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[2017] ZAGPPHC 33
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Bobroff and Another v Law society of the Northern Provinces and Others; In re: Law society of the Northern Provinces v Bobroff and Others; In re: Law society of the Northern Provinces v Graham and Others (20066/2016, 61790/2012,) [2017] ZAGPPHC 33 (7 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF
SOUTH
AFRICA
Date:
07/02/2017
Case
Number: 20066/2016
and
Case
Number: 61790/2012
In
the matter between:
RONALD
BOBROFF First
Applicant
DARREN
RODNEY
BOBROFF Second
Applicant
and
THE
LAW SOCIETY OF THE NORTHERN PROVINCES First
Respondent
JENNIFER
GRAHAM Second
Respondent
MATTHEW
GRAHAM
Third Respondent
STEPHEN
DEREK
BEZUIDENHOUT
Fourth Respondent
In
re:
Case
Number: 20066/2016
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES Applicant
and
RONALD
BOBROFF First
Respondent
DARREN
RODNEY
BOBROFF Second
Respondent
STEPHEN
DEREK BEZUIDENHOUT
Third Respondent
RONALD
BOBROFF AND PARTNERS
INC. Fourth
Respondent
JENIFFER
GRAHAM
Fifth
Respondent
MATTHEW
GRAHAM
Sixth Respondent
and
In
re:
CASE
NO. 61790/2012
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
Applicant
and
JENNIFER
GRAHAM
First applicant in the main application
MATTHEW
GRAHAM
Second applicant in the main application
ROAD
ACCIDENT FUND Intervening
third applicant in the main application
RONALD
BOBROFF AND PARTNERS INC. Second
respondent in the main application
RONALD
BOBROFF Third
Respondent in the main application
DARREN
RODNEY BOBROFF Fourth
respondent in the main application
JUDGMENT
JANSE
VAN
N
I
EUWENHU
I
ZEN
J
[1]
On 6 December 2016 this court dismissed two applications brought by
the applicants and indicated that reasons for the orders
will follow.
The reasons for the orders are herewith furnished.
I
ntroduction
[2]
The applicants are respondents in two separate applications, to wit
an application launched by the Law Society of the Northern
Provinces
(''the Law Society") for the striking of their names from the
roll of attorneys (20066/2016 - the "2016
application")
and a counter application launched by Jennifer and Mathew Graham
("the Grahams") under case number
61790 / 2012 ("the
2012 application").
[3]
Both matters were enrolled to be heard 6 December 2016.
[4]
One day prior to the hearing of the applications, the applicants
served two applications to be heard on 6 December 2016. In
terms of
the first application, the applicants claimed,
inter alia,
the
following relief:
"1.condoning,
if necessary, the Applicants' failure for not having launched and
served this application prior to the eventual
date upon which it is
launched and served; and
2.
striking
the matter
under
Case No.2006612016
and the matter
under
Case
No. 6179012012
form the Roll on the
6
th
December 2016;
3.
alternatively
,
postponing
the hearings
of
the
matter
under
Case
No. 20066/2016
and the matter
under Case
No. 61790/2012 pending
the
determination
of an application
by the Applicants
in
terms whereof the Applicants
seek an order that the
application by the First Respondent (under Case No. 20066/2016) has
not been
served on the
Applicants in
terms of the Uniform Rules of Court;
4.
alternatively
,
that
the
hearings of
the
matter
under
Case
No.
2006612016 and the matter under Case No. 6179012012
be
postponed
to a date as
determined
by the above Honourable Court;"
[5]
In terms of the second application, the following relief is,
inter
alia
claimed:
"1.
directing
that
the First
Respondent
has
failed
to
serve
on
the Applicants the
application
papers in
terms
of
the
Uniform
Rules
of Court,
alternatively
,
in
terms of the Practice Directives as contained in the
Practice
Manual of the
above Honourable Court; and
2.
declaring that
the
application has
not
properly been
enrolled
for
a hearing
on
the
6
th
December
2016 and
that the orders of
the Deputy Judge President of
the above Honourable Court, Judge Ledwaba, and on
the
24th
August 2016 were
not competent,"'
[6]
The relief claimed in the first and second applications overlap in
certain instances and for ease of reference the relief claimed
will
be dealt with under the followings headings:
i.
Service;
ii.
Striking
I
declaring that matter has not been properly
enrolled; and
iii.
Postponement.
Background
[7]
The background leading to both applications are somewhat cumbersome
and will only be referred to herein insofar as the facts
pertain to
the applications under consideration.
[8]
The first applicant was admitted as an attorney of this court on 16
April 1973 and having practised for a period in excess of
40 years
is, no doubt, a seasoned practitioner.
[9]
The second applicant, the son of the first applicant, was admitted as
an attorney on 29 August 2005 and joined his father in
the firm known
as Ronald Bobroff & Partners Inc. At the time of the hearing of
this application, the second applicant was practising
for at least 11
years.
[10]
The applicants dealt mainly with claims against the Road Accident
Fund (RAF) and were accordingly instructed by the Grahams
to
prosecute a claim against the RAF in respect of injuries sustained by
Mr Graham in a motor vehicle collision.
[11]
During 2011 the Grahams discovered that the applicants claimed
inflated fees and as a result grossly overreached them. Consequently,
the Grahams lodged a complaint with the Law Society in June 2011. The
complaint contained detailed information regarding the alleged
improprieties perpetrated by the applicants. The applicants were,
therefore, aware from at least 2011 that the status of the firm's
accounting records is under scrutiny.
[12]
For reasons which are still unclear at this stage, the Law Society
dragged its feet, which resulted in the Grahams launching
the 2012
application claiming directory and declaratory relief. Exact details
pertaining to the applicants' alleged misconduct
were contained in
the founding affidavit filed by the Grahams in the 2012 application
some 4 years ago.
[13]
Judgment was delivered in the 2012 application by Mothle J on 15
April 2014. Mothle J,
inter alia,
directed the Law Society to
convene a disciplinary enquiry against the applicants and to conduct
an inspection of the accounting
records of the firm. It is common
cause that various erstwhile clients of the applicants have obtained
judgments against them based
on illegalities that occurred during
their handling of RAF claims on behalf of their clients. In the
result, the applicants were
acutely aware, prior to the launching of
the 2016 application, that their accounting system was the subject
matter of previous
litigation.
[14]
The Law Society could not adhere to the strict time lines laid down
in the Mothle J order and brought the present 2012 application
in
order to seek an extension thereof. The Grahams were not satisfied
with the conduct of the Law Society and launched the
counter-application
that forms the subject matter of one of the main
applications herein.
Service:
Facts
[15]
During March 2016 and as a result of the improprieties discovered
during its investigation into the affairs of the applicants'
firm,
the Law Society launched the 2016 application.
[16]
I wish to reiterate that most, if not all, of the improprieties
discovered by the Law Society emanates from the various complaints
lodged and court cases brought by erstwhile clients of the
applicants.
[17]
On 11 March 2016 the Law Society emailed the notice of motion and
founding affidavit in the 2016 application to Mr Zimmerman
of Taitz &
Skikne, who represented the applicants in the 2012 application. It
appears that the annexures to the application
were not attached to
the email. Be that as it may, the applicants claim that Mr Zimmerman
did not inform them of the application
and they first became aware of
the email when they received the notice of set down by way of edictal
citation during October 2016.
[18]
The following paragraphs of Mr Zimmerman's letter dated 8 September
2016, addressed to Mr Cameron, the applicants' present
attorney of
record, however, gainsay the applicants' allegations in this regard:
"6.
before the ventilation of the Graham
matter in March this year,
the Law
Society
launched
their
own application
to strike
out Bobroffs and
Bezuidenhout
under
case
number 2006/2016
(sic)
out
of
the
Pretoria
High
Court.
The application
was served
informally
on me via email,
with
a
request
that
I
accept
service
by
email.
I
did
not
agree thereto and advised
the Law Society verbally (and I think in writing) that I had no
instructions to accept service by e-mail.
7.
I was also not instructed on the matter at all by the Bobroffs,
and have no mandate to act in the matter. I
am
however aware
that this matter is enrolled for the 6
th
December 2016 and it appears that you have now received
a
copy
of the Law
Society application
from Rooth
and Wessels. We
are
not in possession of such
a
copy and there has never been
formal
service on our offices of the application,
as
the Bobroffs did
not
wish to
instruct
us
to
place ourselves on
record
for purpose
of
accepting
service
."
(own emphasis)
[19]
I pause to mention that the Bobroffs left for Australia before the
2016 application could be formally served on them. That
they had
notice of the application appears clearly from the contents of Mr
Zimmerman's response
supra.
It is not clear from the papers
why the Bobroffs, being fully aware of the 2016 application, did not
wish to instruct Mr Zimmerman
to act on their behalf. Be that as it
may, Mr Zimmerman was, to the knowledge of the applicants, in
possession of an emailed copy
of the application. The applicants were
not only aware that Mr Zimmerman was in possession of a copy of the
application, but instructed
him
not
to accept delivery thereof
on their behalf. Had the applicants acted prudently, the annexures
could have been requested in March
2016 already.
[20]
After service of the 2016 application by email, the 2012 application
was heard by Makgoka J on 14 March 2016. During the hearing
the
applicants were represented by attorneys and by Advocate Cassim SC.
One should bear in mind that this hearing was prior to
the applicants
leaving the country.
[21]
Judgment was delivered on 26 April 2016. In the first applicant's
founding papers he confirms that he was fully aware of the
order
issued by the court. He stated the following:
In Annexure
FA
12
(the court order),
Darren
and
I
were
suspended
from practising
as
attorneys and conveyancers and
pending the determination of the LSNP Application
(which was not before the Court the Court
apparently took
judicial
cognizance
of
its existence nonetheless)
....."
The order makes it patently clear that the 2016 application was
mentioned in court.
[22]
Instead of requesting a copy of the application, the applicants
decided to leave the country shortly thereafter. The applicants
claim
that they had received various threats which necessitated their
immediate departure from the country. Even if they did receive
threats, one would expect experienced attorneys to request a copy of
the application, before they departed on the 17th and the
20th of
March 2016. Their conduct points to only one conclusion, they
intentionally avoided being formally served with the application.
[23]
In direct contradiction to their professed ignorance of the fact that
the 2016 application was emailed to Mr Zimmerman, the
first applicant
stated the following in his founding affidavit:
"Since
May
2016, Darren
and
I
have
approached
many
attorneys
(sole practitioners
and
attorneys
in partnerships
and
incorporated
companies)
in
order
to prevail
upon
these
persons
to represent us in the
LSNP Application
and the Graham Counter
Application
-
I
am
not at
liberty
to
identify the
names of these attorneys
and in order not to embarrass
them.
These
attorneys all refused to
represent the
Firm,
Darren and
myself on
a
number of
grounds
...."
[24]
It is astounding that the applicants profess on the one hand that
they had no knowledge of the application and that the application
was
not properly served on them, whilst on the other hand they had sought
legal representation in the application as long ago as
May 2016.
Service:
Legal framework
[25]
The applicants maintain that the 2016 application was not served on
them in terms of rule 4 of the Uniform rules of court and
as such the
proceedings are null and void.
[26]
Knowledge of legal proceedings is, no doubt, the corner stone of our
legal system. [See,
inter alia, Steinburg v Cosmopolitan National
Bank of Chicago
1973 (3) SA 885
(RA) at 892 CJ. To this end the
legislator has formulated rule 4 of the Uniform rules of court, which
makes service in terms of
the rule compulsory.
[27]
One should, however, bear in mind that the underlying principle
pertaining to service is to ensure that a party receives
notice
of the legal proceedings that is to be instituted against such party.
[28]
A court may, therefore, in appropriate circumstances condone
"irregular''
service i.e. service that is not in
strict compliance with rule 4. [See:
Garrett v Lea
Hobbs
Milton
& Co 1979 (4) 922 W at 925 C and
Hessel's
Cash
&
Carry
v
South
African Commercial Catering
and
Allied Workers
Union
1992 (4) SA 593
E at 500 G - 600 A]
[29]
The rationale behind the court's discretion to condone irregular
service is apparent, it prevents parties from intentionally
manoeuvring the legal process in order to gain an unfair advantage.
In allowing a party to, through over technical objections,
abuse the
well-intended principle of knowledge of legal proceedings, will
defeat the ends of justice and will countenance unscrupulous
delaying
tactics.
[30]
The legal proceedings in the 2016 application were
served
via email on the attorney who represented the applicants in the
2012 application. Although the service was not in strict compliance
with the provisions of rule 4, the applicants did not only have
knowledge of the application, but upon receipt thereof by Mr
Zimmerman,
intentionally elected not to appoint him to represent them
in the application.
[31]
The applicants' departure to Australia shortly after Mr Zimmerman
received the 2016 application, effectively prevented the
Law Society
from effecting service in terms of the provisions of rule 4. The
applicants, being attorneys possessing specialised
knowledge of the
rules of court were, no doubt, acutely aware that their conduct
resulted in the Law Society being incapable of
serving the
application in strict compliance with the provisions of rule 4.
[32]
In my view, the conduct of the applicants was ma/a
fide
to the
extreme. I am aware that the rules of court apply equally to any
litigant. In an application of this nature, one can however,
not
ignore the fact that the applicants are officers of this court, who
at all relevant times should act with the utmost good faith
in
matters affecting the very essence of their profession.
[33]
The applicants utilised their knowledge of court procedure to
effectively prevent the court from examining their alleged
misconduct.
In endorsing this kind of behaviour by officers of court
would bring the legal profession in disrepute.
[34]
In the premises, the court found that the applicants had due notice
of the 2016 application and dismissed the declaratory relief
claimed
in respect thereof.
Striking
I
matter not properly enrolled
[35]
Notwithstanding the fact that Mr Zimmerman attended a meeting
convened by Deputy Judge President, Judge Ledwaba on 18 August
2016,
on behalf of the applicants, at which meeting a direction was issued
that both the 2012 and the 2016 applications be enrolled
on the 6
th
December 2016, the applicants allege that the 2012 matter was not
properly enrolled.
[36]
Mr Zimmerman forwarded the directives issued by Judge Ledwaba to Mr
Cameron, the applicants' present attorney of record. The
relevant
portion of the response by Mr Cameron, dated 8 September 2016 bears
scrutiny:
“
We
refer to the First Application (2012 application) and the Second
Application (2016 application) and more specifically to the
notice
of
set
down
dated 26
th
August 2016 which was served on Rontgen and Rontgen Inc. on the 26
th
August 2016, which notice you have transmitted to ourselves."
(own emphasis)
[37]
The objection to the proper set-down of the 2012 application appears
to emanate from the first directive issued by the offices
of Judge
Ledwaba. The directive inadvertently only referred to the 2016
application. Shortly thereafter a second directive was,
however,
issued which rectified the oversight.
[38]
It is clear from Mr Cameron's letter
supra
that the applicants
were well aware that both applications were set down for hearing on 6
December 2016. The first applicant, furthermore,
attached a copy of
the second directive to his founding affidavit, confirming the fact
that the second directive did come to his
notice.
[39]
In the premises, this point has no substance and was dismissed.
[40]
Having found that the matter was properly enrolled, it follows that
the directives issued by the Deputy Judge President, Judge
Ledwaba
were competent and remained binding.
Postponement
[41]
The principles applicable to a postponement were succinctly
summarised by the Constitutional Court in
Lekolwane v Minister of
Justice and Constitutional
Development
[2006] ZACC 19
;
2007
(3) BCLR 280
CC at para [17] as follows:
"The
postponement of
a
matter
set
down
for
hearing
on
a
particular
date cannot
be
claimed
as a
right.
An
applicant
for
a
postponement seeks
an indulgence
from
the court.
A
postponement
will not
be
granted,
unless this Court is satisfied that it
is in the interests o
f
justice
to do
so.
In this respect the
applicant must ordinarily show
that there is good cause for the
postponement. Whether
a
postponement
will be granted
is
therefore in the discretion
of the court. In exercising
that discretion,
this Court takes into account
a
number of factors, including (but
not limited
to) whether the application has been timeous/y
made,
whether
the
explanation
given
by
the
applicant
for postponement
is full
and satisfactory,
whether there is prejudice to any of
the parties, whether the application is opposed and the broader
public interest. All these
factors, to the extent appropriate,
together with
the
prospects
of success on the merits of the matter, will be weighed by the
court to determine whether
it
is
in
the interests
of justice to
grant
the
application."
(Footnotes have been omitted.)
[42]
The sole reason for the postponement of the 2016 application was to
afford the applicants an opportunity to appoint a suitable
forensic
accountant to generate a report in response to the first and second
reports prepared by the auditors appointed by the
Law Society.
[43]
Notwithstanding the fact that the applicants were acutely aware from
at least 2011 that their firm's accounting system is the
subject of
serious scrutiny, they have to date not dealt with a single
transaction relating to their alleged misconduct.
[44]
The 2012 counter-application was served on the applicants on 24 April
2015. The founding affidavit, once again, contains detailed
allegations of misappropriation of funds. The applicants' failure to
deal with these allegations to date is inexplicable.
[45]
I pause to mention, that the applicants had no apparent difficulty in
appointing a forensic specialist accountant during the
week of 14
th
November 2016. Significantly, the applicants, once again, fail to
explain why an accountant was only appointed at this late stage
and
not at the outset of the litigation.
[46]
In respect of the postponement of the 2012 application, the
applicants stated in their founding papers that they require
"time
to respond to the consolidated
affidavit deposed to
by George van
Niekerk and
filed
on
behalf of the Grahams
prior to
the previous hearing on 14
March 2016."
[47]
The Grahams, however, pointed out that the affidavit was already
served on 29 January 2016, some 10 months prior to 6 December
2016.
Consequently, the applicants had more than ample time to respond to
the affidavit.
[48]
The court has in various judgments concerning the applicants,
expressed its dissatisfaction with the delaying tactics employed
by
the applicants.
[49]
The following extracts are contained in the Grahams' answering
affidavit in the postponement application:
"12.1
Judgment in the application for leave to appeal the judgment by
Mathie J in the main application,
dated 15 June 2014:
"The
Bobroffs application for leave to appeal is
intended to delay
an
inspection of their books of accounts and for no other purpose. In my
view the numerous grounds of the application for leave
to appeal as
stated in the application are contrived and based on a
self-serving
misinterpretation
of paragraphs 3 and 5 of the court orders."
(paragraph 23).
12.2
Judgment in the application for leave to appeal the judgment by
Matojane J in the
contempt of court application, dated 04 June 2015:
"I
am inclined to agree with the Grahams that the grounds of appeal are
contrived and application
for Leave to Appeal
s
intended for the sole purpose
of delaying an
inspection of the respondent's computer work"
"It
would seem that it is a
deliberate
strategy
which is employed by the Bobroff's to
delay
for
as
long
as
they can
the investigation of their financial affairs in the face of
serious allegations of impropriety that are being made against
them."
12.3
Judgment by Murphy J in the application in terms of Rule 30, dated
26
August 2015:
"
I agree with counsel for the Grahams
on
the
probabilities this
application
was
resorted
to as
a calculated
decision by
the respondents to
delay
the
disciplinary and
investigative
process
.
Sight must not be lost of the prior litigation involving the
respondents and the fact that they are officers of this court. As
attorneys, they should be playing open cards with the court and
the Law Society.
It seems
to
me that
the most prudent course for them at this point
in
time
would
be
one
of
cooperation and
transparency.:"(paragraph
47)
.
[50]
In requesting a further postponement, the applicants are perpetuating
the very conduct that this court has, on at least three
previous
occasions, found to be irreconcilable with their profession.
[51]
The application for postponement is not made
bona
fide.
It is evidently a further delaying tactic.
[52]
The applicants, furthermore, knew from at least from 8 September 2016
that the 2012 and 2016 applications were set down for
hearing on 6
December 2016.
[53]
Notwithstanding the aforesaid, the application for postponement was
only served on 5 December 2016, some 3 months later and
one day prior
to the hearing. Even if their explanation that they had difficulty in
finding attorneys to represent them is accepted,
one would at least
have expected the applicants to immediately communicate with both the
attorneys for the Grahams and the Law
Society to explain their
difficulties. The affidavit in support of their application
does not contain any facts that were
not known to them on 8 September
2016. As indicated earlier, both applicants are experienced officers
of this court. There is no
explanation in the papers for their
failure to act without haste. In the premises, the application was
not brought timeously and
the reasons for the lateness have not been
satisfactory explained. The application was in actual fact brought at
the eleventh hour
affording the other parties very little time to
respond thereto.
[54]
It is manifestly in the interests of the public to have attorneys,
who abuse their position by misappropriating large sums
of money due
to their clients, struck from the roll. The history of the matter
further strengthens the public interest in the outcome
of the matter.
[55]
Another factor that vitiates against the granting of a postponement
is the applicants' absolute silence in respect of the prospects
of
success in opposing the applications.
[56]
In the premises, the court did not deem it in the interest of justice
to grant the applicants a postponement and for the reasons
set out
supra,
the application was dismissed.
_______________________
N
Janse Nieuwenhuizen
Judge
of the High Court of South Africa, Gauteng Division
I
agree.
_______________________
N
Ranchod
Judge
of the High Court of South Africa, Gauteng D
i
vision
APPEARANCES
Counsel
for the 1
st
and 2
nd
Applicant:
Advocate Dirk Vetten Instructed by: John Joseph Finlay Cameron
Counsel
for the 1
st
Respondent: Advocate Henry Vorster
Instructed
by: Rooth & Wessels Incorporation
Counsel
for the 2
nd
& 3
rd
Respondent:
Advocates Ian Green SC with Advocate Richard Moultrie.
Instructed
by: Edward Nathan SonnenbergsWQE56
Counsel
for the 4
th
Respondent: Advocate Max Du Plessis and
Advocate Sarah Pudifin-Jones
Instructed
by: Brugrnans Incorporation