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[2017] ZAKZPHC 15
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KwaZulu-Natal Law Society v Sharma and Another (3489/2016) [2017] ZAKZPHC 15; [2017] 3 All SA 264 (KZP) (28 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER: 3489/2016
In
the matter between:-
THE
KWAZULU-NATAL LAW SOCIETY
Applicant
and
MRS
SIMRITHI
SHARMA
First Respondent
THE
STANDANRD BANK OF SOUTH AFRICA
Second Respondent
JUDGMENT
VAN
ZÿL, J
:- (MADONDO, DJP and OLSEN, J concurring)
[1]
The applicant law society sought by way of application proceedings to
have the name of the first respondent struck from the
roll of
attorneys. The second respondent, although initially cited, was not
served with the application papers and took no part
in the matter.
For convenience the first respondent is therefore herein referred to
simply as ‘the respondent’.
[2]
In a written judgment the respondent was held to have acted
dishonourably but, whilst deserving of censure, her conduct was
held
not to have rendered her unfit to continue in practice. The
application to strike her name from the roll of attorneys was
accordingly refused, but she was nevertheless sentenced to pay a fine
of R20 000-00, conditionally suspended for three (3)
years. The
court made no order as to costs.
[3]
The applicant delivered a substantive application for leave to
appeal, but only ‘in respect of the costs Order…’.
The application was opposed by the respondent and it was then
enrolled for argument. Counsel for the respondent, without having
had
sight of the applicant’s heads of argument, delivered their
written heads of argument on 22 March 2017.
[4]
During the course of the same day Counsel for the applicant, whom I
hasten to add had not appeared in the main application before
us,
also delivered written argument in anticipation of the hearing of the
application for leave to appeal. The opening paragraph
thereof read
as follows:-
‘
At
the hearing of this matter the applicant will seek leave to amend its
notice of application for leave to appeal to seek leave
to appeal
also in respect of the sanction imposed by this Court in its judgment
delivered on 14 February 2017.’
[5]
In the result counsel for the respondent delivered additional written
argument dated 23 March 2017 in order to deal pertinently
with the
belated attempt to broaden the appeal. In this regard counsel firstly
drew attention to the provisions of Rule 49(1)(b)
of the Uniform
Rules of Court which provide for an application for leave to appeal
to be made within fifteen (15) days and pointed
out that whilst the
application for leave to appeal against the costs order had been
lodged on the last day permitted therefor,
leave to appeal against
the sanction imposed upon the respondent and as contained in
counsel’s heads of argument, was well
out of time.
[6]
In developing their argument counsel for the respondent submitted
that the applicant, by giving notice of intention to seek
leave to
appeal against the costs order only, had thereby made a conscious
election to abide by the remainder of the judgment,
including the
sanction imposed. Accordingly and relying upon
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA)
counsel submitted that the applicant was precluded, by virtue of the
doctrine of peremption, from bringing a late application for
leave to
appeal against the sanction imposed. In
Gould
(supra) at page 443G the Court cited as authority the decision of
Dabner
v South African Railways and Harbours
1920 AD
583
where at page 594 Innes CJ held that –
‘
The
rule with regard to peremption is well settled, and has been
enunciated on several occasions by this Court. If the conduct of
an
unsuccessful litigant is such as to point indubitably and necessarily
to the conclusion that he does not intend to attack the
judgment,
then he is held to have acquiesced in it. But the conduct relied upon
must be unequivocal and must be inconsistent with
any intention to
appeal. And the onus of establishing that position is upon the party
alleging it. In doubtful cases acquiescence,
like waiver, must be
held non-proven.’
[7]
The difficulty I have with the application of the doctrine of
peremption is that it was raised by the respondent in the written
argument delivered by her counsel shortly before the hearing of this
matter, so that the applicant has not had an opportunity of
dealing
with the factual situation underlying the attempted application of
the doctrine. The fault in this regad of course
lies with the
applicant, not the respondent. If a proper application to amend
the application for leave to appeal, or for
condonation of the late
attempt to seek leave to appeal on the merits of the case, had been
made, the issue of peremption would
inevitably have been aired.
(Counsel for the applicant did not ask for a postponement in order to
deliver such an application.)
The difficulty is exacerbated
also by the doubt surrounding the circumstances and extent of the
applicant’s authority relating
to the application for leave to
appeal itself. This topic is addressed more fully later in this
judgment and relevant to the issue
of the costs of the application
for leave to appeal. For present purposes it is sufficient merely to
state that I prefer in the
circumstances not to base the decision
whether to grant or refuse the application to amend the notice of
application for leave
to appeal, upon the application of the doctrine
of peremption.
[8]
Secondly and in any event counsel for the respondent contended that
it was impermissible for the applicant to informally bring
a late
application to amend its notice of leave to appeal to include leave
also against the sanction without a substantive and
timeous
application for condonation. Counsel for the respondent submitted
that in the circumstances she was unfairly hampered in
opposing the
application.
[9]
In developing their argument in this regard counsel submitted that no
explanation or justification for the applicant’s
belated change
of mind had been provided and suggested that this was in fact brought
about by the approach, dealt with extensively
in the respondent’s
initial heads of argument, that leave to appeal the costs order only
was impermissible. Counsel
suggested that the belated attempt
at appealing the sanction was in reality an attempt to bolster the
application for leave to
appeal an otherwise unappealable costs
order. Counsel also expressed doubt whether, in the circumstances,
the applicant’s
attorney even had proper authority from the
applicant’s Council additionally to seek leave to appeal
against the sanction.
[10]
Finally and in opposing any leave to appeal against the sanction
counsel for the respondent submitted that the approach on
the issue
of sanction was inappropriate since the court of appeal would not
readily interfere with the discretion of the court
a
quo
in exercising
discipline over an attorney, unless there were some irregularity in
the exercise of the discretion. In this regard
counsel relied upon
the authority of
Jasat v
Natal Law Society
2000 (3)
SA 44
(SCA) at page 51F
.
[11]
In
Jasat
(supra) Scott, JA in para 10 dealt with the so-called three staged
inquiry relevant to the conduct of an errand practitioner. The
first
related to the factual establishment, on a preponderance of
probabilities, of the alleged misconduct. The second, relevant
to
whether the offending practitioner remained a fit and proper person
to continue in practice, was held to amount to a value judgment
involving
the
exercise of a discretion by the Court of first instance with which a
Court of appeal had limited power to interfere.
The
third and final inquiry related to sanction and was whether, in all
the circumstances, the practitioner should be removed from
the roll,
or suspended from practice. This was similarly held to be a matter
for the discretion of the court of first instance.
[12]
In the present matter the applicant belatedly seeks leave to appeal
against the sanction, which relates to the third leg of
the inquiry
referred to above. Counsel for the applicant informed the Court
that it accepts the Court’s determination
with regard to the
first and second inquiries, with the latter being that the respondent
despite her misconduct remains a fit and
proper person to continue in
practice. Having at the outset contended for the name of the
respondent to be struck from the roll
of attorneys, it is unclear
what sanction the applicant would seek upon appeal, if leave were to
be granted to it. Counsel for
the applicant faintly suggested the
possibility of an increased fine.
[13]
The test for condonation was formulated by Majiedt JA in
Meyer v
The State (46/12)
[2013] ZASCA 208
(28 November 2013)
at para 3,
as follows:-
‘
The
test for condonation entails, broadly speaking, an evaluation in the
main of the degree of non-compliance and the explanation
therefor as
well as the prospects of success (See
S
v Senkhane
2011 (2) SACR 493
(SCA) at paras 28 and 29
).’
[14]
In the present instance and in the absence of a substantive
application for condonation there is no explanation for the delay
before us, nor are we able without a clear indication of what
sanction the applicant would contend for, adequately to assess its
prospects of success if condonation and leave were to be granted to
it.
[15]
In any event, no grounds have been identified upon which a Court of
Appeal would be justified in interfering with the sanction,
as
imposed. In the course of his argument counsel for the applicant
sought to infer that the misconduct of the respondent was more
serious than she admitted to in her answering affidavit. The
difficulty I have with this approach is that the respondent declared
herself willing to enter the witness box to be cross examined, but
that offer was declined by counsel then appearing on behalf
of the
applicant.
[16]
Having in its replying affidavit not disputed the version of events
deposed to by the respondent, it is not now open to the
applicant to
suggest a different factual scenario. In
Botha
v Law Society, Northern Provinces
[2008] ZASCA 106
;
2009
(1) SA 227
(SCA)
,
Cloete, JA explained in
para 4 at 231D that-
‘
If
the attorney is not cross-examined then, unless the allegations and
denials made in the answering affidavit are so far-fetched
or clearly
untenable that the court is justified in rejecting them merely on the
papers, the case must be decided on the common
cause facts and,
where there is a conflict, on the attorney's version
.
Speculation
as to what might really have happened is not permissible.
’
[17]
In my view the form of the application for leave to amend the
application for leave to appeal, so as to include leave to appeal
against the sanction imposed upon the respondent as well, was wrong.
The application should have been brought upon adequate notice
by way
of a substantive application, including an application for
condonation for the late noting of an application for leave to
appeal
against the sanction imposed. In its informal form, motivated from
the Bar, the application does not establish good cause
for
condonation, either by way of explaining the initial default, nor on
the merits and, in addition, prejudices the respondent
by limiting
her ability to meaningfully oppose the relief sought. The attitude
expressed by the Court of Appeal with regard to
submissions from the
Bar in an attempt to justify additional grounds for an appeal in
South African Police Service
Medical Scheme and Another v Lamana and Others
2011
(4) SA 456
(SCA)
resonates
with the present matter. In para 13 at page 460G the Court remarked
that –
‘
It
would be quite improper for this court to act upon information
tendered informally from the bar, which should have been contained
in
an affidavit when leave to appeal was sought, which is still not
in that form, and where the respondents have not had an
opportunity
of challenging it.
’
[18]
Broadly speaking and peremption excluded, I find myself in agreement
with the grounds of opposition to the application for
leave to
include sanction and as formulated by counsel for the respondent. In
the circumstances it follows that the application
for leave to amend
the notice of application for leave to appeal, so as to include leave
to appeal the sanction, must fail and
the only ground upon which
leave to appeal is sought is therefore limited to the order in
relation to costs, as contemplated in
the applicant’s original
notice of application for leave to appeal dated 6 March 2017.
[19]
With regard to the issue of costs counsel for the applicant submitted
that it was compelled, as
custos
morum
of the profession, to
bring the application for the striking off of the respondent and to
place the matter before the court for
decision. It was not, so the
submission ran, the task of the applicant to determine the
appropriate sanction, but that of the court
and that the applicant
merely facilitated the matter being placed before the court for that
purpose.
[20]
It was further submitted that it was only the delivery of the
respondent’s answering affidavit which resulted in her
“
coming
clean
”, to use the
words employed by the deponent to the applicant’s founding
affidavit in the application for leave to appeal.
Counsel for the
respondent however pointed out that the new matter disclosed in the
respondent’s replying affidavit related
to the personal
domestic and marital pressures brought to bear upon on her at the
time and that there was no material departure
from the substance of
her conduct, as placed before the disciplinary committee during the
course of the inquiry. Had there been,
then I would have expected
that the applicant would have required the respondent to submit to
cross examination thereon. That was
not the case, as already
discussed above.
[21]
Counsel for the applicant further urged upon us that the decision to
deprive the applicant of a costs order in its favour involved
a
matter of principle which required the attention of the court of
appeal. Taken at face value the submission amounted to the
proposition that in all matters involving dishonesty the applicant
was obliged to place them before the court for decision and that
the
applicant, as
custos porum
was then entitled, as a matter of
course, to a costs order in its favour. The principle involved was
expressed in counsel’s
written argument, as follows:-
‘
The
principle is namely whether or not a law society should ever run the
risk of having to pay its own costs when it refers a dishonest
practitioner to this Court for consideration.’
[22]
No doubt in by far the majority of applications to strike the names
of offending practitioners from the roll of attorneys the
applicant
law society, as
custos morum
of the attorneys’ profession, would be awarded its costs. But I
am not persuaded that any principle, in the form as contended
for by
the applicant is correct, or has ever been recognised as such.
[23]
In
Botha v Law Society,
Northern Provinces
2009
(1) SA 227 (SCA)
in
para 21 Cloete JA referred to the paucity of matters
where
the sanction imposed by the court
a
quo
had been reduced on appeal from striking-off to one of
suspension. Of the three matters identified, in two the relevant law
societies were o
rdered
to pay the appellants’ costs (
Law
Society of the Cape of Good Hope v C
1986
(1) SA 616 (A)
at
641H;
Summerley v Law
Society, Northern Provinces
2006
(5) SA 613
(SCA)
at
623D)
and in the third (
A
v Law Society of the Cape of Good Hope
1989
(1) SA 849 (A)
,
at 853A - F) no order as to costs was made. In
Botha
(supra) likewise no order as to costs was made.
[24]
The circumstances in which a law society may be ordered to pay the
costs of unsuccessful proceedings brought by it were considered
in
Incorporated Law Society v Taute
1931 TPD 12
and where
Tindall, J (Solomon, J concurring) at page 17 formulated the correct
approach, as follows-
‘
I
think that the Court should now lay down that the mere failure of the
Law Society to prove the charges made will not entitle the
respondent
to costs against the Society, that the liability of the Society for
the respondent’s costs in unsuccessful proceedings
must depend
upon the circumstances of each case and that the Society will not be
ordered to pay such costs where there are no special
circumstances
calling for such an order, such, for example, as the failure of the
Society to investigate the charge adequately
before proceeding with
it or the unreasonable pressing of a charge which is without
foundation.
Applying
this test to the present proceedings, there is no doubt that the
correct order is no order as to costs. The Society’s
conduct in
the matter is not open to the least criticism.’
[25]
With reference to the approach in
Taute
set out above, Cloete JA held in
Botha
(supra) in para 22 at page 237 E-F that
where
a law society failed to prove its charges against an attorney and the
society's conduct is not open to criticism, then the
correct order is
to make no order as to costs.
Where,
however, a law society’s conduct is open to criticism the
principle, as formulated and contended for by counsel for
the
applicant in the present matter, is therefore clearly not supported.
The correct principle is rather that the decision regarding
costs in
such circumstances would depend upon the particular facts of the
matter, would fall within the discretion of the court
of first
instance and that a court on appeal would be reluctant to intervene
in this regard, unless the lower court failed to exercise
a judicial
discretion.
[26]
Counsel for the respondent submitted that the order sought to be
appealed, namely that there would be no order as to costs,
was in all
the circumstances of the present matter not in law appealable at all.
In this regard counsel drew attention to the provisions
of
section 16
(2) (a) of the
Superior Courts Act, 10 of 2013
, which it was
submitted were similar to section 21A of the Supreme Court Act 59 of
1959 (as amended by sec 22 of Act 129 of 1993),
to the effect that
where the decision at the hearing of an appeal would have no
practical effect or result, then the appeal may
be dismissed upon
that ground alone and that save under exceptional circumstances the
determination of a practical effect or result
should be determined
without reference to any consideration of costs. In this regard
reliance was placed upon
Logistic Technologies (Pty) Ltd v Coetzee
1998 (3) SA 1071
where Cloete J (as he then was) dismissed an
application for leave to appeal against costs and at 1074 I said that
–
‘…
,
an investigation as to who ought to have succeeded on the merits is
relevant only as to costs and it is precisely that sort of
investigation which the Courts and the legislature have discouraged’.
[27]
Counsel for the respondent submitted that in any event a court of
appeal would only interfere with the discretion of the lower
court
regarding costs where the latter had failed to exercise a judicial
discretion. It was submitted with reference to paragraphs
68 to 74 of
the judgment sought to be appealed that this Court gave reasons for
the exercise of its discretion in favour of making
no order as to
costs. Counsel further submitted that such exercise was not based
upon any wrong principle and it followed that
the Court exercised a
judicial discretion in arriving at the disputed costs order with
which interference upon appeal would not
be justified. Reliance in
this regard was placed upon
Logistic
Technologies
(supra) at
1074 A-C. But see also
Lawyers
for Human Rights v Minister in the Presidency and Others
2017 (1) SA
645
(CC)
in para 23 at page
653 A-B.
[28]
The requirements for leave to appeal are intended to protect the
Court of appeal against the burden of having to deal with
matters
where there are no reasonable prospects of success and in addition to
ensure that the rolls of the Court of Appeal are
not clogged with
meritless appeals. That much was stated by Cloete JA in
S
v Maputle and Another
2003
(2) SACR 15
(SCA) at paragraph 3 and although this was a criminal
matter, the principle likewise
applies
to a civil matters, such as the present.
[29]
In terms of
s17(1)
of the
Superior Courts Act 10 of 2013
, leave
to appeal may only be granted where the Court is of the opinion that
the appeal would have a reasonable prospect of success,
or failing
that, where there is some other compelling reason justifying the
matter receiving the attention of the Court of Appeal.
[30]
In
S v Smith
2012 (1) SACR 567
(SCA)
the Court of appeal
restated the test for reasonable prospects of success on appeal. That
test remains valid also in terms of the
new Act which has since come
into operation. In regard to the applicable test the Court of Appeal
in
Smith
(supra) in particular remarked at paragraph 7 that:
“
More
is required to be established than that there is a mere possibility
of success, that the case is arguable on appeal or that
the case
cannot be categorised as hopeless. There must, in other words, be a
sound, rational basis for the conclusion that there
are prospects of
success on appeal.”
[31]
In the light of the aforegoing I am of the view the application for
leave to appeal against the costs order does not meet the
threshold
set for the grant of such relief. Again I find myself in broad
agreement with the submissions made by counsel for the
respondent and
I consider the principle contended for by counsel for the appellant
to be unsustainable. It follows that there are
neither reasonable
prospects of success on appeal, nor is there any other compelling
reason justifying the matter receiving the
attention of the Court of
Appeal.
[32]
In addressing the issue of the costs occasioned by the application
for leave to appeal, including the abortive attempt at expanding
the
ambit of the application also to include the sanction imposed,
counsel for the respondent submitted that the applicant’s
conduct in proceeding against the respondent was open to criticism.
In this regard attention was drawn to the long period which
had
elapsed from the time the original complaint was made to the
applicant and before the matter was eventually argued on the merits
before this Court, the unsuccessful attempt at the outset to suspend
the respondent from practice and for the appointment of a
curator
bonis
, which were
subsequently abandoned, resulting in unnecessary delay and costs
being incurred, the fact that the applicant was substantially
unsuccessful in its attempt to have the respondent’s name
struck from the roll of attorneys and the criticism adverse to
the
applicant, as expressed in the judgment of the Court when it
determined that no order as to costs in the main application should
be made.
[33]
In developing their argument counsel for the respondent submitted
that the entire application for leave to appeal was incompetent,
an
exercise in futility and that the costs thus incurred amounted to a
wilful waste. In the circumstances counsel sought an order
directing
the applicant to pay the costs occasioned by the application for
leave to appeal, including the costs of two counsel,
where employed.
[34]
Counsel for the applicant opposed such an adverse costs order and
submitted that to grant such an order would mean that unless
a law
society was successful in a striking of application, it would be
deprived of its costs. I do not agree. In my view counsel
misunderstood the principle involved, as more fully discussed in
paragraph 25 above.
[35]
In the main judgment sought to be appealed I commented (in para 72)
upon the inflexible attitude adopted by the applicant as
being
relevant to the decision on costs and I drew attention (in para 74)
to the serious consideration given to making a costs
order adverse to
the applicant society. The warnings implicit in these remarks were
clearly not heeded by the applicant’s
representatives in
bringing the present application for leave to appeal, as well as the
manner in which it was presented. In this
regard I do not, however,
wish to be understood as being critical of the conduct of Mr De Wet,
who was merely instructed to argue
the application on behalf of the
applicant, but who had not previously been involved in the matter.
[36]
It is also unclear whether the Council of the applicant had formally
resolved to authorise and instruct the applicant’s
legal
representatives to pursue the application for leave to appeal, or
indeed to bring the application to amend the application
for leave in
order to appeal the sanction as well. Counsel for the respondent, in
para 2 of their written argument dated 23 March
2017, doubted that
this was the case. It is also noteworthy that Ms N Harripersad, the
applicant’s Deputy Manager: Regulatory
Affairs and the deponent
to the applicant’s founding affidavit in the application for
leave, makes no mention of having been
specifically authorised in
this regard.
[37]
Be that as it may, the authority of the applicant’s
representatives to bring the application for leave was not formally
challenged before us, nor were the provisions of Rule 7 invoked (see:
Ganes v Telecom Namibia
Ltd
2004
(3) SA 615 (SCA)
at
para 19). In any event, the applicant’s attorneys were
clothed in apparent authority or, as it was put by Cachalia
JA in
MEC
for Economic Affairs, Environment & Tourism, EC v Kruizenga
2010 (4) SA 122
(SCA) in para 20 at page 132D, in an ‘
aura
of authority
’, so
that we are entitled to assume that the attorneys had the necessary
authority to do what attorneys usually do in representing
their
clients.
[38]
Should the applicant’s representatives have acted beyond their
actual authority in launching and pursuing the application
for leave
to appeal, then that dispute is a matter to be internally resolved as
between the applicant, its relevant officials and/or
its attorneys.
The issue cannot, peremption apart, affect our decision regarding the
appropriate costs order to be made relevant
to the application for
leave.
[39]
In the final analysis and considering all the circumstances of the
matter, including its background, the lack of merit in the
application for leave itself, the criticism levied at the conduct of
the applicant as contained in the main judgment, as well as
in
relation to the application for leave and the failure of the
applicant’s representatives to heed the warning extended
in the
judgment sought to be appealed regarding the risk relevant to costs,
I am of the view that the present application calls
for an order of
costs against the applicant.
[40]
At the hearing before us both parties were represented by senior
counsel. Neither party suggested that the employment of senior
counsel was inappropriate in the circumstances. In my view, given the
nature and importance to the parties of the issues involved,
the
length of the record and the nature of the issues forming the subject
matter of debate, the employment in particular of senior
and junior
counsel by the respondent, was justified and cannot be faulted.
[41]
In the result I would propose an order in the following terms, namely
that:-
(a)
The belated informal
application to amend the notice of application for leave to appeal to
include leave to appeal the sanction
imposed upon the first
respondent, is dismissed.
(b)
The Application for leave to
appeal the costs order contained in the written judgment of this
Court and as delivered on 14 February
2017, is likewise dismissed.
(c)
The applicant is to pay the
first respondent’s costs of the applications, including the
costs of two counsel, where actually
employed.
_______________
_________________
_______________
VAN
ZÿL, J.
MADONDO, DJP.
OLSEN, J.
APPEARANCES:
For
the Applicant:
Adv A de Wet SC
Instructed by Attorneys Ganie &
Company,
493 Langalibalele Street,
PIETERMARITZBURG 3201
Tel: 033342 7750/1
Fax: 033
3428515
(Ref: MR GANIE/AS/K303)
For
the First Respondent: Adv A. W. M. Harcourt SC and Adv I. J.
Patel
Instructed by Attorneys Severaj Inc
Ruchira House,
26/28 Cypress Avenue,
Stamford Hill,
DURBAN 4001
Tel: 031 312 2004/8
Fax: 031 312 4448
Email: Litigation@ severaj.co.za
Ref: MR SEVERAJ/pg/C3588
C/o A K Essack, Morgan Naidoo &
Company
311 Pietermaritz Street,
PIETERMARITZBURG 3201
DOCEX: 24, PIETERMARITZBURG
For
the Second Respondent: No
Appearance.
Matter
argued:
24 March 2017.
Judgment
delivered:
28 April 2017