The applicant contends the first respondent was biased and committed gross
irregularities when it dismissed her complaint against two of its members, the 2 nd
and 3rd respondents.
The investigating committee found:
“ .. no charges should be formulated and the two candidate attorneys did not in any way
acted mala fide and unprofessional.”1
[2] She lodged a complaint with the first respondent in which she complained that the
two respondent’s candidate attorneys, with Moore Attorneys, compromised a
copyright she held in her idea for a TV program. She alleges they colluded with
her opponent media 24, the “bigger player” in the industry, whom she alleges stole
her ideas for a TV programme.
[3] Advocate Pottas for the 2 nd and 3rd respondents submitted his client together
and under the supervision of a senior attorney at law firm Moores Attorneys,
provided the applicant with and opinion about whether she actually held a
copyright in an “idea”. The law firm offered to write to media 24 on her behalf but
anticipated and advised her of their likely response. She rejected their opinion on
her prospects of success in protecting her intellectual property rights.
[4] The law firm ’s main area of practise is in the field of intellectual property. She
contends that at the initial consultation, they were very positive about her product
and on subsequent meetings she observed a change in attitude as they tried to
dissuade her from pursuing her rights against a media giant. She contends that
the “one pager” from the LPC is inadequate, the investigating committee failed to
set out details on how is conducted investigations and arrived at its conclusions.
[5] Advocate Moolman for the first respondent submitted that her client established
an investigating committee, in terms of s 37(1) of the Legal Practice Act 28 of 2014
to attend to the complaint and it sought responses to the allegations from each of
the respondents. The first respondent found no malpractice or mala fides on the
the respondents. The first respondent found no malpractice or mala fides on the
part of its members and furthermore, her allegations of racism were unfounded.
1 CL 02-236
[6] The first respondent raise d a point in limine and argued that the applicant failed
to apply for condonation for the late filing of the review application, and contended
that her client informed her of its decision in December 2020 and she launched
the application only in September 2023. Counsel argued that Section of the PAJA
applies in casu and allows for 180 days for filing of an application and beyond that
period a delay is cons idered undue and unreasonable delay. Counsel relied on
the judgment in OUTA v South African National Roads Agency Ltd 2. It was
submitted that the decision arrived at was rationally connected to the facts before
the committee and therefore the decision was reasonable, lawful and procedurally
fair. There was no misdirection on its part. The committee’s main inquiry was to
determine if the second and third respondent conducted themselves ethically and
professionally in rendering the service to the applicant. Ms Moolman submitted
the applicant makes serious allegations but does not present any proof to support
her allegations of bias and gross irregularities by the investigating committee.
[7] Advocate Pottas for the second and third respondents referred to the idea/
expression dichotomy and explained that if one has an original idea and it is
reduced to writing it is protected by copyright, however a generic idea per se
cannot be protected. It was submitted that the opinion given explained the
dichotomy and the law firm offered to write to media 24 on her behalf but expected
that they will raise this very argument. The copy write establishes when all in in
writing, the second and third respond ents, under supervision of their senior
provided her with their opinion as to her prospects of success.
[8] Mr Pottas argued that an opinion is not actionable and can be wrong. But even
if wrong, the applicant has failed to demonstrate the first respondent was so wrong
in its findings that no reasonable persons would have arrived at such a finding. It
in its findings that no reasonable persons would have arrived at such a finding. It
was submitted the applicant failed to discharge her onus, there is nothing to be
reviewed, no supporting facts were before this court and the application stands to
be dismissed.
[9] There was no proof that the committee exceeded its powers. The allegations of
threats by employees of the LPC and deceitful conduct toward the applicant was
2 2013(4) ALLSA 639 (SCA)
denied. Advocate Moolman submitted the review application stands to be
dismissed, no facts were before her client to respond to her allegations and there
is nothing before the court to warrant any review of the findings.
[10] Counsel submitted that attorney client costs are appropriate in the circumstance,
the applicant had failed to provide sufficient evidence to support her allegations,
she was advised of the delay and about her need to apply for condonation. She
failed to do make such application, despite being guided as to what would be
required to succeed in the application. She dragged the parties along through
many months of litigation. The second respondent sought finality of the matter
and was forced to set the matter down.
[11] The applicant has refused to accept their opinion and has attacked anyone
including counsels who do not support her beliefs. Counsel correctly pointed out
that there is no basis set out for a review, the applicant fails to set out what the
first respondent has failed to address, and the court cannot make any decision on
insufficient evidence. The applicant simply makes bald unsubstantiated
statements for as long as they are contrary to her beliefs about her product . The
applicant has not demonstrated that the decision taken was not rationally
connected to the facts before it.
[12] It is noteworthy that t he applicant conceded she failed to apply for condonation
and was informed of the investigating committees’ findings on 2 December 2020.
She launched her application for review only in September 2023 and she offered
no explanation for the inordinate delay to bring the application. She was distrustful
of the prosecution of her matter and levelled accusations of corruption against the
2nd and 3 rd respondents and other attorneys she had consulted to date.
According to her she consulted seven attorneys and all demonstrated a similar
pattern of behaviour. There are 7 review applications pending before the LPC.
pattern of behaviour. There are 7 review applications pending before the LPC.
She argued generally that the committee’s decision lacked rationality, counsel for
the second respondent argued that she simply refuses to accept the opinions of
attorneys she consulted, in particular his client the second respondent.
[13] There is nothing before me to support the allegations of gross irregularity. The
applicant has not provided any facts on irregular process of first respondent’s
investigations and findings. Counsel for the second respondent correctly pointed
out that this court cannot assist the applicant if she fails in her application for
extension of time. In the OUTA judgment supra the SCA stated:
“ Absent such extension the court has no authority to entertain the review application at
all. Whether or not the decision is unlawful no longer matters. The decision has been”
validated” by the delay.”
[14] There are limited facts before me for the review application to succeed. A court
cannot determine a matter on mere allegations, evidence is required to support
the allegations. I found no evidence before me that would assist the applicant,
even if she had succeeded in an application for condonation. The delay of two
years is unreasonable, and she provided no explanation for the entire period of
the delay as is required for condonation.3
[15] Having regard to the conspectus of the evidence, the allegations are not
supported by evidence, and the applicant has failed to set out and argue sufficient
facts on the traditional grounds of review. Accordingly, the application must fail.
COSTS
[16] Ms Moolman submitted that attorney client costs are appropriate having regard to
the way the litigation has been conducted. The applicant made bald allegations,
but no substantial evidence was placed before the court, she failed to even apply
for condonation for a delay of over 2 years, even after having been advised to do
so. Ms Moolman submitted that a punitive scale of costs is appropriate in that her
client is an association of members, other members who have nothing to do with
the matter are forced to finance this litiga tion. Costs are at the discretion of a
court. The applicant represents herself and the court cannot hold her to the same
standards as legal representatives. Having applied my discretion I am of the view
that the lower scale of party party costs is appropriate, and the usual approach is
the costs follow the cause.
the costs follow the cause.
3 Standard General Insurance v Eversafe 2000(3) SA 87 (W) at 93 para12
Appearances:
Applicant : self-represented
First Respondent: Advocate Moolman
Instructed by Damons Magardie Richardson
Email: mari@dmrlaw.co.za
2nd and 3rd Respondent: Advocate Pottas
Instructed by Le Mottee Rossle Attorneys
Email: max@lmrlaw.co.za