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IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE NO: 5946/2024
REPORTABLE: YES / NO
OF INTEREST TO OTHER JUDGES: YES/NO
REVISED: YES/NO
DATE : 17.03.202 5
SIGNATURE
In the matter between:
ZIETTA JANSE VAN RENSBURG APPLICANT
and
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL RESPONDENT
IN RE:
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL
APPLICANT
ZIETTA JANSE VAN RENSBURG RESPONDENT
JUDGMENT
MONTSHO -MOLOISANE AJ
[1.] This is an interlocutory application l aunch ed on urgent basis by the Applicant
to compel the Respondent, as the Applicant in the main application, to
furnish her with certain information in terms of Section 32 of the Constitution
of the Republic of South Africa, 108 of 1996 (“the Constitution”), read with
Rule 35(12) of the Uniform Rules of Court .
[2.] In this application, the Applicant seeks an order:
2.1. the application be disposed of as one of urgency and the non -
compliance with the Rules regarding service and time limits, be
condoned and the matter be heard as urgent in terms of Rule 6(12)
(a);
2.2. that the Respondent be ordered to provide the Applicant with
information pertaining to the charges referred to in the founding
affidavit filed in support of the main application, within 10 (ten) days
of the order being granted.
2.3. that should the Respondent fail to provide the documents or
information requested, the Applicant may approach the Court on an
urgent basis for further relief; and
2.4. that the Respondent pay the costs of the application on a punitive
scale , as between attorney and own clients .
[3.] The Respondent opposes the interlocutory application, and raised the
following point s in limine , referred hereunder :
3.1. lack of urgency;
3.2. the application was not properly served in terms of Rule 4(1)(aA) , as
it was not served on the Respondent’s attorney;
3.3. the Applicant failed to comply with Rule 35(12); and
3.4. an interlocutory application in an application that is unopposed is
irregular and amounts to a nullity.
History of litigation
[4.] The Applicant is an admitted attorney, conveyancer and notary public of the
High Court. She was suspended from practicing as such, on 22 February
2024 in terms of the judgment and order granted by Honourable Justice s
Mashile et Bhengu in this Court, pending an investigation and the
disciplinary proceedings to be instituted against her.
[5.] The application for the suspension of the Applicant was launche d by the
Respondent herein , in its capacity as the statutory regulatory authority
established in terms of Section 4 of the Legal Practice Act, 28 of 2014 (“the
LPA”), and was brought in terms of the provisions of Section 43 thereof,
which makes provision for the Respondent to institute urgent legal
proceedings in the High Court to suspend a legal practitioner from practice ,
and to obtain alternative interim relief , upon considering a complaint lodged
against him or her .
[6.] The Applicant opposed the application, but in the end the Court granted a
judgment and order for her suspension.
[7.] The Applicant filed an application for leave to appeal the said judgment on
26 February 2025, which was refused.
[8.] The Respondent filed an urgent application in terms of Section 18(3) of the
Superior Court Act,10 of 2013, for an order that the suspension be executed
with immediate effect, which was granted on 03 April 2024 .
[9.] In terms of the above mentioned Court order, the Applicant was directed to
hand and deliver her certificates of enrolment as a legal practitioner, notary
public and conveyancer to the Registrar of th is Court, and in the even t of her
failing to comply as ordered, within 2 (two ) weeks from the date of the
granting of the said order, the Sheriff was authorised to take possession of
the certificates and hand them to the Registrar.
[10.] The Applicant was further prohibited from handling or operating any Trust
account . The remainder of the orders granted pertains to the administration
of the affairs of her practice as a legal practitioner.
[11.] On or about 15 November 2024, the Respondent launched an application
against the Applicant in this Court , the essence of which is to obtain an order
removing her as a legal practitioner, notary public and conveyancer , from the
roll of legal practitioners kept by the Respondent in terms of the provisions of
Section 30(3) of the LPA, on such terms and conditions as this Court may
deem appropriate.
[12.] According to the Sheriff’s Return of service, the application was served at
the place of residence of the Applicant, given as stand no. 1[...], M[...] ,
Komatipoort, on 21 November 2024 at 16h00, on one Isaac Zitha, referred to
as a security guard at that address.
[13.] The Applicant subsequently filed her Notice to oppose the application on 09
December 2024 , but has to date not filed any answering affidavit in the said
application.
[14.] The Applicant filed a document titled “ Notice of motion: Order to compel read
with Section 32 of the Constitution Act 108 of 1996 and Rule 35(12) of the
Uniform Rules of the Superior Court ”, on 23 January 2025, as reflected on
the date stamp of the Registrar of this Court.
[15.] In terms of the said Notice of motion, the relief sought is an order directing
the Respondent to provide the Applicant with the information listed in the
Charges referred to in the founding affidavit in support of the main
application.
[16.] The Respondent was required to file its notice of intention to oppose the
application, on or before 27 January 2025, and its opposing affidavit (if any),
on or before 6th February 2025.
[17.] The Respondent’s answering affidavit to the application to compel, was filed
on 03 February 2025.
[18.] The application was argued on 04 March 2024 .
Legal submissions
[19.] Ms Ratshibvumo , on behalf of the Respondent, was afforded an opportunity
to make submissions regarding the Points in limine raised, in the answering
affidavit as it is procedural to deal with preliminary points which, if upheld,
may be dispositive of the matter. Her submissions were based on the
following :
19.1. The application was not properly served on the Respondent in terms
of Rule 4 (1) (a A) which provides that “ 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 ”. She contended that the Respondent had indicated in
its Notice of motion dated 15 November 2024 that it appointed her
firm, at which address service of all process was to be effected.
There was therefore non -compliance with the said rule, as this
application is not a new matter.
19.2. It was further submitted on the Respondent’s behalf, that the
application is irregular and amounts to a nullity, as the main
application remains unopposed, due to the Applicant’s failure to
deliver her answering affidavit, which was due on 30 January 2025.
It is on this basis that the main application has been enrolled on the
unopposed roll of 14 April 2025.
19.3. Non-compliance with Rule 35(12): In this instance, Ms Ratshibvumo
submitted that the Applicant failed to comply with Rule 35(12) in that
sub-rule 13 unequivocally states that, although the provisions of Rule
35 relating to discovery apply to applications, such application is
subject to the proviso that the Court direct that it be so;
19.4. Lack of urgency: she submitted that the application is not urgent as
the main application was served on the Applicant by Sheriff of the
Court on 21 November 2024; that her answering affidavit was due on
30 January 2025, but she failed to deliver same; and she has not
furnished the reasons for having waited for 60 (sixty) calendar days
before lodging the urgent application to compel on 24 January 2025,
despite knowing which documents she needed in order to file her
answering affidavit ;
[20.] Ms Ratshibvumo submitted that the application ought to be struck off,
alternatively be dismissed with costs, on any of the points in limine raised.
[21.] Mr van Rensburg on behalf of the Applicant, on the other hand, submitted
that:
21.1. the application was urgent , as the information is urgently needed to
compile the answering ;
21.2. rule 35 (12) (b) bars the Respondent from making use of the
information not disclosed in terms of Rule 35(12) (a);
21.3. that the Applicant cannot answer any allegation made in the
founding affidavit, without the information or documents sought;
21.4. that the enrolment of the application on the unopposed roll of 14
April 2025, amounts to an irregular step hence he Rule 30 (i) and
30(1) ; and
21.5. that the Applicant is entitled to the order sought , and costs on a
punitive scale , of attorney and own client .
Issues for determination
[22.] The key issue for consideration is whether the application falls to be struck
off, alternatively dismissed with costs, based on the points in limine raised by
the Respondent.
Evaluation
[23.] The Applicant’s application is premised on the Uniform Rules of this Court. In
this regard, I align myself with the sentiment expressed by Rogers J in the
case of ABSA BANK Ltd v Zalvest Twenty (Pty Ltd1 where, in a case
regarding an exception, he held that:
“The rules of Court exist in order to ensure fair play and good order in
the conduct of litigation. The rules do not lay down the substantive legal
requirements for a cause of action nor in general are they concerned
with substantive law of evidence ”.
[24.] In confirming myself to the question as to whether there has been non -
compliance with the rules to which I was referred to, it is apposite to consider
the contents of the Applicant’s affidavit, wherein the relief sought in terms of
Rule 6(12) and Rule 35(12), should be set out.
[25.] In this regard, the following facts remain undisputed:
25.1. the main application was served at the Applicant’s place of residence
on 19 November 2024 ;
25.2. the Applicant launched this application after approximately 60(sixty)
days, on 24 January 2025 , after the main application was served at
her place of residence ;
1 ABSA BANK Ltd v Zalvest Twenty (Pty Ltd ) 2014 (2) SA 119 (WCC) para 11
25.3. there is no explanation furnished in the founding affidavit for the
Applicant’s delay in approaching the Court after 60 (sixty) days;
25.4. there are no facts stated by the Applicant in the founding affidavit,
as to why she cannot get substantial redress at a hearing in due
course . All that the Applicant states regarding urgency, ex facie her
affidavit, is that she requires the information to be able to file her
answering affidavit; and
25.5. no leave was sought from the Court to invoke the provisions of Rule
35(12) .
[26.] Section 32(1) of the Constitution simply entrenches the right of everyone to
access information held by the state, and any other information that is held
by another person, and that is required for the exercise of protection of any
rights.
Legal principles
[27.] The requirements for urgency in applications have been dealt with on
numerous times by the courts. Rule 6 (12) (b) of the Uniform Rules of Court
stipulates the requirements to be satisfied by the Applicant in urgent
application i t provides:
“In every affidavit or petition filed in support of any application under
paragraph (a) of this subrule, the applicant shall set forth explicitly the
circumstance which he avers render the matter urgent and the reasons
why he claims that he could not be afforded substantial redress at a
hearing in due course ".
[28.] It is trite that it is not good enough to say that the relief cannot be obtained in
due course. The averment that the relief cannot be obtained in due course
must be substantiated. Failure to substantiate that averment will no doubt be
fatal to the Applicants’ application.
[29.] In Luna Meubelvervaardigers (Edms) BPK v Makin and Another (t/a Makin’s
Furniture Manufacturers)2 the Court reiterated the requirements set out in
Rule 6 (12) (a) and (b).
[30.] Furthermore, i n East Rock Trading (Pty) Ltd and Another v Eagle Valley
Granite (Pty) Ltd others3, the Court remarked as follows in relation to urgent
applications:
“(6) The import thereof is that the procedure set out in rule 6(12) is
not there for taking. An applicant has to set forth explicitly the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims
that he cannot be afforded substantial redress at a hearing in
due course. The question of whether a matter is sufficiently
urgent to be enrolled and heard as an urgent application is
underpinned by the issue of absence of substantial redress in an
application in due course. The rules allow the court to come to
the assistance of a litigant because if the latter were to wait for
the normal course laid down by the rules it will not obtain
substantial redress .
(7) It is important to note that the rules require absence of
substantial redress. This is not equivalent to the irreparable
harm that is required before the granting of an interim relief. It is
something less. He may still obtain redress in an application in
due course but it may not be substantial. Whether an applicant
will not be able obtain substantial redress in an application in
2 Luna Meubelvervaardigers (Edms) BPK v Makin and Another 1977 (4) SA 135 (W) at 136
3 East Rock Trading (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd others (11/33767) [2011]
ZAGPJHC 196 23 September 2011
due course will be determined by the facts of each case. An
applicant must make out his case in that regard ”.
[31.] Regarding the issue of failure to serve the interlocutory application on the
appointed attorney, the Applicant’s conduct no doubt amounts to non -
compliance with the provisions of Rule 41(a A), however that cannot, in my
view, be fatal or be dispositive of the application to compel discovery.
[32.] In this matter, although the points in limine raised by Ms Ratshibvumo
dispose regarding lack of urgency constitutes a valid ground to dispose of
the m atter, I find that as this Court has the inherent power to mero motu
address any issue relevant to these proceedings , it will be in the interests of
justice that I deal also with the application to compel discovery in terms of
Rule 35(12) , read with the right of access to information which is
constitutionally guaranteed in section 32 .
[33.] Rule 35(12) provides:
“(12) (a) Any party to any proceeding may at any time before hearing
thereof deliver a notice in accordance with Form 15 in the First
Schedule, to any other party in whose pleadings or affidavits
reference is made to any document or tape recording to -
i. produce such document or tape recording for inspection
and to permit the party requesting production to make a
copy or transcription thereof; or
ii. state in writing within 10 days whether the party 'receiving
the notice objects to the production of the document or
tape recording and the grounds therefor; or
iii. state on oath, within 10 days, that such document or tape
recording is not in such party's possession and in such
event to state its whereabouts, if known.
(b) Any party failing to comply with the notice referred to in
paragraph (a) shall not, save with the leave of the court, use
such document or tape recording in such proceeding provided
that any other party may use such document or tape recording.
[34.] I am of the view that Rule 35(12) cannot be read in isolation, but should be
read with Rule 35(13) which provides as follows :
“The provisions of this rule relating to discovery shall mutatis mutandis apply,
in so far as the court may direct to applications ”. (own emphasis).
[35.] It is therefore trite that although the provisions of Rule 35 relating to
discovery apply to applications in so far as the Court may direct4, discovery
should be ordered by the Court in exceptional circumstances.
[36.] Based on the qualification provided in subrule (13) it is settled that Rule
35(12) is not applicable to motion proceedings, save with the direction of the
Court.
[37.] In STT Sales (Pty) Ltd v Fourie5, the Court endorsed the principle that an
order directing discovery will only in exceptional circumstances be made in
motion proceedings. It will, as a general rule, only be made after the legal
issues have been established, that is once all the affidavits have been filed6.
[38.] It is clear from the legal authorities, that discovery is not intended to be used
as a sniping weapon in preliminary skirmishes. This is the caution that has
been sounded by the Courts on numerous occasions. In my view, t he fact of
the matter i t remains that a party as of right cannot invoke the rule
4 Provincial Government, North West province v Van Rooyen NO 2008 (4) SA 43 (SCA) at 48 G -I
5 STT Sales (Pty) Ltd v Fourie 2010 (6) SA 272 (GSJ)
6 At 276 D - 277 E
pertaining to discovery in terms of Rule 35(12), as this is firstly conditional,
upon obtaining the Court , prior to launching the application to compel
discovery; and secondly, it is imperative that all affidavits be filed prior to
doing so .
[39.] In the circumstances, I find that the Applicant’s application falls to be struck
off on the following grounds:
39.1. She failed to comply with the provisions of Rule 6(12)(b) which
requires her to explicitly set out facts that render the application
urgent, or to state why she cannot get substantial redress at a
hearing in due course;
39.2. Secondly, the application to compel discovery in terms of Rule
35(12) read with Section 32 of the Constitution, is premature and
amounts to an abuse of the process of the Court , as the procedure is
inapplicable to motion proceedings, unless the Court has granted
leave to do so.
ORDER
In the result, I make the following order:
1. The application is struck off;
2. The Applicant is to pay the costs of the Respondent on an attorney and
client scale.
L.M. MONTSHO -MOLOISANE
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Date heard: 04 March 2025
Judgment delivered: 17 March 2025
Electronically by circulation to all parties:
APPEARANCES
Counsel f or the Applicant: H.C.J. Van Rensburg (SC)
(In terms of Section 34(2)(b) of the Legal
Practice Act, 28 of 2014)
Instructed by: H.C.J. Van Rensburg (SC)
PRETORIA
Counsel for the Respondent : T. Ratshibvumo
(In terms of Section 25 (2 ) read with 119 (2) (b)
of the Legal Practice Act, 28 of 2014)
Instructed by: Ratshibvumo Attorneys Inc.
NELSPRUI T