SAFLII Note: Certain personal/private det ails of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 2024-033724
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
DATE: _31 August 2026_____________
SIGNATURE: ______________
In the matter between:
F[...] J[...] R[...] Applicant
and
E[...] R[...] First Respondent
MAGISTRATE D STIGLING Second Respondent
KINEIL MUTHRAY Third Respondent
JUDGMENT
VAN DER WESTHUIZEN AJ
Introduction
[1] This is an application to review and set aside a ruling and an order made by
the second respondent, a magistrate presiding in the Domestic Violence
Court, Pretoria, in proceedings under the Domestic Violence Act 116 of 1998
(the DV Act) between the first respondent, as applicant, and the applicant, as
respondent, under case number DV959/2022 (the DV proceedings). The
ruling is that of 15 March 2023, by which the magistrate directed that an
objection to the admissibility of certain documents be disposed of by way of
argument on the question of legal professional privilege before any application
for leave to file a further affidavit would be entertained. The order is that
delivered on 7 December 2023 and made available in writing on 12 December
2023, by which the magistrate upheld the objection "based on legal
professional privilege and private and confidential information" and directed
the applicant to launch a formal application in terms of rule 55 of the
Magistrates' Courts Rules for the filing of a further affidavit "which would
exclude information covered by privilege as ruled".1
[2] The application is brought under Section 22(1)(c) and (d) of the Superior
Courts Act 10 of 2013, read with section 16 of the DV Act, which renders the
review provisions of the Magistrates' Courts Act 32 of 1944 and the Superior
Courts Act applicable to proceedings under the DV Act. The grounds relied
upon are gross irregularity in the proceedings and the admission of
inadmissible or incompetent evidence or the rejection of admissible or
competent evidence.
[3] The applicant, who is himself a practising attorney, was represented by Mr
Woodrow SC and Ms Odendaal. The first respondent, the applicant in the DV
proceedings, initially gave notice of intention to oppose but withdrew her
opposition and abides the decision of this Court. 2 The second respondent did
not oppose the merits. She delivered a written "response to review
application" dated 21 May 2024 in which she explains her reasoning, records
that she abides the decision of this Court on the merits, and opposes only the
costs orders sought against her personally. 3 The third respondent, Mr Kineil
Muthray, is the attorney who represented the first respondent in the DV
Muthray, is the attorney who represented the first respondent in the DV
proceedings. He was cited because the applicant seeks an order that he pay
the costs of this application de bonis propriis on the scale as between attorney
and client. He delivered an answering affidavit and heads of argument and
was represented at the hearing by Mr Van As.
1Caselines 02-95 (annexure FA1) and 02-97 to 02-102 (annexure FA2), paras 61 to 63.
2Caselines 11-1 to 11-3.
3Caselines 10-1 to 10-8.
[4] The issues narrowed at the hearing. Mr Woodrow confirmed that the applicant
no longer persists in any costs order against the second respondent; costs
are sought against the third respondent alone.4 For his part Mr Van As, having
handed up a draft order confined to the costs issue, informed me that the third
respondent does not persist in any opposition to the review on its merits, that
he "does not have a horse in that race", and that his participation is confined
to resisting the personal costs order sought against him and to seeking costs
against the applicant on a punitive scale. 5 The concession was properly
made, but it came late: the third respondent's answering affidavit opposed the
review root and branch, characterised it as a "hopeless case" and an abuse of
process, and asked that it be d ismissed with punitive costs, and his heads of
argument, delivered in January 2026, maintained that stance. Its significance
will appear when I come to costs.
[5] The issues that remain for decision are therefore: (a) whether this Court
should entertain a review of proceedings that have not yet run their course in
the court below; (b) whether the ruling and order are reviewable under section
22(1)(c) or (d); (c) if so, what relief is appropriate; and (d) costs, in particular
whether the third respondent should be ordered to pay the costs of the review
personally and, if so, on what scale.
The background
[6] The applicant and the first respondent were married in 2009 and divorced in
2013. Two daughters were born of the marriage. From 2011 until 2020 the
applicant was in a relationship with Ms E[...] D[...] L[...], a practising advocate,
and a son was born of that relationship in 2017. In March 2022 the applicant
launched an application in this Court against Ms D[...] L[...] concerning his
parental rights in respect of that child. On 6 April 2022, shortly before Ms D[...]
L[...]'s answering affidavit in that application fell due, the first respondent
L[...]'s answering affidavit in that application fell due, the first respondent
obtained an interim protection order against the applicant ex parte in the
Domestic Violence Court on the basis of alleged economic abuse. 6 The
applicant opposed the confirmation of the interim order. His case in the DV
proceedings has throughout been that the application was not brought
because of any act of domestic violence but for an ulterior purpose, namely to
4Recording of the hearing of 9 June 2026, 11:33 segment.
5Recording of the hearing of 9 June 2026, 11:33 to 11:36 segments.
6Founding affidavit, Caselines 02-14 to 02-15, paras 27 to 33.
assist Ms D[...] L[...] in the pending High Court litigation, and that Ms D[...]
L[...] was, as he put it, the "silent party" to the DV proceedings. The first
respondent denied under oath that Ms D[...] L[...] had any involvement.7
[7] The DV proceedings became protracted. Affidavits were exchanged beyond
the usual three sets. On 10 March 2023, shortly before a hearing set down for
15 March 2023, the applicant's erstwhile attorneys filed and served a further
supplementary affidavit, without leave, in response to what the applicant
contended were new facts raised by the first respondent. Some thirty
annexures were attached to it (annexures RR1 to RR30). Among them were
screenshots and email cover pages which, on the applicant's case, show that
Ms D[...] L[...] drafted affidavits for the first respondent in the DV proceedings
and corresponded with her and with the third respondent about them,
including emails of 12, 14, 16 and 17 October 2022 addressed by the first
respondent to the third respondent and Ms D[...] L[...] under the subject line
"Answers E[...] R[...] Domestic Violence".8 The magistrate, on discovering that
the affidavit had been placed on the file without leave, directed the clerk to
remove it, without herself reading it. On 14 March 2023 the applicant's
attorneys wrote to the third respondent recording that the affidavit would be
removed from the file and that a formal application for leave to file it would be
brought.9
What happened on 15 March 2023
[8] The transcript of 15 March 2023 is the foundation of the applicant's
complaints, and I have read it with care. 10 Ms Haupt, who then appeared for
the applicant, informed the magistrate of the applicant's intention to bring a
substantive application for leave to file the further affidavit, drew attention to
section 6(2)(b) of the DV Act, and asked for a postponement for that purpose.
The third respondent objected. He did so, however, not merely by raising a
The third respondent objected. He did so, however, not merely by raising a
point of law. He addressed the magistrate at length, and from the bar, on
matters of fact of which he could have had no personal know ledge and which
were not on affidavit: that the applicant had "unlawfully accessed" the first
7Caselines 02-16 to 02-17, paras 35 to 39; 02-18, para 45.
8The annexures are tabulated in the founding affidavit at Caselines 02-48 to 02-54, para 173.
9Caselines 02-19, paras 46 to 48 and annexure FA5.
10The transcript forms part of the third respondent's answering affidavit as annexure KM4, Caselines
09-67 to 09-132, and of the Rule 53 record in section 13 of the bundle.
respondent's email account; that "it appears that the respondent accessed my
client's email from her daughter's phone", had "opened all the mails and
forwarded those mails to himself" and thereafter to his receptionist; that the
first respondent "could not understand how it is possible that emails that she
received were already been opened"; that the applicant had been "sitting with
this information from 7 February "; and that the annexures comprised
privileged correspondence between himself and his client and between his
client and another attorney, Ms Uys, including a mandate and draft litigation
documents.11 He went on to accuse the applicant and his legal team of "gross
criminality and misconduct", described the forum as one which opposing
counsel treated as a "Mickey Mouse" forum, said that the applicant's erstwhile
attorney had been reported to the Legal Practice Council and that counsel
would be reported to the Deputy Judge President, contended that the
applicant's legal representatives had "painted themselves with this tainted
brush of criminality" and should be disqualified from acting, and concluded
that counsel had chosen "to take a sip of the devil's cup".12
[9] The magistrate herself cautioned the third respondent early in that address.
Having stopped him, she said: "I do not know if whatever you are going to tell
me is going to have any influence or undue influence on this Court and
whether it should not be. So, if that should be then I will be reluctant to hear
that. Just be careful, I do not want this proceedings to be tainted." 13 The
caution had no discernible effect on what followed.
[10] Ms Haupt's response is important because the third respondent's central
answer in this Court is that no complaint was ever made about his conduct at
the time. She placed on record that the proceedings would be transcribed and
that the applicant would ask for an opportunity "to properly deal with the
issues raised by Mr Mut hray which is not under oath"; that "Mr Muthray must
issues raised by Mr Mut hray which is not under oath"; that "Mr Muthray must
decide either he is legal representative who forwards arguments based on the
papers as they are before the Court ... or whether he wants to be a witness in
this matter, because he keeps on making submissions that are not under oath
attempting to persuade the Court, influence the Court"; that she appeared in a
professional capacity, had no personal interest and "was not a witness in this
matter"; that the applicant was entitled to a fair hearing "where mat ters are
properly placed under oath so that he can respond thereto in the correct
11Caselines 09-89 to 09-90; 09-101 to 09-102.
12Caselines 09-89; 09-91; 09-101 to 09-105; 09-117 to 09-118.
13Caselines 09-87.
fashion"; and, later, that "again my colleague must decide whether he is a
witness in this matter, or whether he is going to argue this matter on the
papers as they are before this Court". She asked, in terms, that the applicant
"be afforded the opportunity to deal with the new issues raised by the
applicant in her further affidavit ... including with the issues raised as per the
record of today's proceedings, because again Mr Muthray refers to things that
his client came to her attention that her emails are open. I do not know
whether that is under oath. Give her the opportunity then to deal with that
under oath." 14 She also proposed that the parties exchange heads of
argument.
[11] The magistrate, after expressing her displeasure at the manner in which the
further affidavit had been filed, ruled as follows: "the only postponement I will
grant is for you to prepare fully on that argument of privileged. I will allow for
the transcription of the records. So what I am saying ... I did not say for the
application. [I] must first make a sort of ruling whether I will allow the
application, whether I will hear the application once I have comprehensive
arguments ... Then I am in a position to rule, yes I will hear or no, no more
hearings we are proceeding ..." The matter was postponed to 30 May 2023
"for heads of arguments relating to the privileged issue that was raised".15 The
request to deal with the third respondent's factual assertion s on affidavit was
thus not granted. The scope of the postponed hearing was confined to
privilege.
The subsequent hearings
[12] On 30 May 2023 Mr Botha, who then appeared for the applicant, submitted
that privilege could not be adjudicated without the context that only an
application on affidavit could supply, and asked for leave to bring such an
application. The third respondent opposed this and asked the magistrate "to
reinforce the ruling that the issue of privilege be argued as a legal point,
reinforce the ruling that the issue of privilege be argued as a legal point,
before any other interlocutory application can be brought". Mr Botha objected
that the third respondent's heads of argument contained factual allegations
unsupported by any evidence. The magistrate adhered to her ruling, indicating
14Caselines 09-105 to 09-107; 09-110 to 09-112.
15Caselines 09-126 to 09-127; 09-132.
that "if the court is satisfied that whatever is in the heads should not have
been argued, the court will leave it out".16
[13] On 29 June 2023 Mr Woodrow appeared. The magistrate confirmed that the
hearing concerned privilege alone. 17 Mr Woodrow argued, with reference to
authority, that th e party asserting privilege bears the onus, that privilege
"cannot be claimed without jurisdictional facts being placed before the Court",
and that the third respondent's difficulty was "that he did not place
jurisdictional facts before the Court. There is no affidavit setting out those
jurisdictional facts. And as it has been pointed out to him in previous
arguments, his submissions are not evidence." He added that a large part of
the third respondent's heads of argument was "not supported by any affidavit
before you" and asked that, when the third respondent made factual
submissions, he refer the court to the page of the record on which the fact
appeared, failing which he would not interrupt but would deal with the point in
reply.18
[14] In reply the third respondent said that Ms D[...] L[...] was "in no way involved
in this matter"; that his colleague had "conveniently sidestepped the issue of
confidential and private documents"; that the emails had been intercepted
"without the applicant's permission. That is c ommon cause"; that "we must
emphatically argue that he unlawfully accessed a private account"; and, after
stating that he had the supplementary affidavit with him but had deliberately
not placed it before the court, that "what we can do like we have done in our
heads of argument [is] to give the Court sufficient information to determine
whether or not those documents can be considered privileged, confidential
and private". 19 When Mr Woodrow objected to the first of the references to
unlawful access, the magi strate told him to note it and deal with it in reply,
which he did: "there was not one reference to any page number, or to any
which he did: "there was not one reference to any page number, or to any
affidavit, or to any fact in his address to you. Not once." 20 He explained that
he had not addressed privacy and confidentiality because to do so "would be
16Founding affidavit, Caselines 02-24 to 02-25, paras 70 to 76; replying affidavit, Caselines 15-21 to
15-22, para 78, quoting the transcript of 30 May 2023 at p 16. These allegations are admitted by the
third respondent "to the extent that they accord with the facts according to transcripts" (answering
affidavit, Caselines 09-49, para 94).
17Caselines 09-137 to 09-138.
18Caselines 09-141 to 09-142; 09-145.
19Caselines 09-154 to 09-155; 09-157; 09-161 to 09-162.
20Caselines 09-153; 09-166.
acting in contravention of what your order was", and because "there is no
evidence of interception".21
[15] The exchange that followed is, in my view, the pivot of the case. Prompted by
the third respondent's invitation that Mr Woo drow explain how the documents
had been obtained, the magistrate put to Mr Woodrow that "three counsel"
had appeared and "never once" denied the submissions about interception:
"Is that because it is common cause? Should the Court accept it?" Mr
Woodrow answered that it was not common cause, that it was not on the
papers, and that neither party could properly make submissions of fact that
were not on the papers. The magistrate responded that it was "the first time
that I hear it is not common cause"; that s he had "accepted it all along and
there is no dispute about it"; that "my thought was that it was unlawfully
interception"; and asked why the point was raised "only now". Mr Woodrow
pointed out that Ms Haupt had objected on 15 March 2023 that the third
respondent could not lead evidence from the bar. The magistrate then
recorded: "So, I can record here now respondent is subject to submissions ...
of the interception. So at this stage ... what I understand now is that there are
allegations under the intercep tion without the evidence" and "Now I know
there is an objection. What I am going to do with that information, I will see at
this point." 22 The third respondent's rejoinder was that this was "an
inquisitorial forum", that the applicant had been asked how he accessed the
emails and had not answered, that "we do not have an affidavit that we need
to try and respond to. That already speaks volumes", and that he asked the
court "to draw an inference from it". Mr Woodrow replied: "there is no
inference to draw whatsoever. We have asked to file an affidavit and we were
told that we will argue on privilege."23
[16] On 30 August 2023, the date set for judgment, the magistrate indicated that
[16] On 30 August 2023, the date set for judgment, the magistrate indicated that
she could not decide privilege without seeing the documents. The third
respondent undertook to place them before her, but at the same time
reminded her that "it was not only a legal privilege that we relied on. There
was confidential information, private privilege, and then of course the legal
privilege", and pressed the point that the applicant had been invited to explain
how the documents were obtained and had "conveniently sidestepped" the
21Caselines 09-168 to 09-169.
22Caselines 09-173 to 09-181.
23Caselines 09-179 to 09-180.
invitation.24 The applicant, who appeared in person that day with a candidate
attorney, again asked that the admissibility questions be dealt with on affidavit
so that "the basis of how that documents were obtained will be set out in that
affidavit". The magistrate's answer was: "And I dismissed it. ... My ruling was,
once we laid to rest the privilege issue, once I made a ruling ... then I am open
to that request and then I will consider that. So I cannot go back to that." 25 It is
the applicant's case, not answered on affidavit by the third respondent, that
the third respondent thereafter placed only seven of the thirty annexures
before the magistrate and that the remainder, including the October 2022
emails addressed to the third respondent and Ms D[...] L[...], were supplied by
the applicant's attorneys. 26 On 24 October 2023 the applicant's legal team
delivered written argument dealing with each annexur e individually; the third
respondent objected to its reception, and it was admitted only after further
argument.27 Judgment was delivered on 7 December 2023.
The judgment of the Domestic Violence Court
[17] The written judgment records, under the heading "evaluation of the law and
facts", that "when Mr Muthray first raised the issue of legal professional
privilege he never mentioned private and confidential privilege", that "the court
was taken by surprise" w hen private and confidential information became an
issue, and that "it is clear the respondent was also not aware that this was an
issue, hence they never addressed same". 28 It then records the third
respondent's submission that the emails "was unlawfully obtained, breaching
his client's right to privacy"; that "throughout the proceedings the respondent
has never denied the emails referred to were unlawfully obtained up to the
point the court directly asked if it was denied"; and that "no explanation of how
it was obtained was placed before this court. The only conclusion the court
it was obtained was placed before this court. The only conclusion the court
can come to is that such information was indeed illegally obtained." 29 Under
the heading "finding" the magistrate held that "the only inference the court can
draw is that the emails were irregularly accessed. The applicant's consent to
access these emails was not obtained. I hence cannot turn a blind eye to the
24Caselines 09-394 to 09-399.
25Caselines 09-421 to 09-423.
26Founding affidavit, Caselines 02-31, para 107 and 02-65 to 02-66, paras 209 to 213.
27Caselines 09-311 to 09-390; founding affidavit, Caselines 02-32, paras 108 to 109.
28Caselines 02-99, para 23.
29Caselines 02-99, paras 31 to 33.
fact that the applicant's right to privacy was infringed"; that "the court is at
liberty to relax certain rules" because the proceedings are quasi -judicial and
sui generis; that the withdrawal of the applicant's erstwhile attorney "speaks
volumes. Had there been no irregularity with retrieving the emails, why the
withdrawal?"; that counsel's failure to counter the interception allegation could
only be because "if it was countered, the manner in which the emails were
accessed was to be revealed"; and that "the court initially only ordered
arguments on legal professional privilege and on the insistence of applicant's
attorney the court did also order the arguments to cover confidential
information. This seems to have gone past the respondent's counsel." 30 She
found the communications between the first respondent, the third respondent,
Ms Uys and Mr Claasen, and those between Ms D[...] L[...] and the first
respondent "regarding other legal matters", to be protected by legal
professional privilege, and held that "the other communications which do not
fall under legal professional privilege is also not allowed as it was unlawfully
obtained. Nothing is placed before this court to show the contrary."31
[18] In her written response to this application the magistrate confirms the basis of
her reasoning. She states that "the submissions by the respondent 3 that the
emails were retrieved via the respondent's daughter's cell phone was never
denied"; that "the cour t could draw no other inference in the absence of an
explanation that the information was unlawfully obtained, albeit intercepted or
not"; and, of the applicant and his representatives, that "one would expect
them to argue a point of law or fact thrown at them ... Were they silent on that
because they had no defence?" 32 She accepts that "initially it was understood
that the issue was only relating to legal professional privilege" and that it was
"later" that issue was taken on privacy and confidentiality.33
"later" that issue was taken on privacy and confidentiality.33
The third respondent's preliminary objections
[19] The third respondent raised a number of objections in limine in his answering
affidavit. Although he did not press the merits at the hearing, he persisted in
those that bear on the competence of the costs relief, and it is convenient to
deal with all of them briefly.
30Caselines 02-100 to 02-102, paras 39 to 49 and 57.
31Caselines 02-102, paras 59 to 60.
32Caselines 10-4 to 10-5, paras 4 to 6.
33Caselines 10-5, para 5.
[20] Joinder. The third respondent contends that, not having been a party to the
DV proceedings, he could not competently be joined to the review. The
objection is misconceived. He was joined b ecause a costs order is sought
against him personally. A person against whom personal relief is sought has a
direct and substantial interest in the proceedings and must be joined so that
he may be heard. Far from being irregular, his joinder was necessary; a
personal costs order made without affording the practitioner a proper
opportunity to answer cannot stand. 34 The third respondent has answered
fully, on affidavit and in argument, and the audi principle is satisfied.
[21] "New relief". The third responden t contends that a court sitting on review
under Section 22 of the Superior Courts Act may only set aside and remit, and
may not grant "new relief" in the form of a costs order against a person who
was not a party below. This confuses the costs of the proceedings in the court
below with the costs of the proceedings in this Court. The applicant no longer
seeks any order in respect of costs in the Domestic Violence Court. What he
seeks is an order as to the costs of this application. The award of those costs
lies within the ordinary discretion of this Court, which exists independently of
section 22 and extends to every party properly before it. The third respondent
is such a party. Whether his conduct in the court below is a legitimate
consideration in the exercise of that discretion is a different question, to which
I return.
[22] Disguised appeal. It is trite that a review is directed at the regularity of the
proceedings and an appeal at the correctness of the result. The applicant's
complaints are that he was refused the opportunity to place evidence before
the court; that findings of fact were made against him on no evidence; that
unsworn submissions from the bar were treated as established facts; and that
issues he was told would not be decided were decided against him. Those are
issues he was told would not be decided were decided against him. Those are
complaints about the manner in which the decision was reached. That the
same facts might also have founded an appeal does not render the review
incompetent. The objection fails.
[23] Mootness. The contention that the relief is moot b ecause the magistrate
"allowed" a Rule 55 application misreads her order. The order directs that any
Rule 55 application be for an affidavit "which would exclude information
covered by privilege as ruled above". The very material the applicant wishes
34CB and Another v HB 2021 (6) SA 332 (SCA) para 21; Public Protector v South African Reserve
Bank 2019 (6) SA 253 (CC) paras 220 to 226.
to place before the court has been excluded in advance. The relief is not
moot.
Review of uncompleted proceedings
[24] The most substantial threshold point is that the DV proceedings are pending
and that this Court should not intervene mid-stream. The principle is settled. A
superior court has the power to review the proceedings of a lower court before
they have terminated, but it will exercise that power sparingly and only in rare
cases "where grave injustice might otherwise result or where justice might not
by other means be attained". 35 The rationale is the undesirability of piecemeal
adjudication and the ordinary sufficiency of the remedies available once the
proceedings are complete. Each case must, however, be judged on its own
circumstances, and no precise limits to the power can be prescribed.
[25] In my view this is one of those rare cases. I say so for the following reasons,
which must be weighed together rather than each on its own.
[26] First, the impugned order is not a provisional evidentiary ruling which the
magistrate might revisit as the case unfolds. The magistrate said in terms on
30 August 2023 that, having dismissed the request to deal with the matter on
affidavit, "I cannot go back to that". Her order determines, finally and for the
purposes of the DV proceedings, that the applicant may not rely on any of the
annexures, whether privileged or not, and it confines any future Rule 55
application accordingly. It is, in substance, final in its effect on the evidence
the applicant may adduce in his defence. Mr Van As did not seriously contend
otherwise.
[27] Secondly, the order carries findings of fact of a grave kind, namely that the
applicant "irregularly accessed" and "unlawfully obtained" the first
respondent's emails without her consent and infri nged her constitutional right
to privacy, conduct which, on the third respondent's own submissions below,
would constitute a criminal offence under section 2 of the Regulation of
would constitute a criminal offence under section 2 of the Regulation of
Interception of Communications and Provision of Communication -related
Information Act 70 of 2002. Those findings were made, on the magistrate's
own account, on the strength of an unsworn assertion and an inference from
35Wahlhaus and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A) at
119H to 120E.
silence, after the applicant had three times asked for, and been refused, the
opportunity to deal with the allegat ion on oath. Findings of that character,
made in that manner, against a litigant who is himself an officer of this Court,
are not the kind of irregularity that can sensibly be left to be corrected, if at all,
after the interim protection order has been confirmed or discharged on a
record from which his evidence has been excluded.
[28] Thirdly, the excluded material goes to the heart of the applicant's defence. His
case is that the DV application was brought for an ulterior purpose in collusion
with Ms D[...] L[...], whose involvement the first respondent denied under oath.
The annexures are said to demonstrate that involvement. Whether they do,
and what weight they deserve, is for the Domestic Violence Court. But to
require the applicant to litigate the confirmation of the protection order to
finality without them, and then to seek to have the whole process set aside
and repeated, would be to compel an exercise that is, on the applicant's case,
foredoomed to be abortive. The interim order has been in place since A pril
2022. The interests of both parties, and of the children whose welfare
underlies proceedings of this kind, are better served by correcting the process
now.
[29] Fourthly, and unlike the typical case in which a magistrate's interlocutory
ruling is challenged, the irregularity here is not a disputed exercise of
discretion on which reasonable judicial officers might differ, but a failure of the
most basic kind: the making of findings of fact without evidence and without
hearing the party against whom they were made. The third respondent's
submission that the applicant has an adequate alternative remedy in the form
of a future appeal or review rings hollow when the magistrate has expressly
foreclosed the route by which the applicant sought to place his evidence
before her.
[30] The review is accordingly properly before this Court.
before her.
[30] The review is accordingly properly before this Court.
Whether the proceedings were grossly irregular
[31] A gross irregularity for the purposes of Section 22(1)(c) is an irregularity in the
conduct of the proceedings, as opposed to t he result, of such a nature that it
prevented a fair trial of the issues. It need not involve bad faith or high -
handedness; conduct that is well -intentioned but mistaken may qualify. The
crucial question is whether the party complaining was denied a fair hearing.36
[32] Measured against that standard, the proceedings below were, in my
judgment, vitiated by gross irregularity in at least four respects, each of which
fed into the next.
[33] Findings of fact on no evidence. The magistrate found that the emails had
been "irregularly accessed" and "unlawfully obtained", that the first
respondent's consent had not been obtained, and that her right to privacy had
been infringed. There was no evidence before the court on any of those
matters. The assertions originated in the third respondent's address from the
bar on 15 March 2023 and were repeated in his heads of argument. An
attorney's submissions are not evidence, and the magistrate's own remark
that the court would "leave out" whatever in the heads should not have been
there shows that she knew as much. A finding of fact that rests on no
evidence at all is not an erroneous finding; it is an irregularity in the
proceedings, because the party against whom it is made has had no
opportunity to meet a case that was never properly put.
[34] Refusal to receive evidence, followed by an adverse inference from its
absence. The irregularity was compounded by the sequence of events. On 15
March 2023 Ms Haupt asked, in terms, that the applicant be given the
opportunity to deal w ith the interception allegation under oath. The request
was refused; the magistrate confined the postponed hearing to argument on
privilege. The request was renewed on 30 May and 29 June 2023 and again
on 30 August 2023, and was refused on each occasion. The magistrate then
reasoned that, because the applicant had not explained how he came by the
emails, the only inference was that he had obtained them unlawfully, and that
his silence could only be because the truth "was to be revealed". A court
cannot fairly refuse a party leave to place evidence before it and then hold his
cannot fairly refuse a party leave to place evidence before it and then hold his
failure to do so against him. The magistrate's reliance in her response on the
"inquisitorial" nature of DV proceedings does not assist her. Section 6(2)(b) of
the DV Act empowers the court to consider "such further affidavits or oral
evidence as it may direct"; it does not empower the court to substitute
36Goldfields Investment Ltd and Another v City Council of Johannesburg and Another 1938 TPD 551
at 560 to 561; Building Improvements Finance Co (Pty) Ltd v Additional Magistrate, Johannesburg,
and Another 1978 (4) SA 790 (T) at 792G to H; Eimco (South Africa) (Pty) Ltd v Magistrate, Wynberg,
and Others 1967 (3) SA 715 (C) at 721A to C.
submissions for evidence, and it was precisely the receipt of evidence that the
applicant was asking for and the court declined.
[35] Deciding issues outside the scope the court had itself defined. The magistrate
ruled on 15 March 2023 that the parties were to address her on privilege, and
she confirmed that ruling on 30 May and 29 June 2023. The applicant's
counsel prepared and argued accordingly, and when the third respondent
strayed into confidentiality and unlawful access Mr Woodrow explained why
he would not follow: to do so would contravene the court's own order, and
there was no evidence on which to do so. The magistrate recorded in her
judgment that she herself had been "taken by surprise" when private and
confidential information became an issue and that the applicant's side "was
also not aware that this was an issue, hence they never addressed same".
She nevertheless decided those issues against him, and in doing so stated
that she had "also order[ed] the arguments to cover confidential information"
at the instance of the first respondent's attorney. No such order appears
anywhere in the record, and the magistrate's own response to this application
accepts that the issue arose "later". To decide a case against a party on an
issue he was told would not be decided, without warning him that the position
had changed, is a breach of the audi alteram partem rule in its most
elementary form.
[36] Inversion of the onus and the absence of jurisdictional facts for privilege. The
party asserting privilege bears the onus of establishing it, and a claim of legal
professional privilege requires proof, ordinarily on affidavit, that the
communication was made to a legal adviser acting in a professional capacity,
in confidence, for the purpose of obtaining legal advice, and not in furtherance
of a crime or fraud.37 Mr Woodrow made precisely this submission on 29 June
2023. No affidavit was ever filed in support of the objection. The magistrate
2023. No affidavit was ever filed in support of the objection. The magistrate
saw the documents, which was necessary but not sufficient; the
circumstances in which each communication was made, and whether the
crime-fraud exception on which the applicant relied was engaged, could not
be determined from the face of email cover pages. By holding that "nothing is
placed before this court to show the contrary", the magistrate placed on the
applicant an onus that lay on the first respondent.
37A Company and Others v Commissioner, South African Revenue Service 2014 (4) SA 549 (WCC)
paras 23, 33 and 35; as to the crime-fraud exception, Waste Products Utilisation (Pty) Ltd v Wilkes
and Another 2003 (2) SA 515 (W) at 551, on which the magistrate herself relied.
[37] I do not overlook that the applicant's erstwhile attorneys precipitated the
difficulty by filing the further affidavit without leave, nor that a magistrate
presiding in a busy Domestic Violence Court is entitled to regulate her own
procedure and to be impatient of delay. Nor do I decide whether any of the
annexures are in truth privileged, confidential or unlawfully obtained, or
whether they are relevant and should be admitted. Those are matters for the
Domestic Violence Court, on proper evidence. What I decide is that the
manner in which those questions were determined denied the applicant a fair
hearing of the issues. That is a gross irregularity within the meaning of section
22(1)(c). In so far as the magistrate received and acted upon the third
respondent's unsworn factual assertions as if they were evid ence, while
refusing to receive the applicant's evidence on the same question, the
proceedings are in the alternative reviewable under Section 22(1)(d).
[38] Although the second respondent is not a party to this review in the ordinary
sense and abides its outcome, I record that nothing in this judgment implies
that she acted other than in good faith. Her response makes plain that she
believed the interception allegation to be common cause because it had gone
unanswered, and the transcript shows how that bel ief came about. The
irregularity lies in the process, not in any want of integrity.
Relief
[39] The review succeeds. The order of 7 December 2023 cannot stand. The
ruling of 15 March 2023, by which the magistrate declined to entertain an
application for leave to file the further affidavit until privilege had been decided
as a point of law, was the procedural root of what followed and falls to be set
aside with it, so that the admissibility questions may be approached afresh
and on evidence.
[40] The applicant asks that the matter be remitted for hearing before a magistrate
other than the second respondent. Ordinarily a matter is remitted to the same
other than the second respondent. Ordinarily a matter is remitted to the same
presiding officer. Two considerations persuade me that a different magistrate
should deal with the rule 55 application and the admissibility questions. The
first is that the second respondent has expressed firm views, in her judgment
and again in her response to this application, about the applicant's conduct,
the reasons for his erstwhile attorney's wi thdrawal and the "antics" of his legal
team, on the very questions that must now be decided on evidence; a
reasonable litigant in the applicant's position would apprehend that those
views would be difficult to set aside. The second is practical: I was informed
from the bar, on instructions, that the second respondent has since been
transferred to Kimberley and that two magistrates presently preside in the
Pretoria Domestic Violence Court. 38 Remittal to a different magistrate is
therefore both appropriate and feasible. I make no order as to which
magistrate should hear the matter; that is for the Chief Magistrate.
[41] The applicant also asks that the issues of privilege, confidentiality and privacy
be determined in the Rule 55 application. That is, in my view, the correct
approach and is consistent with what the applicant's representatives asked for
from the outset: the applicant must, in an application for leave to file the
further affidavit with its annexures, set out on oath the circumstances in which
the annexures came into his possession and the basis on which he contends
they are admissible; the first respondent may answer on oath, including on
any claim of privilege, confidentiality or unlawful acquisition; and the Domestic
Violence Court will then decide, on evidence and after hearing both parties,
whether and to what extent the affidavit and annexures should be received.
Whether the rule 55 procedure or some less formal procedure under section
6(2)(b) of the DV Act is employed is a matter for the magist rate seized of the
matter; what is required is that the questions be decided on evidence. The
question of costs in the DV proceedings, including any costs under Section 15
of the DV Act, remains for that court.
Costs
[42] The costs of this application are where the real contest lay. The applicant
asks that the third respondent pay them de bonis propriis and on the attorney
and client scale. The third respondent asks that the application as against him
be dismissed and that the applicant pay his costs on th e attorney and client
scale.
be dismissed and that the applicant pay his costs on th e attorney and client
scale.
[43] The principles are not in dispute. Costs are in the discretion of the Court,
exercised judicially on the facts. A costs order against a legal practitioner
personally is an extraordinary remedy, reserved for conduct that "substantially
and materially deviates from the standard expected of legal practitioners, such
that their clients, the actual parties to the litigation, cannot be expected to bear
38Recording of the hearing of 9 June 2026, 12:00 segment.
the costs, or because the court feels compelled to mark its profound
displeasure"; the recognised instances include dishonesty, obstruction of the
interests of justice, irresponsible and grossly negligent conduct, litigating in a
reckless manner, and misleading the court. Errors of law, lapses in
compliance with the rules, and robust advocacy do not qualify; practitioners
must be free to present their clients' cases fearlessly and vigorously, but
always within the ethical rules that bind them. 39 Such an order is not made
lightly and must be grounded in facts that plainly support it and in reasons that
are articulated; the practitioner must have had a proper opportunity to be
heard.40 An order on the attorney and client scale is a further and separate
punitive measure that requires its own justification, classically conduct that is
vexatious, reckless or such as to put the other side to unnecessary trouble
and expense.41
[44] The enquiry must be framed with some care. To begin with, the third
respondent is not before this Court merely as a practitioner who represented a
party; he is himsel f a party, cited in his own name, who elected to oppose.
The label de bonis propriis , which properly describes an order that a
representative pay from his own pocket rather than from the estate or client
he represents, is therefore something of a misnomer: any costs order against
the third respondent in this application is necessarily one that he pays
personally. The real question is whether he should bear the applicant's costs
of the review at all and, if so, on what scale.
[45] A further distinction must be kept in mind. The costs of the review fall into two
categories: the costs of bringing it, which the applicant would have incurred
whether or not anyone opposed it, and the costs occasioned by the third
respondent's opposition. They rest on different footings.
[46] The costs occasioned by the opposition. The third respondent delivered an
[46] The costs occasioned by the opposition. The third respondent delivered an
answering affidavit of some 436 pages. In it he opposed the review on the
merits comprehensively: he contended that the review was incompetent,
premature, moot and a disg uised appeal, that the magistrate's process was
"beyond reproach", that the application was a "hopeless case" and an abuse
39Multi-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd 2014 (3) SA 265 (GP)
paras 34 to 35; Thunder Cats Investments 49 (Pty) Ltd v Fenton 2009 (4) SA 138 (C) para 30;
Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA).
40Economic Freedom Fighters v Gordhan and Others 2020 (6) SA 325 (CC) para 92; Public Protector
v South African Reserve Bank (above) paras 220 to 226; CB v HB (above) para 21.
41In re Alluvial Creek Ltd 1929 CPD 532 at 535; Public Protector v South African Reserve Bank
(above) para 220.
of process, and he asked that it be dismissed with costs on the attorney and
client scale, including the costs of two counsel. The first respondent, his client,
who had withdrawn her opposition, deposed to a confirmatory affidavit
confirming his affidavit "to the extent it applies to her in resisting the review".
His heads of argument, delivered in January 2026, maintained the oppositio n.
Only at the hearing, and only after his client's abidance had been placed
squarely before the Court, did Mr Van As abandon the merits. That opposition
was unsuccessful, and it was, as the third respondent's own affidavit
acknowledges, opposition by a person who had no interest of his own in the
outcome of the review on its merits. A party who opposes relief unsuccessfully
ordinarily pays the costs occasioned by his opposition. I see no reason to
depart from that rule. Nor was the opposition on the merits a restrained
holding position. It was advanced in intemperate terms, largely in the form of
legal argument rather than evidence, and it materially lengthened and
complicated a matter in which the actual party to the DV proceedings had
chosen not to resist. The wasted costs of the unopposed roll of 9 April 2025,
on which the matter was struck off after the late delivery of the answering
affidavit, stand on the same footing.
[47] The costs of bringing the review. Whether the third respondent should also
bear the costs which the applicant would have incurred in any event depends
on whether his conduct in the Domestic Violence Court was such that those
costs can fairly be said to have been occasioned by it, and whether it was of a
character that warrants the Court marking its displeasure. This requires me to
make findings on the two matters on which the parties were most sharply
divided: whether the third respondent's conduct was objected to at the time,
and whether it caused the irregularity.
[48] On the first, the third respondent's position, on affidavit and in his heads, is
[48] On the first, the third respondent's position, on affidavit and in his heads, is
that "at no point during those proceedings did the applicant or his counsel
object to the third respondent's conduct or accuse him of impropriety in court",
that "no complaint was ever raised against him in the trial court, not by the
second respondent, who did not caution or rebuke him, and not by the
applicant's legal representatives", and that the allegations "surfaced for the
first time in this review". 42 That is not correct, and the thi rd respondent, who
attached the transcript to his own affidavit, must have known it was not
correct. Ms Haupt objected on 15 March 2023, in the terms I have quoted, to
42Third respondent's heads of argument, Caselines 16-7, para 5; 16-17 to 16-18, paras 42 to 43; 16-
23, para 67; answering affidavit, Caselines 09-39, para 79 and 09-41, para 92.2.
his making submissions not under oath and to his straddling the roles of
advocate and witness, and asked for the opportunity to meet his allegations
on oath. Mr Botha objected on 30 May 2023 to the factual content of his
heads. Mr Woodrow objected on 29 June 2023, both when the allegation of
unlawful access was first repeated and in reply. Th e magistrate herself
cautioned him on 15 March 2023 about tainting the proceedings. The
contention that no contemporaneous objection was taken is rejected.
[49] On the second, the magistrate's response establishes the causal link more
directly than is usual in matters of this kind. She says in terms that her finding
of unlawful acquisition rested on the third respondent's submission that the
emails were retrieved via the daughter's cellphone, which "was never denied",
and on the absence of an explanation. T he submission was his; it was never
on oath; he persisted in it after objection and after the court's caution; he
invited the magistrate, in terms, to draw an inference from the applicant's
silence when he knew that the applicant had asked to answer on oath and
had been refused; and on 30 August 2023, when the magistrate was minded
to confine herself to privilege, he reminded her of the "private privilege" and of
the applicant's supposed evasion. But for that course of conduct the
evidentiary vacuum in which the magistrate made her findings would not have
existed in the form it did, and this review, in all probability, would not have
been necessary.
[50] The third respondent's answer is that the decision was the magistrate's, that
she was an independent judicial officer who gave both sides a full hearing and
delivered a reasoned judgment, and that if she erred the error is hers. There
is force in this, and it is the consideration that has given me most pause. A
court that makes findings on no evidence is resp onsible for its own
irregularity, and I have found that the magistrate was. But the existence of a
irregularity, and I have found that the magistrate was. But the existence of a
judicial error does not absolve the practitioner whose conduct induced it. An
attorney is an officer of the court. He may not give evidence from the bar; he
may not, after objection, persist in placing before a court factual assertions of
which he has no personal knowledge and which are not on oath; and he may
not invite a court to draw an inference from an opponent's silence on a matter
the court has itself e xcluded from the enquiry. The duty not to mislead the
court, which is owed regardless of the client's instructions, includes the duty
not to induce it to treat submission as proof. That the magistrate ought to have
resisted the invitation does not make the invitation proper.
[51] I have also considered the further allegations of misconduct on which the
applicant relies: that the third respondent's denial of Ms D[...] L[...] 's
involvement was false to his knowledge, given that he was an addressee of
the October 2 022 emails; that he discovered only seven of the thirty
annexures and described them misleadingly; and that his heads of argument
in the Domestic Violence Court were recycled from the first respondent's
urgent application in this Court and referred to affidavits not before the
magistrate. These allegations are made in detail in the founding affidavit at
paragraphs 197 to 246. 43 The third respondent did not answer them. His
affidavit proceeds seriatim to paragraph 189 of the founding affidavit and then
passes directly to a four-paragraph section on costs in which he says only that
he complied with the court's directions, conducted himself within the rules,
was never cautioned, and regards the request as vexatious and intended to
intimidate. A litigant who faces specific, documented allegations of
misconduct and elects not to deal with them cannot complain if the court
approaches his bare denial with scepticism. I nonetheless refrain from making
a finding that the third respondent deliberately misled the Domesti c Violence
Court. Such a finding would carry grave professional consequences, the
allegations were not tested in oral evidence, and it is not necessary to the
disposal of this application. The question whether his conduct calls for
disciplinary scrutiny is one for the Legal Practice Council, and I say no more
about it than that a copy of this judgment should be made available to that
body.
[52] What I do find is this. The third respondent, an attorney of some nineteen
years' standing, repeatedly placed unsw orn factual allegations of criminal
conduct before a court, persisted in doing so after his opponents had objected
and the presiding officer had cautioned him, invited the court to found its
and the presiding officer had cautioned him, invited the court to found its
decision on those allegations and on an inference from a silence he knew to
have been judicially imposed, pressed the court to decide issues outside the
scope of its own ruling, and accompanied all of this with personal attacks on
opposing counsel of a kind that have no place in a courtroom. That conduct
was, at the lea st, irresponsible and grossly unreasonable, and it was in
disregard of his duties as an officer of the court. It was a material cause of the
irregularity that has made this review necessary. In this Court he then
opposed the review, in his own name and against his client's wishes, on
grounds he ultimately abandoned, and declined to answer the case made
43Caselines 02-61 to 02-92.
against him personally. He has, however, had a proper opportunity to meet it:
the personal costs order was sought in terms in the notice of motion, he
delivered an answering affidavit and heads of argument directed to it, and he
was represented by counsel at the hearing. The requirement that a
practitioner against whom a personal costs order is sought be afforded a
proper opportunity to be heard is accordingly satisfied. In my judgment this is
one of the exceptional cases in which it would be unjust for the applicant, who
has been put to the expense of a review occasioned in material part by the
misconduct of his opponent's attorney, to bear those costs himself , and in
which the Court should mark its displeasure. The third respondent must pay
the costs of the review, and the conduct I have described justifies the attorney
and client scale.
[53] I should make plain what the order is not. It is not a sanction for the third
respondent having raised privilege, or unlawful acquisition, or privacy, on his
client's behalf. Each of those was a point he was entitled, and perhaps
obliged, to take. It is a sanction for the manner in which he took them. An
attorney who wished to place before the Domestic Violence Court the facts on
which those objections depended had a simple and proper course open to
him: to ask that the objection be dealt with on affidavit, which is precisely what
the applicant's representatives were asking for. He chose instead to argue
that no affidavit was needed and to supply the facts himself from the bar.
[54] Three matters remain. The first is condonation: the third respondent's
answering affidavit was delivered late and was accompanied by an application
for condonation, which the applicant did not oppose. Condonation is granted,
and no order as to the costs of that application is called for. The second is the
third respondent's own prayer that the applicant pay his costs on the attorney
and client scale, which rested on the contentions that the review was
and client scale, which rested on the contentions that the review was
hopeless and the personal costs claim baseless, falls away with the findings I
have made. It is refused. The third is the first respondent. Opposition is a
matter of substance rather than form, and a party who abides while lending
support to another's resistance is not for that reason immune from a costs
order. But she filed no opposition of her own, she took no part in the hearing,
and her conduct is best weighed in the Domestic Violence Court, where the
costs of those proceedings have been reserved. Fairness does not require an
order against her. I make no order as to costs in respect of the first or second
respondents.
[55] As to counsel's fees, the applicant asked that the fees of senior counsel be
allowed on Scale C and those of junior counsel on Scale B. The scales
introduced by Rule 67A(3), read with Rule 69(7), regulate the taxation of
counsel's fees only where costs are awarded as between party and party;
they find no application to an award on the attorney and client scale, and it is
not competent to attach a scale to such an award (Mashavha v Enaex Africa
(Pty) Ltd 2025 (1) SA 466 (GJ) paras 3 and 5; DM v DM 2025 (4) SA 183 (GJ)
para 60; Honey Fashion Accessories (Pty) Ltd v Wiese [2024] ZAGPJH C 902
para 56). As the costs awarded are on the attorney and client scale, no scale
is specified. Should any portion of the costs nonetheless fall to be taxed as
between party and party, I record that the fees of senior counsel would be
allowed on Scale C and those of junior counsel on Scale B, having regard to
the volume of the record, the difficulty of the questions concerning the
competence of the review and the personal liability of a practitioner, and the
seriousness of what was alleged. The employment of two counsel, including
senior counsel, was warranted.
Order
[56] In the result the following order is made:
1. The late delivery of the third respondent's answering affidavit is
condoned.
2. The ruling of the second respondent of 15 March 2023 and the order of
the second respondent delivered on 7 December 2023 (made available
in writing on 12 December 2023) in the proceedings under case
number DV959/2022 in the Domestic Violence Court, Pretoria, are
reviewed and set aside.
3. The matter is remitted to the Domestic Violence Court, Pretoria, to be
dealt with by a magistrate other than the second respondent, to be
designated by the Chief Magistrate.
4. The applicant is granted leave to deliver, within 20 days of the date of
this order, an application in terms of Rule 55 of the Magistrates' Courts
Rules for leave to file his further supplementary affidavit of 10 March
Rules for leave to file his further supplementary affidavit of 10 March
2023, together with its annexures, in the proceedings under case
number DV959/2022, the ordinary time periods for the exchange of
affidavits in terms of Rule 55 to apply thereafter.
5. All questions concerning the admissibility of the said affidavit and its
annexures, including any question of legal professional privilege,
confidentiality, privacy or the lawfulness of the manner in which the
annexures were obtained, are to be determined in the said application
on the evidence placed before the court, after hearing the parties.
6. The question of costs in the proceedings under case number
DV959/2022, including any costs under Section 15 of the Dom estic
Violence Act 116 of 1998, is reserved for determination by the
magistrate seized of those proceedings.
7. The third respondent is ordered to pay the applicant's costs of this
application, including the wasted costs of 9 April 2025, on the scale as
between attorney and client, such costs to include the costs of two
counsel where so employed; in the event that any portion of such costs
falls to be taxed as between party and party, the fees of senior counsel
shall be allowed on Scale C and those of junio r counsel on Scale B as
contemplated in Rule 67A(3) read with Rule 69(7).
8. The third respondent's application for an order of costs against the
applicant is dismissed.
9. There is no order as to costs in respect of the first and second
respondents.
10. The Registrar is directed to forward a copy of this judgment to the
Legal Practice Council, Gauteng Provincial Office, for such attention as
it may consider appropriate.
________________________________
A VAN DER WESTHUIZEN
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 9 June 2026
Date of judgment: 31 August 2026
For the Applicant: Adv C Woodrow SC with Adv T Odendaal
Instructed by: Hills Incorporated, Pretoria
For the First Respondent: No appearance (abides)
For the Second
Respondent:
No appearance (abides)
For the Third Respondent: Adv E van As
Instructed by: Muthray and Associates Incorporated, Centurion