that needs to be upheld in the
interest of justice and the interest
of the public and despite the
very serious allegations and complaints against him, still in an
arrogant manner states in his letter
dated 11 September 2020 to the
Legal Practice Council:
“
Bring
it on...”
This
court’s displeasure in the conduct of the Respondent should be
shown and marked with an appropriate cost order, and is
an attorney
and client cost order, in this court`s view justified in this matter.
[21] I
therefore make the following order:
1.
The matter is heard as urgent and the Applicant’s
non-compliance with the rules of
the above Honourable Court relating
to service, time periods and forms is condoned.
2.
The Respondent is, as an interim measure suspended from practicing as
a legal practitioner
pending a disciplinary enquiry concerning his
professional conduct, and the final determination of the Application
under Part B.
3.
The Respondent must immediately surrender and hand over to the
Registrar of this Court, his
Certificate of Admission as Advocate of
this Court.
4.
In the event of the Respondent failing to comply with the terms of
this order detailed in
the previous paragraph within 2 (two) weeks
from the date of this order, the sheriff of the district in which the
certificates
are, be authorised and directed to take possession of
the certificates and to hand them to the Registrar of this Court.
5.
The parties may supplement their papers, if so advised, on the
matters emanating from the
enquiry for final adjudication of the
application in Part B.
6.
The Respondent to pay the cost of this part of the application on an
attorney and client
scale.
7.
The relief sought in Part B is postponed
sine die.
M.
NAUDÈ
ACTING
JUDGE OF
THE
HIGH COURT
APPEARANCES:
HEARD
ON:
16 SEPTEMBER 2020
JUDGMENT
DELIVERED ON: 18 SEPTEMBER 2020
For
the Applicants:
Mr. Moolman
Instructed
by:
Pratt Luyt & De Lange Attorneys.
For
the Respondent:
Adv. Maluleke
Instructed
by:
M & M Maiwashe Attorneys