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[2024] ZALMPPHC 14
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Maluleka and Another v Limpopo Society of Advocates (7113/2017) [2024] ZALMPPHC 14 (15 February 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA;
LIMPOPO
DIVISION; POLOKWANE.
CASE
NO:
7113/2017
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
REVISED
DATE:
15 February 2024
RAULINGA
J
In
the matter between:
TSUNDZUKA
KEVIN MALULEKE:
FIRST
APPLICANT
LAW
SOCIETY OF THE NORTHERN PROVINCE:
SECOND
APPLICANT
And
LIMPOPO
SOCIETY OF ADVOCATES
JUDGMENT
Heard
on
24
November 2023
.
The
date and time for hand-down is deemed to be
on
the 15 February 2024
at
16:00.
This judgment handed down electronically by circulation to the
parties’ representatives by email and publication and release
to SAFLII.
CORAM:
TSOKA; RAULINGA JJ & BRESLER AJ:
INTRODUCTION
[1]
T
he applicant, Tsundzuka Kevin Maluleke (Mr
Maluleke), launched an application for recession of an order
authorizing his removal
from the roll of practicing advocates in
terms of
section 7
of the
Admission of Advocates Act 74 of 1964
,
which Act has since been repealed by the
Legal Practice Act 28 of
2014
.
[2]
The application is in terms of Rule
42(1)(a)(b) and (c) of the Uniform Rules of Court. As Mr Maluleke
readily conceded that there
is no patent error in the order sought to
be rescinded and the order against his striking off the roll of
practicing Advocates
was not granted by mistake common to the
parties, the application is solely premised in terms of subrule (c),
that is to say the
order granted against him was erroneously sought
or granted by the court. Thus, the application is in terms of Rule
42(1)(c) of
the Uniform Rules of Court.
[3]
It is common cause that the order sought to
be rescinded, was granted in his absence as he had not filed an
answering affidavit
to the founding affidavit filed by the Polokwane
Society of Advocates. This order sought to be rescinded was granted
on the 17
January
2023 by Ranchod and Mashile JJ.
PARTIES
[4]
Mr Maluleke is an adult male person of full legal capacity residing
at Unit
no.[…] J[…], B[…] Street, Northview
Estate, Bendor, Polokwane, Limpopo Province.
[5]
The Respondents is the Polokwane Society of Advocates, a legal entity
created
in terms of the
Legal Practice Act 28 of 2014
to look after
the affairs and interests of all Advocates enrolled and entitled to
practise in terms of the Act.
BACKGROUND
OF RELEVANT FACTS
[6]
On or about 17 October 2017, the Limpopo Society of Advocates issued
an application
in the Limpopo Division of the High Court, Polokwane
under case
number:
7113/2017, to have Mr Maluleke’s name struck off the roll of
practising advocates. Mr Maluleke filed a Notice of intention
to
oppose and thus the matter became an opposed application.
[7]
A myriad of interlocutory applications between the parties then
followed. However,
Mr Maluleke did not file an answering affidavit to
the founding affidavit of the Polokwane Society of Advocates. To
date, no answering
affidavit has been filed. And thus, Mr Maluleke is
in default.
[8]
In striking him off the roll of advocates, the court, amongst others,
considered
the fact that Mr Maluleke concealed to the court that
admitted him as an advocate that he had previously been charged and
convicted
of theft of monies belonging to his employer while serving
articles of clerkship and was also charged and convicted of
intimidation
against the witness that intended to testify against
him. These previous charges and convictions, to date, have not been
disputed
by Mr Maluleke. Neither has he challenged the Polokwane
Society of Advocates to have brought the application against him as
they
did.
ISSUES
[9]
The sole issue to be determined by this court is whether the orders
granted
on 17January 2023 are in terms of
Rule 42(1)
(c). erroneously
granted.
MR
MALULEKE’S SUBMISSION
[10]
Mr Maluleke contends that the order striking
him off the Roll of Advocates was erroneously sought and granted. He
also contends
that there are facts, which if the Judges who granted
the order on 17
January
2023 had been aware of, would not have granted the order sought by
the Polokwane Society of Advocates. His authority in
this regard is
the matter
of
Nyingwa
v Moolman
1993 (2) SA 508
(TK)
at 510F-G.
[11]
He further complains that the Polokwane Society of
Advocates concealed from the court, the fact that the Pretoria
Society of Advocates
brought a similar application against him in the
Gauteng Division of the High Court, Pretoria, which application to
have him struck
off the roll of advocates was refused as the court
had no jurisdiction and the matter was referred to the Local Division
of the
High Court Thohoyandou, the court that has jurisdiction. The
application has not been proceeded with.
[12]
According to Mr Maluleke, had the above facts been
brought to the attention of the court on the 17
January 2023, the order to strike him off the roll of
advocates would not have been granted.
[13]
The contentions and submissions of Mr Maluleke have no merits. There
is no causal link between the
application brought in Pretoria High
Court by a different entity and the present application brought by
Polokwane Society of Advocates,
which is a different entity to the
party that litigated in Pretoria. In any event, there is no error in
the granting of the order
of 17 January 2023. The order granted on
that day was not erroneously sought. Neither was it erroneously
granted.
POLOKWANE
SOCIETY OF ADVOCATE’S SUBMISSIONS
[14]
Polokwane Society of Advocates raised a
preliminary point of
lis pedens
in that this court cannot entertain the application for rescission,
as there is a pending appeal in this matter.
[15]
The basis of the preliminary point is that Mr
Maluleke not only launched an appeal against the order of 17 January
2023, which appeal
to date is still pending but simultaneously
launched this application for rescission.
[16]
As pointed out during argument, the preliminary point is dead in the
water. It has no merit. There
is no bar that the two distinct
remedies may be sought simultaneously. In
Thivhase Royal Council
and Another v Tshivhase and another; Tshivhase and Another v
Tshivhase and Another
[1992] ZASCA 185
;
1992 (4) SA 852
(A)
at page 865 the Supreme
Court of Appeal reasoned thus:
“
..In principle
, I can see no reason why Kennedy and Ligege were not entitled to
pursue this quite separate and independent remedy,
irrespective of
the pending first appeal.
Rule 42(1)(c)
does not (Unlike
s 36(c
) of
Act 32 of 1944) require that no appeal should be pending. Nor, as
counsel suggested, were the applicants put to an election
between
pursuing the appeal and of applying for rescission. They could do
both”.
[17]
In the result, the point
in limine
is dismissed.
COMPLIANCE
WITH THE REQUIREMENTS OF RULE 42(1) (C)
[18]
That Mr Maluleke has failed to file an answering affidavit despite
the elapse of a long period, is
common cause. To date, in spite of
his appearance in court and arguing the application, no answering
affidavit has been filed.
[19]
As his authority to challenge the court order of 17 January 2023, he
heavily relies on the decision
of Mathopo JA in the matter
of
Crockery Gladstone Farm v Rainbow Farms (Pty) Ltd (592/18)
[2019] ZACA 61
(20 May 2019
) that the application is
erroneously sought or granted.
[20]
Reliance on the authority of Crockery Gladstone is
misplaced. In that matter, the parties had engaged in settlement
negotiations
and instructions from the applicant were still awaited
when a default judgement was sought and granted. That the order
sought in
that matter was erroneously sought and granted, is more
than clear.
[21]
In the present matter, the parties were not
involved in the settlement negotiations. No agreement was reached for
Mr Maluleke not
to file an answering affidavit. That Mr Maluleke was
in default of filing an answering affidavit, admits no doubt.
[22]
His further submission that his constitutional
rights of fair hearing were infringed, as the court did not grant him
an opportunity
to be heard, is without merit. In terms of the rules
of court, once a party has filed an intention to oppose, he is
expected within
15 days thereof to file an answering affidavit.
[23]
In the present matter, despite the launching
of a myriad of applications, Mr Maluleke consciously elected not to
file an answering
affidavit. Even though he appeared in court on
17January 2023 and argued the application himself, he still did not
file an answering
affidavit. In these circumstances, it is not
far-fetched to surmise that he failed to file an answering affidavit,
as the Polokwane
Society of Advocates case was unanswerable.
[24]
The conclusion reached is that the application is
not erroneously sought or granted. In the result, the application is
dismissed
with costs.
Tsoka
J
Judge
of the High Court
I
agree
Raulinga
J
Judge
of the High Court
I
agree
Bresler
A.J
Acting
Judge of High Court
APPEARANCES
For
Applicant:
Adv
T.K Maluleke (in person)
Instructed
by:
Ntsako
Phyllis Mbhiza Attorneys
For
the Respondent:
Mr
J.F Moolman
Instructed
by:
Pratt
Luyt & De Lange Attorneys