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[2016] ZAGPPHC 219
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Law Society of the Northern Provinces v Mangena (7617/2015) [2016] ZAGPPHC 219 (23 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
CASE
N0:7617/2015
DATE:
23 MARCH 2016
In the matter
between:
THE LAW SOCIETY
OF THE NORTHERN
PROVINCES
.........................................
APPLICANT
And
THANDI GOODNESS
MANGENA
.............................................................................
RESPONDENT
JUDGMENT
RANCHOD J:
[1] On 17 February
2016 this Court granted the following order:
“1. The
application for postponement of the application for leave to appeal
by the respondent is granted. Costs to be costs
in the application
for leavfe to appeal.
2. The application
by respondent for postponement of the applicant’s application
in terms of section 18 of the Superior Courts
Act is refused.
3. The application
by the applicant in terms of section 18 of the Superior Courts Act is
granted with costs on an attorney and client
scale.”
I stated at the time
that the Court will furnish its reasons for paragraphs (2) and (3) of
the order later.
[2] For convenience
I will refer to the parties as they are cited in the main
application, i.e. the applicant as the Law Society
of the Northern
Provinces (LSNP) and Ms Mangena as respondent.
[3] On 14 August
2015 the respondent was struck off the roll of attorneys. Reasons for
the judgment were handed down later.
[4] The respondent
then launched an application for leave to appeal. The effect of an
application for leave .to appeal is to suspend
the striking off order
and the respondent would be entitled to continue practising as an
attorney until the appeal is determined.
[5] The LSNP
thereafter launched an application in terms of s 18 of the Superior
Courts Act 10 of 2013 (the Act) for the enforcement
of the striking
off order notwithstanding the application for leave to appeal.
[6] We determined
that both applications should be heard together on 17 February 2016.
At the commencement of the hearing counsel
for the respondent applied
for a postponement of both the respective applications.
We were informed
from the bar that respondent’s attorneys withdrew as attorneys
of record the previous week. A copy of the
notice of withdrawal was
handed up as the original had not reached the Court file. The notice
does not furnish reasons why respondent’s
attorneys withdrew as
attorneys of record.
[7] Counsel
submitted that he was not in a position to argue the two applications
before the Court as he was only briefed to move
for a postponement.
[8] The first thing
to be noted is that respondent’s attorneys withdrew about a
week before the hearing on 17 February 2016.
The respondent had ample
opportunity to instruct another attorney. Secondly, if a postponement
of the hearing was to be sought
the respondent had ample opportunity
to prepare a properly motivated substantive application for
postponement. This she did not
do.
[9] As I said, as
long as the application in terms of s 18 by the LSNP is not finalised
the respondent may continue practising.
Indeed, in answer to
questions raised by the Court respondent’s counsel informed us
that she is in fact practising but that
it was limited to finalising
outstanding matters. It was submitted that respondent had been
advised not to take on new clients.
Of course that does not mean that
she is precluded from doing so and, it had not been stated under
oath. These were merely submissions
from the bar.
[10] Respondent’s
counsel then submitted that the Court should make an order that the
respondent is suspended from practice
pending the finalisation of the
application for leave to appeal. Counsel conceded that that would be
akin to granting the LSNP’s
application in terms of s18 of the
Act. In the Court’s view the granting of an order of suspension
would not make sense when
its effect would be the same as the
striking off order, i.e. that the respondent may not practice,
pending the application for
leave to appeal.
[11] Counsel for the
LSNP submitted that the respondent was doing what she did during the
striking off proceedings, i.e. launch
applications at the last
minute to stay or
postpone the applications. I agree. It seems that by applying for the
postponement of the s18 application and
the application for
leave to appeal by
the LSNP the respondent seeks to continue practising as an attorney
for as long as possible.
[12] It also seems
that the withdrawal by respondent’s attorneys without
furnishing reasons was a strategy to force a postponement
of the
hearing of the two applications. In Take & Save Trading and
Others vs Standard Bank of SA Ltd 2004(4) SA 1 (SCA) Harms
JA said:
“One of the
oldest tricks in the book is the practice of some legal
practitioners, whenever the shoe pinches, to withdraw
from the case
(and more often than not?to reappear at a later stage), or of clients
to terminate the mandate (more often than not
at the suggestion of
the practitioner), to force the court to grant a postponement because
the party is then unrepresented. Judicial
officers have a duty to the
court system, their colleagues, the public and the parties to ensure
that this abuse is curbed by,
in suitable cases, refusing a
postponement. Mere withdrawal by a practitioner or the mere
termination of a mandate does not, contrary
to popular belief,
entitle a party to a postponement as of right.”
[13] The reasons for
striking off the respondent from the roll of attorneys have been set
out in detail in the main application.
It includes, inter alia, the
fact that respondent by her own admission had misappropriated trust
monies. It is not in the interests
of the public to allow the
respondent to continue practising whilst the application for leave to
appeal has still not been determined.
It would also place the
Attorneys Fidelity Fund at risk. Hence, we granted the order in terms
of s18 of the Act in favour of the
LSNP.
RANCHOD J
JUDGE OF THE HIGH COURT
I agree
MNGQIBHISA-THUSI J
JUDGE OF THE HIGH COURT
Appearances:
Counsel on behalf of Applicant:
Attorney P.J Smith
Instructed by: Rooth & Wessels
Inc
Counsel on behalf of Respondent: Adv
Gededger Instructed by
Date heard: 17 February 2016
Date delivered: 23 MARCH 2016