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[2019] ZALMPPHC 33
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Nthai v Pretoria Society of Advocates and Others (4496/2018) [2019] ZALMPPHC 33 (18 July 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE NO: 4496/2018
18/7/2019
In the matter between:
SETH
AZWIHANGWISI NTHAI
APPLICANT
and
PRETORIA
SOCIETY OF ADVOCATES
FIRST RESPONDENT
JOHANNESBURG
SOCIETY OF ADVOCATES
SECOND RESPONDENT
POLOKWANE
SOCIETY OF ADVOCATES
THIRD RESPONDENT
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
FOURTH RESPONDENT
JUDGMENT
MAKGOBA
JP e tMABUSE J
[1]
The
Applicant in this matter, SETH AZWIHANGWISI NTHAI ("NTHAI")
brought an application for his re-admission as a legal
practitioner
in this Court on 18 October 2018. The said application was opposed by
the First Respondent, PRETORIA SOCIETY OF ADVOCATES
("PSA"),
Second Respondent, JOHANNESBURG SOCIETY OF ADVOCATES ("JSA"),
and the Fourth Respondent, THE SOUTH
AFRICAN LEGAL PRACTICE COUNCIL
("LPC"). The Third Respondent, POLOKWANE SOCIETY OF
ADVOCATES ("POLSA ") supported
the application.
[2]
The
application for re-admission was heard by this Court on 15 April 2019
and judgment was reserved. On 24 May 2019 the Court delivered
the
judgment and order in which Nthai was re-admitted as a legal
practitioner of the High Court of South Africa to be enrolled
as an
advocate.
[3]
On
11 June 2019 and 14 June 2019 JSA and LPC filed their applications
for leave to appeal respectively. PSA and POLSA have not given
their
notice for leave to appeal against the judgment and order of this
Court re-admitting Nthai as a legal practitioner. Subsequent
to the
application for leave to appeal Nthai brought the present application
in terms of section 18 of the Superior Courts Act
10 of 2013 ("The
Act") which application is opposed by JSA and LPC.
[4]
The
application in terms of section 18 of the Act was heard by this Court
on the 5th July 2019, the same day with the application
for leave to
appeal. ln both instances judgment was reserved.
[5]
In
the application in terms of section 18 of the Act Nthai asks for an
order in the following terms:
1.
To
the extent necessary, condoning the Applicant's non-compliance with
the rules of this Court relating to the forms and service,
and
hearing this application on an urgent basis in terms of rule 6
(12)(a).
2.
Leave
to be granted that the judgment and order of this Court, delivered
and issued on 24 May 2019 shall operate and be executed
in full
pending the outcome of the application for leave to appeal including
future appeals, if any, to be noted by any party.
3.
The
Applicant be exempted from furnishing security in terms of Rule
49(12) of the Uniform Rules of Court.
4.
Costs
against any of the Respondents who opposes the application, on
attorney and own client scale.
5.
Granting
the Applicant further and / or alternative relief.
[6]
In
an application in terms of section 18 of the Act, the Applicant for
such relief bears the onus to establish three distinct propositions:
6.1.
First, he must demonstrate that exceptional circumstances are present
, which must be established
based on the specific facts of the case.
6.2.
Second, he must prove on a balance of probabilities that he will
suffer irreparable harm if the
order is not granted.
6.3.
Third, he must prove on a balance of probabilities that the
Respondent will not suffer irreparable
harm if the order is granted
[7]
In
our approach to the issues involved in the present matter we shall
certainly bear in mind and take into consideration the words
of
Keightly J in the unreported judgment of the Full Court:
Mobile
Telephone Networks (Pty) Ltd v Vodacom (Pty) Ltd and Another
[1]
where it was stated that:
".... ...
The court
is
required to make
a
determination on the probabilities of
the alleged irreparable harm occurring. This
is
consistent
with the purpose of section 18, which
is
to prevent
a
party from suffering irreparable harm while appeal proceedings are
pending. It's purpose
is
rooted in the realities and
practicalities of the parties' situations. It follows that the
determination of irreparable harm must
also
address these
realities and practicalities. In other words, the court must
determine whether, in reality, it
is
more probable than not
that the applicant (or respondent
as
the
case
may be)
will suffer irreparable harm.
As
the court noted in lncubata,
this inevitably requires the court to make
a
qualitative
assessment
of the existence of irreparable harm:
as
to irreparable harm
is a
qualitative decision admitting
some
scope for reasonable
people to disagree about the presence of the so-called "fact"
of "irreparability"."
[8]
Section 18 of the Act reads as follows:
"
Suspension of decision pending appeal
(1)
Subject
to subsections (2) and (3),
and
unless the court under exceptional circumstances orders otherwise,
the operation and execution of
a
decision which
is
the subject of an application for
leave to appeal or of an appeal,
is
suspended pending the decision of the
application or appeal.
(2)
Subject
to subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution of
a
decision that is an interlocutory
order not having the effect of
a
final judgment, which is the subject
of an application for leave to appeal or of an appeal, is not
suspended pending the decision
of the application or appeal.
(3)
A
court may only order otherwise
as
contemplated in subsection (1) or
(2), if the party who applied to the court to order otherwise, in
addition proves on
a
balance
of probabilities that he or she will suffer irreparable harm if the
court
does
not
so
order
and that the other party will not suffer irreparable harm if the
court
so
orders.
(4)
If
a
court
orders otherwise,
as
contemplated
in subsection (1)
(i)
the court must immediately record
its reasons for doing
so;
(ii)
the aggrieved party
has
an automatic right of appeal to the
next highest court;
(iii)
the court hearing such an appeal
must deal with it
as a
matter
of extreme urgency ;
and
(iv)
such order will be automatically
suspended, pending the outcome of such appeal.
(5)
For
the purposes of subsections (1) and (2),
a
decision becomes the subject of an
application for leave to appeal or of an appeal,
as
soon as
an application for leave to
appeal or
a
notice
of appeal
is
lodged
with the registrar in terms of the rules ."
[9]
Subsections
18(1) and (3) of the Act in essence provide for a two-fold enquiry in
that the following requirements must be met before
an order appealed
against can be put into operation pending the outcome of the appeal:
1.
First, whether or not exceptional
circumstances exist and
2.
Second, proof on a balance of
probabilities by the Applicant of -
2.1.
The
presence of irreparable harm to the applicants / victor, who wants to
put into operation and execute the order; and
2.2.
The
absence of irreparable harm to the respondent/ loser, who seeks leave
to appeal
[2]
.
[10] The
test to be applied by a Court in deciding whether or not to suspend a
Court order by virtue of
the provisions of section 18(1) (and the
observe situation arising from section 18(2)) has been the subject of
a fair amount of
judicial scrutiny. In particular, there have been
conflicting decisions with regard to whether or not the Court ought
to take into
account the question of prospects of success on appeal.
The latter question, and the test itself, has been settled by the
Supreme
Court of Appeal in the matter of
University
of The Free State v Afriforum
[3]
.
In that matter
the appeal Court found that the Legislature has proceeded from
established premise of the common law that the granting
of relief of
this nature constitutes an extraordinary deviation from the norm
that, pending an appeal, a judgment and its attendant
orders are
suspended. The exceptionality of such an order is also underscored by
the requirements of section 18(4) which provides
for,
inter
alia,
an
automatic right of appeal on an urgent basis. The appeal Court also
found that the requirements introduced by section 18(1) and
(3) are
more onerous than the common law requirements which existed
previously and that section 18(3) has introduced
“
a
higher threshold,
namely proof on
a
balance of
probabilities that the Applicant will suffer irreparable harm if the
order
is
not
granted, and conversely that the Respondent will not if the order
is
granted”
[4]
.
[11]
In
Afriforum,
supra, the Court found that
prospects of success in the pending appeal ought to play a role in
the consideration as to whether or
not to grant such an order. In
doing so, the appeal Court confirmed a dictum by Binns-Ward J in the
case of
Minister of Social
Development Western Cape and Others v Justice Alliance of South
Africa and Another
[5]
as follows:
"The
less sanguine
a
Court
seized of an application in terms of s 18(3) is about the prospects
of the judgment at first instance being upheld on appeal,
the less
inclined it will be to grant the exceptional remedy of execution of
that judgment pending the appeal. The same quite obviously
applies in
respect of
a
Court
dealing with an appeal against an order granted in terms of s 18(3)."
[12]
In
our judgment in the application for leave to appeal (which is
delivered and handed down simultaneously with this judgment) we
made
a finding that the Applicants therein have no reasonable prospects of
success on appeal against our judgment and order in
the main
application. Therefore, the prospects of success on appeal will
equally play a significant role in our findings in the
present matter
involving section 18 of the Act.
[13]
Whether
or not exceptional circumstances for the purpose of section 18(1) are
present, must necessarily depend on the peculiar facts
of each case.
In
lncubeta Holdings (Pty) Ltd v
Ellis
[6]
at paragraph 22 Sutherland J put it
as follows:
"Necessarily, in my view,
exceptionality must be fact-specific. The circumstances which are or
may be 'exceptional' must be
derived from the actual predicaments in
which the given litigants find themselves.
"
We agree and wish to add that in
evaluating the circumstances relied upon by an Applicant, a Court
should bear in mind that what
is sought is an extraordinary deviation
from the norm, which, in turn, requires the existence of truly
exceptional circumstances
to justify the deviation.
[14]
Whether or not exceptional circumstances
exist is not a decision which depends upon the exercise of a judicial
discretion, their
existence or otherwise is a matter of fact which
the Court must decide accordingly.
[15]
For reasons that appear hereunder, we
are of the view that there are exceptional circumstances that justify
Nthai's application
in terms of section 18 of the Act.
[16]
As at the date of filing of the
application for leave to appeal by JSA and LPC on 11 and 14 June 2019
respectively Nthai had already
taken steps to join POLSA which
accepted him as a member and allocated chambers to him. Nthai has
since duly paid the membership
fee in the amount of R 6000.00.
Furthermore, POLSA has appointed Nthai to serve on the Pupillage
Committee and he has offered and
continues to offer lectures to 44
pupils. Nthai is expected to continue to assist the pupils in
preparation for their National
Bar Examinations in July and August
2019.
[17]
As the news of his re-admission was
widely covered in the media, several attorneys have already briefed
Nthai on several matters.
It is noteworthy to learn that the State
Attorney (Pretoria) who was one of the complainants in the misconduct
charges leading
to Nthai's removal from the roll of advocates, is one
of the several attorneys who have recently briefed Nthai. The brief
from
the State Attorney relates to a complex and important matter
that declared certain section of the
South African Citizenship Act 88
of 1995
as unconstitutional and invalid. The matter is heading to the
Constitutional Court in terms of section 172(2)(d) of the
Constitution
for confirmation of the Orders of constitutional
invalidity. In that matter, Nthai is leading two junior advocates.
This, in our
view, is exceptional for a man who had just been
readmitted as an advocate. His services and expertise are really
being valued.
[18]
Nthai has joined the POLSA as a member,
which will keep a watchful eye on his conduct and behaviour. This
includes the General Council
of the Bar (GCB) of which POLSA is its
own constituent bar. The same applies to the LPC and the Limpopo
Provincial Legal Council
which has recently been established as the
custos morum
of
the legal profession. In January 2010, before he was struck from the
roll of advocates in April 2013, Nthai voluntarily and proactively
undertook and ceased to practice. This means that he can be trusted,
and that if the intended appeal by JSA and LPC is successful,
he will
similarly stop practicing. There will be no danger or harm to members
of the public and the public interest is protected.
[19]
In our judgment in the main application
we made a finding that since his name was removed from the roll of
advocates, Nthai made
a sincere and determined effort to live with
honesty, integrity and dignity
[7]
.
Nthai has demonstrated personal integrity and scrupulous honesty in
his subsequent employment and interaction with others. This,
in our
view, is in itself an exceptional circumstance.
[20]
The PSA which brought an application to
remove Nthai's name from the roll of advocates and also opposed the
main application, has
now resolved not to apply for leave to appeal
against the judgment. POLSA has always supported the main
application. JSA's Council
were not given a complete mandate to lodge
the application for leave to appeal as members of the Advocates for
Transformation (AFT)
(Johannesburg) are contemplating to take steps
to rescind the decision purportedly adopted by the JSA's Council to
lodge the application
for leave to appeal against the judgment. The
position of the LPC in these proceedings is precarious in the sense
that its Executive
Committee's decision to embark upon these
proceedings is being questioned on the basis that it should have been
the full Council
or Provincial Council who took the decision and not
the Executive Committee as it purported to have done. This makes the
present
matter exceptional in the sense that all relevant parties do
not agree on the steps taken to apply for leave to appeal against the
judgment in the main application.
[21]
It is a notorious fact that our appeal
process takes long to be completed. In the event of this matter
proceeding on appeal to the
Supreme Court of Appeal and possibly to
the Constitutional Court, it may take not less than three years to
finalise the appeal
process. This then will entail the forfeiture of
substantial relief on the part of Nthai because of the procedural
delays in prosecuting
the appeal. This, in our view qualifies as
"exceptional circumstances".
[22]
Whether circumstances of the foreseen
duration of the appeal process constitutes an exceptional
circumstance, was answered in
lncubeta
Holdings (Pty) Ltd v Ellis
[8]
where Sutherland J said in paragraph
27:
"Do these circumstances
give rise to 'exceptionality' as contemplated? In my view the
predicament of being left with no relief,
regardless of the outcome
of an appeal , constitutes exceptional circumstances which warrant
a
consideration of
putting the order into operation. The forfeiture· of
substantive relief because of procedural delays, even
if not
protracted in bad faith by
a
litigant, ought
to be sufficient to cross the threshold of 'exceptional
circumstances"
We respectively align ourselves
with the reasoning of the learned Judge and accordingly find that
exceptional circumstances exist,
which may justify the implementation
of the order. The Applicant herein was victorious in the main
application and should not be
deprived of the benefits of the order
by the slow grinding of the judicial mill.
[23]
The JSA's opposition to the section 18
application is based on the alleged irreparable harm that will be
inflicted on the public
if the section 18 application is granted and
if a Court of appeal ultimately overturns this Court's order to
readmit Nthai. The
JSA argued that if that happens, Nthai will
commence practice during the interim period, in circumstances in
which a Court of appeal
later finds that this Court erred in finding
him to be a fit and proper person to practice. The argument goes
further that the
public will have been subjected to a legal
practitioner who is ultimately found not to be fit and proper to have
been readmitted.
Furthermore it is argued that all those attorneys
who have briefed Nthai will at that point have to immediately
terminate his services
and find alternative Counsel. This, according
to JSA, may cause those attorneys and their client and members of the
public to suffer
procedural prejudice, duplication of costs and
strategic disadvantage in the conduct of their litigation.
[24]
There is no merit in the aforesaid
argument. More often than not it happens in the course of any
litigation that Counsel's mandate
is terminated for various reasons,
including illness, death, failure to pay Counsel's fees and lack of
further or proper instructions
to Counsel, that Counsel on brief does
not proceed with the matter with the result that another or new
Counsel is briefed to proceed
with the matter at hand. In our view it
is possible to replace Nthai in whatever matter he would be handling
should the appeal
Court ultimately overturn this Court's order of
readmission.
[25]
On the other hand Nthai has already
joined the POLSA and paid a membership fee in an amount of R 6000.00.
He is offering lectures
to pupils at the POLSA and has already
accepted a series of briefs from attorneys. If the section 18
application is not granted
Nthai will suffer irreparable harm in the
sense that while the appeal is pending he will be unable to practice
and will accordingly
suffer a loss of income and will have incurred
expenses in the form of membership fees paid to POLSA. Failure to
execute the Court
Order immediately will negatively affect Nthai's
right to practice his profession of choice and the administration of
justice in
cases where his services would be required by clients.
This would not be in the interest of justice. The current and future
pupils
at POLSA would be denied the benefit of his experience.
[26]
The Respondents herein will not suffer
any irreparable harm. Nthai has joined POLSA as a member and will be
duly subjected to the
rules and ethics of the legal profession. In
the event of the appeal Court overturning the order of this Court,
Nthai will immediately
cease to practice as he has shown previously
in January 2010.
[27]
As shown in our judgment in the
application for leave to appeal (which application was dismissed) we
hold that the prospect of success
on appeal qualify as an exceptional
circumstance over and above all other factors stated hereinabove.
[28]
We are satisfied that Nthai has
demonstrated and proved on a balance of probabilities that he will
suffer an irreparable harm if
the judgment and order are not
implemented pending the outcome of the application for leave to
appeal or appeal, if any, to be
noted by any party. Furthermore Nthai
has demonstrated and proved that the Respondents will not suffer any
irreparable harm if
the judgment and order are executed pending the
determination of any appeal process in this matter.
[29]
Accordingly, we hold that the operation
and execution of the judgment and order by this Court on 24 May 2019
is not suspended and
will continue to be operational and executed in
full whether or not there are any applications for leave to appeal
and appeals
or whether or not there are any petition for leave to
appeal against the said judgment and order.
[30]
The following
order is granted:
1.
The judgment and order of
this Court delivered and issued on 24 May 2019 shall operate and be
executed in full pending the outcome
of the application for leave to
appeal including future appeals, if any, to be noted by any party.
2.
The Applicant is exempted
from furnishing security in terms of Rule 49(12) of the Uniform Rules
of Court.
3.
No order as to costs.
EM MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
PM MABUSE
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel
for the Applicant:
Adv G Shakwane SC
Adv
F Khunou
Adv
B Makuya
Instructed
by:
Werksmans Attorneys
c/o Kgatla Incorporated
Counsel
for the Second Respondent (JSA):
Adv P Kennedy SC
Adv Y Ntloko
Instructed
by:
Edward Nathan
Sonnenbergs Inc.
c/o Pratt, Luyt & Delange
Counsel
for the Fourth Respondent:
Adv T Matau SC
Adv R Tshetlo
Instructed
by:
DMR Attorneys
c/o PMK Tladi & Assciates
Dates
heard:
05 July 2019
Date
of Judgment:
18 July 2019
[1]
Case No A5074/2018, Gauteng Local Division, 26 March 2019, at para
27
[2]
lncubeta Holdings (Pty) Lt d v Ellis
2014 (3) SA 189
(GJ) para 16
and Ntlemeza v Helen Suzman Foundation and Another
[2017] 3 ALL SA
589
(SCA) at par a 35;
2017 (5) SA 40
2 (SCA) at para 35-36.
[3]
2018 (3) SA 428
(SCA) paragraphs 9 - 15
[4]
UFS v Afriforum (supra) paragraphs 9 - 10
[5]
[2016] ZAWCHC 34
[6]
2014 (3) SA 189
(GJ) at paragraph 22
[7]
Judgment , para 57.4, pages 45 and 46
[8]
2014 (3) SA 189
(GJ) at para 27