Law Society of the Northen Provinces Others (Road Accident Fund (Intervening)) v Ronald Bobroff and Partners Inc. and Others (61790/12) [2015] ZAGPPHC 1118 (26 August 2015)

IN THE HIG H COURT OF SOUTH AFRICA

GAUTENG DIVISON,PRETORIA

DATE:26 August 2015

CASE NO:61790/12

In the matter between:

THE LAW SOCIETY OF THE NORTHERN

PROVINCES

Applicant

and

JENNIFER GRAHAM

First Applicant in main application

MATTHEW GRAHAM

Second Applicant in main application

ROAD ACCIDENT FUND

Intervening Third Applicant in main application

v

RONALD BOBROFF & PARTNERS INC. Second Respondent in main application

RONALD BOBROFF

Third Respondent in main application

DARREN BOBROFF

Fourth Respondent in main application

JUDGMENT

MURPHY, J

1. This is an application made by the second, third and fourth respondents in terms of rule 30 seeking an order to set aside as an irregular step a counter-application issued by the first and second applicants on 23 April 2015 . Rule 30 provides that any party to a cause in which an irregular step has been taken by any other party may apply to court to set aside the step or proceeding.

2. The second respondent is Ronald Bobroff and Partners Incorporated, a firm of attorneys in

Johannesburg. The third and fourth respondents are Ronald Bobroff and Darren Bobroff, directors of the firm.

3. The application is another chapter in the saga involving allegations of serious impropriety and misconduct against the firm by erstwhile clients. The rule 30 application arises out of another application ("the main application") in which Mrs Jennifer Graham and Mr Matthew Graham ("the Grahams") are the first and second applicants. The Law Society of the Northern Provinces is the first respondent. In this judgment I will refer to the second, third and fourth respondent collectively as "the respondents".

4. In September 2006, Mr Graham was involved in a motor accident in which he sustained serious bodily injuries. Following the accident,

Mrs Graham instructed the respondents to lodge a claim with the Road Accident Fund ("the RAF"). The claim was settled in an amount of R1 979 952 plus costs. The respondents deducted R858 689 for fees and party-party litigation costs, and paid an amount of R1 187 971 to the Grahams.

5. In June 2011, more than four years ago, the Grahams filed a complaint of overreaching against the respondents with the Law Society, which complaint remains unresolved. In the two years following the lodging of the complaint, attempts to take the complaints process forward were not successful. There were disputes and issues of one kind or another about the disclosure of information and the composition of the disciplinary committee. Eventually, in August 2012, the Grahams submitted to the Law Society a report by an accountant, Mr Vincent Faris, recommending an inspection of the respondent firm's trust accounts. The report was referred by the Law Society to the respondents. However, before the respondents replied to it, the Grahams launched the main application in October 2012.

6. The nub of the Grahams' complaints against the respondents is that they have defrauded them and other clients in substantial amounts in prosecuting claims against the RAF. The Grahams allege that the respondents used so-called "common-law contingency fee agreements" to reverse engineer illegal splits of RAF payments. They allege further that the respondents used these agreements and fraudulent file notes to disguise exorbitant fees that bore little resemblance to work actually performed.

7. Acting out of some measure of frustration about the pace at which the Law Society was pursuing their complaint, and perhaps from a lack of confidence arising from the fact that the third respondent has served previously as President of the Law Society, the Grahams, proceeding in their own interest and on behalf of all former clients of the respondents, approached the court with the main application. The judgment in the main application is reported as Graham v Law Society NP 2014 (4) SA 229 (GP).

8. The Grahams requested relief against both the Law Society and the respondents. As against the Law Society they sought an order

compelling it to perform its duties in terms of the law in dealing with the complaint against the respondents. In the alternative , and in the event of the Law Society being unable to perform its duties, the Grahams sought the issuing of directives and providing for the disciplinary enquiry to be conducted under the supervision of the court, or in the further alternative directing that the disciplinary enquiry be conducted by the court.

9. As against the respondents, the Grahams asked for orders directing the respondents to make available certain outstanding information and a rule nisi calling on the third and fourth respondent to show cause why they should not be struck from the roll of attorneys , and, pending that, an order suspending them from practice

10. On 15 April 2014 Mothle J handed down the following orders in the main application:

"1 The application for a declaratory order against the Law Society as well as the relief sought to have this Court take over the disciplinary enquiry of the Law Society, alternatively place such enquiry under supervision by this Court, 1s dismissed;

2. The disciplinary enquiry appointed by the Council of the Law Society to enquire into the complaint against-the Bobroff’s is ordered to convene a sitting of this enquiry to take place within sixty (60) calendar days from the date of this order;

3. The disciplinary department of the Law Society is ordered to conduct an inspection of the books of account including the trust accounts of Ronald Bobroffs & Partners Inc, as recommended by Mr Vincent Faris, and thereafter to compile a report and serve it on all the parties in this application, within thirty (30) calendar days from the date of this order.

4. Ronald Bobroff and Partners Inc, Darren Bobroff and Ronald Bobroff are ordered to deliver to the Law Society and the attorneys

representing Jennifer and Matthew Graham, the information and items listed in the notice of request for outstanding information, within fifteen (15) calendar days from date of this order."

11. On the basis that the parties had all succeeded in part and failed in part in respect of their cases against the others, the learned judge ordered each party to pay its own costs.

12. The essence of the complaint against the Law Society was that it had failed to act expeditiously and had shown an unwillingness to act on the information supplied to it or to assist the Grahams to secure certain specified information from the respondents in order to effectively deal with the complaint. They were also concerned that the Law Society had not responded effectively to the Faris report and that it was conflicted because it shared the view of the respondents that the illegal contingency fee arrangements were legal despite the fact that a full court of this division, the Supreme Court of Appeal and the Constitutional Court had and have subsequently held that they are in fact unlawful.

13. The learned judge was not persuaded on the evidence that the Law Society would be conflicted in charging the respondents with the relevant contraventions. He, moreover, had regard to the workload of complaints before the Law Society and the evidence and concluded that it would be premature for the court to step in and take over the disciplinary process. Nevertheless, as the court's order indicates, the learned judge was prepared to direct a strict expedited timetable for an enquiry into the practice of the respondents , an inspection of their books of account, immediate delivery of documents which the respondents had hitherto refused to make available to the Grahams, and for a disciplinary enquiry to be convened in 60 days.

14. The respondents applied for leave to appeal against order 3 of the order of Mothle J. The application was dismissed; as were the respondent's petitions for leave to appeal to the Supreme Court of Appeal and the Constitutional Court. The order of the Constitutional

Court dismissing the application for leave to appeal was handed down on 3 November 2014.

15. About five months later, on 9 April 2015 , the Law Society filed an application with this court ("the Law Society application")

seeking orders i) extending the time periods laid down in the order of Mothle J; ii) implicitly clarifying or expanding the scope of paragraph 3 of Mothle J's order; and iii) noting certain reports of investigations done into the respondents' affairs.

16. In his report, Mr Faris, the accountant, had strongly recommended an investigation to establish the true position relating to suspect transactions in the Grahams' account and the accounts of another

client, Ms De la Guerre, who in 2011 had successfully brought suit before a full court of this division for i) a declaratory order that a common law contingency fee agreement entered into with the respondents was invalid; ii) a proper debatement of account; and iii) payment of the difference between the contingency fee of R1 063 707 and the total of a taxed bill of costs.

17. There is some uncertainty about whether paragraph 3 of the order of Mothle J included in its scope the accounts of clients of the respondents besides the Grahams and Ms De la Guerre. In the Law Society application, the Law Society indicated that it understood the inspection order by Mothle J to refer not only to the accounts of both the Grahams and Ms De la Guerre, but also to the accounts all of the respondents' clients. In addition to reporting and the noting of its reports, it asked for the 30 day period

referred to in paragraph 3 of the order of Mothle J to be retrospectively extended to 12 December 2014 in respect of the Graham

and De la Guerre accounts, and for the period to be extended to a date to be determined by the court in respect of the accounts other than those two accounts. In this latter respect, if is found that the order of Mothle J did not in fact provide for an inspection into the accounts other than the Graham and De la Guerre accounts, the Law Society, by virtue of the relief it applies for in the notice of motion, must be seen as endeavouring to enlarge the scope of the order.

18. The Law Society also wants the 60 day period in paragraph 2 of the order, being the time period Mothle J laid down to convene a sitting of the disciplinary hearing, to be extended to a date to be determined by the court. In view of the various applications for leave to appeal, the 60 day period would only have commenced to run on 4 November 2014. It was therefore incumbent on the Law Society to have convened a sitting of the disciplinary enquiry before 4 January 2015. The Law Society failed to comply with this order and only applied for an extension of the period three months after it had expired.

19. It appears from the Law Society application that in compliance with paragraph 3 of the court order, the Law Society instructed two chartered accountants , Reddy and Swart, to proceed with an inspection of the respondents' accounting records and directed them, in accordance with its understanding of the scope of order, not to limit themselves to the accounts of Graham and De la Guerre. The inspectors attended the respondents on 13 November 2014, ten days after the Constitutional Court refused leave to appeal. A dispute arose between the respondents and the inspectors regarding the scope of the investigation. The respondents maintained that the inspectors' mandate was limited to the Graham and De la Guerre accounts. As a consequence of this difference of opinion, the inspectors did not finalise reports into the other accounts; hence prayer 3 of the notice of motion aimed at extending the 30 day period in relation to the accounts other than the Graham and De la Guerre accounts and the implicit request for clarification of the scope of the investigation ordered by Mothle J. The reports into the Graham and De la Guerre accounts were delayed only for a short period. For that reason, the Law Society needs a retrospective extension of that period until 12 December 2014.

20. The inspection uncovered a number of contraventions in relation to the Graham and De la Guerre accounts.

21. With regard to the disciplinary enquiry, the Law Society scheduled a hearing for 10 December 2014, within the 60 day period; but was required to postpone it on account of the unavailability of the chairperson. The Law Society sought and obtained an agreement to extend the 60 day period from the attorney for the Grahams, Mr van Niekerk, who granted the indulgence reluctantly, insisting that the hearing should take place in February 2015. As intimated earlier, the hearing has still not been convened .

22. In its application the Law Society expressed the view that the respondents are frustrating the process by refusing to allow the scope of the inspection to be extended to the other accounts. One of the purposes of the Law Society application is stated as being to "report to the Court on the investigation conducted by the Law Society in terms of paragraph 3 of the order dated 15 April 2014 in respect of the Graham and De la Guerre accounts and the Law Society's attempts to conduct an inspection in respect of accounts other than the Graham and De la Guerre accounts ."[1] It added the following critical observation in justification and elaboration of it returning to court for further directives:

"Due to the third and fourth respondents' failure to cooperate with the Inspectors and to fully comply with the order dated 15 April 2014 it is not possible for the Law Society to at this stage make a meaningful recommendation to the Court as to the extent of a possible extension. I

submit that the Honourable Court may mero motu place the third and fourth respondents on terms to comply with the order dated 15 April 2014 and to determine the extent of the extension."[2]

It continued in similar vein:

"The execution of the second inspection is, needless to say, dependent on the cooperation of the third and fourth respondents, which cooperation the Law Society has not received to date."[3]

It concluded as follows :

"I submit that it will also be appropriate for the Honourable Court to give directions as to the cooperation expected of the third and fourth respondents in respect of the inspection relating to matters other than the Graham and De la Guerre accounts and to determine the period in which the inspection and report should be finalised. I respectfully submit that a period of 30 to 40 days would be reasonable if the third and fourth respondents give their full and unconditional cooperation to the inspectors"[4]

23. In the final analysis, the order of Mothle J directing an expedited inspection and a disciplinary hearing has still not been implemented, 16 months after it was issued. The only part of the order which has been carried out is the investigation into the Graham and De la Guerre accounts. The attempt by the court to assert control over the process has been thwarted; and the Law Society is at something of a loss about how to take the investigation forward and has rightly approached the court for assistance and further directives. What is more, in March 2015, Matojane J issued an order declaring the respondents to be in contempt of paragraph 4 of the order of Mothle J and ordered each of them to pay a fine of R100 000, suspended on condition that they comply with prayer 3.2 of the notice of motion allowing access to the respondents' computer network by an independent technology network. I was informed from the bar that the respondents have taken steps to petition the Supreme Court of Appeal for leave to appeal against this order. It too, therefore, has yet to be complied with.

24. Prior to the Law Society filing its application, when the Grahams had received no further indication from the Law Society that it intended to convene a disciplinary hearing in February 2015, their attorney, Mr van Niekerk, addressed a letter to the Law Society, dated 3 February 2015, stating inter alia that the Law Society was falling short in its duties and expressing frustration that the Law Society appeared not to appreciate the extent of the potential wrongdoing of the respondents. The attorney made the point that there is sufficient evidence before the Law Society proving overreaching and overcharging by the respondents , that the Law Society should therefore take immediate action and that any failure to do so would amount to a failure of statutory duty.

25. The only substantive response on record to this letter is in paragraphs 6.6 and 6.8 of the founding affidavit of the Law Society application, deposed to by the President of the Law Society. The Law Society does not directly address the submission made by the attorney that it had enough evidence to proceed against the respondents and that it was failing in its duty not to do so. Instead, somewhat surprisingly, it took the view that the attorney's exhortations were vexatious , scandalous and in bad taste and that he should probably be reported to the Cape Law Society. It is difficult to understand why the Law Society responded in that fashion. The letter makes legitimate points deserving of consideration, the tone is business-like and the exhortation to proceed with urgency is in the circumstances reasonably justified. Such easy umbrage at a standard lawyer's letter hardly inspires confidence in the Law Society and is revealing of a needlessly adverse stance to a complainant legitimately acting in the public interest. That said, as evident in its founding affidavit in the Law Society application, the Law Society appears reluctant to proceed with the disciplinary hearing without the benefit of an investigation into all the client accounts.

26. It should then perhaps come as no surprise that shortly after the Law Society filed the Law Society application, the Grahams, on 24 April 2015 , filed a counter-application to give better effect to the order of Mothle J by seeking urgent and more extensive relief than that sought by the Law Society. The counter-application was preceded by a letter, dated 26 March 2015, from Mr van Niekerk to the Law Society requesting a comprehensive response to various issues related to the investigation of the respondents, not limited to the enquiries and investigations flowing from the Grahams' complaint but extending to a range of issues linked to investigations and litigation arising from allegations of wrongdoing pertaining to other erstwhile clients. Mr van Niekerk ended the letter as follows:

'These questions are asked by us in the interests of the public and in necessary vindication of the administration of justice. Should we not receive a comprehensive response from you to all the issues raised and an unequivocal assurance as to how you intend to deal with these matters going forward, we shall return to court for relief."

27. Despite the difference of opinion, the starting point of the counter-application is the same as the Law Society application. It is obvious that the legal representatives of the Grahams are of the view that the action taken by the Law Society to date has been insufficient (and I would add ineffective) and that it has been stymied by the respondents. Mr van Niekerk, the deponent to the founding affidavit, explained the purpose of the counter application as follows:

"Given the common ground between the Law Society's application and the counter­ application (being the misconduct and obstructiveness of the Bobroffs), there is a degree of synthesis between the two applications. However, the Law Society's application does not go far enough. In this affidavit, I will provide a full account of the Bobroffs' misconduct, and show why more extensive relief is required than that sought by the Law Society. The Law Society's application unfortunately reinforces the need for intervention by this Court, lest disciplinary proceedings against the Bobroffs continue to be stymied by the Bobroffs' obstructiveness and the Law Society's unwillingness to take decisive action that is appropriate in the circumstances, given the seriousness of the matters at hand."

28. The counter application accordingly seeks orders directing the investigators appointed by the Law Society pursuant to paragraph 3 of the order of Mothle J to complete their inspection and determine whether all the clients of the respondents were overreached,

overcharged, and/or charged for attendances and consultations which did not in fact take place; and that they furnish their report within two months of any order granted. The order applied for is in effect similar, but, through its specifics, adds greater clarity to the one prayed for in paragraph 3 of the notice of motion in the Law Society application. In addition, the Grahams request orders suspending the third and fourth respondents from practising as attorneys, pending the completion of the investigation, and for the appointment of a curator to administer the second respondent for the period of suspension.

29. The founding affidavit to the counter-application is 120 pages long and sets out in detail a number of alleged transgressions by the respondents, going beyond the complaints of the Grahams and Ms De la Guerre. Most of the allegations relate to apparent overcharging and overreaching by means of unlawful contingency fee arrangements . The main accusation is that the respondents acted brazenly in defiance of the law, deliberately and with full knowledge that what they were doing was unlawful. If they are correct in their contentions then there has been overreaching and overcharging involving a very substantial amount of money. I hasten to add that the respondents have not taken the opportunity to answer the allegations in the founding affidavits of either the Law Society application or the counter-application. They are most likely minded not to do so in view of the provisions of rule 30(2)(a) which provide that an applicant may only make a rule 30 application if he has not himself taken a further step in the cause with knowledge of the irregularity. Having made the rule 30 application, the respondents will only file their answering affidavit if the court determines that the counter-application does not constitute an irregular step.

30. Mr van Niekerk, while recognising a commonality of interests, is critical of the Law Society in the founding affidavit. After

referring to the litigation brought by erstwhile clients of the respondents, he states:

"123 It is clear, then, that there has been an unprecedented amount of litigation against the Bobroffs, all of which has been brought by their former clients, and none of which involved any effort by the Law Society either to independently take up a case against the Bobroffs, or to join as interested parties in support of the members of the public who had been v1ct1m of the Bobroffs' overreaching. The Law Society's silence in all these matters is worrying.

124. At the very least. the Law Society ought to have moved for the immediate suspension of the Bobroffs from practice, pending a practice-wide inspection. The evidence, and flood of litigation by past clients, demonstrates that the Bobroffs operated in terms of a particular modus operandi. This means that there are other past clients who have been overreached under the guise of common-law contingency fee agreements. However, the Law Society is determined to treat each instance of misconduct as an isolated instance. This means that past clients - lay members of the public - are forced to institute costly court proceedings to vindicate their rights and protect the legal profession. As custodian of the legal profession, the Law Society ought to take a leading role in uncovering the true extent of the Bobroffs' impropriety. Their misconduct cannot be treated as business as usual."

31. The affidavit refers also to other investigations into the conduct of the respondents which recommended that the respondents be charged with unprofessional, dishonourable or unworthy conduct, which recommendations as yet have not been implemented by the Law Society. Again, it must be emphasised, the respondents have not responded to these allegations. They however form the basis of the Grahams' assertion that in order to give suitable effect to the order of Mothle J the court must now intervene by ordering an effective inspection and the suspension of the respondents for the period of its duration. Moreover, as mentioned, subsequent to Mothle J's order in the main application, Matojane J declared the respondents to be in contempt of paragraph 4 of the order. It seems that the Law Society opted prior to the hearing of the contempt application to abide the decision of the court. It is aware of the finding that the respondents, attorneys and officers of the court, have been found to be in contempt of court, yet, according to counsel, it has taken no action in response, has not answered to correspondence in that regard and made no reference to the fact in its report to the court in the Law Society application.

32. In the light of these alleged failings and others by the Law Society, the Grahams seek relief with two purposes in mind: first, the ascertainment of the extent of the respondents' misconduct, including their overreaching of past clients under the auspices of common-law contingency fee agreements; and, second, the protection of the public from further harm being caused by the respondents pending the institution of disciplinary proceedings. To this end, they insist that a firm-wide inspection is required quickly and the respondents should not be permitted to practise pending the investigation so that the investigators can conduct the inspection without interference. Various appropriate safeguards , they submit, can be put in place to minimise any prejudice to the respondents.

33. The response of the respondents, as explained, was not to file answering affidavits to the Law Society application or the counter-application, but instead to file an application in terms of rule 30 for the counter-application to be set aside as an irregular step.

34. Mr. Ronald Bobroff, the third respondent, and managing director of the second respondent, deposed to the founding affidavit in the rule 30 application. His challenge to the irregularity of the counter-application is as follows. The Grahams, he contended, are attempting to ride procedurally on the back of the Law Society's ancillary application in order to initiate a new application for orders which they were unable to achieve in the main application. The counter-application is procedurally irregular, he says, because it is an attempt to re-open the main application and to initiate new substantive relief traversing the subject matter of the main application. The counter-application, according to the respondents, is an attempt to have a re­ hearing of the main application which has already been adjudicated.

35. The argument is elaborated upon and better formulated in the heads of argument submitted by counsel, who argued that the orders in the main application were final and definitive of the issues raised in it. The respondents contended that the Law Society's application is ancillary or incidental to the orders made by Mothle J, and is in effect an application in terms of rule 27(1) for an order, on good cause shown, extending the time prescribed by the order for doing any act or taking any step in connection with the inspection and disciplinary enquiry ordered. In other words, the Law Society application is an interlocutory application to vary and extend the time periods in the order of Mothle J. By contrast, it was argued, the counter-application seeks substantive new relief which would effectively amount to new orders, or would amend or vary the orders granted. The respondents consider that it is irregular for the applicants to institute a new substantive counter-application in response to a procedural application, because the relief sought is not incidental to the relief granted in the main application.

36. Although the Law Society in its application makes no reference to rule 6(11), the respondents accept that the rule applies. It provides that notwithstanding the other sub-rules in rule 6, interlocutory and other applications incidental to pending proceedings may be brought and be set down by the Registrar or as directed by a judge. An interlocutory application is an incidental application for an order at an intermediate stage in the course of litigation, aimed at settling or giving directions with regard to some preliminary or procedural question that has arisen in the dispute between the parties. Rule 6(7)(a) governs counter-applications. It provides that any party to any application proceedings may bring a counter-application. The respondents strive to import into rule 6(11)

a limitation that a counter-application may only be brought against an interlocutory application, where the main application

is still pending and since the main application is no longer pending, so the argument went , it is not permissible to bring a counter-application to an interlocutory application made in terms of section 6(11). They seem also to say that any counter­

application to an interlocutory application can only itself be an interlocutory application.

37. There are two flaws in that argument, in my view. Firstly, if the main application is no longer pending, then the Law Society

application also cannot be incidental to any proceedings which are pending. The Law Society's application is in fact an incidental

application for ancillary relief and the variation of court orders in the process of execution. It is interlocutory in that sense and not in the sense of being incidental to pending proceedings in which relief has not yet been granted.

38. But whatever the nature of the Law Society application, interlocutory or not, there is no basis in the rules for importing the limitation championed by the respondents. Rule 6(7)(a) specifically provides that any party to any application proceedings may bring a counter-application. General words must be given a general meaning. In the absence of some convincing indication to the contrary, words of general import, such as "any", "all", "no" and the like, should be given their ordinary general meaning.[5] Counsel for the respondents urged me to interpret the phrase "application proceedings" in rule 6(7)(a) to mean only applications initiated under rule 6(1) and to exclude rule 6(11) proceedings. But there is no basis for that. The opening words in rule 6(11), indicating that it applies notwithstanding the other sub-rules, is intended only to indicate that an interlocutory application may be launched using the short form notice of motion. Nothing in rule 6(7)(a) qualifies the right of the applicants, cited by the Law Society as parties in its application, to bring a counter-application to its application; and there is equally nothing necessitating any counter-application to be of the same character as the application. The respondents wish to make special and particular what the legislature has made general.[6] But, in any event, if the Law Society application is indeed interlocutory in character, the counter-application is itself interlocutory in the same way. It too aims at obtaining procedural directions to implement an extant court order in the dispute about the duty of the Law Society to discipline the respondents .

39. The respondents argue further that some of the issues raised in the counter­ application are res judicata and in the same breath complain that the counter­ application "clearly seeks new and substantive relief'. They maintain that prayers 2 and 3 of the counter application are a repetition of prayers 7 of the main application. That is not correct. There is a difference , albeit subtle. Prayer 7 of the main application sought an order suspending the respondents pending the return date of a rule nisi calling upon them to show cause why they should not be struck from the roll of attorneys. Prayers 2 and 3 of the counter-application seek orders suspending an investigation into the financial affairs of the firm and an appointment of a curator. The suspension demanded in the counter-application is a precautionary suspension to avoid interference in an investigation. The order sought in the main application was a striking off and a disciplinary suspension pending that.

40. The other complaint is that prayer 4 of the counter-application ordering an investigation of the second respondent's books of account is similar but goes beyond what was asked for in prayer 5 of the main application. If that is the case, different relief is sought and thus there is no res judicata. The key submission though is that the counter-application initiates new proceedings and this may not be done in response to the Law Society's interlocutory application. As I have just said, there is no basis for implying such a limitation in rule 6(7). But even if a plea of res judicata were to arise, that would not be an irregularity of form contemplated by rule 30. The rule applies only to irregularities of form and not to matters of substance.[7] Res judicata is a special substantive defence that can be pleaded by the respondents in

their answer to the counter-application, which will require determination on the evidence of whether the same question was disposed of in a final judgment in respect of which the same relief is sought in a new /is between the same parties. It cannot be described as an irregularity of form but is a special defence that must be pleaded in a special plea and not by way of application under this rule.[8]

41. In truth, the counter-application, like the Law Society's application, is in fact incidental to the main application in the

sense that it flows from the order of Mothle J and the respondents' failure to comply with it. It seeks a more effective execution of paragraphs 3 and 4 of the order of Mothle J to ensure full compliance. The relief required in the counter-application admittedly

goes further than the relief sought by the Law Society, but it aims at an effective procedure and ensuring proper compliance. It

clarifies the nature of the inspection intended in the order of Mothle J and is more specific about the timeline than that requested

by the Law Society.

42. Were it to be held that the Law Society application is an application in terms of rule 27 for the extension of prescribed time periods, as the respondents contend, rule 27 would permit the court to extend the time periods of the order "upon such terms as to it seems meet." The counter-application seeks an extension of the time period for the investigation on terms different to those applied for by the Law Society. In extending the prescribed time periods in the order, the court may grant the ancillary relief requested by the applicants if it considers it meet. However, because prayer 3 of the notice of motion in the Law Society application may in fact go beyond asking for an extension of time by seeking clarification of the scope of the inspection, it is questionable whether the Law Society application is indeed one in terms of rule 27. It is clear from paragraph 7 of the founding affidavit of the Law Society application that the Law Society prays for more than an extension of time.

43. . Be that as it may, as I have already found, there is no bar to the remedies sought by the applicants in the counter-application. The relief will be permissible under rule 6(11) read with rule 6(7)(a), or under rule 6(7)(a) alone. The need for the firm-wide inspection has been made more pressing by further instances of possible misconduct that have come to light and the fact that the respondents have been found by Matojane J to be in contempt of the order of Mothle J . The appointment of a curator and the suspension of the respondents during the inspection are undoubtedly new, but nonetheless ancillary or incidental to the relief ordered by Mothle J. The mere quest for new and additional relief, in any event, cannot of itself constitute an irregularity. There is no bar in law or in the rules to a litigant endeavouring to obtain a remedy in a counter-application that is more expansive than, or even unrelated to, relief sought in the main application. As I have said more than once, rule 6(7)(a) imposes no such limitation. Just as nothing prevents a defendant in an action instituting a claim in reconvention that is entirely distinct from the main claim, there is no reason in principle why the same should not apply in an application.

44. Finally, the respondents argued that the counter-application is an application for an administrative law review, which should properly be brought under rule 53. The contention is similarly off target. Firstly, in my view, this issue too is a substantive question going beyond what might be regarded as an irregularity of form. But the contention flounders in the main because the counter-application does not attempt a review of the decisions of the Law Society. Nowhere in the counter-application do the applicants pray for relief on the grounds that any decision of the Law Society is unlawful, unreasonable , irrational or procedurally unfair. The notice of

motion is restricted to seeking procedural directives regarding the proposed investigation and interim relief pending their implementation .

45 . The respondents complain furthermore that they will be prejudiced by the counter-application delaying the pending disciplinary enquiry and "the re-opening" of the main application. The counter-application will not delay the enquiry because both the Law Society and the Grahams seek directives from the court to expedite it. And, as already explained, there is no attempt to re-open the main application. To repeat: the counter-application requests necessary and ancillary relief aimed at putting the order of Mothle J into proper effect by obtaining a more expansive remedy on a different evidentiary basis in the interests of protecting the public and furthering the administration of justice. The respondents have failed to co-operate with the Law Society and have been found to be in contempt of the order of Mothle J.

46. For those reasons, the application to set aside the counter-application as an irregular step falls to be dismissed.

47. I agree with counsel for the Grahams that on the probabilities this application was resorted to as a calculated decision by the respondents to delay the disciplinary and investigative process. Sight must not be lost of the prior litigation involving the

respondents and the fact that they are officers of this court. As attorneys , they should be playing open cards with the court and the Law Society. It seems to me that the most prudent course for them at this point in time would be one of cooperation and transparency . The respondents' billing system and practices must be subjected to objective and impartial analysis without delay. Now more than ever the respondents are obliged to observe the highest standards of professional ethics. As a former President of the Law Society, the third respondent need hardly be reminded that an obstructive approach by a senior officer of the court in a disciplinary matter will invite severe sanction. All the evidence suggests that the respondents are acting tactically to avoid and frustrate scrutiny. This misdirected application is another example of that conduct. In the premises, a punitive costs order is justified .

49. I therefore make the following orders:

1) The application is dismissed.

2) The second, third and fourth respondents are ordered to pay the costs of the application, including the costs of employing two counsel and Senior Counsel, on the scale of attorney and own client., jointly and severally.

MURPHY J

JUDGE OF THE HIGH COURT

Heard on: 20 August 2015

For the applicants: Adv David Unterhalter SC; Adv Max du Plessis; and Adv Jason Mitchell.

Instructed by: Edward Nathan Sonnenbergs

For the respondents: Adv M Hellens SC and Adv AT Lamey Instructed by: Webber Wentzel

Date of Judgment: 26 August 2015

[1] Paragraph 2.1.5 of the Law Society founding affidavit

[2] Paragraph 3.24 of the Law Society founding affidavit

[3] Paragraph 5.9 of the Law Society founding affidavit

[4] Paragraph 7 of the Law Society founding affidavit

[5] Oberholzer v Johannesburg City Council 1951 (4) SA 115 (T) 118A

[6] Bulawayo Municipality v Bulawayo Waterworks Ltd 1915 CPD 443

[7] Singh v Vorkel 1947 (3) SA 400 (C) 406

[8] De Polo v Dreyer 1989 (4) SA 1059 (W) 1061E