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[2015] ZAGPPHC 126
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Graham and Another v Ronald Bobroff & Partners and Another (5203/2015) [2015] ZAGPPHC 126 (17 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: 5203/2015
DATE: 17 March 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
JENNIFER
GRAHAM
..................................................................................................
First
Applicant
MATTHEW
GRAHAM
............................................................................................
Second
Applicant
And
RONALD
BOBROFF
& PARTNERS
.....................................................................
First
Respondent
RONALD
BOBROFF
...........................................................................................
Second
Respondent
DARREN
BOBROFF
..............................................................................................
Third
Respondent
JUDGMENT
MATOJANE J
Introduction
[1] The applicants
seek to compel their erstwhile attorneys, the respondents to comply
with an order of this court requiring the
respondents to furnish
information necessary to justify the fees charged in lodging their
claim against the Road Accident fund.
[2] The central
issue in this case is the proper interpretation to be given to one of
the orders Mothle J gave on 15 April 2014.
This court is called upon
to decide whether an expert examination of the respondent's computer
network was required and that the
respondents are in contempt in
their failure to comply therewith.
[3] The applicants
seek an order in prayer 2 of the Notice of Motion declaring that the
second and third respondents are in contempt
of paragraph 4 of the
order made on 15 April 2014. The applicants further seek orders,
following upon the declaratory order in
prayer 2 of the Notice of
Motion, that the respondents be directed to comply with paragraph 4
of he order made by the court in
the following respects:
1.2.1 delivering a
printout reflecting all Graham-related entries in the first
respondent’s electronic fee billing system;
1.2.2 allowing
access to the first respondent’s computer network and
electronic fee billing system by an independent information
technology expert in order to compile a report.... Relating to
certain matters referred to paragraphs 3.2.1 and 3.2.2 of the Notice
of Motion.
[4] In prayer 4 of
the Notice of Motion the applicants seek an order directing that any
inability on the part of the respondents
to comply with prayer 3 be
attested to on affidavit deposed to by the respondents.
[5] In prayer 5 of
the Notice of Motion the applicants seek an order committing the
respondents to a period of imprisonment as the
court deems fit, or
imposing a fine, in the event of the respondents failing to comply
with prayer 3 within the stated time.
Background
[6] The matter has
its genesis in serious injuries Mathew Graham suffered in a motor
vehicle accident on 4 September 2006. Jennifer
Graham, then
represented by the respondents on a contingency fee basis, lodged a
claim with the Road accident Fund in the amount
of R2 million. The
applicants accepted a settlement of their claim in the amount of R1
979 952,69. The respondents deducted 40%
of the payout in respect of
their professional fees.
[7] The applicants
filed a complaint of overreaching against the respondents with the
Law Society and addressed a request for relevant
information
pertaining to respondent's fees to the respondents. The request went
unanswered and four months later, applicants served
a formal request
("the request") for information on respondents. The request
read:
"COMPLAINANT'S
REQUEST FOR OUTSTANDING INFORMATION
1.
Despite repeated requests, the
respondents have failed to produce or allow access to the following
records:-
1.1 a printout
reflecting all Graham-related entries in the second respondet's
electronic fee-billing system as well as access by
an independent
committee appointed information technology expert to the respondent's
computer network for purposes of establishing
and compiling a report
on when and on which computer:
1.1.1 each of the
file notes appearing in the bundle was brought into existence and
edited from time to time, and
1.1.2 each of the
entries appearing on the printout (referred to in paragraph 1.1
above) was made and amended from time to time;
1.2 extracts
reflecting all Graham-related entries in the second respondent's
books and records of account (including printouts
of ledger accounts
and statements in respect of the firm's trust and business accounts)
recording:
1.2.1 the receipt
from the Road Accident Fund and any investment by the respondents of
the sums of Rl,979,952,69 and R293,369.99;
1.2.2 the
disbursements to third parties and the payment to the complainants of
any amounts forming part of such sums;
2.
2.1.1 the
appropriation as fees by the respondents of any amounts forming part
of such sums, and
2.1.2 the treatment
of interest earned on any amounts forming part of such sums;
2.2
the originals of Jerry Joubert's:
2.2.1 certificate
dated 3 March 2010; and
2.2.2 letter dated
10 August 2011,
copies of which
appear in the bundle as annexures RBP8 and RBP9 to the respondent's
answer to the complaint; and
2.3 all
correspondence and any other documents exchanged between the
respondents and the society / committee in relation to the
complaint.
3.
The existence of the requested records is not in dispute. Nor is it
suggested that they are not in the respondent's possession.
It is
also not the respondent's duties
qua
officers
of the court and members of the society;
4. they are withheld
without any justification or on the flawed basis that the
complainants are not entitled to them.
5.
The respondents set for themselves the standard of
"utmost
transparency and accountability to the client".
The
complainants seek to hold them to no higher mark,
6. The committee is
requested to direct the respondents to produce the requested records
within a period of five court days."
[8] In June 2011 the
applicants, who were dissatisfied with the manner in which they
allege the Law Society dealt with their complainant
against
respondents instituted an action against the respondents.
They
implicated respondents in grave misconduct relating to,
inter
alia,
fabricating
false file notes, charging false disbursements, falsifying financial
records in their billing practices in prosecuting
client's claims
against the Road Accident Fund. Applicants sought amongst others that
the court should take over the Law Society's
disciplinary enquiry or
allow it to continue under the court's supervision.
[9] The disciplinary
enquiry instituted by the Law Society in the conduct of the
respondents has been postponed indefinitely.
[10] On 15 April
2014 an order was granted by Mothle J. The order reads:
"1. The
Application for a declaratory order against the Law Society as well
as the relief sought to have this Court take over
the Disciplinary
Enquiry of the Law Society, alternatively place such inquiry under
supervision by this Court is dismissed.
2. The Disciplinary
Enquiry appointed by the Council of the Law Society to Enquire into
the complaint against the Bobroffs is ordered
to convene a sitting of
this Enquiry to take place within sixty (60) calendar days from the
date of this order.
3. The Disciplinary
Department of the Law Society Is ordered to conduct an inspection of
the books of account including the trust
accounts of Ronald Bobroffs
& Partners Inc, as recommended by Mr Vincent Faris,
thereafter compile a report and serve
the report to all the parties
in this application, within thirty (30) calendar days from the date
of this order.
4. Ronald Bobroff
and partners Inc, Darren Bobroff and Ronald Bobroff are ordered to
deliver to the Law Society and the attorneys
representing Jennifer
and Matthew Graham, the information and items listed in the notice of
Request For Outstanding Information,
within fifteen (15) calendar day
from date of this order."
[11] It is the
interpretation of paragraph 4 of this order that is at the heart of
this matter.
[12] On 25 April
2014 Mr. van Niekerk an attorney for the applicants addressed a
letter to the respondents reminding them that they
are required to
deliver information and items listed in the request by Wednesday 30
April 2014. He suggested that KPMG be appointed
as the independent IT
expert to compile referred to in paragraph 1.1 of the request. He
stated in his letter that:
"We have copied
Mr Jaco Fourie of the LSNP as regards the appointment of an
independent IT expert. We suggest someone from
KPMG forensics for
example, which has the capacity and who will be independent.
The rest of the
information should in the meanwhile though be supplied to us and the
LSNP by the deadline and we shall be grateful
to hear from you what
arrangements have been made by your client in this regard."
[13] The
respondent's attorneys replied as follows to the letter:
"In our
respectful view, the court order did not direct our clients to
provide access by an independent committee appointed
information
technology expert to their computer network. In any event, if we have
misunderstood the order, we believe that it will
be for the committee
of the Law Society to appoint a suitably qualified expert to examine
our client's computer network with regard
to this matter."
[14] On 30 April
2014, which is the time stipulated by the court, the respondents
delivered their response to paragraph 4 of the
order of 15 April
2014. In the first paragraph of the response, respondents explained
that they are not able to produce a printout
reflecting the time
billing entries relating to the applicants because when applicant's
electronic files were dosed or archived,
the software they used
automatically deleted the work in progress transactions that were
completed and billed. Respondents explained
further that their cost
consultants who prepared the party and party bilis of costs in the
matters relied on notes in the files
and the actual file content to
prepare bills of costs.
[15]
Mr. Kretzmer, the CEO of Legal Interact, which supplied the hardware
and software of the computer programme of the respondents
confirmed
in an affidavit deposed by him that when the applicant's electronic
file was achieved on 27 January 2011 all the work
in progress
transactions, which had been recorded in the matter were deleted and
cannot be retrieved. In the light of these factors
and in the
application of the Plascon-Evans
1
test, Mr Unterhalter SC, correctly in my view, conceded that it must
be accepted for the purpose of this application that the application
has to be decided on the version of the respondents as to why they
have been unable to deliver the printout relating to entries
in the
respondents electronic fee billing system following the order of
court.
[16] If follows
therefore that the relief sought in paragraph 3.1 of the Notice of
Motions must fail as the respondents have explained
under oath that
they are unable to deliver the requested printout.
[17] Applicants
argue that as respondents relied solely on file notes to generate fee
statements and accounts for purposes of billing
their clients, an
independent IT expert is needed to examine respondent's computer
network so as to confirm the veracity and integrity
of the file notes
contained in the applicants folder. Mr. Unterhalter SC argued that as
the order stipulated that respondents must
make available the
"information and items" listed in the request, the
information requested in paragraph 1.1.1 and 1.1.2
of the Request can
only be obtained through the IT inspection. He submitted that an IT
inspection is a necessary condition for
the fulfilment of the order.
[18] Respondents for
their part argue that order no.4 of the court's judgment directed the
respondents to deliver to the Law Society
and the attorneys
representing the applicants "the information and items listed"
in the Request and that "Access"
to the respondents
computer network does not comprise "information and items".
[19] Respondents
submitted in their heads of argument and in court that firstly, an
inspection by an IT expert was not expressly
ordered, it did not form
part of the order and was not intended to be part of the order.
Secondly, that having regard to the time
period, i.e. 15 calendar
days within which the respondent had to deliver the information and
items listed in the notice for request
of outstanding information,
the court must have assumed that the information and records were
capable of being delivered by the
respondents within the time frame
and did not contemplate an inspection of the computer by an IT
expert. Mr Hellens argued that
Mothle 3 was never asked to order an
investigation by some independent information technology expert but
was asked to order the
Law Society to appoint someone who would make
that investigation.
Relevant rules of
interpreting a court's judgment or order
[20]
It is trite that a court order is interpreted in much the same way
and in accordance with the same rules of interpretation
as any other
written instrument such as a statute, a contract or a patent. The
court's intention must be ascertained primarily
from the language of
the order, which must be read with the reasons given for it. The
approach was set out thus by Trollip JA
in
Firestone South Africa (Pty) Ltd v Gentiruco AG
2
:
"The
basic principles applicable to construing documents also apply to the
construction of a court's judgment or order: the
court’s
intention is to be ascertained primarily from the language of the
judgment or order as construed according to the
usual, well-known
rules. . . Thus, as in the case of a document, the judgment or order
and the court's reasons for giving it must
be read as a whole in
order to ascertain its intention. If, on such a reading, the meaning
of the judgment or order is clear and
unambiguous, no extrinsic fact
or evidence is admissible to contradict, vary, qualify, or supplement
it. Indeed, it was common
cause that in such a case not even the
court that gave the judgment or order can be asked to state what is
subjective intention
was in giving it. . . Of course, different
considerations apply when, not the construction, but the correction
of a judgment or
order is sought by way of an appeal against it or
otherwise. . . But if any uncertainty in meaning does emerge, the
extrinsic circumstances
surrounding or leading up to the court's
granting the judgment or order may be investigated and regarded in
order to clarify it'
for example, if the meaning of a judgment or
order granted on an appeal is uncertain, the judgment or order of the
court
a quo
and its
reasons therefor, can be used to elucidate it. If, despite that, the
uncertainty stiil persists, other relevant extrinsic
facts or
evidence are admissible to resolve it. .
[21]
Wallis JA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
3
2012
(4) SA 593
(SCA), in giving the judgment of the court, said that over
the last century there have been significant developments in the law
relating to the interpretation of documents, both in this country and
elsewhere. In paragraph 18 of the judgment he said the following:
"Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory
instrument, or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of
the document as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration
must be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision
appears; the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more
than one meaning is
possible each possibility must be weighed in the light of all these
factors.
The process is
objective not subjective. A sensible meaning is to be preferred to
one that leads to insensible or unbusinesslike
results or undermines
the apparent purpose of the document. Judges must be alert to, and
guard against, the temptation to substitute
what they regard as
reasonable, sensible or businesslike for the words actually used. To
do so in regard to a statute or statutory
instrument is to cross the
divide between interpretation and legislation. In a contractual
context it is to make a contract for
the parties other than the one
they in fact made. The "inevitable point of departure is the
language of the provision itself",
read in context and having
regard to the purpose of the provision and the background to the
preparation and production of the document".
[22]
These principles are consistent with the dictum of the Constitutional
Court in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
4
that
"the emerging trend in statutory construction is to have regard
to the context in which the words occur, even where the
words to be
construed are clear and unambiguous". The method of interpreting
contracts has recently been summarized as follows
by the Supreme
Court of Appeal in
Bothma-Batho
Transport (Edms) Bpk v S Bothnia en Seuns Transport (Edms)Bpk
5
:
"Whilst the
starting point remains the words of the document, which are the only
relevant medium through which the parties
have expressed their
contractual intentions, the process of interpretation does not stop
at a perceived literal meaning of those
words, but considers them in
the light of all relevant and admissible context, including the
circumstances in which the document
came into being. The former
distinction between permissible background and surrounding
circumstances, never very clear, has fallen
away. Interpretation is
no longer a process that occurs in stages but is 'essentially one
unitary exercise'. Accordingly it is
no longer helpful to refer to
the earlier approach.
[23] I turn now to
the central issue in this matter- the interpretation of paragraph 4
of the order.
[24]
In my view, paragraph 4 of the order properly interpreted is clear.
It orders Ronald Bobroff and partners Inc, Darren Bobroff
and Ronald
Bobroff to deliver to the Law Society and the attorneys representing
Jennifer and Matthew Graham, the information and
items
listed in
the
notice of Request For Outstanding Information
,
within fifteen (15) calendar day from date of the order.(own
emphasis)
[25] Paragraph 1.1
of the Request lists information and items to be delivered. The first
item listed is to make delivery by allowing
access by an:
"independent committee appointed information technology expert
to the respondent's computer network for purposes
of establishing and
compiling a report on when and on which computer:
1.1.1 each of the
file notes appearing in the bundle was brought into existence and
edited from time to time, and
1.1.2 each of the
entries appearing on the printout (referred to in paragraph 1.1
above) was made and amended from time to time.
[26] The obligation
would therefore be fully discharged only once an independent
committee appointed information expert has access
to the respondents'
computer network for purposes of compiling a report on when an on
which computer each of the file notes appearing
in the bundle was
brought into existence and edited from time to time. Without giving
access into the computer network the requisite
information cannot be
obtained. In my view, the inspection of respondents' computer network
follows from the express language of
the order.
[27] It is in this
context that the letter from Mr Van Niekerk to respondents'
attorneys, prior to the expiry of the time for delivery
of the
response to the order, reminding them of the deadline and the ambit
of the court order should be understood. In the letter
Mr Van
Niekerk, correctly interpreted the order to determine the means by
which the information was to be procured, he suggested
someone from
KPMG forensics and the respondents, if respondents' intended
complying with the order they could have either raised
an objection
to this person or suggested someone else to the Law Society or
approached the court to seek clarification on how the
order might be
enforced and by what means. The only explanation offered by the
respondents in conducting themselves contrary to
the order is that
the order did not make express provision for an information
technology expert to be agreed between the parties.
[28] The order has
three distinct clear parts to it. In the first place it provides for
a time period for compliance with its terms
- 15 days to deliver
outstanding information and items listed in the notice of Request For
Outstanding Information. Secondly, The
Disciplinary Department of the
Law Society is ordered to conduct an inspection of the books of
account including the trust accounts
of Ronald Bobroffs & Partners
Inc, thereafter compile a report and serve the report to all the
parties in this application,
within thirty (30) calendar days from
the date of the order. Thirdly, The Enquiry into the complaint
against the respondents' is
to take place within sixty (60) calendar
days from the date of the order.
[29] It is clear
from the judgment that the court has carefully considered the request
for outstanding information and concluded
that this information must
be provided and imposed time periods of 15 and 30 days so that the
enquiry could take place within 60
days.
[30] In paragraph 91
of the judgment the court stated.
"I have
considered the list of outstanding information and items as its
appears in the notice titled Request for Outstanding
information and
I am of the view that the information and items required are relevant
to the complaint and should have been delivered.
The Law Society
defers to the Disciplinary enquiry to deal with the requested
information and items. I am not aware of any reason
why the required
information and items should not be made available to the Grahams as
requested, before the next sitting of the
enquiry."
[31]
In my view, the inspection by an independent IT expert was intended
and meant to be part of the order. The respondents have
not granted
that access, they are therefore not in compliance with the order, the
next question to consider is whether their non
compliance is wilful
and
mala fide.
[32]
In
Fakie
NO v
CCII
Systems
(Pty) Ltd
6
the
court in dealing with the onus of proof in cases of civil contempt
held that an applicant in punitive committal proceedings
must prove
all elements of contempt beyond reasonable doubt - Once applicant
proves the court order, service of the notice, and
non compliance,
the evidentiary burden to show reasonable possibility that
non-compliance was not wilful or mala fide lies with
the respondent.
[33]
In prayer 2 of the Notice of Motion applicants do not seek an order
that respondents be committed for contempt, they seek an
enforcement
of a court order without criminal sanction. In
Mthimkulu
and Another v Mahomed and Others
7
the
full bench of the South Gauteng High Court held that where a civil
contempt order is sought without punitive sanction, proof
of contempt
of court may be established on a preponderance of probabilities. The
court held further that the court may issue a
declaratory that a
respondent is in contempt of court established only on a balance of
probabilities. It follows therefore, that
in the present case, the
applicants have established on the balance of probabilities that
respondents are in contempt of the order.
Application for
amendment
[34]
In prayer 3.2 of the Notice of Motion applicants sought an order
directing respondents to comply fully with paragraph 4 of
order by
allowing access to the first respondent's computer network by an
independent
information technology expert
whereas
the court order spoke of an
independent
committee appointed information expert
to
have access to the respondents' computer network.
[35] Mr Unterhalter
SC brought an application to amend the notice of motion by including
the words "committee appointed"
to which Mr Hellens SC
objected arguing that the application to amend is not done on notice
with supporting affidavit and that
it was not the case respondents
were called to meet in the answering papers.
[36] Having regard
to the fact that applicants sought to compel respondents to comply
with what is contained in the Request, which
is what the court
ordered, it cannot be said that the applicants sought in the Notice
of Motion an order different to the one that
was made by the court.
In my view, failure to use the words "committee appointed"
in the Notice of Motion is a mere omission
and respondents could not
be under any illusion that applicants sought a different order to the
one made by the court. The application
is accordingly granted.
Conclusion
[37] For the reasons
set out above, the following order is issued:
1. The second and
third respondents ("the respondents") are declared to be in
contempt of paragraph 4 of the Order granted
by His Lordship Mr
Justice Mothle on 15 April 2014 under case number 61790/2012.
2. The respondents
are ordered to comply fully with paragraph 4 of the order of the
learned judge, including allowing access by
an independent committee
appointed information technology expert to the respondent's computer
network for purposes of establishing
and compiling a report on when
and on which computer, each of the file notes appearing in the bundle
was brought into existence
and edited from time to time.
3. It is ordered
that any disability on the part of the respondents to comply with
prayer 3.2 of the Notice of Motion as amended
be attested to on
affidavit deposed to by second and third respondent.
4. The second and
third respondents are each ordered to pay a fine of R100 000,
suspended on condition that they comply with prayer
3.2 as amended
within 30 days of the of this order.
5. The respondents
are ordered to pay the costs of this application on attorney and
client scale.
K E MATOJANE
JUDGE OF THE HIGH
COURT
1
Plascon
Events Paints v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
2
1977(4) SA 298 (A)
3
2012
(4) SA 593
(SCA)
4
[2004] ZACC 15
;
2004
(4) SA 490
(CC)
5
2014(3)
SA 492 (SCA)
6
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at par 9 and 10
7
2011
(6) SA 147
at par 18