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[2018] ZAGPPHC 45
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Macbeth Attorneys Incorporated and Another v Nel obo Jumbe and Others (86454/2016) [2018] ZAGPPHC 45 (9 March 2018)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE
NUMBER 86454/2016
9/3/2018
In
the matter between:
MACBETH ATTORNEYS
INCORPORATED
FIRST APPLICANT
MANDLA
MACBETH NCONGWANE
SECOND APPELLANT
and
ADV
P NEL obo WEZI BEVERLEY JUMBE
FIRST RESPONDENT
BONGANI
LOIUS MATSANE
SECOND RESPONDENT
SIBONGILE
MUWAMBA CHIMIMBA
THIRD RESPONDENT
FRIDAY
JUMBE
FOURTH RESPONDENT
LAW
SOCIETY OF THE NORTHERN PROVINCES FIFTH RESPONDENT
JUDGEMENT
- LEAVE TO APPEAL
TLHAPI
J
[1]
This is an application for leave to
appeal an order made on 7 December 2016.
[2]
The respondents had initially launched
an application on urgency, for an order declaring that paragraph 4 of
an Order of Court dated
21 November 2016 by Molahlehi AJ was an
interlocutory one, which did not have the effect of a final order,
and that its operation
and execution was not suspended, pending the
outcome of an application for leave to appeal the said Order.
Furthermore, that the
applicants be declared to be in contempt of the
said paragraph 4 of the order and for the imposition of a fine in the
discretion
of the court and a committal to imprisonment for a period
of 90 days. The application was opposed and a counter application was
launched.
Having read all the papers, the
counter application was struck off the roll due to lack of urgency.
[3]
Paragraph 4 of Molahlehi AJ's Oder read:
"4. The
first respondent is ordered to, within (2) days of service of this
order pay to Weavind
and Weavind Attorneys into their trust account,
any or all funds held on behalf of Ms Wezi Bervely Jumbe, which were
received by
the first respondent in terms of the court order dated 24
May 2013 under case number 50304/2008 , together with interest
thereon
to be dealt with by Weavind and Weavind in accordance with
the court order of 24 May 2013."
The applicants launched an
application for leave to appeal Molahlehi AJ's Order.
[4]
What was addressed with both counsel
regarding my judgment in this application was my view that the
according to the averments in
the application and counter
application, there seemed to be some sort of feud between the
attorneys for the applicant and for the
respondents. There were
accusations and counter accusations being made of improper conduct on
the part of the respective legal
representatives. The respondents
also questioned the
locus standi
of
the first applicant in that the appointment of the second respondent
as
curator ad litem
was
still extant. Also contained in the order of 21 November 2016 was one
which ordered an investigation into the Trust accounts
of the
applicants . The following excerpts from my judgement of 7 December
2016 are relevant to this application:
"[4] ...
It is not open to the applicant to seek a declaration on urgency that
the order in paragraph
4 was an interlocutory one which does not have
the effect of a final order. Of importance and urgent is that on 31
October 2016
the first and second respondent were informed that their
client Ms Wezi Bervely Jumbe had terminated their mandate and this
was
followed by an application which resulted in the orders of 21
November 2016 of which paragraph 4 in one of them.
The first and second respondents
failed to comply with the order and such order still exists. Even if
the application for leave
was properly filed the monies held for the
client belonged to the client. If a mandate has been terminated an
attorney has no right
to deal with such monies or to hold on to such
monies unless otherwise directed by a court. In as far as such
payment was not made
within the specified period, the first and
second respondent were in my view in contempt.
[7] In
view of the complexity of the issues in the matter which is the
subject of appeal, in the interests
of justice, those monies which
have been ordered to be deposited into the trust account of Weavind
and Weavind should be paid into
a separate interest bearing account
and be frozen until such time as the sixth respondent has completed
its investigation as ordered.
In my view the sixth respondent is the
only statutory body which is entitled to speedily conduct an indepth
investigation into
the Trust accounts of the first and second
respondents. It is the only body which can with certainty and after a
proper investigation
has been conducted to assist the court"
The investigation referred to was
the one envisaged in Paragraph 9 Part B of Molahlehi JA's judgment of
21 November 2016.
[5]
Counsel for the applicants proposed to
deal with this application under three headings, (a) the
interpretation of paragraph 4 of
the Order of Molahlehi AJ, (b) the
requirements of a contempt application (c) the legal requirements
under which this application
has to be considered in terms of section
17 (1)(a)(i) and (ii) and 17(c) read with
section 18
(1) and
18
(5) of
the
Superior Courts Act 10 of 2013
. In paragraph [3] the judgement I
also found that despite the difficulties the applicants had
experienced in seeking to file their
application for leave to appeal
Molahlehi AJ's Order such application was properly filed and although
an unstamped copy had been
annexed to the founding papers I accepted
a stamped copy from the bar.
[6]
He contended that the applicants'
application for leave to appeal the Order of Molahlehi AJ of 21
November 2016 had in terms of
section 18(1) suspended the operation
thereof pending the finalization of the appeal, therefore the
applicants were not in contempt
of the order of court. He argued that
the Order was not an interlocutory one, that it was not even an
interim order in that the
effect thereof was final. The monies had to
be moved from the applicant's trust account to that of attorneys
Weavind and Weavind.
However, should the court find that the filing
of the application for leave to appeal had not interrupted the
operation of the
order, then the court had to determine whether the
onus of proving contempt had been discharged.
[7]
I refused to have sight of anything that
had to do with the application before Molahlehi AJ and of his
judgment which had not been
delivered when this application was
launched. I kept on reminding the parties that I was seized with only
what was contained in
paragraph 4 of the Order and this was displayed
in the excerpt quoted in paragraph [4] above. It is my view that the
application
for leave to appeal Molahlehi AJ's Order did not
interrupt its operation. Having found that the applicants were in
contempt, I
have now to determine for purposes of this application
whether the judgement dealt with contempt proceedings as required by
law.
Counsel for the respondent contended that the applicants conduct
was to be discerned from their denial to comply with the order
of
court in their exchange of letters; that the applicant had therefore
made out a proper case and that the respondents had failed
to show on
a balance of probability that it was not in wilful default.
[8]
The judgment took a robust approach
without addressing the applicants conduct in order to arrive at a
conclusion that their conduct
was wilful and ma/a
fide
beyond a reasonable doubt and in
dealing with the reverse onus. Our law regarding contempt proceedings
is clearly stated in Fakie
N.O v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA
326
as at paragraphs [23], [42] and [63]. I therefore find that there
are reasonable prospects of another court coming to a different
conclusion regarding the finding that the applicants were in contempt
and with regard to the sanctions that go with it.
[9]
Counsel for the applicants conceded that
there was no objection to paying the monies over to be dealt with as
directed in paragraph
[4] of my order:
" The monies be paid into the
Trust Account of Weavind and Weavind by the first and second
respondents and are to be deposited
into a separate interest bearing
account and be frozen, until such time as the sixth respondent has
finalized its investigation"
Furthermore, the ground of appeal
relating to the striking of the counter application due to lack of
urgency was not pursued.
[10]
In the result the following order is given:
1.
Leave
to appeal to the full bench of this court is granted in respect of
paragraphs [1]; [2]; [3]; [5] of the order of 7 December
2016.
TLHAPI
VV
(JUDGE
OF THE HIGH COURT)
MATTER HEARD
ON
: 17
MARCH 2017
JUDGMENT RESERVED
ON
: 17
MARCH 2017
ATTORNEYS FOR THE APPLICANT
: WEAVIND
& WEAVIND
ATT.
ATTORNEYS FOR THE RESPONDENT :
MACBETH ATTORNEYS INC