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[2011] ZAFSHC 5
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Papane and Another v Van Eeden and Others (5377/09) [2011] ZAFSHC 5 (19 January 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case no: 5377/09
In the matter between:
ISRAEL SABAT PAPANE
….............................................
1
st
PLAINTIFF
PETRUS PAPIKI PAPANE
…...........................................
2
nd
PLAINTIFF
AND
DERICK VAN EEDEN
…................................................
1
st
DEFENDANT
FRIENDLY SUPERMARKET
(PTY) LTD
…..................
2
nd
DEFENDANT
MASILO KOENANE N.O
…...........................................
3
rd
DEFENDANT
COMMISSION FOR
CONCILIATION
MEDIATION &
ARBITRATION
…..................................
4
th
DEFENDANT
CORAM:
C.J.MUSI,J
JUDGMENT BY:
C.J
.
MUSI, J
_____________________________________________________
DELIVERED ON:
19 JANUARY 2011
[1] This matter was
brought before me at the instance, or rather insistence, of the first
plaintiff as a review of taxation. Although
I am of the view that
this is not a review of taxation, I decided to write this judgment in
the interest of justice and finality.
[2] The facts of this
matter read like a tragicomedy. The second plaintiff (Petrus Papane)
is the first plaintiff’s (Isreal
Papane) brother. Petrus Papane
was employed by the second defendant (Friendly Supermarket (PTY)
Ltd). The plaintiffs allege that
the first defendant (Derick van
Eeden) owns Friendly Supermarket (PTY) Ltd, which is an artificial
person. No reason is given as
to why Derick van Eeden is cited in his
personal capacity. Friendly Supermarket (PTY) Ltd allegedly acted
unfairly (unfriendly?)
by dismissing Petrus Papane and other
employees for operational reasons. The matter was referred to
conciliation to the fourth
defendant (the CCMA) and the third
defendant (arbitrator) acting under the auspices of the CCMA, after
conciliation failed, ruled
that the CCMA does not have jurisdiction
to arbitrate the dispute and that the matter should be referred to
the Labour Court for
adjudication.
[3] Dissatisfied with
that decision, Petrus Papane approached his brother – who is,
at best, a legal dilettante, at worst,
a legal charlatan – to
assist him. His brother, whose legal aspirations by far exceed his
legal competence and ability, decided
to take up cudgels for him and
entered the fray as a plaintiff. Probably thinking that consanguinity
is sufficient to establish
Israel Papane’s
locus standi
in
this case, the siblings issued summons against the four defendants.
[5] In their particulars
of claim the plaintiffs requested the following relief:
“
(the) 2
nd
plaintiff prays for the judgment from this Honourable Court against
the defendants for
dilectual
damages
suffered by the 2
nd
plaintiff
as
a breach of contract
and the
costs
of the cause of action (sic).
An order for the payment of R71766.08
(Seventy One Thousand Seven Hundred and Sixty six and eight cents)
with the interests of
15, 5% calculated from date of the
commencement of the dispute in question till the date of the payment
(sic).
Further or Alternative relief.”
(My underlining)
[6] The defendants took
exception to the particulars of claim on the grounds that it is vague
and embarrassing and that it lack
averments which are necessary to
sustain the action. They requested that the plaintiffs’ claim
be dismissed with costs.
[7] The plaintiffs
opposed the application. After hearing argument my Brother Moloi J
made the following order:
“
The
exception is upheld with costs on attorney to client scale against
both respondents”
[8] The defendants’
attorney delivered a notice of taxation wherein the taxation was set
down for 3 August 2010. On the said
date Isreal Papane and the
defendants’ attorney attended the taxing master’s office.
The bill of costs was taxed and
an allocatur of R32 863. 07 (thirty
two thousand eight hundred and sixty three rand and seven cents) was
made.
[10] Isreal Papane then
filed what he called a notice in terms of Rule 48(1)(c). In the said
notice he states the following grounds
for the review:
“
i) That
application for exception by the purported attorney of the
Respondents/ Applicants was dismissed with costs by Honourable.
Justice Moloi on 22
nd
April 2010 not upheld as alleged.
Taxation of interim order should be
toto with Rule 49 (11) Uniform Rules (sic).”
[11] The taxing master in
his stated case states the following:
“
The
exception was actually upheld with costs on the 22
nd
of April 2010 by the Honourable Judge KJ Moloi (find attached the
copy of the order for easy reference).
Furthermore I don’t understand
contention the taxation of interim order must be in toto with Rule 49
(11) of Uniform Rules,
as there seems to be no appeal noted and the
decision to uphold exception in not interim order. Even if appeal was
noted the bill
could be taxed and the execution be stayed until
appeal is finalised (sic).”
[12] The exception had
one prayer
, viz,
that the plaintiffs’ claim be dismissed
with costs. When Moloi J upheld the exception he dismissed the
plaintiffs’
claim. Isreal Papane clearly misunderstood the
order.
[13] The second ground is
also without merit. There was a valid court order. The bill of costs
was properly taxed. There is no application
for leave to appeal
against Moloi J’s order. That order was a final order and not
an interim order. The taxing master is
correct in his assertion that,
if an appeal has been noted, the bill of costs may be taxed and the
execution thereof stayed until
after the finalization of the appeal.
It is clear that this matter was brought before me because Isreal
Papane does not understand
Moloi J’s order and the Rules.
[14] I am constrained to
make the following important concluding remarks. Isreal Papane is his
own redoubtable legal adversary who
by his disregard for or ignorance
of legal rules condemns, seemingly undeserving, cases to their
reward; undoubtedly to the detriment
of the “beneficiaries”
of his assistance and unfortunately to the annoyance and financial
harm of those who are dragged
to court to defend the frivolous
actions that he institutes.
[15] In the matter of
I
S Papane and Another v M Jerome and four Others
unreported case
of this division under case number 1677/2010, which was also an
unfair dismissal dispute that was dismissed at
the CCMA, Israel
Papane - who was never in the employ of any of the defendants - and
the dismissed employee approached this court
and he also cited
himself as the first plaintiff.
[16] In the
aforementioned case my brother Rampai J
inter
alia
made the following scathing remarks
about Israel Papane - who was the first applicant in the summary
judgment application - and
his conduct:
“
The first
applicant is well known in this Division. There are numerous files
where he is personally involved… This particular
matter
clearly shows that the first applicant parades himself in the eyes of
the public as a member of the legal profession who
can represent
people in courts of law… He is, therefore, by law not
qualified to do the things that he has done in this
particular matter
and I am certain that he does not do this free of charge. The first
applicant, in my view, is a danger to society.
His acts are damaging
to the image of the legal profession… It is now time that this
gentleman is stopped in his tracks.
Unless this is done, there is a
serious potential danger that unsuspecting members of the public will
suffer immense losses as
a result of the illegal activities of this
gentleman… His numerous and hopeless matters unnecessarily
clog our civil court
roll. Naturally they are enrolled at the expense
of deserving cases”
[17] Rampai J struck that
matter off the roll and ordered Israel Papane to pay the fifth
defendant’s costs on the attorney
client scale.
[18] It is clear that
Israel Papane cites himself as the first plaintiff in an attempt to
circumvent the law in order to act as
the second plaintiff’s
legal representative. I agree with Rampai J “that this man
should be stopped in his tracks”.
[19] Rampai J expressed
the view that there is not much that the Law Society can do because
Israel Papane is not its member. I beg
to differ. The Law Society has
a duty to protect the profession. If the problem is as pervasive as
described by Rampai J and the
person takes money from the public for
his illegal services, as Rampai J seems to suggest, then the Law
Society cannot be seen
to stand idly by whilst such atrocities are
committed in the name of the profession. The nobility of the
profession is eroded by
such criminal conduct. It is a crime to
pretend or hold out to be an attorney. See section 83 of the
Attorneys Act 53 of 1979 (the
Act). Members of the public are
afforded some protection by the attorneys fidelity fund if and when
their money is stolen by a
member of the profession or his/her
employee. See section section 26 of the Act. They do not enjoy any
protection if people of
Israel Papane’s ilk “act”
on their behalf and disappear with their money. In my view the Law
Society can investigate
the matter and if the investigation brings to
light that this man is holding out or pretending to be an attorney,
lay criminal
charges against him. It can, if it so elect, after such
investigation approach this court for interdictory or declaratory
relief
in order to protect the public and the profession. Attorneys
are officers of this court. If one of their own or a non member acts
in a systematic and calculated manner to undermine and erode the
public’s confidence in the courts or the judicial process,
on
the scale that Israel Papane seems to be doing, then the officers of
the court have a duty to form a citadel to protect the
integrity and
dignity of the courts. Surely it has locus standi to bring such
application to protect the public and the profession.
[20] In
LAW
SOCIETY V SAND, KOWARSKY & CO
1910 TPD 1295
the
locus standi of the Law Society was challenged by the respondents.
Wessels J said the following, at 1296,
“I take it that
any person has the right to point out to the Court that its process
is being abused, and then the Court will,
upon being made acquainted
with the circumstances, issue a rule, if it thinks fit. The Law
Society, I think, is perfectly entitled
to point out to the Court
that its process is being abused, and to ask the Court to take some
steps to rectify the matter.”
I agree. On the face
of it Isreal Papane is abusing the court’s process.
[21] In
Incorporated
Law Society vs Donner & Co.
(1905) 22 SC 108
,
a
case of holding out to be an attorney that was brought to court by
the Law Society, the court found the respondent guilty of contempt
of
court by reasoning as follows:
“…
without
leave of the Court, no person has the right to act as a solicitor,
and solicitors are generally recognised as officers of
the Court.
Where a person takes upon himself, without authority of the Court, to
practice or act, as an attorney when he is none,
I think the
authority of the Court is to some extent infringed upon, and for that
reason I am of opinion that the Court ought to
interefere in this
matter.”
I express no opinion with
regard to whether holding out to be an attorney, without more,
necessarily constitutes contempt of court.
I mention this case to
illustrate that this is another avenue open to the Law Society. It
also seems clear that the fact that section
83 imposes a pecuniary
penalty for holding out to be an attorney does not deprive the court
of its inherent power to punish such
person for contempt of court.
See
Incorporated Law Society v Wessels
1927
TPD 592
at 600
.
[22] This matter was not
opposed.
[23] I accordingly make
the following order:
(a) The application for
review is dismissed.
(b) No costs order is
made.
(c) The registrar is
requested to send a copy of this
judgment and a copy of
Rampai J’s judgment to the chief executive officer of the Free
State Law Society for its consideration.
_______________
C.J. MUSI, J
/ar