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2024
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[2024] ZAGPPHC 934
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South African Legal Practice Council v Selota (55157/2021) [2024] ZAGPPHC 934 (25 September 2024)
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG HIGH COURT
DIVISION, PRETORIA
Case no: 55157
/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
25 SEPTEMBER
2024
SIGNATURE
In the matter between:
SOUTH AFRICAN LEGAL
PRACTICE COUNCIL
Applicant
And
M S
SELOTA
Respondent
JUDGMENT
MAKHOBA, J
[1]
The applicant is asking the court to find the respondent in contempt
of the suspension order.
The court is asked to commit the respondent
to prison for two years or such other period as the court may deem
fit, alternatively
suspended on such terms and conditions as the
court may deem fit and appropriate.
[2]
The applicant is the South African Legal
Practice Council and the respondent a legal practitioner (attorney)
that is suspended from practicing as such pending final adjudication
of the application for his name to be struck from the roll.
[3]
The respondent was suspended by the full bench on 7 February 2020
pending finalization of the
application for the removal of his name
from the roll of attorneys.
[4]
The respondent has since exhausted all avenues of appeal against the
suspension order.
[5]
On 22 February 2021, the respondent brought an application for
reconsideration to the Constitutional
Court in terms of Rule 11 (1)
(b) of the Constitutional Court Rules. This application was dismissed
by the Constitutional Court
on 31 March 2021.
[6]
On 9 March 2021 the applicant brought an urgent application to
interdict the Council from implementing
the suspension order. The
application was dismissed.
[7]
The respondent has not provided his complete accounting record and
files to the curator.
[8]
On the date of hearing, the respondent
submitted that according to the practice directive he
must be allowed
to file heads of argument before the hearing.
[9]
In reply to this contention counsel for the applicant addressed the
court and submitted that,
the new practice directive does not require
the filing of heads of argument before a date of hearing.
[10]
The court found that the new practice directive was applicable when
the applicant applied for the date of
hearing. Thus, the court ruled
in favour of the applicant and dismissed the respondent’s point
in limine
. Counsel for the respondent withdrew from the
matter.
[11]
The respondent asked for the postponement which application was
opposed by the applicant. The court refused
the application because
it was not in the interest of justice to postpone the matter.
[12]
The applicant proceeded to address the court and referred to his
heads of argument. The applicant argued
that the respondent continued
to practice after the court order.
[13]
The applicant contended further that notwithstanding the dismissal of
his application for leave to appeal
in the Constitution Court, the
respondent continued to practice on his own account.
[14]
The applicant submitted that there can be no doubt that the
respondent continued practising in contravention
of the suspension
order.
[15]
In his answering affidavit
[1]
the respondent says, “
The
documents that were provided to the sheriff were not random
documents, but were documents selected by me so that my trust
financial
position could be established”.
[16]
The respondent refuted the submission by the applicant and contended
that he did comply with the court order.
[17]
In my view it is clear from the papers before me that the respondent
failed to comply with the court order
dated 7 February 2020.
[18]
In
Fakie
NO CCll Systems (Pty) Ltd
[2]
it
was held that, the test for when disobedience of a civil order
constitutes contempt is whether the non-compliance was committed
deliberately and mala fide.
[19]
In my view there is more than obduracy by the respondent to refuse to
comply with the court order up to date
and this amounts to wilfulness
not to comply with the court order.
[3]
[20]
I therefore conclude that the applicant succeeded in showing that the
respondent is in contempt of the court
order dated 7 February 2020.
[21]
I make the following order.
21.1
The respondent is committed to twelve (12) months imprisonment which
is wholly suspended for three (3) months
on condition that, the
respondent comply fully with the court order dated 7 February 2020.
21.2
The respondent is ordered to pay the costs of this application on the
scale as between attorney and client.
MAKHOBA
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
AND RESERVED JUDGMENT: 05 AUGUST 2024
JUDGMENT
HANDED DOWN ON: 25 SEPTEMBER 2024
Appearances
:
For
the Applicant:
Mr
L. Groome (instructed by) Rooth & Wessels Attorneys
For
the Respondent:
In
Person
[1]
CaseLines
005 – 39 at par 18.12.
[2]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) at par 9
[3]
Fakie
NO par 22