About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2021
>>
[2021] ZASCA 169
|
|
Selota v SALPC (658/2020) [2021] ZASCA 169 (3 December 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case no: 658/2020
In
the matter between:
MAMOLATELO
ALFRED
SELOTA APPELLANT
and
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL RESPONDENT
Neutral
citation:
Selota v SALPC
(Case
no 658/2020)
[2021] ZASCA 169
(3 December 2021)
Coram:
SALDULKER ADP and MATHOPO, VAN DER MERWE and
MOKGOHLOA JJA and WEINER AJA
Heard
:
19 November 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has been
published
on the Supreme Court of Appeal website and released to SAFLII. The
date and time for hand-down is deemed to be 09h45
on 3 December 2021.
Summary:
Appeal – appellant sought a
declarator that he was entitled to Fidelity Fund certificate for 2019
– decision would have
no practical effect or result within the
meaning of
s 16(2)
(a)
(i)
of the
Superior Courts Act 10 of 2013
– matter struck from
roll.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Van Olst AJ sitting as court of first
instance):
1 The
application for condonation and reinstatement of the appeal is
dismissed with costs.
2 The
main matter is struck from the roll with costs.
JUDGMENT
Van
der Merwe JA (Saldulker ADP and Mathopo and Mokgohloa JJA and Weiner
AJA concurring)
[1] After
hearing the parties on 19 November 2021, we made the order set out
above and indicated that reasons for
the order would follow. These
are the reasons.
[2] The
appellant, Mr Mamolatelo Alfred Selota, was admitted as an attorney
on 1 August 2008. He subsequently practised
for his own account under
the name MA Selota Attorneys. During June 2018, however, the
respondent, the South African Legal Practice
Council established
under s 4 of the Legal Practice Act 28 of 2014 (the LPA), launched an
application in the Gauteng Division of
the High Court, Pretoria for
an order removing the appellant from the roll of attorneys and for
ancillary relief (the main application).
The application was based on
a variety of grounds. Apart from complaining that the appellant had
practised as an attorney without
a Fidelity Fund certificate in
contravention of s 84(1) and (2) of the LPA, the respondent
inter
alia
alleged that an expert’s
inspection of the appellant’s books had revealed substantial
and persistent trust fund deficits
and debit balances on clients’
trust accounts. It also averred that the appellant had touted for
work and overreached his
clients. The main application was eventually
set down for hearing on 21 November 2019.
[3] Shortly
before that date, however, the appellant issued the application that
is directly relevant to this judgment.
The application was brought on
an urgent basis, to be heard together with the main application. The
appellant essentially prayed
for an order declaring that he was
entitled to a Fidelity Fund certificate for the year 2019. This
application was eventually heard
on 17 February 2020 by Van Olst AJ,
who on 9 March 2020 dismissed it with costs on the attorney and
client scale, but subsequently
granted leave to the appellant to
appeal to this Court. The appeal was set down for hearing on 19
November 2021. However, the appellant
failed to timeously file heads
of argument in this Court. Consequently, the appeal lapsed in terms
of rule 10(2A) of the rules
of this Court. As a result, the appellant
filed an application for condonation of the late filing of his heads
of argument and
for reinstatement of the appeal. The respondent
opposed this application.
[4] In
the meantime, on 7 February 2020, Rabie J and Avvakoumides AJ ordered
the suspension of the appellant from
practising as an attorney
pending the finalisation of the main application (the suspension
order). It can be accepted that it was
mainly based on the fact that
the appellant had practised without a Fidelity Fund certificate. That
court refused leave to appeal
against the suspension order, as did
this Court. Several further attempts by the appellant to overturn the
suspension order came
to naught. The President of this Court refused
an application under
s 17(2)
(f)
of the
Superior Courts Act 10 of 2013
for the reconsideration of the
refusal of leave to appeal on petition. The Constitutional Court
turned down an application for
leave to appeal as well as a
subsequent application for leave to adduce further evidence and for
reconsideration of its decision
to refuse leave to appeal. The last
of these orders was dated 31 March 2021. Counsel for both parties
informed us from the Bar
that the main application had been allocated
to a judge for case management and expedition of the determination
thereof and that
it was ready to be heard.
[5] It
is common cause that the respondent never issued a Fidelity Fund
certificate to the appellant for 2019,
on the ground that it was not
satisfied that the appellant had complied with the provisions of
Chapter 7 of the LPA in respect
of the handling of trust monies. In
terms of
s 85(6)
(a)
of the LPA it had to be so satisfied before it could issue the
certificate.
Section 85(7)
provides that a Fidelity Fund certificate
is valid until 31 December of the year in respect of which it is
issued. The relief sought
on appeal in this matter was that the order
of Van Olst AJ be set aside and replaced with an order declaring that
the appellant
was entitled to a Fidelity Fund certificate for 2019 in
terms of
s 85
of the LPA, as from 15 February 2019.
[6]
Section
16(2)
(a)
(i)
of the
Superior Courts Act provides
as follows:
‘
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 grounds alone.’
The purpose of the
provision is to reduce the heavy workload of appeal courts and to
ensure that matters that truly deserve the
attention of appeal courts
are not delayed by burdening these courts with matters that fall
within the ambit of
section 16(2)
(a)
(i). See
Madibeng Local
Municipality v DDP Valuers and Another
[2020] ZASCA 70
para 22.
[7] Thus,
the question was what practical effect or result the decision sought
on appeal would have. The sole contention
of the appellant was that
it could have an effect on the suspension order. We found the
submission untenable. In the circumstances
that I have sketched, it
is open to serious doubt whether an application to set aside the
suspension order should be entertained
at all. But more importantly,
the declarator sought on appeal could have no effect on the
suspension order. The respondent rightly
pointed out that the
decision sought would not change the fact that the appellant had
practised without a Fidelity Fund certificate.
Thus, the main
pillar on which the suspension order had been founded would remain in
place notwithstanding success for the appellant
on appeal.
[8] For
these reasons, the relief sought on appeal could have had no
practical effect or result and the reinstatement
of the appeal would
have been senseless. Thus the application for condonation and
reinstatement of the appeal had to be dismissed
and the main matter
struck from the roll. Costs had to follow these results.
C
H G VAN DER MERWE
JUDGE OF APPEAL
Appearances:
For
appellant: C A
da Silva SC (with him B Mathlape)
Instructed
by: Rammutla-at-Law
Inc., Pretoria
Maree
& Partners Attorneys, Bloemfontein
For
respondent: L P J Groome
(Attorney with right of appearance)
Instructed
by: Rooth
& Wessels, Pretoria
Pieter
Skein Attorneys, Bloemfontein