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[2008] ZASCA 101
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Madzivhandila v Law Society of the Northern Provinces (593/07) [2008] ZASCA 101; [2009] 1 All SA 124 (SCA) (17 September 2008)
THE
SUPREME
COURT OF APPEAL
OF
SOUTH AFRICA
Case
No: 593/07
No
precedential significance
ASIWANGA
ADOLPH MADZIVHANDILA
Appellant
and
THE
LAW SOCIETY OF THE NORTHERN PROVINCES
Respondent
Neutral
citation:
Madzivhandila
v Law Society of the Northern Provinces
(593/07)
[2008] ZASCA 101
(17 September 2008)
Coram
:
MPATI
P, STREICHER, MTHIYANE, CACHALIA JJA and
BORUCHOWITZ
AJA
Heard
:
2
SEPTEMBER 2008
Delivered
:
17
SEPTEMBER 2008
Summary
:
Attorney
– Misconduct – Application for removal from roll –
failure to file answering affidavit – unpreparedness
of
attorney on trial date not fully explained – no basis to
interfere with trial court’s exercise of its discretion
to
refuse postponement.
___________________________________
__________________________________
ORDER
__________________________________
___________________________________
On
appeal from:
High
Court, Venda (Hetisani J and Makgoba AJ sitting as court of first
instance)
1 The appeal is
dismissed.
2 The
appellant is ordered to pay the respondent’s costs of appeal on
the scale as between attorney and client.
JUDGMENT
MPATI P (STREICHER,
MTHIYANE, CACHALIA JJA and BORUCHOWITZ AJA concurring):
[1] The
appellant appeals against an order of the Venda High Court (Makgoba
AJ
,
with Hetisani J concurring) removing his name from the roll of
attorneys of that court, with ancillary relief. The appeal is
with
the leave of this court, the court below having refused leave.
[2] The
appellant was a member of the Venda Law Society. He was admitted and
enrolled as an attorney on 27 November 1997 and practised
for his own
account under the name and style Madzivhandila Attorneys, at
Thohoyandou. He registered his practice with the respondent
on 8
January 2001.
[3] During
2005 the respondent received two complaints against the appellant
lodged by Attorneys Booyens du Preez and Boshoff, of
Thohoyandou, on
behalf of two complainants. The complaints contained allegations
that the appellant had failed to account to the
two complainants in
respect of funds held in trust on their behalf, following settlement
of their damages claims against the Road
Accident Fund.
[4] Pursuant
to the receipt of the complaints the respondent engaged a chartered
accountant, Mr Deleeuw Swart, to conduct an inspection
of the
appellant’s accounting records, particularly in respect of the
two complaints. Subsequent to the execution of his
mandate Mr Swart
submitted a written report to the respondent on 29 July 2005. The
report is annexed to the respondent’s
founding affidavit
deposed to by its then president, Mr Ronald Bobroff. Mr Swart also
deposed to an affidavit confirming the correctness
of his findings as
recorded in his report.
[5]
The
complaints against the appellant are contained in sworn statements
which are annexed to Mr Swart’s report. In the first,
Ms Mudau
instructed the appellant during 2001/2002 to lodge a claim on her
behalf against the Road Accident Fund for loss of support
suffered by
her minor child as a result of the death of the child’s father.
The claim was settled in or about January 2004.
The appellant
telephoned her during April 2004 and advised her of the settlement,
but informed her that he would ‘pay it
out on finalisation of
his bill which he was preparing’. During June 2004 and
following numerous unsuccessful telephonic
enquiries Ms Mudau called
at the appellant’s offices where she was requested to furnish
her banking details. She complied.
After yet further delay she
returned to the appellant’s offices during July/August 2004.
The appellant informed her that
he had invested the funds, and ‘was
waiting for the moneys to be paid back with interest’. He
showed her a print-out
which he had obtained from Standard Bank,
reflecting an amount of approximately R47 000, but which was under an
unknown name.
He informed her further that the money would be paid
out during November 2004. When she called at his offices on 1
November 2004
he handed her a cheque in the sum of R74 737 and
requested her to bank it on 29 November 2004. However, the cheque
was not negotiated
by Ms Mudau’s bank. She was told that the
cheque had either been dishonoured or payment had been stopped as
there were insufficient
funds in the drawer’s account. All
subsequent attempts to obtain payment of the moneys due to her came
to nought.
[6] Ms
Nematatani also instructed the appellant to claim damages from the
Road Accident Fund on behalf of her minor child arising
from the
death of the child’s father. The claim was settled and an
amount of R52 408.85 was paid into the appellant’s
trust
account on 16 January 2004. The appellant only informed her of the
settlement during August 2004. He had advised her pursuant
to
numerous enquiries between January 2004 and August 2004 that he was
still waiting for payment from the Road Accident Fund.
Payment was
confirmed by him when she and her father confronted the appellant at
his offices during August 2004. On that occasion
he handed her a
cheque for approximately R34 000 and requested that she bank it after
21 days. He subsequently telephoned her
and asked her to return the
cheque and undertook to deposit the money into her bank account.
After three weeks she, again accompanied
by her father, called at
appellant’s offices. He told them that they should first make
an appointment to see him. On 11
November 2004 he handed her a
cheque in his offices. When she attempted to bank the cheque she was
informed that there were insufficient
funds in the account to honour
payment of the cheque. On being confronted by the complainant, her
father and sister the appellant
admitted that he had spent her money
and that he did not have enough funds to pay her. He undertook to
pay her on or before 3
December 2004. He gave her a letter of
undertaking to pay the money. However, no moneys were deposited into
her account by 3
December 2004. When she telephoned him he said he
was in Pretoria and that he could not help her. By 15 April 2005,
the date
on which the complainant made her sworn statement, the
appellant had not accounted to her at all.
[7
] Mr
Swart records in his report that due to the unavailability of the
appellant’s accounting records, a proper investigation
of these
complaints could not be undertaken. His report states, however, that
the appellant indicated to him that the two complainants
were the
first and second widows of the deceased and that his firm had been
faced with the difficulty of determining ‘how
the settlement
should be divided’ between them. He informed Mr Swart further
that he had held amounts of R74 737 and R52
406 on behalf of the
complainants respectively and that after fees and contingencies had
been deducted Ms Nematatani received R34
807. He allowed for
deductions of R24 300 on Ms Mudau’s claim. He thus advised
that his firm had rendered payment and that
he regarded the matter as
finalised.
[8] In
a supplementary affidavit deposed to by its subsequent president, Mr
Mohamed
Junaid
Husain, on 11 December 2006, the respondent alleges that further
complaints against the appellant were received. These also
concerned
an alleged failure on the part of the appellant to account to his
clients. Mr Swart was again instructed to conduct
an investigation
of the affairs of the appellant’s practice. On 3 November 2006
he submitted a written report on his findings.
He was again unable
to conduct a proper investigation as the appellant’s accounting
records were not available. They were
allegedly in the possession of
his bookkeeper in Pretoria. A summary of the complaints follows.
[9] Mr
Tshikau instructed the appellant to handle a third party claim on his
behalf. He learned from the Road Accident Fund that
an amount of
R432 235.50 had been paid by the Fund to appellant’s firm on 18
May 2006. When he made enquiries the appellant
informed him that he
had invested the money as he was compelled by law to invest moneys in
excess of R100 000. On 16 July 2006
Mr Tshikau called at the
appellant’s offices where the appellant undertook to deposit
the total amount due into Mr Tshikau’s
bank account on 24 July
2006. On 18 July 2006 the appellant furnished Mr Tshikau with a
cheque for R324 178.88. It was post-dated
to 16 August 2006. Mr
Tshikau returned the cheque because, according to him, it did not
provide for interest earned. Another
cheque for R262 000 was
subsequently deposited into his account on 17 August 2006, but the
cheque was returned unpaid. The appellant
explained to Mr Swart that
Mr Tshikau’s funds were not available in the firm’s trust
account; that the firm had experienced
financial difficulties and
that he therefore utilised Mr Tshikau’s funds to pay for arrear
rentals, salaries and other expenses.
[10] The
second complaint was that of Mr Magoda. The appellant acted for him
in a criminal matter. Mr Magoda was convicted on
4 March 2004. He
subsequently paid R5 000 to the appellant in respect of fees and
disbursements relating to an appeal to
be lodged by the appellant on
his behalf against his conviction and sentence. Nothing further
transpired and enquires by Mr Magoda
have yielded no response. The
appellant’s explanation to Mr Swart was that he was aware of
the matter and that the appeal
had been lodged. However, he was
unable to report on the progress or outcome of the appeal and could
not locate his office file
relating to it.
[11] The
appellant filed a Notice of Intention to Oppose the application on 11
April 2006, but failed to deliver an answering affidavit.
On 13
October 2006 the Registrar of the Venda High Court set the matter
down for hearing on 19 March 2007. On 15 March 2007 the
appellant
gave notice, in terms of Rule 6(5)(d)(iii),
1
of his intention to raise certain points
in
limine
.
He also gave notice, separately, of an application for an order (a)
condoning his late filing of the notice in terms of Rule
6(5)(d)(iii); (b) granting him an extension of time to deliver and
file his answering affidavit within fifteen days from the date
of
such order, and (c) directing that he pays the costs occasioned by
the application.
[12
] On
the day of the hearing the court a quo dismissed the appellant’s
application for a postponement. After hearing argument
on the merits
the court made an order that the name of the appellant be struck off
the roll of attorneys, and granted other ancillary
relief, together
with costs on the scale as between attorney and client. The court
accepted the respondent’s allegations
as set out in the
founding papers and found that the appellant had contravened the
provisions of s 78(1) of the Attorneys Act,
2
as well as certain of the respondent’s rules of professional
conduct.
[13
] In
this court counsel for the appellant raised three issues for
consideration. They are: (i) the respondent had no locus standi
to
institute the proceedings against the appellant; (ii) the
constitutionality of s 84A of the Attorneys Act, and (iii) the court
a quo’s refusal to grant an extension of time so as to enable
the appellant to deliver answering papers.
[14
] On
the question of locus standi counsel submitted that the appellant was
not a member of the respondent and that the latter therefore
had no
authority or jurisdiction over him and thus had no standing to
institute proceedings for an order striking the appellant’s
name off the roll of attorneys; that the Venda Law Society,
3
of which the appellant was a member, should have been joined not as
second respondent but as a ‘co-applicant’. In
the
alternative, it was submitted that the respondent should rather have
sought an order compelling the Venda Law Society to discipline
the
appellant.
[15
] In
its judgment the court a quo remarked that when counsel for the
appellant was referred to the decisions in
Law
Society, Northern Provinces (Incorporated as the Law Society of the
Transvaal) v Maseka
4
and
Law
Society of the Northern Provinces v Mamatho
5
,
he ‘wisely . . . conceded that his point
in
limine
regarding jurisdiction had no merit’. Despite the observation
of the court a quo, however, counsel argued the point in this
court.
[16
] In
Mamatho
6
this very point failed in the court a quo. On appeal to it this
court said the following:
‘
[I]n
terms of s 6 of t
he
Attorneys and Matters Relating to Rules of Court Amendment Act 115 of
1998, the respondent, being an attorney practising within
the former
Republic of Venda, became obliged within 21 days of the commencement
of that Act (15 January 1999) and subject to the
rules of the Law
Society of the Transvaal (the appellant) to apply for the issue of a
fidelity fund certificate in terms of s 42(3)
of the Attorneys Act.
Section 84A of the Act (inserted by s 5 of Act 115 of 1998)
specifically affords to the appellant the power,
in respect of an
attorney practising in Venda, to perform any function which is
similar to a function assigned to it by,
inter
alia
,
s 22(1)(d) of the Act. The effect of these provisions is therefore
to place attorneys practising in the area of the former Republic
of
Venda under the jurisdiction of the appellant insofar as matters
relating to the fidelity fund are concerned.’
7
Section
22(1)(d) of the
Attorneys Act reads:
‘
Any
person who has been admitted and enrolled as an attorney may on
application by the society concerned be struck off the roll
or
suspended from practice by the court within the jurisdiction of which
he practises -
.
. .
(d)
if he, in the discretion of the court, is not a fit and proper person
to continue to practise as an attorney.’
Clearly,
then the respondent, by virtue of the provisions of s 84A of the
Attorneys Act had authority in the present matter to institute
proceedings against the appellant for an order in terms of s
22(1)(d).
[17
] But,
says counsel for the appellant, s 84A is unconstitutional in that its
confers upon the respondent the power to supervise
practitioners in
the former TBVC
8
States, whereas those practitioners are not members of the
respondent. It appears from its judgment that the court a quo did
not consider counsel’s submissions in this regard. This, to my
mind, is not surprising. There is nothing in the appellant’s
papers to substantiate the allegation of the unconstitutionality of s
84A. There is no mention of any provision of the Constitution
to
which s 84A is said to be contrary. In
Prince
v President, Cape Law Society and others
9
Ngcobo J said:
‘
Parties
who challenge the constitutionality of a provision in a statute must
raise the constitutionality of the provisions sought
to be challenged
at the time t
hey
institute legal proceedings. In addition, a party must place before
the Court information relevant to the determination of
the
constitutionality of the impugned provisions. . . . The placing of
the relevant information is necessary to warn the other
party of the
case it will have to meet, so as to allow it the opportunity to
present factual material and legal argument to meet
that case.’
10
When
asked
on which provision of the Constitution the appellant relied for the
alleged unconstitutionality of s 84A counsel was unable to
point to
any. Nothing further needs be said on this issue.
[18
] The
next issue to be considered is the complaint against the refusal of
the court a quo to grant the appellant an extension of
time within
which to deliver his answering affidavit. Although it opposed the
application, the respondent did not file opposing
papers,
understandably so, because the papers in respect of the application
for a postponement were only delivered four days before
the date of
hearing of the main application.
[19
] The
appellant makes the following allegations in his affidavit in support
of the application for an extension of time:
‘
4 The
reason why I am late for filing of the aforesaid documents is that I
was unable to consult with counsel and my Attorneys of
Record. I was
failing to come to terms with my fate and couldn’t concentrate.
In three previous consultations that we tried
to have with my
Attorneys of Record I broke down several times and couldn’t
narrate my version of events thoroughly.
5 I
t
is only yesterday that I was able to consult fully with counsel, Adv.
Sikhwari. Unfortunately, it could not have been possible
for Counsel
to cause my Answering Affidavit on the merits to be drafted, typed,
served to Appellant’s Attorneys and filed
of Record.
6 I
wish to state that Counsel is already at an advanced stage with
preparations for my Answering Affidavit. However, it is my
submissions that in the meantime, the matter may be heard on point
in
limine
only, if this Honourable Court is pleased.
7 Another
factor which has aggravated the delay is my health. For the past
years my health has been deteriorating, more particularly
after
having been served with the papers for this Application.
8 My
aforesaid delay in filing the necessary documents as aforesaid was
not caused by deliberate disregard of the law and rules
of this
Honourable Court. I am advised, which advice I accept, that I do
have reasonable prospects of success in the main Application
against
the Applicant, both on [the] merits and/or on [the] points
in
limine
.
My defence will be based on the points
in
limine
raised in accordance with the Notice In Terms Of Rule 6(5)(d)(iii)
which I will file simultaneously with this Application for
Condonation. I pray that same be treated as part of this Supporting
Affidavit.
9 My
further defence on [the]merits will be to the effect that I have
accounted to my clients and there is no basis for the Applicant
to
bring this Application against me. This point will be fully
canvassed in my Answering Affidavit.’
Counsel
contended that these averments should have been accepted as they were
uncontested and the court a quo should accordingly
have granted the
postponement sought.
[20
] The
grant or refusal of an application for a postponement at the instance
of a party involves the exercise of a discretion by
the court hearing
the application. A respondent is not entitled to a postponement as
of right. As was said in
Manufacturers
Development Co (Pty) Ltd v Diesel & Auto Engineering Co and
others
11
this ‘is something which is in the discretion of the Court and
an important circumstance in the exercise of that discretion
is
whether the respondent is able to show
prima
facie
that if it is granted the indulgence of a postponement it will be
able to place facts before the Court which will constitute a
ground
of opposition to the relief claimed’.
12
[21
] In
Motaung
v Mukubela and another NNO
;
Motaung
v Mothiba NO
13
two
applications for review in terms of Rule 53 were served on the
respondents. More than four months after service of the applications
and one day after a date of hearing had been allocated the
respondents filed documents purporting to be a notice of intention to
oppose in each of the applications. At the hearing of the
applications counsel for the respondents applied for a postponement
of both applications to enable them to make substantive applications
for condonation for failing to comply with the requirements
of Rule
53 and for leave to oppose both matters. In giving its reasons for
refusing to grant any postponement the court said that
the
respondents –
‘
.
. . had to satisfy the C
ourt
that:
(a) there
was a reasonable explanation for the delay which necessitated the
application for the postponement and that
(b) they
had a
prima
facie
and a
bona
fide
defence to both applications.
The
respondents had, in other words, to satisfy the Court that they had a
defence which was no
t
patently unfounded. Cf
Smith
NO v Brummer NO and Another; Smith NO v Brummer
1954
(3) SA 352
(O) at p 358A, and
Dalhouzie
v Bruwer
1970 (4) SA 566
(C) at p 572.’
14
And further:
‘
Where
a respondent seeking such a postponement has in fact no defence in
law to the applicant’s claim, it would be purposeless
to grant
the postponement asked for. In such a case the postponement would
result in a needless waste of time and money.’
15
[22
] And
this court, in
Madnitsky
v Rosenberg
16
warned that a court ‘should be slow to refuse to grant a
postponement where the reason for a party’s unpreparedness
has
been fully explained, where his unreadiness to proceed is not due to
delaying tactics, and where justice demands that he should
have
further time for the purpose of presenting his case’.
17
Did the appellant in the present matter satisfy these requirements?
[23
] The
only explanation given by the appellant for the delay in delivering
and filing an answering affidavit is that he was unable
to consult
with counsel and his attorneys of record, this because he could not
come to terms with his fate and thus could not concentrate.
He
apparently attempted to consult with his legal representatives on
three previous occasions, but broke down several times and
could not
narrate his version of events thoroughly. His health also
deteriorated, particularly after he had been served with the
application papers, and this aggravated the delay, says the
appellant.
[24
] In
my view, the appellant’s explanation totally lacks
particularity. The papers were served on the appellant personally
on
27 March 2006. A trial date was applied for on 30 June 2006. In the
meantime and on 11 April 2006 he filed a Notice of Intention
to
Oppose the application. Six months thereafter, on 13 October 2006, a
trial date was allocated another five months hence, on
19 March 2007.
The appellant delivered his Rule 6(5)(d)(iii) notice and application
for an extension of time to deliver and file
an answering affidavit
only five days before the trial date. He does not disclose when he
had attempted to consult with his legal
representatives. He does not
disclose when his health began to deteriorate, nor does he disclose
the nature of his ill-health.
And in the midst of his inability to
consult with his legal representatives because he allegedly could not
come to terms with
his fate, and his ill-health, he misappropriates a
further R432 235.50 in trust funds held on behalf of a client, Mr
Tshikau.
So despite his alleged difficulty to come to terms with his
fate and his ill-health, he carried on with his practice and
misappropriated
more trust funds with full knowledge of the
application to have his name struck from the roll of attorneys.
[25
] In
my view, the explanation for the delay falls hopelessly short of
being reasonable.
18
I
am in any event of the view that the reason for the appellant’s
unpreparedness as at the date of trial has not been fully
explained.
19
[26
] In
an attempt to satisfy the second requisite for a postponement, that
is that he has a prima facie and a bona fide defence to
the
application, the appellant states in his supporting affidavit that
his defence will be based ‘on the points
in
limine
raised in accordance with the Notice in terms of Rule 6(5)(d)(iii)’.
I have already dealt with the points in limine. None
has any
substance.
[27
] A
further defence which is raised by the appellant is that he has
accounted to his clients and that there is therefore ‘no
basis
for the [respondent] to bring this application’ against him.
Realising the baldness of this assertion the appellant
states that
the point ‘will be fully canvassed’ in his answering
affidavit. At the time that the appellant deposed
to the affidavit
in support of his application for a postponement, he had already, on
the previous day, consulted fully with counsel.
He was therefore in
a position to add facts to his supporting affidavit, such as when and
how he had accounted to his clients.
The court below could not, on
the bald allegation of his having accounted, properly consider
whether or not the appellant has
a prima facie and bona fide defence
to the application. Neither can this court. It would thus be
purposeless to grant the postponement
as to do so would result in a
needless waste of time and money.
20
[28]
It
follows that this court cannot hold that the court a quo did not
exercise its discretion judicially in refusing the postponement.
The
following order is made:
1 The appeal is
dismissed.
2 The appellant is
ordered to pay the respondent’s costs of appeal on the scale as
between attorney and client.
MPATI P
Appearances:
For
appellant : M S Sikhwari
Instructed by
m
athobo
r
ambau &
s
igogo
Thohoyandou
Matsepes Inc
Bloemfontein
For
respondent
a
t l
amey
(attorney)
Instructed by
Rooth Wessels Maluleke
Inc Louis Trichardt
Naudes Bloemfontein
1
Rule 6(5)(d)(iii) provides: ‘Any person opposing the grant of
an order sought in the notice of motion shall – if
he intends
to raise any question of law only he shall deliver notice of his
intention to do so, within the time stated in the
preceding
sub-paragraph, setting forth such question.’ The period
referred to in the sub-rule is fifteen days of notifying
the
applicant of the intention to oppose.
2
Act 53 of 1979. Section 78(1) reads: ‘Any practising
practitioner shall open and keep a separate trust banking account
at
a banking institution in the Republic and shall deposit therein the
money held or received by him on account of any person.’
3
The Venda Law Society
was cited as second respondent, but no relief was sought against it.
4
2005 (6) SA 372
(B).
5
2003 (6) SA 467 (SCA).
6
Ibid.
7
At 471 para 5.
8
Acronym for the former Republics of Transkei, Bophuthatswana, Venda
and Ciskei.
9
[2000] ZACC 28
;
2001 (2) SA 388
(CC),
(2001 (2) BCLR 133).
10
At 399 para 22.
11
1975 (2) SA 776
(W).
12
Ibid at 777E-F.
13
1975 (1) SA 618
(O).
14
Ibid at 624E-G.
15
Ibid at 624H-625A.
16
1949 (2) SA 392
(A).
17
At 399.
18
Motaung’s
case, above footnote 17.
19
Madnisky v Rosenberg
,
above footnote 18 at p 399.
20
Motaung
,
above footnote 17 at 624H-625A.