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[2018] ZASCA 4
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Hough v Sisilana and Others (1121/17) [2018] ZASCA 4 (2 February 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No.:
1121/17
In
the matter between:
HENDRIK
PETRUS
HOUGH
Applicant
and
MZUBANZI
SISILANA
(ASSISTANT
MASTER,WCDHC) First
Respondent
SEARDEL
INVESTMENT CORPORATION LIMITED
Second Respondent
(renamed:
E MEDIA HOLDINGS LIMITED)
JOINT
EXECUTORS: ESTATE LATE
AARON
SEARLL Third
Respondent
(Master’s
ref 6360/2010) [LAUREN SEARLL NO,
ELLIOT
OSRIN NO, JEFFREY FLAX NO,
DAVID
FRIEDLAND NO, QUINTIN HONEY NO]
EDWARD
NATHAN SONNENBERGS INC.
Fourth Respondent
EUGENE
NEL NO
Fifth
Respondent
(Master’s
ref C337/2015)
Neutral
citation
:
Hendrik Petrus Hough v
Mzubanzi Sisilana and others
(1121/2017)
[2018] ZASCA 04
(2 February 2018)
Coram:
Maya P
Heard:
In Chambers
Delivered:
2 February 2018
Summary:
Procedure – s
17(2)(
f
)
of the
Superior Courts Act 10 of 2013
– exceptional
circumstances warranting an order for the reconsideration and
variation of the dismissal of the application
for leave to appeal not
established – application dismissed.
ORDER
On
application in terms of
s 17(2)(
f
):
Supreme
Court of Appeal (Ponnan JA and Schippers AJA):
1
Condonation as applied for is granted. The applicant is to pay the
costs of the application.
2
The application in terms of s 17(2)(f) of the Supreme Court Act 10 of
2013 is dismissed with costs for the reason that no exceptional
circumstances warranting reconsideration or variation of the decision
refusing the application for leave to appeal have been established.
REASONS
Maya
P
:
[1]
The applicant brought an application in terms of s 17(2)(
f
) of
the Superior Courts Act 10 of 2013 (the Act). He sought (a)
condonation for his failure to bring the proceedings within the
prescribed time limits; (b) reconsideration and variation of the
order of this Court dated 22 August 2017 which dismissed his
application for leave to appeal against the judgment of the Western
Cape High Court (Engers AJ); (c) an order granting him such
leave and
(d) costs. I dismissed the application, without furnishing
substantive reasons therefor, on the basis that no exceptional
circumstances warranting the reconsideration or variation of the
decision refusing the application for leave to appeal had been
established. The following are my reasons for the decision.
[2]
I mention at the outset that the applicant’s prayer to be
granted leave to appeal against the judgment of the high court
was
incompetent. In terms of s 17(2)(
f
) of the Act ‘[t]he
decision of the majority of judges considering an application
referred to in paragraph (
b
), or the decision of the court, as
the case may be, to grant or refuse the application [for leave to
appeal] shall be final: Provided
that the President of the Supreme
Court of Appeal may in exceptional circumstances, whether of …
her own accord or on application
filed within one month of the
decision, refer the decision to the court for reconsideration and, if
necessary, variation.’
Subsection (2)(
b
) mentioned above
refers to an application for leave to appeal to the Supreme Court of
Appeal made pursuant to the refusal of leave
to appeal by the court
against whose decision an appeal is sought. It is readily apparent
from the ordinary wording of these provisions
that the relief
provided in s 17(2)(
f
) relates only to the dismissal of an
application for leave to appeal by the Supreme Court of Appeal. Thus
the President of this
Court may only direct the appeal judges who
considered the application to revisit their decision and no more.
[3]
The facts of the case and the parties’ contentions are
comprehensively set out in the two judgments of the high court
and
need not be rehashed in any great detail for present purposes. As I
understand it, the applicant’s estate was finally
sequestrated
by the high court at the instance of the second respondent, Seardel
Investment Corporation Ltd (Seardel), on the basis
of several taxed
and allocated bills of costs in the latter’s favour against the
applicant. These proceedings arise from
the applicant’s
challenge, inter alia, to the admission to prove certain claims,
including ENS’ taxed bill of costs,
against his estate by the
first respondent, the Assistant Master of the Western Cape High
Court, pursuant to a meeting of the creditors
convened under the
provisions of
s 40(1)
of the
Insolvency Act 24 of 1936
. One of the
applicant’s grounds for the review proceedings he brought in
terms of
s 151
of the
Insolvency Act (upon
which he solely relies in
this application) was that Seardel had no locus standi to sequestrate
his estate as it was not his creditor.
This was so, he contended,
because the taxed costs were incurred by Seardel’s attorneys,
Edward Nathan Sonnenbergs Inc (ENS),
a personal liability company
which had no Fidelity Fund certificate in its own name. Even though
ENS’ directors all have
the certificates in their personal
names, the lack of its own certificate was in breach of the law as it
is a ‘practitioner’
as defined in
s 1
read with s 23 of
the Attorneys Act 53 of 1979 and was thus obliged under s 41(1) and
(2) of this Act to have the certificate in
its name to lawfully
practise and earn fees and disbursements. The second to fourth
respondent’s disavowed the inclusion
of a company or any other
juristic person in the Act’s definition of a ‘practitioner’.
For that reason, so they
argued, s 41 of the Act does not apply to
ENS and it is not required to have the certificate. The high
court dismissed the
review application with costs. The applicant’s
subsequent applications for leave to appeal to appeal against this
decision
both in the high court and in this Court failed, hence this
application.
[4]
It appears that the applicant previously challenged ENS’
authority to represent Seardel in the sequestration proceedings
on
the same ground that ENS could not lawfully do so without the
certificate. This argument found no favour in the high court.
It was
rejected by this Court too. A further application to the
Constitutional Court, which was premised solely on the argument,
was
unsuccessful. The applicant’s persistence with the argument is
bolstered by Engers AJ’s comments in his main judgment
and in
the judgment on application for leave to appeal that he found the
applicant’s objection ‘to be at best, arguable’
and
that ‘[a]t best for the applicant, he has shown that his
interpretation of the Act may be a tenable one’. However,
the
acting judge made clear that he was nonetheless not convinced that
the argument was correct but found it unnecessary to decide
the issue
in light of the nature of the applicant’s onus which he failed
to discharge. In the applicant’s opinion,
these throwaway
comments (as I view them) also constitute exceptional circumstances
which warrant the reconsideration and variation
of the SCA’s
earlier order.
[5]
Section 1 of the Attorneys’ Act defines ‘practitioner’
as ‘any attorney or a notary or conveyancer’.
An attorney
means ‘any person duly admitted to practice as an attorney in
any part of the Republic’. In terms of s
23 a juristic person
may also conduct a practice subject to the conditions set out in ss
(1) which requires that (a) the private
company must be a personal
liability company; (b) only natural persons who are practitioners and
who are in possession of current
fidelity fund certificates are
members or shareholders of the company or persons having any interest
in the shares of the company;
(c) the name of the company consists
solely of the name or names of present or past members of the company
who practised for their
own account or in the predecessor of the
company provided that the words ‘and associates’ or ‘and
company’
may be included in the name of the company. Section
23(9) stipulates that ‘[a]ny reference in this Act or in any
other law
to a practitioner or to a partner or partnership in
relation to practitioners, shall be deemed to include a reference to
a company
under this section or to a member of such a company, as the
case may be, unless the context indicates otherwise’. And s
23(2)
provides that ‘[e]very shareholder of the company shall
be a director of the company, and only a shareholder of the company
shall be a director thereof’. Sections 41 and 42 respectively
require practitioners practising for their own account or in
partnership (and, by necessary implication in terms of s 23(9),
practitioners who practise in personal liability companies) to
be
holders of the certificate and make provision for the application
procedure. Nothing in the wording of these provisions suggests
that
the requirement to hold the certificate extends beyond the individual
practitioner who practices for her own account or in
a partnership
with other practitioners or in a personal liability company. And such
a reading does not detract from the objective
underlying the need for
the certificate ie the protection of the public against the
misappropriation of their money entrusted to
attorneys (see
Law
Society of the
Northern
Province v le Roux
[2015] ZASCA
168
paras 3 and 5). To my mind, the public remains adequately
protected if all the directors of the company which, in any event,
acts
through their agency, have the certificate. It is also
instructive that, as a matter of practice the law societies require
only the directors of the company and not the company itself, to have
the certificate. It is difficult to accept the applicant’s
interpretation of these provisions in the circumstances.
[6]
It is against this background that I considered whether the applicant
established the exceptional circumstances envisaged in
s 17(2)(
f
).
Furthermore, it is well to bear that a court may review a Master’s
decision in the present context only where the Master
has, in
granting her approval, erred or misdirected herself on the factual
material placed before her (see, for example,
Al-Kharafi &
Sons v Pema & Others NNO
2010 (2) SA 360
(WLD) at 396). She
does not adjudicate the claim as would a court of law. She is
required simply to satisfy herself that there
is prima facie evidence
that the creditor has a valid claim (see
Sechaba Medical Solutions
(Pty) Ltd & others v Sekete & others
(216/2014)
[2015]
ZASCA 8).
Thus, the first respondent merely had to be satisfied that
the claims based on ENS’ taxed bill of costs had been prima
facie
established when deciding whether to admit them to proof. In
light of this test the high court’s passing views on the weight
of the argument could not assist the applicant’s case as the
court itself acknowledged. . They do not tilt the prospects
of
success on appeal in his favour. Another contention advanced by the
applicant as ‘a compelling reason for the appeal to
be heard’
was ‘the potential impact on the entire legal profession if his
interpretation of the Act were to prevail’
and the reason
underlying the need for practitioners to have the certificate ie to
protect the public. It is however common cause
that this argument was
advanced and failed to hold sway in the application for leave to
appeal against the sequestration to the
Constitutional Court. And the
applicant’s further contention that his success in the appeal
would be dispositive of the entire
sequestration proceedings against
his estate as the basis therefor would be invalid is obviously
inaccurate. Only some and not
all claims against his insolvent estate
would be set aside and he would remain in sequestration.
[7]
For all these reasons I was satisfied that the application for leave
to appeal was rightly dismissed and that no basis for the
reconsideration thereof had been established.
oo
___________________________________________
MML
MAYA
PRESIDENT
OF THE SUPREME COURT OF APPEAL
APPEARANCES:
APPELLANT:
Horn & Van Rensburg, Bloemfontein
State Attorney,
Bloemfontein
RESPONDENT:
Edward Nathan Sonnenbergs Inc., Cape Town
Matsepes Inc.,
Bloemfontein