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[2017] ZAGPPHC 59
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Law Society of the Northern Provinces v Smith and Another In re: Law Society of the Northern Provinces v Smith and Others; Smith and Others v Law Society of the Northern Provinces and Another (35899/2007) [2017] ZAGPPHC 59 (24 February 2017)
IN THE HIGH COURT
OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE
NO: 35899/2007
DATE:
24/2/2017
Reportable:
YES
Of
interest to other judges: NO
Revised
IN
THE MATTER BETWEEN
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES APPLICANT
AND
DAVID
ANTHONY
SMITH 1
ST
RESPONDENT
RAPHAEL
& DAVID SMITH
INC 2
ND
RESPONDENT
In
re:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES APPLICANT
AND
RAPHAEL
SMITH 1
ST
RESPONDENT
DAVID
ANTHONY
SMITH 2
ND
RESPONDENT
RAPHAEL
& DAVID SMITH
INC 3
RD
RESPONDENT
And
in the counter application of:
RAPHAEL
SMITH 1
ST
APPLICANT IN RECONVENTION
DAVID
ANTHONY SMITH 2
ND
APPLICANT IN RECONVENTION
RAPHAEL
& DAVID SMITH INC 3
RD
APPLICANT IN RECONVENTION
AND
THE
LAW SOCIETY OF THE
NORTHERN
PROVINCES 1
ST
RESPONDENT IN RECONVENTION
MINISTER OF
JUSTICE 2
ND
RESPONDENT IN RECONVENTION
JUDGMENT
PRINSLOO,
J
[1]
The applicant Law Society applies, in terms of
section 18
of the
Superior Courts Act no 10 of 2013
, for the order contained in my
judgment dated 22 July 2016 to be put into effect, and not
suspended, pending the decision
of the respondents' application to
the Supreme Court of Appeal for leave to appeal and/or any further
appeal or related processes
to be initiated by the respondents in any
Court.
[2]
For the sake of detail, I mention that the application for leave to
appeal by the respondents came before me on 27 October 2016,
and it
was dismissed by me on the same day.
[3] It
is not clear when the petition was filed with the Registrar of the
Supreme Court of Appeal, but this, obviously, inspired
the applicant
to launch this
section 18
application, which came before me on
10 February 2017.
During
the proceedings before me, I was informed that the outcome of the
petition proceedings had not yet been announced.
[4]
Before me, Mr Watson, with Mr Premhid, appeared for the applicant and
Mr Chaskalson SC, with Mr Van der Spuy, appeared
for the
respondents.
[5]
During the course of the proceedings, counsel referred me, in
particular, to three judgments which I was privileged to consider
and
which I found most useful for present purposes:
-
Incubeta Holdings (Pty) Ltd and Another v Ellis and Another
2014
3 SA 189
(GJ);
- The Minister of Social Development Western Cape and Others v The
Justice Alliance of South Africa and Another
case no 20806/2013,
Western Cape Division (a judgment by the Full Court of that
Division, dated 1 April 2016, and evidently
not yet reported);
- University of the Free State v Afriforum and Another
dated
17 November 2016 with neutral citation
[2016] ZASCA 165
(17 November 2016).
[6]
The circumstances of the case, and the issues involved, appear from
my judgment of July 2016, and also from my judgment refusing
the
application for leave to appeal. I do not consider it
incumbent upon me, for present purposes, to embark upon unnecessary
repetition.
Section
18
of Act 10 of 2013: Raising the Bar for an Applicant
[7]
Section 18 goes under the heading in the Statute: "Suspension of
decision pending appeal".
I
consider it convenient to quote the relevant portions of this
section:
"(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) ... not applicable, dealing with interlocutory orders.
(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 the 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."
[8] As
appears from the text, and also from observations made by the learned
Judges in the three judgments I referred to, the old
common law
approach set out in the leading case of
South Cape Corporation
(Pty) Ltd v Engineering Management Services (Pty) Ltd
1977 3 SA
534
(A), made the task of an applicant for this type of relief less
onerous than is presently the case in terms of section 18 which
supersedes the earlier approach.
In
South Cape Corporation
, Corbett JA, as he then was, pointed
out, at 545B G, that a Court confronted with an application to
set its order in operation
despite the pending appeal had a wide
general discretion to grant or refuse such leave and would,
inter
alia
, have regard to the following factors:
"(1) The potentiality of irreparable harm or prejudice being
sustained by the appellant on appeal (respondent in the application)
if leave to execute were to be granted;
(2) The potentiality of irreparable harm or prejudice being sustained
by the respondent on appeal (applicant in the application)
if leave
to execute were to be refused;
(3) The prospects of success on appeal, including more particularly
the question as to whether the appeal is frivolous or vexatious
or
has been noted not with the
bona fide
intention of seeking to
reverse the judgment but for some indirect purpose e.g. to gain time
or to harass the other party; and
(4) Where there is the potentiality of irreparable harm or prejudice
to both appellant and respondent, the balance of hardship
or
convenience, as the case may be."
[9]
What is plain, is that the applicant (the successful party
a quo
,
also described as "the victor") who wishes the order
to be implemented despite the pending application for leave
to appeal
or appeal by the unsuccessful party (also "the appellant"
or "the loser") has to prove the following
on a
balance of probabilities:
There
are exceptional circumstances militating in favour of the
application being granted; and
The
applicant will suffer irreparable harm if the Court does not grant
relief ("order otherwise"); and
The
other party (appellant/loser) will not suffer irreparable harm if
the Court grants the application, or "orders otherwise"
as
it is put in the text.
[10] I
add, on the subject of considering the text of section 18, and a
proper interpretation thereof, that there was some difference
of
opinion between the Judges presiding over the three cases which I
referred to on the question as to whether or not the prospects
of
success of the appeal should be considered by the Court confronted
with a section 18 application.
In
Incubeta Holdings
, the learned Judge, in paragraph [26],
expressed the view that the "merits", which I accept to be
a reference to the
prospects of the appeal, are not relevant to this
kind of enquiry. He stated that the "considerations that
are valuable
presuppose a
bona fide
application for leave
to appeal or an actual appeal. No second guessing
about the judgment
per se
comes into reckoning".
In
The
Minister of Social Development
, the learned Judge, writing for
the Full Court and also recognising that in
South Cape Corporation
the prospects of success were considered to be of relevance, differed
from the learned Judge in
Incubeta
Holdings,
and found
that "it follows that the less sanguine a Court seized of an
application in terms of section 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" – see paragraph [27] of the
judgment.
These
words of the last-mentioned learned Judge were quoted with approval
by the learned Judge of Appeal in
University of the Free State
.
So,
where I refused the application for leave to appeal, I have to
consider myself to be on the "more sanguine" side rather
than "less sanguine". On a lighter note, for those
who may be, as I was, uncertain, at first blush, about the meaning
of
"sanguine" it is described in the
Concise Oxford
Dictionary
as "habitually hopeful, confident, expecting
things to go well".
[11] I
turn to the three requirements or jurisdictional facts that have to
be established on a balance of probabilities by an applicant
for
section 18 relief.
Are
there exceptional circumstances?
[12]
Counsel for the applicant made the following submissions in this
regard:
The
applicant Law Society is under a duty to the public to conduct
investigations into members of the profession, and the appeal
is
hindering this duty. When the suspension of a Court order will
interfere with the performance of a public duty that
operates to
protect the public interest, then there exists an exceptional
circumstance that warrants the Court exercising its
power to grant
section 18 relief. The Law Society has obligations to maintain
and enhance the prestige, status and dignity
of the profession, to
regulate the exercise of the profession, to encourage and promote
efficiency in and responsibility in relation
to the profession, to
uphold the integrity of practitioners, to uphold and improve
standards of professional conduct and qualifications
of
practitioners and to provide for the effective control of the
professional conduct of practitioners. It also has a duty
to
exercise disciplinary jurisdiction over all practitioners where
necessary. The inability of the Law Society to perform
these
functions, and to conduct the preliminary inspection which it is
authorised to do in terms of section 70 of the Attorneys
Act,
constitutes special circumstances;
The
longer it takes for the matter to be finalised, the greater the risk
of the destruction of documents or records relevant to
the Law
Society's preliminary investigation. Indeed, documents sought
by the Law Society have already been lost, once through
the theft of
documents and on a second occasion through a fire in a documents
warehouse. There is an ongoing danger that
relevant documents
will be lost.
I
was also referred to the following remarks by the learned Judge in
Incubeta Holdings
at paragraph [27]:
"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'.";
Counsel
also argued that the conduct of the appellant attorneys, in
obstructing the efforts of the Law Society to perform its
functions
and conduct the preliminary inspection, constitute exceptional
circumstances. As appears from the judgment, the
appellant
attorneys have stood in the way of the Law Society's attempts to
inspect the records for more than a decade.
They also refused
entry to Mr Faris, the Law Society's auditor, when he arrived
to inspect the records. The instruction
by the Law Society to
Mr Faris to conduct an inspection was well within the powers of
the Law Society.
[13]
In their heads of argument, counsel for the appellants did not
specifically deal with the question of exceptional circumstances
but
they certainly made no concessions in this regard.
[14]
In all the circumstances, I have come to the conclusion, and I find,
that there are exceptional circumstances present: the
appellant
attorneys, who are members of the Law Society and obliged to support
the efforts of the latter to properly regulate the
profession, have
managed to hold the professional watchdog at bay for more than a
decade, preventing it from inspecting its records.
The
inspection is provided for by statute, in the form of section 70.
Section 70 is only a preliminary inspection and not
designed to
finally establish any wrongdoing on the part of the attorneys.
It has been created as a tool to determine
whether or not a
section 71 disciplinary enquiry ought to be launched. I am
alive to the fact that the attorneys have
offered explanations and
denied any wrongdoing in respect of the 31 or so serious complaints
received from their erstwhile clients,
and I take into consideration
various other arguments offered by the attorneys, but it appears to
me, on the evidence considered
as a whole, that their conduct has
been obstructionist and their efforts to prevent their own
professional body from inspecting
their records, as it is entitled,
and obliged, to do in terms of the relevant legislation, does, in my
view, amount to exceptional
circumstances.
Will
the applicant Law Society suffer irreparable harm if the section 18
relief is not granted?
[15]
Counsel for the applicant argued, as already mentioned, that there is
a real danger of the loss of documents and records.
[16]
There is also the argument that the applicant Law Society will be
unable to properly perform its statutory functions as already
described. It is submitted that this is harmful to the image of
attorneys and to the attorneys' profession generally, and
the
unfavourable impression it may create in the minds of other members
of the profession and the general public, will not be easily
reversed.
[17]
The fact that the Law Society cannot perform its functions, could
also lead to irreparable harm to all the complainants who
lodged
serious complaints, in many instances suggesting the inability to
collect monies due to them by the Road Accident Fund.
[18]
It is argued that the general investigation sought by the Law Society
will serve either to uncover a pattern of misconduct,
or serve to
exonerate the attorneys. If there is a pattern of misconduct,
the clients of the attorneys are suffering ongoing
prejudice by the
delay in finalising this case and obtaining redress for them.
The general public is also harmed by the delays.
The public's
faith in the administration of justice depends, in large measure, on
its faith in the integrity of legal practitioners.
[19]
Under these circumstances, I have come to the conclusion, and I find,
that the Law Society has discharged the
onus
of proving that
it will suffer irreparable harm if the order is not granted.
Will
the appellant attorneys suffer irreparable harm if the order is
granted?
[20]
As appears from the judgment, the attorneys have complained that
their firm will suffer harm of a serious nature if they have
to
respect the professional privilege which they claim to exist with
regard to their relationship with their thousands of clients
and if
they have to inform those clients that the Law Society is inspecting
their affairs.
I have
held that the question of professional privilege does not come into
play for the reasons mentioned. The correctness
of this finding
is, of course, being challenged. On behalf of the
applicant it was argued that the attorneys have all
along adopted the
view that they have nothing to hide. In that case, so it is
argued, they cannot suffer any harm by disclosing
their records.
Indeed, they will be exonerated, also to the knowledge of their
colleagues in the profession and their clients,
and this will redound
to their credit and benefit.
[21]
It was also argued on behalf of the applicant that the bad press
received by the attorneys when clients reported their grievances
to
the media, probably outweighs any other prejudice they may suffer as
a result of a preliminary section 70 enquiry.
[22]
Against this background, it was argued that it has been established,
on a balance of probabilities, that the attorneys will
suffer no
irreparable harm if the order is granted.
[23]
Apart from the arguments of perceived irreparable harm to the
appellant attorneys, which I have mentioned, it was also
submitted on behalf of their counsel that they will be subject to the
expense and inconvenience of assembling all the documents
required by
the Law Society in their generalised inspection and addressing all
the queries raised by the Law Society inspectors.
This will be
a massively time consuming exercise and therefore, in the context of
a profession that charges for its time, a costly
exercise. The
expenses and lost professional time constitute irreparable harm
because the loss will not be recoverable from
the Law Society.
[24] I
am not persuaded that these general arguments ought to lead to a
conclusion that the Law Society failed to discharge the
onus
of proving that the attorneys will not suffer irreparable harm: they
are members of the Law Society and, by statute, obliged to
co operate
when their professional watchdog seeks to inspect their records.
Moreover, if they had been less recalcitrant
from the outset, a
decade ago, the whole dispute would probably have been disposed of a
long time ago.
[25]
However, there is one argument offered on behalf of the attorneys
which, in my view, supports a conclusion that the attorneys
may
suffer irreparable harm, on the probabilities, if the
main relief
,
namely the holding of the preliminary inspection, is allowed to
proceed despite the pending application for leave to appeal or
an
appeal should the application be successful. In broad terms, it
amounts to this: if the general inspection, in terms of
section 70,
is allowed to proceed, it may well have been completed by the time
the appeal comes up for decision (emphasis added).
In
those circumstances, the appeal may well be rendered moot and
dismissed on that ground alone in terms of the provisions of
section
16(2)(a)(i)
of the
Superior Courts Act which
stipulate:
"When at the hearing of an appeal the issues are of such a
nature that the decision sought will have no practical effect or
result, the appeal may be dismissed on this ground alone."
For
this reason, I am unable to find that the applicant has proved, on a
balance of probabilities, that the appellant attorneys
will
not suffer irreparable harm if the order is granted (emphasis added).
[26] A
similar situation, where it was argued that the granting of the
section 18(3)
relief may render the appeal meaningless, only arose in
Incubeta Holdings
and not in the other two decisions which I
referred to.
[27]
Incubeta Holdings
had to do with a restraint of trade
dispute. The argument of the employee respondent, confronted
with the restraint of trade
interdict application appears to have
been that the restraint period will have lapsed by the time the
appeal is heard but the learned
Judge held that, in that particular
case, the appeal will not be rendered meaningless because a claim for
damages by the aggrieved
employee will still be alive.
The
learned Judge, Sutherland J, puts it as follows in paragraph [29]:
"Furthermore, it is plain from the summary of circumstances
given above that the applicants would indeed suffer irreparable
harm
if the order is not put into operation. Moreover, it is plain
that Ellis will not suffer irreparable harm if the order
is put into
operation. Although Ellis in his answering affidavit complains
that putting the order into operation will render
his right of appeal
meaningless, this is incorrect for the reasons mentioned above; he
cannot be without practical relief.
The
section 18
test is met
on both counts of the second leg."
The
"reasons mentioned above" appear from paragraph [25] where
the learned Judge concludes:
"If
the appeal is won, Ellis' loss of earnings can be sued for, and the
quantum
is feasible to compute, including the loss of interest
or lost opportunity cost of being out of funds, and any such interest
expended
on borrowing for living expenses, if necessary.
Moreover, security under
rule 48(12)
is available."
In the
present case, it was not argued with any force that the appellant
attorneys will have any remedy against the Law Society
in the form,
for example, of a damages claim, neither was it argued that such a
claim will remain a live issue in the event of
the appeal being
rendered moot for the reasons mentioned.
[28]
Quite apart from any other consideration, if I were to grant an order
in respect of the
main relief
, namely the putting into
operation of the general inspection, in the face of the argument that
such an order may render the appeal
moot, it would mean that I am
knowingly granting an order which will, at least on the
probabilities, defeat the appeal by rendering
it moot. It means
that I am actively undermining an appeal against my own judgment.
I consider this to be an unacceptable
state of affairs.
[29]
In the result, I have come to the conclusion, and I find, that the
applicant failed to discharge the
onus
to establish the
jurisdictional requirement that, on a balance of probabilities, the
applicant attorneys will not suffer irreparable
harm if the
main
relief
is granted in terms of
section 18(3)
(emphasis added).
[30] I
now turn to the
alternative relief
sought in terms of
section
18
(emphasis added).
Has
a case been made out for a
section 18
order in respect of the
alternative relief sought?
[31]
As an alternative to the main relief sought (implementation of my
July 2016 order, involving the generalised inspection) the
applicant
crafted the following prayer 2 in the notice of motion:
"2. In the alternative to prayer 1 above, that the order of
Court dated 22 July 2016 shall remain in force and the relief
granted therein shall be implemented in respect of all complaints
lodged against the respondents with the Law Society as well as
the
accounting records of the firm as envisaged in section 78(5) of the
Attorneys Act 53 of 1979; pending the respondents' application
for
leave to appeal and/or any further appeal or related processes to be
initiated by the respondents in any Court."
[32]
In the judgment, reference was made to the fact that the appellant
attorneys, initially, also refused to furnish only the files
in
respect of which complaints were received from disgruntled clients of
the appellant attorneys ("the complaint files").
The
attorneys argued that, also in respect of those files, the aggrieved
clients had to waive their rights flowing from the professional
privilege of their communications with the attorneys before the files
can be released to the Law Society.
Later,
as I pointed out, there appeared to be a change of stance on the part
of the attorneys, when they conceded that privilege
need not to have
been claimed in respect of the complaint files, because the aggrieved
clients, when complaining to the Law Society,
waived the privilege in
favour of an inspection of the files.
[33]
When it came to the section 18 application, the deponent on behalf of
the Smith firm said the following in the opposing affidavit:
"At the outset I need to indicate that the Smith firm has no
issue with the alternative relief sought in paragraph 2 of the
notice
of motion for immediate execution in respect of all documentation
relevant to matters where complaints have been lodged
against the
Smith firm. The Smith firm tendered unconditionally to make all
such documentation available for inspection more
than three years ago
..."
I add
that the purported tender of "more than three years ago"
was not, according to the arguments of the Law Society,
unconditional
and satisfactory. Nevertheless, as I illustrated, it was stated
emphatically in the opposing affidavit to the
section 18 application
that the appellant attorneys have no issue with the alternative
relief sought in paragraph 2.
[34]
However, almost in the same breath, the deponent added that the Smith
firm "does not consent to the immediate execution
of the
alternative relief sought in paragraph 2 of the notice of motion
to the extent that it relates to the complete accounting
records of
the firm including those unrelated to any complaints".
The
argument appears to be that, where in prayer 2 relief is also sought
to inspect the accounting records of the firm as envisaged
in section
78(5) of the Attorneys Act, those accounting records relate to the
records of the firm and not only to the accounting
records relevant
to the complaint files.
[35]
As I pointed out in the main judgment, and more particularly
paragraph [15] thereof, the Law Society, in the main application,
also sought relief to inspect the complete accounting records as
described in section 78(4) of the Attorneys Act. Such relief
was also granted in paragraph 1.1 of the order which I made at the
conclusion of the hearing.
I also
pointed out that the relief sought in terms of section 78(4), is
"self-standing" from the section 70 relief that
was sought
and, in addition, the constitutionality of section 78 was not
challenged by the attorneys during the hearing before
me.
[36]
It is convenient to revisit the provisions of section 78 of the
Attorneys Act which goes under the heading "Trust accounts"
–
"(1) 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 or her on
account of any person.
(2) ...
(3) ...
(4) Any practising practitioner shall keep proper accounting records
containing particulars and information of any money received,
held or
paid by him or her for or on account of any person, of any money
invested by him or her in a trust, savings or other interest bearing
account referred to in subsection (2) or (2A) and of any interest on
money so invested which is paid over or credited to him or
her.
(5) The council of the society of the province in which a
practitioner practises may by itself or through its nominee, and at
its own cost, inspect the accounting records of any practitioner in
order to satisfy itself that the provisions of subsections (1),
(2),
(2A), (3) and (4) are being observed, and, if on such inspection it
is found that such practitioner has not complied with
such
provisions, the council may write up the accounting records of such
practitioner and recover the costs of the inspection or
of such
writing up, as the case may be, from the practitioner.
(6) For the purposes of subsections (4) and (5), 'accounting records'
includes any record or document kept by or in the custody
or under
the control of any practitioner which relates to –
(a) money invested in a trust, savings or other interest bearing
account referred to in subsection (2) or (2A);
(b) interest on money so invested;
(c) any estate of a deceased person or any insolvent estate or any
estate placed under curatorship, in respect of which such
practitioner
is the executor, trustee or curator or which he or she
administers on behalf of the executor, trustee or curator; or
(d) his practice."
(I
noted in the judgment that I did not find it necessary to quote the
remaining eight subsections of section 78.)
[37]
The appellant attorneys seem to be concerned by the definition of
"accounting records" in section 78(6), which I
quoted. The
deponent on behalf of the attorney says the following in the opposing
affidavit:
"6. The Smith firm does not consent to the immediate execution
of the alternative relief sought in paragraph 2 of the notice
of
motion to the extent that it relates to the complete accounting
records of the firm including those unrelated to any complaints,
because that relief
6.1 is not confined to 'accounting records' within the ordinary
meaning of the term and extends also to privileged documents that
would be covered by paragraph (d) in the definition in section 78(6)
of the Attorneys Act which refers to 'any record or document
kept by
or in the custody or under the control of any practitioner which
relates to ... his or her practice' ..."
[38]
The attorneys cannot have it both ways: the relief sought in terms of
section 78 was "self standing" from the
section 70
relief aimed at the generalised inspection. As I
mentioned, the constitutionality of the section 78 provisions
are not
challenged.
Moreover,
counsel for the applicant argued before me that the inspectors, if
the relief were to be granted in terms of prayer 2
which covers
section 78(5), will be obliged to conduct the inspection of the
accounting records of the attorneys within the ambit
of the
provisions of that subsection which is limited to the other
subsections therein mentioned.
[39] I
am also not persuaded that the danger of the appeal being rendered
moot will come into play if the Law Society is permitted,
in terms of
section 18, to proceed in terms of the relief sought in prayer 2
of the notice of motion: in the first place,
the appellant attorneys
unequivocally subjected themselves to immediate inspection by the Law
Society of the complaint files, which
would include the accounting
records relating to those files. In the second place, the
limited inspection of the firm's accounting
records as described in
section 78(5), which is part of the prayer 2 relief sought, cannot,
in my view, lead to irreparable harm
to the appellant attorneys in
the general context of this case.
[40]
In the result, I have come to the conclusion that the alternative
relief sought in prayer 2 of the notice of motion ought
to be
granted in terms of section 18(3).
Costs
[41] I
am not persuaded that the Law Society was unreasonable or, in any
way, acted vexatiously, by seeking the section 18 relief.
In
particular, they will be substantially successful if the alternative
relief is granted, as I intend to do.
[42] I
pointed out in the judgment that courts are slow to award costs
against the Law Society and costs are generally granted on
the
attorney and client scale. I see no reason for deviating
from this practice.
The
order
[43] I
make the following order:
1. The order of Court dated 22 July 2016 shall remain in force and
the relief granted therein shall be implemented in respect of
all
complaints lodged against the respondents with the Law Society as
well as the accounting records of the firm as envisaged in
section
78(5) of the Attorneys Act 53 of 1979 pending the respondents'
application for leave to appeal and/or any further appeal
or related
processes to be initiated by the respondents in any Court.
2. The respondents, jointly and severally, are ordered to pay the
costs of this application in terms of
section 18
of the
Superior
Courts Act no 10 of 2013
on the scale as between attorney and client.
W R C
PRINSLOO
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
62599-2011.FEB2017
HEARD
ON: 10 FEBRUARY 2017
FOR
THE APPLICANTS: D WATSON & K PREMHID
INSTRUCTED
BY: ROOTH & WESSELS
FOR
THE RESPONDENTS: M CHASKALSON SC & C VAN DER SPUY
INSTRUCTED
BY: RAPHAEL & DAVID SMITH INC
c/o
LOUBSER VAN DER WALT INC