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[2016] ZAGPPHC 1127
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Nel N.O. v Macbeth Attorneys Incorporated and Others (86454/16) [2016] ZAGPPHC 1127 (7 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
D
I
VISION.
PRETORIA)
NOT
REPORTABLE
CASE
86454/16
DATE
7/12/2016
In
the matter between:
ADV
P NEL
N.O APPLICANT
and
MACBETH
ATTORNEYS INCORPORATED
FIRST
RESPONDENT
MANDLA
MACBETH
NCONGWANE SECOND
RESPONDENT
BONGANIMATSANE
THIRD RESPONDENT
SIBONGILE
MUWANBA CHIMIMBA
FOURTH RESPONDENT
FRIDAY
JUMBE
FIFTH RESPONDENT
LAW
SOCIETY OF THE NORTHEN PROVINCES SIXTH
RESPONDENT
JUDGMENT
TLHAPIJ
[1]
The applicant approached the court by way of urgency for the
following orders:
"2.
Declaring that paragraph 4 of the order made by Molahlehi AJ in this
Court on
21 November 2016 is an interlocutory one which does not have
the effect of a final order and that its operation and execution is
not suspended pending the decision of the application for leave to
appeal lodged by the First and Second Respondents on 23 November
2016
or by any appeal which may be lodged by them in the event of leave to
appeal being granted by this or any other Court;
3.
Declaring the First and Second Respondents to be in contempt of
paragraph 4 of the order made by Molahlehi A J on 21 November
2016;
4.
Imposing a fine in an amount to be determined by the honourable Court
in its discretion on the First Respondent;
5.
Committing the Second Respondent to prison for a period of 90 days;
6.
In the alternative to paragraphs 2 and 5 above:
6.1
An order that the operation and execution of paragraph 4 of the order
made in this matter by Molahlehi
AJ on 21 November 2016 shall not
suspend the decision of the application for leave to appeal lodged by
the First and Second Respondents
on 23 November 2016 or by any appeal
which may be lodged by them in the event of leave to appeal being
granted either by this or
any other Court;
6.2
An order that, in the event of the First and Second Respondents
failing
to comply with paragraph 4 of the said order by the close of
business on the date of this order, they shall be in contempt of
court;
and
6.2.1
the First Respondent shall be liable for a fine in an amount to be
determined
by the Honourable Court in its discretion...;
6.2.2
the Second Respondent shall be committed to prison for a period of 90
days"
This
application is opposed
[2]
In my view it is not necessary to once more deal with the background
which has been dealt with by the court
a quo.
Paragraph 4 of
Molahlehi A J's order of 21 November 2016
was
of relevance to the first and second respondent, the latter being a
director and'. shareholder of the first respondent and the
order
reads:
"4.
The first respondent is ordered to, within (2) days of service of
this order,
pay to Weavind and Weavind Attorneys into their trust
account, any or all funds held on behalf of Ms Wezi Beverly Jumbe,
which
were received by the first respondent in terms of the court
order dated 24 May 2013 under case number 50304/2008, together with
interest earned thereon to be dealt with by Weavind and Weavind in
accordance with the court order of 24 May 2013."
[3]
It is averred that when this application was launched the first and
second respondent were in contempt and had not complied
with the
order of Molahlehi AJ as envisaged in paragraph 4 above. The
respondents averred that they had served their application
for leave
to appeal which was not accepted by Molahlehi AJ because his reasons
were not as yet available. In my view the absence
of the reasons
should not have prevented the service of an application for leave to
appeal. A stamped copy of the application for
leave to appeal was
sought to be handed in from the bar which was objected to by counsel
of the applicant. I did not refuse the
handing in of a stamped copy
of the application. Attached to this application was a copy of the
said application for leave to appeal
which did not bear a court stamp
or proof that it had been served on the applicant.
[4]
As I see it, it is not open to the applicant to seek a declaration on
urgency that the order in paragraph 4 was an interlocutory
one which
does not have the effect of a final order. Of importance and urgent
is that on 31 October 2016 the first and second respondent
were
informed that their client Ms Wezi Beverly Jumbe, had terminated
their mandate and this was followed by an application which
resulted
in orders of 21 November 2016 of which paragraph 4 is one of them.
The
first and second respondent failed to comply with the order and such
order still exists. Even if the application for leave was
properly
filed the monies held for the client belonged to the client. If a
mandate has been terminated an attorney has no right
to deal with
such monies or to hold on to such monies unless otherwise directed by
a court. In as far as such payment was not made
within the specified
period, the first and second respondents were in my view in contempt.
[5]
Furthermore, the order relates to any or all funds held on behalf of
Ms Jumbe to be deposited into the trust account of Weavind
&Weavind
by the first and second respondents, being monies which were paid
pursuant to a court order of 24 May 2013 under case
number
50304/2013. The appeal is still to be adjudicated upon and the sixth
respondent has been called upon to investigate the
conduct of the
first and second respondent in as far as their client is concerned.
The respondents themselves aver that they too
have called upon an
investigation by the sixth respondent.
[6]
The first and second respondent have within their answering affidavit
launched a counter application. As I see it, it relates
to the
allegation that the order granted by Molahlehi AJ was amended in
their absence. The Applicant does confirm such fact and
gave reasons
and
in as far as such conduct may have been prejudicial, the first and
second respondents are entitled to address such issues in
the appeal
that has already been launched on proper application being made. It
is my view that this counter application is misplaced
and is not
urgent, and should be struck off the roll.
[7]
Should the first and second respondents in light of the finding that
there was contempt, seek to comply with paragraph 4, and
in view of
the complexity of the issues in the matter which is the subject of
appeal, in the interests of justice, those monies
which have been
ordered to be deposited into the trust account of Weavind &
Weavind should be paid into a separate interest
bearing account and
be frozen until such time as the sixth respondent has completed its
investigation as ordered by the court a
quo
and given
directive as to how the account is to be conducted. In my view the
sixth respondent is the only statutory body which is
entitled to
speedily conduct an in depth investigation into the Trust accounts of
the first and second respondents. It is the only
body which can with
certainty and after a proper investigation has been conducted assist
the court. In as far as the sanction as
formulated in the notice of
motion in respect of the first and second respondent is concerned, it
is my view that there would be
an unnecessary duplication in
punishment.
[8]
In the result the following order is given:
1.
The first and second respondents are found to be in contempt of
court;
2.
The second respondent is committed to prison for a period of 30 days
and the implementation
of this order is suspended for six months from
the date of this order. The second respondent is directed to show
cause at his initiative
why such order should not be made final.
3.
The second respondent is further ordered to serve his reasons on the
applicants and the sixth
respondent before setting the matter down
for consideration.
4.
The monies paid into the Trust Account of Weavind and Weavind by the
first and second respondents
are to be deposited into a separate
interest bearing account and be frozen, until such time as the sixth
respondent has finalized
its investigation.
5.
The first and second respondent's are ordered to pay the costs of
this application;
6.
The first and second respondent's counter application is truck off
the roll due to lack of
urgency;
_______________________
TLHAPI
V V
(JUDGE
OF THE HIGH COURT)
APPEARANCES
FOR APPLICANT
WEAVIND AND WEAVIND ATTORNEYS
APPEARANCES
FOR THE RESPONDENT
MACBETH ATIORNEYS INC
JUDGEMENT
DELIVERED
7 DECEMBER 2016