Eastern Cape Provincial Council of the South African Legal Practice Council v Sonamzi and Another (3262/2024) [2024] ZAECMKHC 150 (22 August 2024)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION – MAKHANDA)

Case no.: 3262/2024

Reportable/Not Reportable

Matter heard on: 13 August 2024

Judgment delivered on: 22 August 2024

In the matter between:

THE EASTERN CAPE PROVINCIAL COUNCIL

Applicant

OF THE SOUTH AFRICAN LEGAL

PRACTICE COUNCIL

and

YANDISWA SONAMZI

First Respondent

YANDISWA SONAMZI INCORPORATED

Second Respondent

JUDGMENT

BRODY AJ

1. The notice of motion in this matter seeks an order that the matter be dealt with as a matter of urgency in terms of rule 6 (12) and that an interdict be granted against the respondents for failing to have a valid Fidelity Fund certificate, together with the usual ancillary relief granted in matters of this nature.

2. A cost order was also sought against the respondents on an attorney and client basis.

3. The application was launched in August 2024 and in which the respondents were afforded until August 2024, (5 court days) to oppose. A further two court days was granted to the respondents to file an answering affidavit, after which the matter was set down for

hearing on 13 August 2024, (7 court days after the issue of the papers).

4. It is clear from the very short times frames that the applicant did not envisage filing any heads of argument in the matter.

5. There were two issues which applicant had to address, the issue of urgency to be decided before all else:

5.1 the issue of self-created urgency arising from unreasonable delay in bringing the application; and

5.2 the issue as to whether, in bringing the application, and against the background of the severe consequences for the respondents, the timetable imposed upon the respondents was justified, having regard to the issues raised in the papers.

6. The applicant is established in terms of section 4 of the Legal Practice Act 28 of 2014 and exercises jurisdiction over all legal practitioners.

7. I have no doubt that the applicant acts in the public interest and in circumstances where the public have the right to be protected from attorneys who practice without a fidelity fund certificate.

8. The respondents were required to submit an audit report to the applicant by 31 August 2023 and the respondents failed to do so and only on the 2 February 2024 did the respondents submit an audit report.

9. The respondents’ audit report for the period 1 March 2022 to 28 February 2023 was qualified and the basis for the qualified opinion was that the respondents were unable to provide an appropriate, and sufficient audit evidence, in contravention of the rules of the applicant, and interest on monies deposited and due to the fidelity fund were not paid over at the prescribed rate, or in a prescribed manner.

10. The audit and risk compliance department addressed correspondence to the respondents on 12 of February 2024 drawing attention the qualified audit report and requested proof of payment to the fidelity fund, further requesting a written explanation as to why sufficient audit evidence was not kept, what systems and procedures were in place against the reoccurrence, together with copies of bank statements and trust creditor ledgers.

11. Further correspondence was addressed to the respondents on 14 February 2024 and the respondents provided some, but not all, of the documentation requested by the applicant on 28 February 2024.

12. On 4 March 2024 the applicant addressed further correspondence to the respondents and a response was received from the respondents’ auditors on 7 March 2024, which sought to explain why the trust creditors, namely Gardens to Floors and Mzontsundu, were not treated as separate entities in the respondents’ accounting records.

13. The applicant’s risk and compliance department then identified various risks in approving the respondents’ audit report and it was resolved to authorise the inspection of the accounting records of the respondents, at their premises.

14. An inspection was conducted by the applicant on 25 March 2024 and a report produced which made certain material findings against the respondents.

15. The applicant, at a meeting on 3 June 2024, resolved that the issues identified in the audit report, and the inspection report, be referred for further investigations by a disciplinary body of the applicant. Pending this investigation, the respondents would not be issued with fidelity fund certificates by the applicant.

16. Against that background, the present application was launched on the 1 August 2024, some two months after the decision was taken by the applicant to proceed with a disciplinary hearing. No explanation was given in the founding papers for the delay from the 3 June 2024 and until the 1 August 2024.

17. The first respondent, acting in her own capacity, and on behalf of the second respondent, served and filed an opposing affidavit on the 12 August 2024, which required urgent consideration of the papers in this matter by this court.

18. The first respondent explained that her baby was due in February 2024 and that she had been informed of the various queries by the applicant and requested Mr Mzwakali, an accountant, to deal with the issues raised.

19. The first respondent also indicated that there were numerous letters addressed and received from the applicant and meetings with certain officials of the applicant to try and resolve issues relating to the applicant’s queries.

20. According to her, and on 13 February 2024, the correct ledger accounts had been furnished to the applicant and she explained that there never had been a shortfall in her trust account, explaining that this was an error caused by an accounting entry when two trust ledger accounts were opened.

21. The first respondent also alleged inter alia that:

“The applicant is aware that I am not practising but nevertheless brought this application, which I believe is an abuse of court process.”

22. The allegation was repeated, under oath, by the first respondent in her opposing affidavit and in which she also stated the following:

“I submit that at risk of losing my company and being subject to financial ruin, not to mention the vast damage done to my reputation,

I immediately stop (sic) practising on 13 February 2024 when instructed to do so and my trust account remains dormant, see copy of my trust bank statement from January 2024 to July 2024 annexed hereto marked “YS25””.

23. She further reaffirmed that:

“I submit that from the applicant’s own evidence it is clear I am not practising.”

24. Against this, the applicants failure to state expressly clearly that the respondents are still practising is a vital and significant omission.

25. Ms Watt, who appeared on behalf of the applicant, indicated that the applicant would not be filing a replying affidavit and it was on this basis that the matter was argued, initially as to urgency alone the remainder of the matter to stand over.

26. Although Ms Watt referred to various paragraphs in the founding affidavit, this did not conclusively deal with the allegation made by the first respondent that she was not practising, and that this fact was known to the applicant, and its officials.

27. Ms Burger, who appeared on behalf of the respondents argued that the certificate of urgency did not comply with the rules of court and that the urgency was self-created with very short and unreasonable timelines to the respondents in circumstances where the consequences of an order being granted would be highly detrimental to the respondents, as this was the first respondent’s livelihood.

28. On the facts in the papers, it appears to be in serious doubt that the first respondent is in fact practising, and this issue is highly relevant material for the purposes of a consideration of urgency.

29. In addition, no explanation is given by the applicant as to why it took from 3 June 2024 to 1 August 2024 to bring the application, which according to the applicant, was extremely urgent. Especially this in circumstances where very tight timeframes were given to the respondents to oppose the application and to serve and file answering affidavits.

30. In consideration of the launch of an urgent application, not only the convenience of the parties, but the court and other litigants and all issues relevant to the reasonableness of the time limits imposed, against the complexity of the matter, must be weighed carefully, considered, and applied.

31. In Caledon Street Restaurants CC vs D’Aviera, 1998 (JOL) 1982 in the (SE) Kroon J comprehensively sets out what litigants need to consider when bringing applications on an urgent basis. Clearly there are degrees of urgency and it is for practitioners to weigh and carefully analyse those degrees, and the relaxation of the rules should never be greater than the exigencies of a case having regard to the interest of litigants, the respondents, in the interests of other litigants, the interests of the court, relevant to other hearings, and the convenience relevant to matters upon which the court is asked to deal with, as a matter of urgency.

32. Kroon J warns, a judge will not succumb to the temptation when faced with a set of completed papers that were produced on an unreasonable timetable, for no good reason, to simply accede to the fact that the matter seems to be more or less in order, by pre-hearing, and therefore rule on same. If a matter is not properly, urgently, placed before the court, with sufficient reasons and justification, the matter should not be heard and should either be dismissed, or struck from the roll.

33. These principles were also set out in numerous other decisions, and which follow the same approach.[1]

34. Urgency must be judged against the background of rule 6(12) of the uniform rules of court and rule 12(d) of the Eastern Cape Practice Directions.

35. Urgent applications require an applicant to persuade the court that non-compliance with the rules is justified on the grounds of urgency and applicant must demonstrate that it will suffer a real loss, or damage, were it to rely on normal procedure.

36. In Nelson Mandela Metropolitan Municipality & Others vs Greyvenouw CC and Others, Plaskett AJ, (as he then was) said as follows:

“”[37] It is trite that applicants in urgent applications must give proper consideration to the degree of urgency and tailor the notice of motion to that degree of urgency. It is also true that when Courts are enjoined by Rule 6(12) to deal with urgent applications in accordance with procedures that follow the Rules as far as possible, this involves the exercise of a judicial discretion by a Court ‘concerning which deviations it will tolerate in a specific case’

[38] …it is not in every case in which the applicant may have departed from the Rules to an unwarranted extent that the appropriate remedy is the dismissal of the application. Each case depends on its special facts and circumstances. This is implicitly recognized by Kroon J in the Caledon Street Restaurants CC case when he held – looking at the issue from the other perspective as it were – that the ‘approach should rather be that there are times where,

by way of non-suiting an applicant, the point must clearly be made that the Rules should be obeyed and that the interest of the other party and his lawyers should be accorded proper respect, and the matter must be looked at to consider whether the case is such a time or not’.

[40] …Indeed, the erstwhile Appellate Division has on a number of occasions turned its back on such formalism in the application of the Rules. For instance, in Trans-African Insurance Co Ltd vs Maluleka Schreiner JA held that ‘technical objections to less than perfect procedural steps should not be permitted, in the absence of prejudice, to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits’. …In D F Scott (EP) (Pty) Ltd vs Golden Valley Supermarket, Harms JA held that the Rules ‘are designed to ensure a fair hearing and should be interpreted in such a way as to advance, and not reduce, the scope of the entrenched fair trial right’ contained in s 34

of the Constitution.[2]

37. An applicant cannot create its own urgency by simply waiting until the normal rules, can no longer be applied.

38. In this matter the first respondent contends that the urgency is self-created by the delay in the applicant’s launching the application, and that in any event, she is not practising, and that, for that reason alone, there is no urgency.

39. In my view, against the entire background of the time periods, and the serious doubt that the respondents are practising at all, the urgent application, and the very limited time periods in which the respondents were required to comply, were unjustified in the circumstances.

40. In this matter the applicant appears to have lost sight of the fact that they have failed entirely to explain the two-month delay, which is also not mentioned in the certificate of urgency. The dire consequences for the respondents if an interdict were to be granted is also an important factor to consider.

41. The usual order in these circumstances is to strike the matter from the roll. [3]

42. The applicant, being a professional body, is expected to act with a high degree of responsibility and not misuse the courts time by bringing non - urgent matters under the guise of urgency.

43. A costs order is appropriate in circumstances where non - urgent matters are improperly brought as urgent, and must serve as a deterrence against similar further conduct. This will encourage all litigants to be more judicious in assessing the urgency of their cases before approaching a court on an urgent basis.

44. The applicant, despite its special status, should not be treated differently from any other litigant when it comes to the misuse of court processes. When a matter is struck off the roll, the usual case is for the applicant to bare the costs. The same principle must apply to the applicant to ensure equality before the law.

45. The costs incurred by a respondent in preparing the matter that is later struck off the roll are wasted due to the applicant’s incorrect classification of the matter being urgent. The applicant should bare these costs to compensate the respondent for the unnecessary expenses incurred.

46. The court has a discretion to award costs as it deems just and equitable in the circumstances, and given the applicants position and expectation that it should carefully consider the levels of urgency, it is appropriate to order costs against the applicant, to reflect the seriousness of the misuse of the urgent court roll.

47. An order will issue in the result:

1. The application is struck from the roll;

2. The applicant is to pay the respondents’ costs, such costs to be on scale A in terms of rule 69(7).

B B BRODY

ACTING JUDGE OF THE HIGH COURT

I concur.

M J LOWE

JUDGE OF THE HIGH COURT

APPEARANCES:

Counsel for the Applicant Adv. Watt Instructed by Drake Flemmer & Orsmond c/o Jager & Lordan 2 Allen Road MAKHANDA (REF.: S. Tarr) Counsel for Respondent Adv. Burger Instructed by Walter Sonamzi Attorneys c/o Yokwana Attorneys 10 New Street MAKHANDA

1. Repblikeinse (Eiendoms) Beperk vs Afrikaanse Pers Publikasies (Eiendoms) Beperk 1972 (1) SA 773 (A), Luna Meubel Vervaardigers (Eiendoms) Beperk vs Makin and Another t/s Makin’s Furniture Manufacturers 1977(4) SA 135(W) and IL and B Marcow Caterers (Pty) Ltd vs Greatermans SA Ltd and Another, Aroma Inn (Pty) Ltd vs Hypermarket (Pty) Ltd and Another 1981(4) SA 108 (C) and Gallagher vs Normans Transport Lines (Pty) Ltd 1992(3) SA 500(W)

[2] But see: Murray & Others NNO v African Global Holdings (Pty) Ltd & Others 2020(2) SA 93 (SCA) [35], [38], [39] and [40]

[3] SARS vs Hawker Air Services 2006(4) SA 292 (SCA)