IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
Case no: 2025-058488
In the matter between:
ANDRE JOCHEMS APPLICANT
and
MAGISTRATE M.E. THIART N.O. FIRST RESPONDENT
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
SECOND RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS
WESTERN CAPE
THIRD RESPONDENT
MINISTER OF POLICE FOURTH RESPONDENT
Neutral citation: Jochems v Thiart N.O. (Case no 2025-058488) [2024]
ZAWCHC … (30 April 2024)
Coram: SALLER AJ
Heard: 29 April 2025
Delivered: 30 April 2025
Summary: Application for review of Magistrate’s decision to postpone bail
enquiry – Application for bail – Application for spoiliation order relating to
cannabis, mushrooms and cash seized by the South African Police Force – Legal
practitioner appearing before a commissioner of oaths and signing affidavit which
on the face of it purports to be the applicant’s evidence – application dismissed
with costs ordered de bonis propriis and legal practitioner referred to the Legal
Practice Council
ORDER
1. The application is dismissed.
2. The applicant’s legal practitioner Mr Pillay is ordered to personally bear
the costs of the application de bonis propriis.
3. The Registrar of the court is directed to provide a copy of this judgment
to the Legal Practice Council for possible further investigation.
JUDGMENT
SALLER, AJ
[1] This matter comes before the court as a matter of urgency, having been
filed in the afternoon of the last working day before a long weekend .
Service of the application on the respondents was effected around 9am on
the day of the hearing. The matter was called at 12:00, affording the
respondents some three hours to consider the papers filed in support of the
application.
[2] The facts appear from a founding affidavit purportedly deposed to by the
applicant (I return to this below). The respondents did not file papers but
were represented at the hearing and addressed the court on the record as it
stood.
[3] Mr Pillay appeared on behalf of the applicant. Mr Manuel of the State
Attorney’s office appeared on behalf of the 1 st, 2nd and 4th respondents, and
Ms Blows of the Director of Public Prosecutions’ office appeared for the 3rd
respondent.
[4] It appears from the purported founding affidavit that on 19 March 2025,
following a search of the applicant’s premises by the South African Police
Services (“the police”), the applicant was arrested on suspi cion of dealing
in drugs . The police also seized some 30kg of cannabis, certain
mushrooms, and R 263 970,00 in cash.
[5] Due to intervening public holidays, it appears the applicant was brought
before a Magistrate only on 24 March 2025 for the purpose of bail . The
bail hearing has been postponed three times since then, on 31 March 2025
and again on 15 April 2024, and is currently on the roll to be heard on 6
May 2025, three working days and seven calendar days hence.
[6] In the notice of application, the applican t asks the court to review and set
aside the cumulative decisions of the Magistrate to postpone the bail
hearing to 6 May 2025, to order that the applicant be released on bail of
R 5 000, and to grant a spoliation order for the return of the seized goods.
[7] Very briefly, in relation to bail, Mr Pillay on behalf of the applicant
submitted that the Magistrate was obliged to hold a bail enquiry on the
applicant’s first appearance, and that she misdirected herself on each
occasion when she postponed the bail hear ing on what he submitted were
irrational and improper grounds in the circumstances of the applicant’s
case.
[8] In relation to the spoliation relief, Mr Pillay submitted the warrant was
defective and authorised neither the search of the premises nor the seizure
of the goods , and that the search had been conducted unlawfully on the
grounds that the applicant was only handed the search warrant the
following day.
[9] The court canvassed with Mr Pillay the reasons for the delay in filing the
application on 25 April 2025 after the bail application was postponed on 15
April 2025, including raising with him any potential impact the continuing
incarceration of the applicant may have had. This was not an issue he took
further.
[10] In answer, Mr Manuel drew the court’s att ention to the fact that the
signature of the deponent to the founding affidavit, above the printed name
of the applicant, appeared identical to the signature which Mr Pillay had
affixed to his heads of argument. Mr Manuel also pointed out that the
affidavit had been deposed to on 24 April 2025 at the Fishhoek police
station, whereas the founding affidavit averred that the applicant remained
in custody. Mr Manuel submitted that the conclusion appeared inescapable
that the founding affidavit was not, in fac t, deposed to by the applicant in
whose name it is drafted, but likely signed and sworn to by the applicant’s
legal practitioner, Mr Pillay. In informal parlance, Mr Manuel submitted,
that the affidavit was likely “ pp’ed”. In that, I surmise he made refe rence
to a smudge of ink that appears by the applicant’s name beneath the
deponent’s signature that may, charitably, be interpreted as the letters “pp”
commonly used in correspondence to indicate that one person signs on
behalf of another.
[11] In those circums tances, Mr Manuel submitted, the court had no proper
evidence before it on the basis of which the application could be granted.
[12] On both these aspects, Ms Blows aligned herself with Manuel’s
submissions.
[13] I must mention that both Mr Manuel and Ms Blows advan ced additional
cogent reasons why the application ought to be dismissed on the papers as
they stood. Ms Blows further pointed out that if, against her submissions,
the court were inclined to conduct a bail enquiry , she would require an
adequate period to consult and prepare.
[14] In reply, Mr Pillay conceded that it was he who had signed and sworn to the
founding affidavit. This , despite the fact that the deponent to the founding
affidavit is expressly identified by name in the notice of motion and in the
affidavit itself as being the applicant, that the affidavit is drafted in the first
person, and that it speaks to events at which Mr Pillay was not p resent and
of which he could have no personal knowledge.
[15] Mr Pillay’s explanation was that he was under the impression that the
special power of attorney which the applicant had signed authorised him to
depose to an affidavit on behalf of the applicant. He was unable to explain
why the affidavit had been drafted in the first person, why it purported to be
an affidavit of the applicant, identified by name, and how he could have
sworn to events of which he had no personal knowledge.
[16] It i s by now trite that in motion proceedings the affidavits stand as both
pleadings and evidence (see Transnet Ltd v Rubenstein 2006 (1) SA 591
(SCA) para 28; Minister of Land Affairs and Agriculture v D & F Wevell
Trust 2008 (2) SA 184 (SCA) para 43). An affidavit filed in support of a
motion stands as evidence of a person with knowledge of the facts on
which the applicant relies.
[17] In Masako v Masako & Another (Case no 724/20) [2021] ZASCA 168 the
Supreme Court of Appeal considered the distinction between an attorney’s
right to institute proceedings and his or her authority to act on behalf of a
client, and the basis for deposing to an affidavit in support of the client’s
case. At para 11, the court explained:
“It stands to reason that a deponent to an affida vit is a witness who states
under oath facts that lie within her personal knowledge. She swears or
affirms to the truthfulness of such statements. She is no different from a
witness who testifies orally, on oath or affirmation, regarding events within
her knowledge. Thus, when Ms Moduka deposed to the founding affidavit,
she needed no authorisation from her client.”
[18] In the present matter, t he ostensible deponent to the founding affidavit,
identified by name as the applicant, is not the person who signed the
affidavit, nor the person who appeared before the commissioner of oaths to
swear to the truthfulness of its content, nor the person to whom the content
of the affidavit, narrated in the first, person relates. In those circumstances,
there is no evidence on record to support the relief sought in the present
application.
[19] Mr Pillay suggested that the court might instead have regard to an affidavit
deposed to by the applicant on 24 March 2025 in support of bail, which is
annexed to the purported founding affi davit. That affidavit speaks neither
to the legal nor the factual basis for the relief sought , nor is it properly
before the court.
[20] The court proceeded to invite Mr Pillay to make submissions as to why he
should not be held personally for costs de bonis propriis in these
circumstances. While Mr Pillay offered his apologies, he did not advance
cogent reasons as to why his client , rather than h im, should be burdened
with the fees incurred in the preparation of the present ill-fated application
and today’s appearance.
[21] In South African Liquor Traders Association and Others v Chairperson
Gauteng Liquor Board and Others 2009 (1) SA 565 (CC) para 54, the
Constitutional Court explained:
“An order of costs de bonis propriis is made against attorneys where a
court is satisfied that there has been negligence in a serious degree which
warrants an order of costs being made as a mark of the court’s displeasure.
An attorney is an officer of the court and owes a court an appropriate level
of professionalism and courtesy.” (Footnote omitted.)
[22] In Multi-links Telecommunications Ltd v Africa Prepaid Services Nigeria
Ltd 2014 (3) SA 265 (GP) para 35, the Gauteng High Court discussed the
policy reasons militating against making personal costs orders against legal
practitioners. It set out the circumstances in which such an order might
nevertheless be made as follows:
“It is true that legal representatives sometimes make errors of law, omit to
comply fully with the rules of the court or err in other ways related to the
conduct of the proceedings. This is an everyday occurrence. This does not,
however, per se ordinarily result in the court showing its displeasure by
ordering the particular legal practitioner to pay the costs from his own
pocket. Such an order is reserved for c onduct which substantially and
materially deviates from the standard expected of the legal practitioner,
such that their clients, the actual parties to the litigation, cannot be
expected to bear the costs, or because the court feels compelled to mark its
profound displeasure at the conduct of an attorney in any particular
context. Examples are, dishonesty, obstruction of the interest of justice,
irresponsible and grossly negligent conduct, litigating in a reckless
manner, misleading the court, and gross inc ompetent and a lack of care .”
(My emphasis)
[23] This is such a case. The explanation given by Mr Pillay, relying on the
special power of attorney granted to him, at best suggests a profound lack
of knowledge of the law of evidence and civil procedure. It does little to
assuage the court’s concerns, which arise as much from the misleading
manner in which the purported founding affidavit was presented as from
the unreliability of the information contained therein. One assumes that it
was Mr Pillay who drafted the purported founding affidavit which states, in
para 1 thereof that “My name is Andre Jochems”, and in para 3 thereof, that
“I … swear that the content of this affidavit is true and correct and within
my personal knowledge and experience”.
[24] As an experienced legal practitioner, it is near inconceivable that Mr Pillay
would not have been alive to the potential of misleading the cour t and the
respondents to accept the facts contained in the affidavit as constituting the
applicant’s own evidence, even if one has regard to the smudge of ink
appearing next to the (false) name the deponent which might, charitably
considered, constitute a “pp”.
[25] In those circumstances, a costs order de bonis propriis is warranted on the
principles set out above. Addi tionally, a copy of this judgment will be
forwarded to the Legal Practice Council for possible further investigation.
________________________________
K. SALLER
ACTING JUDGE OF THE HIGH COURT
Appearances
For Applicant: Mr Naven Pillay
Instructed by: Naven Pillay Attorneys
For First, Second and Fourth Respondents: Mr Leon Manuel
Instructed by: State Attorney
For Third Respondent: Adv Megan Blows
Instructed by: Director of Public Prosecutions