IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL DIVISION, PIETERMARITZBURG
Case no: 7940 /2024P
In the matter between:
PHILANI GODFREY MAVUNDLA APPLICANT
and
THE MEC: DEPARTMENT OF CO -OPERATIVE
GOVERNMENT AND TRADITIONAL AFFAIRS
KWAZULU -NATAL FIRST RESPONDENT
INDEPENDENT ELECTORAL COMMISSION SECOND RESPONDENT
UMVOTI LOCAL MUNICIPALITY THIRD RESPONDENT
THE ACTING MUNICIPAL MANAGER FOURTH RESPONDENT
ORDER
The following order is granted:
1. The applicant’s application for leave to appeal is dismissed with costs , such costs
to be on scale C.
2. The costs incurred in respect of the additional appearances on 22 and 25
September 2024 are to be paid by Surendra Singh and Associates , on scale A.
2
3. The registrar is requested to send a copy of this judgement to the Legal Practi ce
Council (KwaZulu -Natal Provincial Office) for its attention and further action.
JUDGMENT
E Bezuidenhout J
[1] The applicant applied for leave to appeal against the findings of fact and/or
rulings of law arrived at in my judg ment delivered on 1 6 August 2024, which contained
the reasons for an order I made on 19 June 2024 .1 The applicant filed a notice of leave
to appeal (‘notice of appeal ’) a few days after the order was granted , containing various
grounds of appeal, even though I had not yet provided the reasons for my order . A
supplementary notice of application for leave to appeal (‘supplementary notice of
appeal’) was filed on 6 September 2 024, which contained, in addition to the grounds of
appeal, rather unusually, several references to case authorities in support of
submissions made in respect of the grounds of appeal. The first respondent , the MEC
for the Department of Co -Operative Government and Traditional Affairs, KwaZulu -Natal ,
opposed the application for leave to appeal .
[2] The facts of the matter are set out in detail in my judgment and will not be
repeated herein,2 suffice to say that following an application by the first respondent for
the reconsideration of a n order and a rule nisi containing interdictory relief granted in the
applicant’s favour on 20 May 2024, I discharged the rule and rescinded the order.
[3] The grounds of appeal are set out in detail in the notice of appeal and the
supplementary notice for leave to appeal . I have taken note of all the points raised and
carefully considered each one. I initially intended to only highlight a few of the issues
raised during argument. It has however become necessary to deal with the
1 The reasons are cited as follows: Mavundla v MEC: Department of Corporative Government and
Traditional Affairs Kwazulu -Natal and others [2024] ZAKZPHC 66 ( Mavundla ).
2 See Mavundla para 5 onwards.
3
supplementary notice of appeal and the submissions made before me in much more
detail , due to certain concerning issues that came to light after the matter was initially
argued before me.
[4] Before I deal with the merits of the application, i t is perhaps appropriate to say
something ab out the test to be applied in applications of this nature. In terms of section
17(1) (a)(i) of the Superior Courts Act 10 of 2013, leave to appeal may only be given
where the judge is of the opinion that ‘the appeal would have a reasonable prospect of
success’ , or i n terms of section 17(1) (a)(ii), if there is ‘ some other compelling reason
why the appeal should be heard ’.
[5] In The Mont Chevaux Trust v Goosen and others ,3 Bertelsmann J (in an obiter
dictum ) held that:
‘It is clear that the threshold for granting leave to appeal against a judgment of a High Court has
been raised in the new Act. The former test whether leave to appeal should be granted was a
reasonable prospect that another court might come to a different conclusion, see Van Heerden
v Cronwright & Others 1985 (2) SA 342 (T) at 343H. The use of the word “would” in the new
statute indicates a measure of certainty that another court will differ from the court whose
judgment is sought to be appealed against .’
[6] The test was also considered in S v Smith4 where the court held:
‘What the test of reasonable prospects of success postulates is a dispassionate decision, based
on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different
to that of the trial court. In order to succeed, therefore, the appellant must convince this court on
proper grounds that he has prospects of success on appeal and that those prospects are not
remote, but have a realistic chance of succeeding. More is required to be established than that
there is a mere possibility of success, that the case is arguable on appeal or that the case
cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for
the conclusion that there are prospects of success on appeal .’ (Footnotes omitted .)
3 The Mont Chevaux Trust v Goosen [2014] ZALCC 20, 2014 JDR 2325 (LCC) para 6.
4 S v Smith [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) (Smith ) para 7.
4
[7] In Four Whee l Drive v Ratt an NO,5 Schippers JA, with reference to Smith ,
referred to the principle that leave to appeal should only be granted where ‘a sound,
rational basis [exists ] for the conclusion that there are prospects of success on appeal ’.
Put differently, t he court is required to test the grounds on which leave to appeal is
sought against the facts of the case and the applicable legal principles. In Four Wheel
Drive the court a quo was also criticised for granting leave to appeal when there were
no reasonable prospects of success, which resulted in the parties being put through the
inconvenience and expense of an appeal without any merit.
[8] It is perhaps also appropriate at this stage to deal with an appeal court ’s
approach when dealing with a discretion exercised by the court a quo . As set out in my
judgment at paras 37 and 52, I was called upon to exercise a discretion in respect of the
reconsideration application. In Trencon Construction (Pty) Ltd v Industrial Development
Corporation of South Africa6 the court held as follows:
‘[83] In order to decipher the standard of interference that an appellate court is justified in
applying, a distinction between two types of discretion emerged in our case law. That distinction
is now deeply -rooted in the law governing the relationship between appeal courts and courts of
first instance. Therefore, the proper approach on appeal is for an appellate court to ascertain
whether the discretion exercised by the lower court was a discretion in the true sense or
whether it was a discretion in the loose sense. The importance of the distinction is that either
type of discretion will dictate the standard of interference that an appellate court must apply.
[84] In Media Workers Association , the Court defined a discretion in the true sense:
“The essence of a discretion in [the true] sense is that, if the repository of the power
follows any one of the available courses, he would be acting within his powers, and his
exercise of power could not be set aside merely because a Court would have preferred
him to have followed a different course among those available to him.”
[85] A discretion in the true sense is found where the lower court has a wide range of equally
permissible options available to it. This type of discretion has been found by this Court in many
instances, including matters of costs, damages and in the award of a remedy in terms of section
35 of the Restitution of Land Rights Act. It is “true” in that the lower court has an election of
5 Four Wheel Drive Accessory Distributors CC v Rattan NO [2018] ZASCA 124; 2019 (3) SA 451 (SCA)
para 34. See also Independent Examinations Board v Umalusi and others [2021] ZAGPPHC 12 paras 2 -
4.
6 Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and
another [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC).
5
which option it will apply and any option can never be said to be wrong as each is entirely
permissible.
[86] In contrast, where a court has a discretion in the loose sense, it does not necessarily have
a choice between equally permissible options. Instead, as described in Knox , a discretion in the
loose sense —
“means no more than that the court is entitled to have regard to a number of disparate
and incommensurable features in coming to a decision.”
[87] This Court has, on many occasions, accepted and applied the principles enunciated
in Knox and Media Workers Association . An appellate court must heed the standard of
interference applicable to either of the discretions. In the instance of a discretion in the loose
sense, an appellate court is equally capable of determining the matter in the same manner as
the court of first instance and can therefore substitute its own exercise of the discretion without
first having to find that the court of first inst ance did not act judicially. However, even where a
discretion in the loose sense is conferred on a lower court, an appellate court’s power to
interfere may be curtailed by broader policy considerations. Therefore, whenever an appellate
court interferes with a discretion in the loose sense, it must be guarded.
[88] When a lower court exercises a discretion in the true sense, it would ordinarily be
inappropriate for an appellate court to interfere unless it is satisfied that this discretion was not
exercised —
“judicially, or that it had been influenced by wrong principles or a misdirection on the
facts, or that it had reached a decision which in the result could not reasonably have
been made by a court properly directing itself to all the relevant facts and principles.”
(Footnote omitted.)
An appellate court ought to be slow to substitute its own decision solely because it does not
agree with the permissible option chosen by the lower court.’ (Footnotes omitted .)
[9] In returning to the present application, counsel for the applicant , Ms S Pillay
(employed by the applicant’s attorney of record, Surendra Singh and Associates),
referred to my finding on the issue of joinder, where I had held that the applicant had
failed to join the councillors of the municipal council, the majority of whom had
requested the first respondent to assist in convening a meeting where they wanted to
deal with motions for the removal of the applicant and the speaker. I was referred to
Pieterse v The Public Protector . The citation provided to me was ‘2014 (3) SA 551’. I
asked in which division the matter originated and was told that it is a Gauteng,
6
Johannesburg matter. It was submitted that it was held in this matter that non -joinder
was not fatal.
[10] It was further submitted that I erred and that it was not necessary for the
councillors to have been joined. I was also referred to ‘Burgers v The Executive
Committee of the Municipal Council of the Greater Germiston Municipality .’ I asked for
the citation of the matter but Ms Pillay was unable to provide it. She then stated that she
is abandoning any reliance on this case . The supplementary notice of appeal also
contained lengthy submissions on this point . It was submitted that once the matter was
referred to the first respondent by the councillors, they merely became ‘passive
observers’ and merely had a general interest in the matter. It was also submitted that as
the municipality employed more than twenty councillors, it was ‘impr actical and
unnecessary to serve documents on each one ’. The following was submitted in para 21 :
‘It was established in Dube v Schleich [2013] ZALC 16, where the court held that joining every
individual in an organization may be unnecessary when the organization itself is properly
represented’.
It was further submitted in para 23 that:
‘The Constitutional Court in Municipality of City of Cape Town v Aon South Africa (Pty) Ltd
emphasized the procedural efficiency and practicali ty in legal matters concerning governance
structures. This precedent affirms that the municipality, as a collective body, adequately
responds to legal obligations without necessitating exhaustive lists of individual participants,
therefore reinforcing the applicant's stance to only join the municipality’.
No citation was provided. I will return to the significance of these cases later.
[11] I asked counsel for the applicant to address me in particular on the ground of
appeal that my characteri sation of the application as an ex parte application was
‘fundamentally flawed and misinterprets the nature of such proceedings .’ She could
point me to no such finding as nowhere in my judgment did I make such a finding. She
conceded that there was no merit in this particular ground of appeal but submitted that
what was actually meant was that I erred in finding that there was not adequate service
on the respondents and that the urgency of the matter justified the nature of the service.
It was also submitted that the court who granted the order was satisfied with the service.
I dealt with this issue in some detail in my judgement. N ot only was the first respondent
7
afforded a mere forty minutes notice by email (which contained no reference to an
impending urgent application in the subject line), but also a mere three minutes notice
after delivery by hand to a person whose designation and position in the first
respondent’s office is unknown.
[12] It was submitted in para 1 of the supplementary notice of appeal that Uniform
rule 4 (1) specifically ‘allows for dispensation from general rules of service in urgent
matters , reflecting the Court’s capacity to accommodate expedited processes when
justice demands it’. Rule 4 (1) does no such thing and makes it mandatory for the sheriff
to effect service in one of the prescribed manners set out therein .7 It is in fac t Uniform
7 Uniform rule 4(1) reads as follows:
‘(a) Service of any process of the court directed to the sheriff and subject to the provisions of
paragraph (aA) any document initiating application proceedings shall be effected by the sheriff in
one or other of the following manners:
(i) by delivering a copy thereof to the said person personally: Provided that where
such person is a minor or a person under legal disability, service shall be effected
upon the guardian, tutor, curator or the like of such minor or person under
disability;
(ii) by delivering a copy thereof at the place of residence or business of the said
person, guardian, tutor, curator or the like to the person apparently in charge of
the premises at the time of delivery, being a person apparently not less than
sixteen years of age. For the purposes of this paragraph when a building, other
than an hotel, boarding -house, hostel or similar residential building, is occupied
by more than one person or family, 'residence' or 'place of business' means that
portion of the building occupied by the person upon whom service is to be
effected;
(iii) by delivering a copy thereof at the place of employment of the said person,
guardian, tutor, curator or the like to some person apparently not less than
sixteen years of age and apparently in authority over such person;
(iv) if the person so to be served has chosen a domicilium citandi , by delivering a
copy thereof to a person apparently not less than sixteen years of age at the
domicilium so chosen;
(v) in the case of a corporation or company, by delivering a copy to a responsible
employee thereof at its registered office or its principal place of business within
the court's jurisdiction, or if there be no such employee willing to accept service,
by affixing a copy to the main door of such office or place of business, or in any
manner provided by law;
(vi) by delivering a copy thereof to any agent who is duly authorised in writing to
accept service on behalf of the person upon whom service is to be effected;
(vii) where any partnership, firm or voluntary association is to be served, service shall
be effected in the manner referred to in paragraph (ii) at the place of business of
such partnership, firm or voluntary association and if such partnership, firm or
voluntary association has no place of business, service shall be effected on a
partner, the proprietor or the chairperson or secretary of the committee or other
managing body of such association, as the case may be, in one of the manners
set forth in this rule;
(viii) where a local authority or statutory body is to be served, service shall be effected
by delivering a copy to the municipal manager or a person in attendance at the
8
rule 6 (12)(a) that permits a judge to dispense with the forms and service provided for in
the rules , where this is deemed expedient in light of the matter before the court .8
[13] In South African Airways SOC v BDFM Publishers (Pty) Ltd9 Sutherland J
expressed strong views on ineffective service in urgent applications, in particular when
an application is brought on less than twenty -four hours’ notice:
‘Doubtless, SAA appreciated this obvious fact that service was necessary. However, what it and
its legal representatives did, pursuant to a responsibility to achieve effective service in order to
respect the principle of audi alterem partem , was not simply clumsy, but unprofessional. When a
litigant contemplates any application in which it is thought necessary to truncate the times for
service in the rules of court, care must be taken to use all reasonable steps to mitigate such
truncation. In a matter in which less than a day's notice is thought to be justifiable, the would -be
applicant's attorney must take all reasonable steps to ameliorate the effect thereof on the would -
be respondent. The taking of all reasonable steps is not a collegial courtesy, it is a mandatory
professional responsibility that is central to the condonation necessary to truncate the times for
service .’
municipal manager's office of such local authority or to the secretary or similar
officer or member of the board or committee of such body, or in any manner
provided by law; or
(ix) if two or more persons are sued in their joint capacity as trustees, liquidators,
executors, administrators, curators or guardians, or in any other joint
representative capacity, service shall be effected upon each of them in any
manner set forth in this rule:
Provided that where service has been effected in accordance with subparagraphs (ii);(iii); (iv); (v)
and (vii) of subparagraph (a), the sheriff shall in the return of service set out the details of the
manner and circumstances under which such service was effected.
(aA) Where the person to be served with any document initiating application proceedings is
already represented by an attorney of record, such document may be served upon such attorney
by the party initiating such proceedings.
(b) Service shall be effected as near as possible between the hours of 7:00 and 19:00.
(c) No service of any civil summons, order or notice and no proceedings or act required in
any civil action, except the issue or execution of a warrant of arrest, shall be validly effected on a
Sunday unless the court or a judge otherwise directs.
(d) It shall be the duty of the sheriff or other person serving the process or documents to
explain the nature and contents thereof to the person upon whom service is being effected and to
state in a return or affidavit or on the signed receipt that the person serving the process or
document has done so. ’
8 Uniform rule 6(12) (a) provides:
‘In urgent applications the court or a judge may dispense with the forms and service provided for
in these rules and may dispose of such matter at such time and place and in such manner and in
accordance with such procedure (which shall as far as practicable be in terms of these rules) as it
deems fit.’
9 South African Airways SOC v BDFM Publishers (Pty) Ltd and others 2016 (2) SA 561 (GJ) para 24.
9
[14] Counsel for the first respondent submitted that the statements in the applicant’s
notice of appeal , that service by email is permissible and has become practise , are
simply not correct and that the requirements of service in Uniform rule 4 may only be
deviated from when an applicant has made out a case for condonation for such non -
compliance.10
[15] It was also submitted on behalf of the first respondent that it was further clear
from the papers that the applicant had also failed to deal at all with the provisions of
section 35 of the General Law Amendment Act 62 of 1955 (the GLAA) and made no
case out for condonation for this material failure. It was further contended that I was
requested to reconsider the order initially granted by the court and that I dealt with it in
terms of the wide discretion I was afforded in doing so in para 37 of my judgment. I
found inter alia at para 52 that I would not have condoned the applicant’s non-
compliance with the GLAA nor the extreme short service. It was held in ISDN Solutions
(Pty) Ltd v CSDN Solutions CC and others11 that a reconsideration may involve a
‘deletion of the order, either in whole or in part, or the engraftment of additions thereto ’. I
rescinded the order and discharged the rule nisi which in my view has the same effect
as a ‘deletion’ .
[16] Counsel for the applicant also submitted that instead of rescinding the order, I
should have adjourned the matter to be argued on the opposed roll in due course. She
however conceded that the papers were complete and that the applicant had filed a
detailed replying affidavit. In my view it would have been an absolute waste of judicial
time and resources to simply adjourn the matter to the opposed roll for argument before
another judge when I had read and prepared the papers.
[17] I requested the applicant’s counsel to address me on the issue of whether the
discretion I exercised was one in the true sense or rather in the loose sense as
mentioned above. She was unable to address me on this issue. Counsel for the first
respondent submitted that the discretion I was called upon to exercise was one in the
10 DE van Loggerenberg Erasmus: Superior Court Practice (Revision Service 23, September 2024) at D1
Rule 4 -8 to D1 Rule 4 -9.
11 ISDN Solutions (Pty) Ltd v CSDN Solutions CC and others 1996 (4) SA 484 (W) at 487A.
10
true sense , which in effect meant that it was one that was not touched on appeal unless
there was a clear misdirection on the facts or the law.
[18] Counsel for the first respondent , during argument, addressed all the findings
made in para 52 of my judgment and submitted that no misdirection was made on the
facts or the law and that no other court would come to a different finding.
[19] I was also referred to the particular ground of appeal as set out in para 35 of the
supplementary notice of appeal where reference was made to the finding in respect of
the applicant ’s failure to disclose the previous urgent application. It was stated that the
applicant was under no obligation to disclose the application ‘brought by a third party’ as
an ‘independent initiative to stop unlawful meetings’. It was submitted by first
respondent’s counsel that the previous urgent application was brought by the speaker
for the express benefit of the applicant as he ha d attempted to stop the councillors from
proceeding with both the applicant and the speaker’s removal. It was further submitted
that this application should have been disclosed and that m y finding in that regard was
correct.
[20] During the course of writing this judgment it came to my knowledge that the case
reference or citation for Pieterse might be incorrect.12 I checked my notes and asked the
chief stenographer to listen to the recording, but this was the exact reference provided
by Ms Pillay. There is no such case reported in the South African Law Reports , nor in
the All South African Law Reports, and no reference to such a case could be found on
the website of the South African Legal Information Institute, referred to as ‘SAFLII’. No
reference could likewise be found for Burgers ,13 Dube14 or Aon SA .15 I requested the
two law researchers employed at the Pietermaritzburg High Court to peruse the
supplementary notice of appeal and to provide all the cited cases to me. Of the nine
12 Ie Pieterse v The Public Protector 2014 (3) SA 551 (GJ) ( Pieterse ).
13 Ie Burgers v The Executive Committee of the Municipal Council of the Greater Germiston Municipality
(Burgers ), where no citation was initially provided.
14 Dube v Schleich [2013] ZALC 16 ( Dube ).
15 Municipality of City of Cape Town v Aon South Africa (Pty) Ltd (Aon SA ) where no citation was provided
in the supplementary notice of appeal.
11
cases referred to and cited, only two could be found to exist, albeit that the citation of
one was incorrect.
[21] I had serious concerns and wanted to afford Ms Pillay an opportunity to provide
the authorities she relied on. To this end an email was addressed to her on 18
September 2024, requesting that copies of the two cases referred to in argument as
well as the cases cited in the supplementary notice of appeal be provided to me. Both
she and Mr De Wet SC, who represented the first respondent, ie the MEC , appeared
before me on 20 September 2024. Ms Pillay applied for an adjournment as she had
been unable to obtain th e cases in the limited time available. I informed her that I could
not find the cases she referred me to in court and that it appeared that the cases d id not
exist. She contended that the case references were provided to her by the ‘article
clerk ’, Ms Rasina Farouk, employed by the firm , and that she had not had sight of the
cases as she was ‘overbooked’ and working under a lot of pressure. It then came to
light that the clerk , these days referred to as a candidate legal practitioner , was the
person who drafted the supplementary notice of appeal. I requested Ms Pillay to make
arrangements for Ms Farouk to come to court to explain the origin of the cases cited in
the supplementary not ice of appeal. She duly appeared before me and upon being
questioned she indicated that she obtained the cases referred to from law journals by
doing resea rch through her so-called Unisa portal . I asked her which law journals
specifically and she could not respond. She requested an opportunity to go back to the
office to look at her search history and to provide the relevant cases to me. I asked her
if she by any chance used an artificial intelligence application such as ChatGPT to
assist with her research but she denied having done so.
[22] I indicated to Ms Pillay and Ms Farouk that I would stand the matter down to
enable them to go to the high court library and draw the relevant cases, most of which
were cited as either South African Law Reports or All South African Law Reports. They
could simply bring the actual law reports into court.
[23] Upon resumption of the matter, Mr Suren Singh, the proprietor of the firm,
appeared in court. He had not been present earlier. He indicated that it was not possible
12
to obtain copies of the cases I required as the librarian wanted him to pay for the copies,
which he was not willing to do. He indicated that they needed time to provide me with
the relevant copies of the cases cited. I indicated to him that it would be difficult to do
so, as the cases did not exist. He insisted that they had in fact already found one of the
cases during the adjournment on one of his employees’ cell phone, namely the ‘Citibank
case’ and that he just needed time to provide me with all the cases. The cell phone was
handed up to me to show the reference to a Competition Tribunal matter with reasons
for a judgment . I will return to this below. I agreed to adjourn the matter to 25
September 2024 to provide Mr Singh and his staff with a final opportunity to provide the
cases cited in court at the hearing and in the supplementary noti ce of appeal. I indicated
that I would only accept cases from either the South African Law Reports, All South
African Law Reports or SAFLII.
[24] On 25 September 2024 Mr Singh appeared before me. He indicated that as an
elderly practitioner (which I took as possibly meaning ‘technologically challenged ’) he
had some difficulty in obtaining all the cases referred to but that he tried his best to do
so, using ‘Google ’. His firm apparently did not have access to either the South African
Law Reports or the other sources previously referred to. No mention was made of the
law journals his candidate attorney, Ms Farouk , allegedly sourced the cases from. When
referring to the previous hearing, he indicated that Ms Fa rouk now felt that she had
been placed under undue duress when she had to appear before me , which
appearance he submitted was uncalled for. I reminded him of the court ’s oversight when
it comes to issues that arise from the conduct of its officers. In this regard the following
was held in Legal Practice Council v Mkhize :16
‘The public’s faith in the legal system is a condition for the rule of law. The conduct of lawyers
can diminish the legitimacy of the legal system. It is for this reason, that the Court has oversight
over the conduct of its officers. The public must be able to trust their lawyers will act ethically
and with integrity; and if the public cannot trust their lawyers: they must trust that the Court will
not hesitate to act. This is such a case, in which the Court is requested to act to redeem a
breach of the public’s trust in the legal system.’
16 Legal Practice Council v Mkhize 2024 (1) SA 189 (GP) para 1.
13
Along the same lines, R Sutherland DJP p ublished an article titled ‘The dependence of
judges on ethical conduct by le gal practitioners: The et hical duties of disclosure and
non-disclosure ’ where17 he sets out the focus of the article in the opening paragraphs as
follows :
‘the duty of legal practitioners to respect and support the process of court by making proper
disclosure and not mislead the court. It is argued that the culture of contemporary litigation must
be more respectful of this interrelationship between the judge and the legal practitioner to
produce efficient and fair litigation.’
He stated further :18
‘Moreover, in a climate of burgeoning caseloads and the unrelenting pressure on courts to
deliver on the expectations of the litigating public, it is plain that the dependence of the judge on
legal practitioners is acute. The pressures on the judge and on the legal practitioner when busy
and, perhaps, overwhelmed, create an environment of fatigue ripe for error, oversight and
slackness. The essence of professionalism is being resilient and compliant with ethical duties
under such conditions. The ethical responsibilities of the judge and of the legal practitioners are
in harmony. The symbiotic relationship between the roles of judge and legal practitioner
warrants the respect necessary to produce efficient and fair litigation.’ (Footnotes omitted .)
[25] The first judgment handed up to me was Moseneke and others v The Master of
the High Court . It had no citation and appeared to be merely a copy of the judgment as
it was handed down on 6 December 2000 . In para 5 of the supplementary notice of
appeal the citation read: ‘Moseneke v The Master [2001] 2 ALL SA 585 ( T)’. No
reference was made to a specific paragraph. There is no such case reported in the All
South African Law Reports . There is however a case reported as Moseneke and others
v Master of the High Court [2001] ZACC 27; 2001 (2) SA 18 (CC); 2001 (2) BCLR 103
(CC) which is the judgement handed up by Mr Singh. This matter deals with the
constitutionality of certain sections of the Black Administration Act 38 of 1927 and the
relevant regulations published under that act, as well as when direct access to the
Constitutional Court i s permissible . The case was quoted as it allegedly ‘ illustrates that
the courts should focus on whether the essence of the procedural requirements has
been met rather than scrutinising the minutiae of the service process .’ The judgment
17 R Sutherland ‘The dependence of judges on ethical conduct by legal practitioners: The ethical duties of
disclosure and non -disclosure’ (2021) 4 SAJEJ 47 at 47.
18 Ibid at 64.
14
does however not deal with the issue of service at all and is therefore not authority for
the submission made and in my view misleading, to say the least .
[26] The second judgment handed up was Citibank NA South Africa Branch v
Mercantile Bank Limited. It had no citation and had the heading ‘Reasons for Decision ’.
It emanated from the Competition Tribunal and appeared to have been handed down on
17 January 2005. It dealt with the reasons for the approval of the merger of the parties
involved. In para 8 of the supplementary notice of appeal, the citation read : ‘Citi Bank
NA v L & M Commercial Limited [1995] 1 ALL SA 352 (A)’. There is no such case in the
All South African Law Reports . There is however , published on SAFLII , the following
judgment: Citibank NA South Africa Branch and Mercantile Bank Limited [2005] ZACT
6. The case was quoted as it ‘reinforces th at once service is duly completed, the
receiving party ’s internal processing or acknowledgement of the document is not the
concern of the serving party.’ The reasons for approving the merger had absolutely
nothing to do with the issue of service and was likewise not authority for the submission
made.
[27] In para 9 of the supplementary notice of appeal , still dealing with the issue of
service, the following case is cited: Hassan v Coetzee [2004] 3 All SA 121 (T) wherein ‘it
was held that if one party within a corporate entity acknowledges receipt of documents,
it suffi ces to imply that all relevant parties within that entity have been informed ’. There
was no reference to a specific paragraph , in fact none of the cases cited contained any
references to any particular paragraphs, as has become the norm. There is no such
case reported in the All SA Law Reports , the South African Law Reports or on SAFLII.
Mr Singh conceded that he could not find the case. It apparently ‘came up on a Google
search but could not be downloaded’. No explanation was provided or offered as to
where Ms Farouk found this case reference.
[28] The next judgment handed up was Pienaar v Jordaan [2006] JOL 17230 (T) . It
dealt with an application fo r access to information held by a psychologist in a dispute
involving access to minor children. In para 11 of the supplementary notice of appeal the
case is cited as ‘ Jordaan v Pienaar [2002] 1 ALL SA 398 (T) ’, where it apparently was
15
concluded that ‘deliberate neglect or evasion of proper service does not invalidate the
service or the proceedings’. There is no such case reported in the All South Afr ican Law
Reports and its inclusion is once again misleading . The case handed up by Mr Singh
furthermore has nothing to do with the issue of service , and provides no support for the
submission made.
[29] In para 14 of the supplementary notice of ap peal where the applicant dealt with
the issue of my alleged finding that it was an ex part e application, which it had been
conceded was an unfounded and incorrect submission, reference was made to
Standard Bank of South Africa Ltd v Lethole [2002] 2 ALL SA 353 (T) where it was
allegedly held that ‘an application is deemed unopposed when respondents do not
appear or respond , rather than ex parte ’. There is no such case reported in the All
South African La w Reports nor in the South African Law Reports or on SAFLII . Mr Singh
handed up an extract of the Government Gazette no 39734 , published on 26 February
2016 , which was an advertisement of a sale in execution due to take place on 16 March
2016 . The name of the case and case number 56584/2015 are for a matter with a
similar, if not the same name, namely, The Standard Bank of South Africa Limited and
Makhuvha Golden Lethole with two further defendants listed in the advertisement . It
cannot by any stretch of the imagination have any bearing on the present matter or be
support or authority for the submission s made . Mr Singh conceded that he could not
find the case quoted in the supplementary notice.
[30] In para 21 of the supplementary notice of appeal , as mentioned above, the issue
of the applicant ’s failure to join the councillors of the third respondent is dealt with.
Reference was made to Dube v Schleich [2013] ZALC 16 where the court allegedly held
that ‘joining every individual in an organization may be unnecessary when the
organization itself is properly represented ’. There is no such case published on SAFLII
or reported in any law reports. I dealt with the issue of the no n-joinder of the councillors
in my judgment . Mr Sing h could not produce this case. No explanation was provided or
offered as to where Ms Farouk found this case reference.
16
[31] In para 23 of the supplementary notice of appeal , still dealing with the non -joinder
of the councillors , as quoted above , the following case is cited, albeit b y name only :
Municipality of the City of Cape Town v Aon South Africa (Pty) Ltd where the
Constitutional Court ‘empha sized the procedural efficiency and practicality in legal
matters concerning government structures ’. It was submitted that ‘this precedent affirms
that the municipality , as a collective body adequately responds to legal obligations
without ne cessitating exhaustive lists of individual participants, therefore reinforcing the
applicant ’s stance only to join the municipality’. There is no such case reported in the
law reports or on SAFLII. It is assumed that the applicant was perhaps referr ing to City
of Cape Town v Aur econ South Africa (Pty) Ltd [2017] ZACC 5 ; 2017 (4) SA 223 (CC);
2017 (6) BCLR 730 (CC) , which deals with an administrative review in terms of the
Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’) and in particular condonation
in terms of section 7 (1) of PAJA. It has no bearing on the submissions made and is not
authority for it either.
[32] In para 25 of the supplem entary notice of appeal, the applicant deals with his
failure to cite and join Mr Khat hide in the proceedings. The following case is cited ,
namely, Makro Properties (Pty) Ltd v Raal 2003 (1) SA 368 where it was allegedly held
that ‘an employee acting within the ambit of their duties does not need to be cited in
their personal capacity when their employer is already a party to the proceedings ’. Mr
Singh indicated that he had difficulty finding this case . He did pick up the citation on
Google but could not download it. There is no such case reported in the South Afr ican
Law Reports or the All South African Law Reports or published on SAFLII. The so -
called authority for the applicant’s submissions is accordingly once more non-existent. I
dealt with the issue of Mr Khathide’s non-joinder in para 26 of my judgment. It is but one
of the number of factors I took into account when exercising my discretion.
[33] In para 29 of the supplementary notice of appeal, the applicant deals with his
failure to establish th e requirements for an interdict . Reliance was placed on National
Treasury v Opposition to Urban Tolling Alliance (2012 ) 6 SA 223 (CC). The actual
citation is 2012 (6) SA 223 (CC) or [2012] ZACC 18 or 2012 (11) BCLR 1148 (CC) , but
otherwise it is an existent case. It was apparently held that ‘the court must consider the
17
nature and the extent of urgency when deciding on applications.’ The citation , like all the
others, contained no reference to a specific paragraph of the judgment. It appear s from
a cursory reading of the judgment by Moseneke DCJ that the court dealt with the
requirements of an interim interdict and not the nature and extent of the urgency as is
alleged on behalf of the applicant. The case is clearly not authority for the submissions
made.
[34] Mr Singh concluded by submitting that this was the best he could do . When
asked to address me on the issue of costs in respect of the last two appearances, he
submitted that the parties were called back to court at my request and that his client
should not be held liable for such costs. When pressed on costs being paid by his firm,
ie costs de bonis propriis, he submitted that he has a small firm which should not be
mulcted for the additional costs incurred . He reiterated that he stood by Ms Farouk but
also did not want to admit to any wrongdoing or take resp onsibility for her actions. I am
of the view that Mr Singh unf ortunatel y had no understanding of how serious the actions
of Ms Pillay and Ms Farouk were , and that it simply could not be brushed aside as an
oversight or mistake especially when there had been no full disclosure of the source of
the cases cited and where there had been an apparent failure of supervision of Ms
Farouk’s work.
[35] Counsel for the first responde nt, Mr De Wet, conceded that he only tried to find
the first or second case cited in the supplementary notice of appeal. When he was
unsuccessful, he left it at that and decided to wait until the hearing of the matter and if
reliance is placed on the cases he would mention the issue with not being able to find
the cases. As it turned out , Ms Pillay only relied on the two cases mentioned above,
which do not exist but which were not included in the supplementary notice of appeal.
Mr De Wet conceded that he should have read or tried to find all the cases cited before
the hearing of the application for leave to appeal was heard. In response to Mr Singh’s
efforts to hand up certain cases, it was submitted that Mr Singh only mentioned Google
and not the platforms where the cases were cited. As far as the use of artificial
intelligence in legal research is concerned, it was submitted that applications such as
18
ChatGPT and Meta would often lead one to the correct conclusions but that it tends to
make up cases.
[36] Mr De Wet further submitted that if counsel cites a case as authority, it is
expected that he or she should at least have read the case . As far as costs were
concerned it was submitted that the client should not be made to pay the costs where
the legal practi tioner’ s actions are responsible for the incurring of further costs. As far as
the application for leave to appeal was concerned, it was submitted that costs should
follow the results .
[37] In reply, Mr Singh submitted that although he used Google, he did not check
what platforms he used. He further seemed to suggest that as Mr De Wet conceded that
he had not read the cases or realised there was a problem with the citations , he was
somehow equally to blame for the further appearances and that his firm should not be
held responsible for the costs. Mr Singh further repeated Mr De Wet’s submission that
Chat GPT and Meta would lead to the correct conclusions. It was unclear whether he
was conceding that these applications were indeed used and was now trying to submit
that the use of these ‘sources ’ would be in order because it apparently lead to the
correct conclusions.
Counsel ’s duty to court
[37] As far as counsel ’s duty (and this includes an attorney appearing in the high
court) to the court is concerned it is perhaps appropriate to start by having regard to rule
57.1 of the Code of Conduct for all Legal Practitioners , Candidate Legal Practitioners
and Juristic Entities (the Code of Conduct) :
‘A legal practitioner shall take all reasonable steps to avoid, directly or indirectly, misleading a
court or a tribunal on any matter of fact or question of law. In particular, a legal practitioner shall
not mislead a court or a tribunal in respect of what is in papers before the court or tribunal,
including any transcript of evidence.’
19
[38] Counsel’s duty to court has also been dealt with extensively in a number of
decisions. In Van Der Berg v General Counsel of the Bar of SA19 the following was held:
‘But it is a different matter altogether if an advocate knows (as a fact and not merely as a matter
of belief) that evidence is false or misleading. For the role of advocacy in furthering the proper
administration of justice also gives rise to duties that are owed to the court, primarily a duty
upon an advocate not to deceive or mislead a court himself. After observing in Rondel v
Worsley that the advocate must do “all he honourably can on behalf of his client” the Master of
the Rolls went on as follows:
“I say ‘all he honourably can’ because his duty is not only to his client. He has a duty to
the court which is paramount. It is a mistake to suppose that he is the mouthpiece of his
client to say what he wants: or his tool to do what he directs. He is none of these things.
He owes allegiance to a higher cause. It is the cause of truth and justice. He must not
consciously misstate the facts. He must not knowingly conceal the truth. He must not
unjustly make a charge of fraud, that is, without evidence to support it. He must produce
all the relevant authorities, even those that are against him. He must see that his client
discloses, if ordered, the relevant documents, even those that are fatal to his case. He
must disregard the most specific instructions of his client, if they conflict with his duty to
the court. ”
In Incorporated Law Society v Bevan the Chief Justice expressed it as follows:
“Now practitioners, in the conduct of court cases, play a very important part in the
administration of justice. Without importing any knowledge or opinion of their own which
it is entirely wrong that they should ever do they present the case of their client by urging
everything, both in fact and in law, which can honourably and properly be said on his
behalf. And this method of examining and discussing disputed causes seems to me a
very effective way of arriving at the truth as effective a way, probably, as any fallible
human tribunal is ever likely to devise. But it implies this, that the practitioner shall say or
do nothing, shall conceal nothing or state nothing, with the object of deceiving the Court;
shall quote no statute which he knows has been repealed, and shall put forward no fact
which he knows to be untrue, shall refer to no case which he knows has been overruled.
If he were allowed to do any of these things the whole system would be discredited.
Therefore any practitioner who deliberately places before the Court, or relies upon, a
contention or a statement which he knows to be false, is in my opinion not fit to remain a
member of the profession .”’ (Footnotes omitted.)
19 Van der Berg v General Council of the Bar of SA [2007] ZASCA 16; [2007] 2 All SA 499 (SCA) para 1 6.
20
[39] In Ulde v Minister of Home Affairs and another 20 the following was held :
‘In my view it is the obligation of counsel to never mislead a court. Care must be taken that this
does not occur through ignorance or negligence. It is self -evident that to mislead a court
deliberately is a very serious breach of that obligation. A judge is entitled to take counsel at their
word. When an argument is advanced and authority is cited, there is a tacit representation by
counsel that no contradictory authority is known to him. Where such a representation is made
and there exists a reported superior court’s decision in point disapproving the authority cited in
support of a proposition, counsel commits an act of negligence if he is ignorant thereof. Where
counsel has actual knowledge of the superior court's decision, and remains silent and relies on
the disapproved dictum, in my view, counsel misleads the court.’
[40] In returning to the present case , it is in my view clear that the above mentioned
principal should be expanded to include that a court should also be able to assume and
rely on counsel’s tacit representation that the autho rities cited and relied upon do
actually exist . Ms Pillay blindly relied on authorities provided to her by Ms Farouk,
without checking the references when addressing me at the initial hearing. Mr Singh’s
firm issued the supple mentary notice of appeal, drafted by a candidate legal practitioner
without anyone , or at least her principal , checking if it was properly done and if the
authorities cited were indeed correct, or did in fact exist. Ms Pillay blamed work
pressure for her failure to detect the issues with the citations. Ms Farouk, however, was
the author of the supplementary notice of appeal and the provider of the further cases
quoted at the hearing. She has not been forthcoming with the source of her information
or research, except to say that she found the authorities in l egal journals, which has
remained unnamed.
[41] It was held in Chetty v Peruma ul21 that the legal practitioner’s duty to court
‘requires that lawyers act with honesty, candour and competence . . . lawyers must not
mislead the court and must be frank in their responses and disclosures to it ’. The same
20 Ulde v Minister of Home Affairs and another 2008 (6) SA 483 (W) (Ulde) para 37.
21 Chetty v Perumaul [2021] ZAKZPHC 66 para 58 , where the court quoted , with approval, from the
speech of the Honourable Justice Marilyn Warren AC ‘The Duty Owed to the Court - Sometimes
Forgotten’ delivered by the at the Judicial Conference of Australia – Colloquium, Melbourne on 9 October
2009, available at http://www.austlii.edu.au/au/journals/VicJSchol/2009/15.pdf , (last accessed 30
December 2024) .
21
would apply to a candidate legal practitioner . I have serio us doubts ab out the
correctness or truthfulness of the contention by Ms Farouk that she in fact found the
citations in law journals . With the exception of one case, not a single citation was
correct and a few were non -existent, not to mention quoted out of context, hardly what
one would find in a law journal. Despite the fact that the matter was adjourned for a few
days she did not provide her principal, whom I assume to be Mr Singh , with her
research , thereby missing an opportunity to correct any assumptions or misconceptions.
Instead I was taken to task by Mr Singh for placing undue pressure on Ms Farouk and
unjustifiably insinuating that she might not have a future legal career. Bearing in mind
the authorities referred to above, Ms Far ouk’s actions , in my view , raises serious
questions about her conduct but that will be for the Legal Practice Council to investigate
and to consider.
[42] The use of artificial intelligence in legal research and documents has not featured
much in our case law except for the instance reported in Parker v Forsyth NO and
others22 which relates to a matter heard in the Regional Division of Gauteng , held at
Johannesburg . A legal practitioner , being the plaintiff’s attorney , had dealt with , during
argument , the legal status of body corporates, and whether they had the ability to be
sued and to sue , as legal entities with limitation, for defamation . The plaintiff’s attorney
subsequently, at the request of the court and defendant’s attorneys, submitted a list of
authorities to the defendant’s attorneys. The defendant ’s attorneys could not locate any
of the cases referenc ed and requested to be provided with the source of the authorities.
The plaintiff’s attorneys eventually admitted that they had neither accessed nor read the
cases cited and could not source them . It then came to light that the cases referenced
had been sourced from an artificial intelligen ce chatbot, namely ChatGPT .23 In dealing
with the issue of using an artificial intelligence chatbot for research, t he court stated :
‘[89] However, the Plaintiffs' legal team did not submit these cases to the court as binding
authorities, they submitted them to the Defendants' attorneys as being the cases that they
would rely on prior to realising the error of their proposed actions. It seems to the court that they
22 Parker v Forsyth NO and others (Regional Court, Johannesburg, Gauteng) unreported case no
1585/20 (29 June 2023) (Parker ), and reported on Law Library South Africa as Parker v Forsyth NO and
others [2023] ZAGPRD 1, available at https://lawlibrary.org.za/akn/za -
gp/judgment/zagprd/2023/1/eng@2023 -06-29 (last accessed on 30 December 2024).
23 Parker paras 86-87.
22
placed undue faith in the veracity of the legal research generated by artificial intelligence and
lazily omitted to verify the research. Ordinarily, if the court was satisfied that the attorneys had
attempted to mislead the court, the consequences would have been far more grave. Not only
would it have attracted a costs order de bonis propriis against the relevant attorney, but the
court would have been compelled to report the attorney's conduct to the Legal Practice Council.
As it happens, the court is quite confident that neither the Plaintiff's attorney nor her counsel
attempted to mislead the court. It seems that the attorneys were simultaneously simply
overzealous and careless.
[90] In this age of instant gratification, this incident serves as a timely reminder to, at least, the
lawyers involved in this matter that when it comes to legal research, the efficiency of modem
technology still needs to be infused with a dose of good old -fashioned independent reading.
Courts expect lawyers to bring a legally -independent and questioning mind to bear on,
especially, novel legal matters, and certainly not to merely repeat in parrot -fashion, the
unverified research of a chatbot.
[91] Although the plaintiff's attorneys did not intend to mislead anyone, the inevitable result of
this debacle was that the Defendants' attorneys were indeed misled into thinking that these
authorities were real. As a result, they would have invested a significant amount of time and
effort in their futile attempts at tracking down these cases. The hearing of the
22nd of May 2023 was intended for the specific purpose of receiving the relevant case -law
authority that turned out not to exist. The costs order sought by the Defendants in this regard is
not unreasonable. Indeed, the court does not even consider it to be punitive. It is simply
appropriate. The embarrassment associated with this incident is probably sufficient punishment
for the Plaintiff's attorneys.’
[43] The court ordered the plaintiff to pay the costs of the hearing of 22 May 2023 . No
award was made against the plaintiff’s attorneys to pay the costs de bonis propriis ,
which appears to be very lenient , but is presumably because the court was not mislead.
[44] More recently, Associate Professor M van Eck published an article titled ‘Error
404 or an error of judgment? An ethical framework for the use of ChatGPT in the legal
profession ’,24 which contained a comprehensive exposition of the legal position in South
Africa and various international jurisdictions when it comes to the use artificial
24 M van Eck ‘Error 404 or an error of judgment? An ethical framework for the use of ChatGPT in the legal
profession’ (2024) 4 TSAR 469.
23
intelligence technologies in legal research and in particular the use of ChatGPT. The
author remarked that despite promises by ChatGPT of legal efficiencies and benefits
within the legal sector , it is not known for its reliability as often, ‘information produced in
response to prompts has been shown to be fabricated or fake , especially when such
prompts relate to legal information ’.25 Parker was discussed at leng th in Van Eck’s
article .26 It was pointed out, correctly in my view, that the case did not provide any
direction as to the ethical and professional duties of legal practitioners in the use of
ChatGPT and that the court effectively overlooked the plaintiff’s attorney ’s conduct. The
author was of the view that the court’s approach sets a dangerous precedent, as it was
questionable whether the attorney’s carelessness merely amounted to negligence.
[45] The author discussed the position in the United States of America, the United
Kingdom and Canada27 and then proceeded to discuss the existing ethical and
professional principles with reference to inter alia the Code of Conduct , which at present
does not expressly provide an expected standard of conduct relating to the use of AI
technologies in pleading or legal instruments.28 The author was of the view that the
principles of ethical and professional standards may be ‘extrapolated from the existing
rules of the legal profession ’ which has at its centre the ‘duty to be honest and act with
integrity ’.29 From these values of integrity and honesty all the other standards of conduct
flow, namely the duty not to mislead the court, the duty of not using false information
and evidence and the duty to act in a supervisory role of all legal services provided.
[46] As far as the du ty not to mislead was concerned , the author stated that legal
practitioners should not mislead the court either intentionally or negligently.30 With
reference to Ulde it was stated that although the consequences of a deliberate act of
misleading the court and one of a mistake, ignorance and carelessness should differ , all
are serious breaches of the professional conduct expected of a legal practi tioner. The
25 Ibid at 471.
26 Ibid at 473 onwards.
27 Ibid at 474 onwards.
28 Ibid at 482.
29 Ibid at 482 -483.
30 Ibid at 483.
24
author concluded that ignorance of the risks of AI technologies is simply not an excuse
for compromising the ethical and professional duties of a legal practitioner.
[47] With reference to the duty not to use false information and evidence, the author
stated that many of the rules still suffer ed from the limitation that a legal practitioner
must have had some knowledge or suspicion of the falsehood .31 The author also
referred to Ex parte Hay Pro perty Management Consultants Ltd32 and Ulde where the
duty to refer a court to relevant authorities were discussed . The author was of the view
that the reference to relevant authorities may, in the present context , be extended to
mean correct or genuine authority as ultimately, legal practitioners are ‘required to
research the law and present an honest account of the law’ .33 I agree fully with the
author’s view that presenting fictitio us or non-existent cases most certainly does not
constitute giving an honest account of the law.
[48] As far as the responsibility for legal services are concerned, reference was made
to rule 18.3 of the Code of Conduct which requires a legal practitioner to ‘exercise
proper control and supervision over his or her staff and offices’.34 The author was of the
view, with which I agree, that despite the limitation of the language, this supervisory role
would include the verification of the accuracy and correctness of any information
sourced from generative AI systems and other technologies and databases by staff,
including candidate legal practitioners, in the legal practitioner’s employ .
[49] The author concluded the article by warning inter alia that ultimately the legal
practitione rs are responsible for the work and information produced and must verify the
information that has been used , regardless of the source of such information .35 Failure
to do so may result in a breach of ethical and professional duties and ultimately lead to
sanctions and disciplinary actions against the legal practitioner.
31 Ibid at 485.
32 Ex Parte Hay Management Consultants (Pty) Ltd 2000 (3) SA 501 (W).
33 Ulde para 40. See also Van E ck cited above at 485.
34 Van Eck cited above at 485.
35 Ibid at 489.
25
[50] As mentioned above the real source of the authorities quoted in the
supplementary notice of appeal remain unknown , save for a referen ce to law journals by
Ms Farouk. An inordinate amount of legal and judicial resources were spent to find the
authorities referred to in court by Ms Pillay as well as in the supplementary notice of
appeal , which was a document signed by the applicant’s attorney , issued and filed at
court and served on the respondent’s attorn eys and, importantly, relied upon when
arguing the merits of the application for leave to appeal. By way of a brief experiment ,
the ChatGPT application was used and the citation of the Pieterse was entered. The
system responded that the case did indeed exist and revolved around the powers of the
Public Protector. When asked whether it addressed the issue of non -joinder of
councillors , the question was answered in the affirmative, which imm ediately illustrated
the unreliability of it as a source of information and legal research. It likewise confirmed
the existence of Burgers and that the judge was Judge JMS Van D Wessels. In my
view, relying on AI tec hnologies when doing legal research is irresponsible and
downright unprofessional.
[51] The circumstances of the present matter is significantly more serious than those
in Parker or any of the other cases referred to in Van Eck’s article. The facts actually
speak for themselves. I will therefore make an order that my judgment be referred to the
Legal Practi ce Council for investigation and further action. I would urge the council to
also obtain a recording of the entire proceedings of both 22 and 25 September 2024,
which should contain a request to includ e any comments made before I entered the
court as well as the submissions made by the various representatives of the applicant.
The merits of the application for leave to appeal
[52] Despite the issues highlighted above, I have non etheless carefully considered all
the grounds of appeal raised as well as the submissions made before me . I am of the
view that there is no sound and rational basis to conclude that there are reasonable
prospects of success on appeal . Furthermore, t here are, in my vie w, clearly no
compelling reasons, which would justify granting leave to appeal in this mat ter.
Costs
26
[53] The issue of costs is slightly more complex than u sual. As far as the costs of the
application for lea ve to appeal and its argument on 13 September 2024 are concerned, I
can see no reason why the general rule should not apply in that the costs should follow
the result. The first respondent instructed senior counsel and I can find no reason to
disallow costs on scale C, which deals with costs of senior counsel, which , in my view ,
and in the exercise of my discretion is justified, especially in light of the unique features
of this case.
[54] The costs incurred in respect of the appearances on 20 and 25 September 2024
is, in my view , a different matter altogether . The appearance on 22 September 2024
was quite correctly at my instance , but was necessitated due to th e discovery of the
various non -existent , incorrect and/or fictitious authorities relied upon by the applica nt’s
legal representatives. Had Ms Pillay checked the authorities before coming to court, she
would have, I hope, informed the court and denounced any reliance on the cases cited.
Had whoever signed the supplementary notice of appeal and who was responsible for
supervi sing Ms Farouk’s handiwork and research, done the most basic check , the issue
would have been discovered even before the document was issued and served. As for
Ms Farouk’s ‘research ’, the less said the better , but it unfortunately set in motion a very
unfortunate chain of events. It would be , in my view , unfair for the applicant to be liable
for these costs. After giving the matter extensive thought I am of the view that the only
appropriate order would be that the applicant’s attorneys, Suren dra Singh and
Associates , be directed to pay the costs incurred in respect of the appearances on 22
and 25 September 2024 de bonis propriis but only on scale A.
[55] I therefore make the following order :
1. The applicant’s application for leave to appeal is dismissed with costs , such costs
to be on scale C .
2. The costs incurred in respect of the additional appear ances on 22 and 25
September 2024 are to be paid by Surendra Singh and Associates, on scale A.
3. The r egistrar is requested to send a copy of this judgment to the Legal Practice
Council ( KwaZulu -Natal Provincial Office ) for its attention and further action .
27
__________________________
E BEZUIDENHOUT J
Date of hearing: 13, 22 and 25 September 2024
Date of judgment: 8 January 2025
The judgment has been handed down electronically by causing it to be emailed to the
parties’ legal representatives and by publication on SAFLII. The date and time of hand
down will be 8 January 2025 at 12h00.
Appearances:
For the applicant :
Ms S Pillay on 13 and 20 September 2024
Mr S Singh on 20 and 25 September 2024
Instructed by: Surendra Singh and Associates
225 Langilabalele Street
Pietermaritzburg
(Ref: Ms s singh/ Sue
Tel: (033) 3 45 0616
Email : sue@singhandsingh.co.za ; razeena@singhandsingh.co.za
For the first respondent :
Mr A de Wet SC
Instructed by: Xaba Attorney s
223 Boom Street
Central Office Park
Pietermaritzburg
Tel: 033 34 5 7927
(Ref: D Xaba/ S Nene/ pnn/01 )
28
Email: mail@xabainc.com