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2024
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[2024] ZAMPMBHC 20
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South African Legal Practice Council v Van Rensburg and Another (3938/2023) [2024] ZAMPMBHC 20 (3 April 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE NO: 3938/2023
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: YES
3/4/2024
In the matter between:
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
Applicant
and
ZIETTA
JANSE VAN RENSBURG
First Respondent
VAN
RENSBURG AND VAN RENSBURG INCORPORATED
Second
Respondent
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 03 April 2024 at 10:00.
JUDGMENT
MASHILE J:
INTRODUCTION
[1]
The Applicant (“LPC”), on
urgent basis, seeks relief that
the
automatic suspension of the orders granted by this Court on 22
February 2024 be uplifted such that the orders become immediately
executable pending the Respondents’ leave to appeal application
launched on 26 February 2024. The LPC does so believing that
it has
satisfied the prerequisites contemplated in Section 18(1) and (3) of
the Superior Courts Act No 10 of 2013 (“the Act”),
which
I will explore as this judgment unfolds hereunder.
[2]
I deem it necessary to mention at this juncture that the parties were
at variance
on the issue of urgency of the application. The LPC, on
the one hand, alleged that the application met the requirements of
Uniform
Rule of Court 6(12) while the Respondents, on the other,
contended otherwise. The Court considered the matter and noted that
Courts
have come to accept that it is appropriate that matters
involving the interest of the public, especially where members of the
public
entrust parties like the Respondents with their financial
matters, should ordinarily be dealt and disposed of on urgent basis.
This matter is no exception to that generally settled principle. The
Court in
South
African Legal Practice Council v Mokhele
[1]
adopted
a similar approach.
[3]
Counsel for the LPC pointed out that the answering affidavit was not
served in line
with the time lines set by the LPC in the notice of
motion. She implored this Court to characterise the answering
affidavit as
pro non scripto
. Besides, she argued, the
answering affidavit contained irrelevant evidence that failed to
address the issues raised in this application.
The Respondents were
not before Court. The Court considered Counsel’s assertions and
evaluated the Respondents’ absence
and that they have filed an
answering affidavit and resolved to admit the answering affidavit
despite it having been served two
days before the hearing of this
application.
[4]
The Court decided as it did mindful of the case of
E.M.W
v S.W
[2]
on
which the LPC relies. The Court in that matter held that Uniform Rule
6(12) affords an Applicant to create its own rules within
which a
Respondent must file a notice to oppose and an answering affidavit.
The Court added that it is for that reason that condonation
must be
sought when the Court is approached. A Respondent, said the Court,
who ignores the timeline so set by an Applicant does
it at his own
peril and runs the risk of an order been granted against him by
default.
[5]
It is generally required of a Respondent to observe the time lines
set by an Applicant
in urgent cases. However, the application of the
principle should not be intransigent where circumstances demand
flexibility. One
of the considerations that persuaded this Court was
that the affidavit was delivered two days before the hearing albeit
that one
of those days was a holiday. In that time, the LPC was able
to produce supplementary heads of argument and could, given the
lateness,
have asked for a stand down to enable it to prepare and
deliver a replying affidavit, which it did not do. The Court further
reasoned
that the LPC would not be necessarily prejudiced by the
admission of the answering affidavit. Besides, as it is often stated,
the
rules are not there for the Court but the Court is there for the
rules.
CONCISE FACTUAL MATRIX
[6]
This application follows upon the order of this Court dated 22
February 2024. The
essence of the order is that after an assessment
of a number of complaints levelled at the Respondents by the LPC,
this Court felt
that the LPC had made a
prima facie
case
warranting an order in accordance with the provisions of Section 43
of the Legal Practice Council Act 28 of 2014. The Respondents
are
appealing the judgment and order of 22 February 2024. The practical
implication of the leave to appeal is that the order became
automatically suspended pending its finalisation. By launching this
application, the LPC seeks to uplift the automatic suspension
of the
order to enable it to execute it.
ISSUES
[7]
The question raised by this matter is simply whether or not the LPC
has made a case
for the relief it seeks – upliftment of the
automatic suspension of the court order of 22 February 2024 brought
about by
the leave to appeal delivered by the Respondents on 26
February 2024. For the LPC to be successful, it has to comply with
the three
jurisdictional factors set out in Section 18(1) and (3) of
the Act.
LEGAL FRAMEWORK
[8]
Section 18 of the Act on which this application is founded, in
relevant parts, provides
as follows:
“
Suspension
of decision pending appeal
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders
otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal,
is suspended pending the decision of
the application or appeal.
(2) … …
…
(3)
A court may only order otherwise as contemplated in subsection (1) or
(2), if the party
who applied to the court to order otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable
harm if the court does not so order and that
the other party will not suffer irreparable harm if the court so
orders.
(4)
If a court orders otherwise, as
contemplated in subsection (1)—
(i)
the court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an
automatic right of appeal to the next highest court;
(iii)
the court hearing such an appeal must deal with it as a matter of
extreme urgency; and
(iv)
such order will be automatically suspended, pending the outcome of
such appeal.”
[9]
The LPC as a party pursuing relief in terms of Section 18(1) read
with Section 18(3
of the Act), must satisfy three jurisdictional
factors. These are that:
9.1
The existence of exceptional circumstances;
9.2
It will suffer irreparable harm if the suspension in Section 18(1) is
not granted; and
9.3
The Respondents will not suffer irreparable harm if relief in Section
18(1) is granted to
the LPC;
9.4
and 9.3 above must be established on a balance of probabilities. The
absence of anyone of the three
requirements will be adequate to
dismiss the application.
[10]
To the extent that this Court will have to determine whether there
exist exceptional circumstances
the Court in
MV
Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas, & Another
[3]
,
a case to which the LPC referred this Court, stated that:
“
What
does emerge from an examination of the authorities, however, seems to
me to be the following:
1.
What is ordinarily contemplated by the words “exceptional
circumstances”
is something out of the ordinary and of an
unusual nature; something which is excepted in the sense that the
general rule does
not apply to it; something uncommon, rare or
different; “besonder”, “seldsaam”,
“uitsonderlik”,
or “in hoë mate ongewoon”.
2.
To be exceptional the circumstances concerned must arise out of, or
be incidental
to, the particular case.
3.
Whether or not exceptional circumstances exist is not a decision
which depends
upon the exercise of a judicial discretion: their
existence or otherwise is a matter of fact which the Court must
decide accordingly.
4.
Depending on the context in which it is used, the word “exceptional”
has two shades of meaning: the primary meaning is unusual or
different; the secondary meaning is markedly unusual or especially
different.
5.
Where, in a statute, it is directed that a fixed rule shall be
departed from
only under exceptional circumstances, effect will,
generally speaking, best be given to the intention of the Legislature
by applying
a strict rather than a liberal meaning to the phrase, and
by carefully examining any circumstances relied on as allegedly being
exceptional.”
ANALYSIS
[11]
The starting point should be the existence of exceptional
circumstances envisaged in Section
18(1). Circumstances will always
differ from one case to the next making it difficult if not
impossible to have one rule that is
of general application.
Ordinarily, the LPC, as a body that has been established to regulate
the legal profession, presumes that
every legal practitioner will
abide the regulations and rules that it has prescribed for the smooth
operation of its members. Those
rules and regulations are there not
only for the smooth running of the profession but in addition, they
exist to protect members
of the public who, on daily basis, entrust
their huge financial matters with members of the LPC.
[12]
I am reminded here that this Court has already,
albeit
prima facie
,
found that there is substance in the complaints against the
Respondents. Following that finding, it granted the order of 22
February
2024. A refusal of this application will mean that the
Respondents will carry on practicing. The implication is, of course,
that
they will accept funds and deal with financial matters of the
members of the public. It will be remiss in the extreme were this
Court to countenance this to happen.
[13]
The LPC cannot afford this because at the centre of the relationship
of its members and the public
is trust. A betrayal of the trust of
this magnitude has to be treated with the utmost caution lest there
is a public outcry that
the LPC has permitted a practitioner to
continue to practice her indiscretions notwithstanding. In other
words, the LPC cannot
afford to risk its reputation and the trust the
public has invested in it by standing back and doing nothing hoping
that the Respondents
will not repeat their indiscretions. For the
above reasons, I believe that the requirement of exceptional
circumstances has been
satisfied.
[14]
Turning to the requirement that the LPC ought to show that it will
suffer irreparable harm if
the relief it seeks is not granted. The
requirements in Section 18(3) are somewhat interconnected with the
existence of exceptional
circumstances. The most obvious prejudice
and/or irreparable harm to be suffered by the LPC is the loss of
trust of the public.
Such perception may even lead to the public
believing it to be complicit if it does not act decisively by purging
members like
the First Respondent. The point is that the LPC exists
to ensure that the interaction between the public and its members
thrives
on trust and respect. An erosion of the aforesaid may spell
its demise.
[15]
Lastly, the issue is whether or not the Respondents will suffer
irreparable harm and/or prejudice
if the relief sought by LPC is
granted. The Respondents have vigorously argued that they will
undoubtedly. The existence of the
order of this Court of 22 February
2024 means that there is reason to investigate and finalise this
matter. For as long as it lingers,
the more prejudice the Respondents
will suffer because the dark cloud above them will persist. Thus, the
granting of the relief
in this application cannot prejudice them, if
anything, it will militate against any prejudice that there may be.
One thing that
the LPC should not do is to allow the Respondents to
deal with funds of the members of the public conscious that they have
not
been cleared of wrong doing.
[16]
In the result, I propose the following order;
1.
This Court dispenses with the forms and service set out in the
Uniform Rules
in terms of rule 6(12)(a) and disposes of this matter
as one of urgency;
2.
The suspension of the order granted by this Court dated 22 February
2024 under
the above case number brought about as a result of the
pending leave to appeal application, is uplifted in terms of
Section
18(1)
of the
Superior Courts Act, 10 of 2013
;
3.
The order shall be effected/implemented and/or executed with
immediate effect;
4.
The Respondents are jointly and severally liable, the one paying the
other to
be absolved, for the costs of the LPC occasioned by this
application.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
I, agree
L COETZEE
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES:
Counsel
for the Applicant:
Ms
T Ratshibvumo
Instructed
by:
Ratshibvumo
Attorneys Inc
Counsel
for the Respondent:
Instructed
by:
Date of Judgment:
02 April 2024
[1]
5511/2022) ZAFSHC 80 (27 March 2023) at para 5
[2]
(26912/2017)
[2023] ZAGPJHC 710 (15 June 2023)
[3]
2002 (6) SA 150
(C)