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[2012] ZAKZPHC 56
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Geyser NO and Others v Kisleu (Pty) Ltd and Others (8951/2009) [2012] ZAKZPHC 56 (10 March 2012)
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case Number : 8951/2009
In the matter between:-
ANDRIES JONATHAN LATEGAN GEYSER NO
.........................
First Applicant
MARYNA ESTELLE SYMES NO
..
.........................................
Second Applicant
NARAN MAHARAJ NO
............................................................
Third
Applicant
MANOGH DAYANAND MAHARAJ NO
...................................
Fourth
Applicant
and
KISLEU (PTY) LIMITED
........................................................
First
Respondent
SILVER CHARM INVESTMENTS 77 (PTY) LIMITED
........
Second
Respondent
PRESENT PERFECT INVESTMENTS
127 (PTY) LIMITED
.............................................................
Third
Respondent
PLATINUM MILE INVESTMENTS
509 (PTY) LIMITED
..........................................................
Fourth
Respondent
THE MASTER OF THE HIGH COURT
..................................
Fifth
Respondent
BAE SYSTEMS Plc
..............................................................
Sixth
Respondent
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
VAN ZYL, J.:-
The present dispute arises from and is incidental to the main
dispute which involves the same parties. Although the issues
concerned in, what may conveniently be referred to as the main
action, are not directly material the present dispute, it is
nevertheless
necessary to place the present dispute in perspective
against the background of the main action.
The first to fourth applicants are the first to fourth defendants
and the first to fourth respondents are the first to fourth
plaintiffs in the main action under case number 8951/09. The Master
of the High Court, Pietermaritzburg is the fifth defendant
and the
fifth respondent, while the sixth respondent is also the sixth
defendant.
The first to fourth applicants and the sixth respondent, as
defendants, initiated application proceedings in terms of rules 30
against the first to fourth respondents. The first to fourth
applicants, again joined by the sixth respondent, all as defendants,
also initiated applications for security for their respective costs
under rule 47, as against the first to fourth respondents.
These
applications were vigorously opposed and were due for argument when
the issues now under consideration arose and interrupted
the
momentum.
For the sake of clarity I will herein after refer to the first to
fourth applicants as the first to fourth defendants, to the
sixth
respondent as the sixth defendant and to the first to fourth
respondents as the first to fourth plaintiffs and where convenient,
in context, simply as the plaintiffs or defendants, as the case may
be.
At the inception of the argument Mr Hartzenberg, who appeared for
the first to fourth defendants, raised the issue of the
locus
standi
of Mr J. E. V. Hunt to appear in the High Court
proceedings on behalf of the plaintiffs. Counsel made it clear that
the objection
was not limited to Mr Hunt’s appearance for
argument in the opposed motion proceedings only, but extended from
his signature
of the plaintiffs’ summons initiating the main
action, through the opposition to the rule 30 and 47 applications
and eventually
also to the trial of the main action, should this
follow in due course.
In developing his argument on behalf of the first to fourth
defendants counsel pointed out that before a decision could be made
in respect of Mr Hunt’s entitlement, or otherwise, to appear
on behalf of the plaintiffs, the factual position had to be
determined. However, there appeared from the papers to be materially
conflicting allegations regarding the position and authority
pertaining to Mr Hunt which, so counsel submitted, required the
matter to be referred to the hearing of oral evidence in order
to
resolve these.
The issues requiring investigation and clarification by way of oral
evidence related, so counsel submitted, to the alleged employment
of
Mr Hunt by Christina Seeman & Associates, the plaintiffs’
attorneys of record,
inter alia
, in the light of his
employment also as a fulltime employee of Transnet Ltd and his
position as sole director of each of the
plaintiff companies.
Mr Broster, who appeared on behalf of the sixth defendant, supported
the first to fourth defendants’ submission that a
referral to
oral evidence was required and pointed out that it was not
sufficient for Mr Hunt and/or Ms Seeman simply to enter
the witness
box. This was because the issues involved required preparation, also
by way of advance discovery of documentation
and records relevant to
the issues to be explored during the course of the oral evidence and
that this would necessitate the
postponement of the matters, as
proposed on behalf of the first to fourth defendants.
Mr Hunt, claiming to do so on behalf of the plaintiffs, sought to
oppose the referral of the matter to the hearing of oral evidence.
But Mr Hunt could not advance any persuasive argument that the
issues of concern and potentially affecting his right to appear
on
behalf of and to represent the plaintiffs in the High Court
litigation, as raised on behalf of the defendants, should not
be
decided
in limine
and that, in order to do so, a referral to
the hearing of oral evidence could be avoided.
In the result the matter was referred to the hearing of oral
evidence in terms of rule 6(5)(g) on the issue of the claimed right
of Mr Hunt to appear on behalf of the plaintiffs in the High Court
proceedings and it was directed that both Mr Hunt, as well
as Ms
Attorney C. Seeman submit to cross examination in this regard.
Provision was made for advance discovery of documentation
relevant
to the issue and costs were reserved.
At the hearing of oral evidence both Mr Hunt, as well as Ms Attorney
Seeman submitted to cross examination. A curious factual
position
emerged. It is common cause that Mr Hunt has at all material times
been and remains admitted as an attorney of this
court and that he
has been afforded the right to appear in the high court by virtue of
the provisions of section 4(2) of the
Right of Appearance in Courts
Act 62 of 1995. It is further common cause that since 2007 he was
and remains in the fulltime employ
of Transnet Limited.
Mr Hunt and Ms Christina Seeman, ostensibly his employer and
instructing attorney in the main action as well as the various
applications to which it has given rise, are husband and wife.
According to Ms Seeman she qualified as an attorney in the year
2000
and worked only for a few months thereafter before discontinuing
practice, apparently due to ill health at the time. Thereafter
she
devoted her time to raising her young children, but worked briefly
as a lecturer in contract law at Varsity College. Effectively,
however, she did not practise as an attorney from shortly after her
admission as such, until she opened the firm of Christina
Seeman and
Associates during June 2009, operating from the matrimonial home.
It is apparent from the evidence that the sole purpose of the
creation of the firm Christina Seeman and Associates was to act
as
the plaintiffs’ attorneys in the main action. These are her
only clients. Apart from herself, the firm has no employees
except,
so she alleges, her husband who was employed by her for the single
purpose of dealing with the four plaintiffs’
claims.
Despite the fact that Mr Hunt, according to Ms Seeman “..
consults to my firm in his capacity as a professional
assistant..
, the firm has rendered no fee notes and has
generated no income. Ms Seeman confirmed that, apart from informing
the KwaZulu-Natal
Law Society that Mr Hunt was employed in her firm,
there exists no formal record of such employment. So, for instance,
has he
not earned any income from the firm and he is not registered
with any statutory body or for any statutory purpose, including
income tax, as an employee of the firm, nor has his name ever
appeared on the firm’s letterhead in any capacity.
Ultimately Ms Seeman conceded that, some savings apart, she
personally has no income and that she is financially entirely
dependent
upon Mr Hunt, to whom she referred to as the breadwinner.
Mr Hunt, in response to a question whether the firm of Christina
Seeman and Associates had sent his (the plaintiff) companies
any fee
notes, responded that his wife “..
has not sent me a fee
note for the work that I have done. M’Lord why would ..
”.
Indeed, Mr Hunt was constrained to concede that the only matters in
which he was involved in as an employee or consultant
of the firm
Christina Seeman and Associates related to the plaintiffs’
claims in the main action and matters incidental
thereto.
It is also apparent that, at all material times, Mr Hunt was and
remains the sole director of each of the plaintiff companies,
which
he claims are active in business but whose actual business
activities remain for present purposes unclear. He was and remains
a
fulltime employee of Transnet Limited.
The first to fourth defendants object to the fact that Mr Hunt
purports to appear on behalf of the plaintiffs in these proceedings
on various grounds. It is submitted on their behalf that as the sole
director of each of the plaintiff companies, Mr Hunt has
no locus
standi to appear in the high court. This rule has been generally
applied since the decision in Yates Investments (Pty)
Limited vs
Commissioner for Inland Revenue
1956 (1) SA 364
(AD).
Counsel submitted that although this court retains, by virtue of its
inherent power to regulate its own proceedings, the ability
exceptionally to permit corporate representation otherwise than by a
legal representative duly qualified to appear, such discretionary
audience was to be sparingly granted, only in exceptional
circumstances and then only to be obtained by way of a timeous and
properly motivated application for such relief. In such application
it had to be demonstrated that the circumstances of the particular
matter called for a relaxation of the rule requiring professional
representation. In this regard counsel relied upon Manong &
Associates (Pty) Limited vs Miniter of Public Works and Another
2010
(2) SA 167
(SCA) and pointed out that in the present instance no
such application has been made, or such concession sought.
Counsel further stressed that Mr Hunt, not only as the sole director
of each of the plaintiff companies, but also by virtue of
his
historical and continued involvement in their affairs and
activities, was likely to be both a material and potentially
controversial witness in their causes in connection with the main
action, including the pending interlocutory applications. Counsel
stressed the self evident undesirability of the legal representative
of a litigant also being its witness in the same proceedings.
Counsel drew attention to and emphasised the potentially conflicting
pressures which would be brought to bear upon Mr Hunt, were
he
permitted to appear on behalf of the plaintiffs in the various
proceedings in the main action, as well as the other matters
flowing
therefrom. On the one hand he would be required to discharge the
functions of a legal representative, which requires
a degree of
detachment from the immediate wishes and desires of his client. In
my view it matters not whether such functions
have to be discharged
in the capacity of an advocate or attorney with right of appearance.
In either event Mr Hunt would likely
find it difficult, if not
impossible, to observe such detachment when, effectively, he is the
client.
Counsel also submitted that the situation is likely to arise where
Mr Hunt, particularly after having given evidence on behalf
of the
plaintiffs, as counsel would be required to make submissions to the
court as to the credibility, candour and integrity
of the
plaintiffs’ witnesses, of whom he was one. This, so the
submission ran, would place both him and the court in a
most
difficult position. Accordingly, so it was submitted, Mr Hunt’s
personal interests and professional obligations would
find
themselves in conflict to a degree where this court would be
justified in prohibiting the appearance of Mr Hunt on behalf
of the
plaintiffs in the main action and interlocutory matters flowing
therefrom.
Mr Broster for the sixth defendant associated himself with the
submissions of Mr Hartzenberg for the first to fourth defendants
and
in addition sought to emphasise the conflicting roles and duties
towards the court of a legal representative for a party
on the one
hand, and the subjective interests of such a party as a litigant in
litigious proceedings before a court of law on
the other hand.
With reference to De Villiers and Another vs McIntyre NO
1921 AD 425
counsel submitted that the requirement of the independence of a
legal representative was of long standing and that the position
of
Mr Hunt was far more difficult than was the case in Elgin
Engineering Co (Pty) Limited vs Hillview Motor Transport
1961 (4) SA
540
(N), where the instructing attorney who was called as a witness
by counsel, gave unchallenged evidence and Wessels, J. nevertheless
held it to be undesirable.
In the present circumstances Mr Broster submitted that the situation
could be summarised thus; Mr Hunt, as the sole director
of the
plaintiff companies instructs his wife (Ms Seeman, the plaintiffs’
attorney). She in turn instructs Mr Hunt (her
employee) to sign the
particulars of the plaintiffs’ claim in his capacity as an
attorney with right of appearance in the
high court and to appear as
counsel for the plaintiffs in that forum when in law, as sole
director of the plaintiffs, he effectively
is the client.
Counsel submitted that the situation was absurd, in that should Mr
Hunt, appearing as he does as counsel, require to take instructions
in order to reply to a question from the court, then he would then
have to turn to his wife as instructing attorney, who would
have to
consult with him as sole director of the plaintiffs and then
instruct him as counsel in terms of instructions he gave
her as the
plaintiffs’ director. The undesirability of the situation is
self evident.
Both counsel for the defendants emphasised the requirements of
honesty, truthfulness and independence in relation to counsel
and
submitted that Mr Hunt has not achieved those standards in relation
to his alleged capacity as counsel for the plaintiffs
in these
proceedings. It was submitted that Mr Hunt failed to make a full and
candid disclosure of his relationship with the
plaintiffs’
attorneys of record and that, in any event, both he and Ms Seeman
were unclear whether his involvement with
the latter’s firm
was that of a professional assistant, which is akin to an employee,
or that of a consultant, which is
akin to a professional associate
different from that of an employee over which the employer can
exercise control. In this regard
counsel referred to Smit vs
Workmen’s Compensation Commissioner
1979 (1) SA 51
(AD) where
Joubert JA at page 61 A-H set out the different legal
characteristics of a contract of service (
location conduction
operarum
) and a contract of work (
locatio conductio operis
).
But all this gives rise to a further question, namely why the
plaintiffs, through Mr Hunt and Ms Seeman, sought to rely upon
such
a convoluted arrangement to achieve legal representation in these
proceedings by Mr Hunt in particular. It has not been
shown that
should Mr Hunt, for whatever reason, be unable to represent the
plaintiffs, that they would then be unable to secure
alternative
legal representation so that, in the event of Mr Hunt being
disqualified, an injustice to the plaintiffs would result.
In the
circumstances I am driven to the conclusion that, for reasons of his
own, Mr Hunt wishes personally to represent the plaintiffs
in these
proceedings.
Since no application was made for relaxation of the general rule,
thus enabling the representation of the plaintiff companies
in these
high court proceedings by Mr Hunt in his capacity as their sole
director and moving force behind the plaintiffs, it
follows that Mr
Hunt did not believe that he could justify such an exception within
the framework of the requirements set out
in the Manong’s case
(supra).
The only other manner in which he himself could then conceivably
manage to represent the plaintiffs in the legal proceedings
to be
commenced with the institution of the main action, whilst at the
same time retaining his employment with Transnet Limited,
which
represents the source of his and Ms Seeman’s immediate
livelihood, was to qualify as a practitioner, with right of
appearance in the high court.
That, no doubt, is what gave rise to the decision, either made by Mr
Hunt or, alternatively, taken between Mr Hunt and Ms Seeman,
for the
latter nominally to establish a legal practice and thus to obtain a
fidelity fund certificate from the KwaZulu-Natal
Law Society.
Section 41(1) of the Attorneys’ Act 1979 provides that:-
“
41 Possession of fidelity fund
certificates by practitioners practising on own account or in
partnership
(1) A practitioner shall not practise or act as a practitioner on
his own account or in partnership unless he is in possession of
a
fidelity fund certificate.
”
It is immediately apparent that a practitioner practising other than
for his own account or in partnership, does not require
a fidelity
fund certificate in order to perform the functions of a practising
attorney. The obvious manner in which to do so
would be as an
employee of a firm which holds such a fidelity fund certificate.
Of course, as a fulltime employee of Transnet Mr Hunt could not
himself establish a legal practice and obtain a fidelity fund
certificate in his own name. This suggests that the stratagem
devised was for his wife Ms Seeman to do so and then for Mr Hunt,
ostensibly as her employee, without the need for his own independent
fidelity fund certificate, thus to be enabled to personally
to
appear for and to represent “his” companies in the
intended high court litigation.
The
Merriam-Webster Dictionary defines a
“
stratagem
”,
inter alia
,
as 1.
a
:
an artifice or trick in war for deceiving and outwitting the enemy
b
:
a cleverly contrived trick or scheme for gaining an end; and 2 :
skill in ruses or trickery. The New Shorter Oxford English
Dictionary gives its meanings as 1. A military ploy, a piece of
strategy, esp. an artifice or trick designed to outwit or surprise
the enemy; and 2. An artifice, a trick, a device or scheme for
gaining an advantage. b. Skill in devising expedients; cunning.
From the evidence it becomes clear that the creation of the firm of
Christine Seeman and Associates was merely a stratagem devised
to
provide Mr Hunt with the means of appearing in person in the high
court on behalf of “his” companies, the plaintiffs
in
these proceedings, when otherwise he would be unable to do so.
Ms Seeman by no means fulfils the role of a practising attorney in
the true sense of that expression. She is but putty in the
hands of
her husband and has not sought at any stage to act in any manner
independently from him. The suggestion that Mr Hunt
is “employed”
by Christene Seeman and Associates is no more than an illusion
created by Mr Hunt, or by Mr Hunt and
Ms Seeman acting jointly.
In the process this stratagem, in my view, reflects adversely upon
the integrity of both Mr Hunt, as well as of Ms Seeman. To
create a
pretence in order to achieve that which cannot otherwise be attained
by fair means brings to mind the words of James
JP in Ex parte Swain
1973 (2) SA 427
(N) at 434H, as quoted with approval by Howard JP in
Society of Advocates of Natal and Another vs Merret
1997 (4) SA 374
(N) at page 383 C-D, namely;
“
'
Furthermore,
it is of vital importance that when the Court seeks an assurance from
an advocate that a certain set of facts exists
the Court will be able
to rely implicity on any assurance that may be given. The same
standard is required in relations between
advocates and between
advocates and attorneys. The proper administration of justice could
not easily survive if the professions
were not scrupulous of the
truth in their dealings with each other and with the Court. The
applicant has demonstrated that he is
unable to measure up to the
required standard in this matter.
'”
In the circumstances it appears to me inevitable that Mr Hunt cannot
be permitted, as a legal practitioner, to represent or to
appear on
behalf of the plaintiffs in these proceedings. This is so in the
first instance by reason of my finding, as set out
above, that there
was not in existence any
bona fide
relationship of employment
between Mr Hunt and his wife Ms Seeman and in terms of which Mr Hunt
is employed as an attorney by
his wife’s firm. It follows that
he requires a fidelity fund certificate in his own right, which he
does not have and without
which he is not entitled independently to
practice as an attorney and to represent the plaintiffs in these
proceedings.
But even if I were wrong in these conclusions to which I have come
then, in any event, Mr Hunt’s personal interests are
so
intertwined with the interests of the plaintiffs that he is
manifestly unable to properly discharge the functions of an
independent legal practitioner in purporting to represent the
plaintiffs in these proceedings. As such, in the exercise of its
residual discretion arising from its inherent powers to regulate its
own proceedings, I consider the facts of the present matter
to be of
such a nature that it would be proper to disqualify Mr Hunt from
representing the plaintiffs in these proceedings.
The disqualification of Mr Hunt as legal representative for the
plaintiffs in the circumstances also impact upon the issue of
the
costs brought about by the defendants’ objections to his
locus
standi
. I see no reason why costs should not follow the result.
The first to fourth defendants, as well as the sixth defendant,
successfully
resisted the representation of the plaintiffs by Mr
Hunt. In the process the first to fourth defendants employed the
services
of two counsel and the sixth defendant the services of
senior counsel. In my view the complexity of the issues arising from
the
main action, as well as the rule 30 and 47 applications, justify
such employment and the present issue, relevant to the objections
to
the representation of the plaintiffs by Mr Hunt, was by no means
free from difficulty and needs to be evaluated against the
background of the other matters as well. The fifth defendant, though
not actively opposing, took the precaution of briefing counsel
to
protect his interests. I see no reason to deprive the fifth
defendant of such costs as he incurred in so doing.
As is also apparent from what I have said above, I remain disturbed
by the stratagem created in an attempt to achieve legal
representation for the plaintiffs by Mr Hunt. Both Mr Hunt, as well
as Ms Seeman, are attorneys and thus officers of this court
and as
such are liable to maintain the high standards of integrity demanded
from such practitioners. I therefore propose directing
that the
Registrar of this Court forward a copy of this judgment also to the
KwaZulu-Natal Law Society, Pietermaritzburg, for
such steps as that
body, as guardian of the attorneys’ profession in our
province, may decide to initiate in all the circumstances
of this
matter.
In the result I make the following order:-
a. It is determined that Mr J. V. E. Hunt is not entitled to appear
for or to legally represent the first to fourth plaintiffs
inclusive
in the action under case number 8951/2009, including any and all
interlocutory or other proceedings incidental thereto,
or arising
therefrom.
b. The plaintiffs shall jointly and severally, the one paying the
others to be absolved, pay the costs of the proceedings relevant
to
the determination of the issue of the
locus standi
of the said
Mr J. V. E. Hunt, including the costs of the referral for and the
hearing of oral evidence and all costs previously
reserved relevant
thereto. With regard to the first to the fourth defendants, both
inclusive, their costs shall include the costs
of two counsel, where
employed. The costs of the sixth defendant shall include the costs of
senior counsel and the fifth respondent
shall be entitled to recover
such costs as he incurred. All costs shall be calculated on the scale
as between party and party.
c. The remaining applications in terms of rules 30 and 47 are
adjourned
sine die
and their costs are reserved.
d. In addition I direct that the Registrar of this Court forward a
copy of this judgment to the Chief Executive Officer of the
KwaZulu-Natal Law Society, Pietermaritzburg, for such steps as that
body, as guardian of the attorneys’ profession in our
province,
may decide to initiate in all the circumstances of this matter.
_____________________
VAN ZÿL , J.
APPEARANCES:
For the First, Second, Third
and Fourth Applicants: Adv C. J. Hartzenberg SC with Adv Ms M. E.van
Jaarsveld, instructed by Login Attorneys of Pietermaritzburg.
Ref: Mrs Lindy Logan
For the First, Second, Third
and Fourth Respondents: Mr J. E. V. Hunt, instructed by Christina
Seeman & Associates c/o Tatham Wilkes Attorneys,
Pietermaritzburg.
Mr. NR Tatham
For the Fifth Respondent: Adv M. Chetty, instructed by the State
Attorney.
116/913/09/K/P17
For the Sixth Respondent: Adv L. B. Broster SC, instructed by
Woodhead Bigby & Irving, c/o Ngcobo Poyo & Diedricks Inc
of
Pietermaritzburg.
Ref: 11/W006/036
Ref: RCM/SP/14B1796A9
Ref: Mr. I Olivier
Date argued : 11 March 2011
Delivered
: 10 March
2012
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