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2024
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[2024] ZALMPPHC 74
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Nkondo v Limpopo Provincial Legal Practice Council (2659/2020) [2024] ZALMPPHC 74 (12 July 2024)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:2659/2020
(1)
REPORTABLE:
YES/NO
(2) OF INTEREST TO
THE JUDGES: YES/NO
(3) REVISED
Signature:
Date:
2024/07/12
In the matter between:
NKONDO PHAMELA
CLINTON
APPLICANT
And
LIMPOPO PROVINCIAL
LEGAL PRACTICE COUNCIL
RESPONDENT
REASONS FOR “JUDGMENT”
IN TERMS OF UNIFORM RULE 49
MONENE
AJ
[1] On 19 June 2024 this
court sitting in the opposed motion special allocation roll removed
this application from the roll for
lack of ripeness for hearing and
mulcted the applicant with costs on an attorney and client scale.
[2] On 1
st
July 2024 a request for reasons for “judgement”
ostensibly from Letsela Nkondo Attorneys on behalf of the applicant,
Mr Nkondo was brought to my attention.
[3] The request called
upon me to “within 15 days of its receipt hand to the
“Register” of the court “a
written judgement”
in respect of the aforesaid decision to remove the matter from the
roll and therein show “the facts
found to be proved”, the
grounds relied upon to arrive “at the punitive scale Costs
Order” and my “reasons
for judgement”.
[4] I do not understand a
removal or striking off a matter from the roll to be a “judgement”
in the sense of having
a finality which may invite a request for
reasons pursuant to an appeal and on that score find the request for
reasons for “judgement”
to be a curiosity. The reasons
for the removal of the application were expressed by this court
explicitly in court and ought to
be clear from the transcribed
record. I have also been made aware that in the intervening period
while these reasons were still
pending, the applicant has filed or
sought to file a “Notice of Appeal” in this matter with
this court’s clerk,
that is, in circumstances where curiously
no application for leave to appeal has yet been brought before this
court. A notice of
appeal even if it was not prematurely issued would
not come to this court but would have had to serve before a court of
higher
standing to me, to wit, a Full Court of this Division or the
Supreme Court of Appeal in exceptional circumstances
[5] Be that as it may, I
have decided to indulge the applicant and briefly explain why the
application was struck off the roll with
a punitive costs order.
Afterall the cost order perhaps cries out to be explained again
notwithstanding that apparently a “Notice
of Appeal” has
already been issued and maybe, the law being broad and all of us
being subject to acquiring new strands of
knowledge every day, the
matter is already being prosecuted at appeal by the applicant
somewhere sans leave to appeal being entertained
by this court.
THE FACTS IN
BRIEF
[6] This application came
before me as a very late addition to my special allocation motions on
the morning of 18 June 2024.
[7] Having not had time
to go through the file, I decided to, prior commencing with original
special allocation roll, determine
from the parties counsel what the
triable issues were so as to allocate a time to hear the matter.
[8] Counsel for the
respondents, Mr Vilakazi, pointed out that the matter was not ripe
for hearing as the applicant had only six
days earlier on 12 June
2024 served the respondent with a notice to stand by his papers and
not amend same post receipt of the
review record in terms of Uniform
Rule 53. His contention was that six days after receiving that notice
the respondent was still
within the requisite dies to file an
answering affidavit to the applicant’s founding papers.
[9] The response of the
applicant’s counsel, Mr Mohoto, was that the respondents had
“said nothing” in their submission
on ripeness and that
he wished to proceed and get the orders the applicant prayed for on
an unopposed basis.
[10] It was perplexing to
this court as to how this matter could have been allotted a special
allocation date while it was yet unopposed.
I then decided to stand
down the matter until the following day being 19 June 2024 to afford
me an opportunity to first deal with
the original roll and to go
through the file in preparation for the following day.
[11] Upon subsequent
perusal of the file I discovered the following:
11.1 There was a 2020
pending initial application brought by the respondent, the Limpopo
chapter of the LPC under the same case
number which in Part A sought
to have the applicant in casu temporarily suspended from practicing
as an attorney pending the final
determination of Part B in which the
main prayer was a final suspension for ten years. The full set of
affidavits in that matter
have been filed.
11.2 There was further
application by the LPC in which it sought leave to file a
supplementary affidavit in terms Uniform Rule 6(5)(e).
11.3. Then there was the
current application by the applicant under the same case number where
he, in the main, seeks to review
and set aside the appointment of the
investigator who investigated his matter as a run up to and after the
decision of the respondent
to bring a suspension application as well
as all the steps taken by the respondent to charge him.
11.4 It was true that the
applicant had only on 12 June 2024 served the respondent with a
notice in terms of rule 53 to the effect
that he would not be
amending nor supplementing his papers.
11.5 The matter had
previously on 19 February 2024 been removed from the roll for want of
ripeness apparently per two judges, Naude-Odendaal
J and Mathabathe A
J.
11.6 I could not find the
actual request for a preferential hearing date/special allocation in
the file and made a mental note to
source it from the parties when
the matter appeared the following day.
11.7 The notice of set
down filed and served by the applicant only pertained to this
application and referred not to the other applications
brought by the
LPC.
ANALYSIS AND
REASONING IN BRIEF
[12] On being provided
with the request for special allocation by the applicant’s
counsel when the matter re-appeared I deciphered
the following
therefrom:
12.1 The request to the
Judge President had been made by the applicant’s attorneys,
Letsela Nkondo Associates Inc on behalf
of the applicant as
“respondent” in the 2020 application brought by the LPC
against him.
12.2 According to the
request letter Part A of the LPC application had already been
determined and the applicant (respondent therein)
had already been
temporarily suspended.
12.3 The applicant had
told the Judge President in the request letter that the allocation
was for all the pending applications which
were to be heard” in
a single sitting for purposes of expedience” and finality.
12.4 The applicant had
anticipated because all the applications, that is, the LPC’s
main Part B application, the LPC’s
rule 6(5) (e) application
and his application would run for a duration of 3 to 5 court days.
[13] I brought all these
to the attention of counsel for the applicant who however insisted
that he wanted to be heard only on this
as yet unripe application.
The respondent, this time represented by Mr Raselebana, persisted
that the application was not ripe
for hearing as they were legally
still within the dies to file their answering affidavit.
[14] It was clear to this
court that the special allocation had been granted by the Judge
President not for the hearing of a just
one of the applications more
so one which was clearly not yet ripe for hearing. The applicant did
not and could not deny that following
their rule 53 notice served on
12 June 2024 the respondent still had time to file its answering
affidavit. Despite all this the
applicant’s counsel persisted
in his quest to be heard only on this application on an unopposed
basis, making light of the
point of ripeness taken by the respondent
and arguing without any proof nor cover of any legal instrument that
the respondent in
anyway knew long before the notice dated 12 June
2024 that the applicant was not going to amend or supplement its
papers after
receiving the rule 53 record. must state from the outset
that, in my view,
[15] In all the above
circumstances it was clear to this court that there was no way the
application could be heard regard being
had to the following:
15.1 The special
allocation approved by the Judge President was not for one unopposed
application but for all the matters as per
the motivation in the
request.
15.2 There was no way the
Judge President could have referred an unopposed application to the
special allocation roll and it made
no sense that 3 to 5 days could
have been requested by the applicant for one as yet not opposed
application.
15.3 The respondent was
legally correct to state that in terms of the rules of court they
still had time to file an answer.
15.4 The notice of set
down filed and served by the applicant did not set the rest of the
matters down as per the motivation of
the request forwarded tp the
Judge President. It clearly only set down this application.
[16] It is for those
reasons that the matter was removed from the roll.
REGARDING COSTS
[17] It is trite that
costs lie primarily within the discretion of the court. It is further
so that mulcting a party with a punitive
costs order is motivated in
the main by misconduct of a party which is of such a nature that it
attracts a court’s opprobrium.
[18] While the reasons
for punitive costs order were expressed on the record on 19 June 2024
and were heard by the applicant now
seeking reasons, I oblige the
applicant by indicating the following as that which attracted my
serious frown on the applicant reflected
in costs on attorney and
client scale:
18.1 The view this court
has that the applicant misled the Judge President in his request for
special allocation request letter
in seeking allocation of his
application when on 27 March 2024(the date of the letter of request)
he knew that the respondent had
not yet filed an answering affidavit
and indeed that he had not yet filed his rule 53 notice not to amend
or supplement his papers.
He thus applied for date knowing fully well
the matter was not ripe.
18.2 The applicant
opportunistically set only his application down when he knew that his
request for special allocation had been
motivated on the basis of
hearing all the applications under this case number in their
entirety.
18.4 The applicant sought
to irregularly and probably by sleight of hand bring an “unopposed”
application to a special
allocation roll callously trampling on all
manner of rules and directives in the process.
18.5 Even when it was
pointed out to the applicant’s counsel by the court that his
own letter requesting special allocation
did not support his desired
approach from whichever angle the matter was approached the applicant
persisted nonchalantly with a
desire to be heard on an allegedly
unopposed basis.
[19] Accordingly, a
punitive costs order against the applicant was, in view, called for
and was invited by the applicant himself
in this matter.
MALOSE S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
18 and 19 June 2024
Reasons
delivered on
:
12 July 2024
For
the Applicant
:
Adv. M J Mohoto
:
Instructed by Letsela Nkondo Associates Inc
:
Tel: - 015 880 2031
:
Email:
admin@letselankondoinc.co.za
For
the Respondent
:
Mr A M Vilakazi// Adv T Raselebana
:
Instructed by A M Vilakazi Tau Inc. Attorneys
:
Tel:
015 291 1975
:
Email:
info@vilakazitauattorneys.com