Mabece Tilana Incorporated v Basson and Others (504/2020) [2020] ZAECGHC 24 (10 March 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NUMBER: 504 / 2020

In the matter between:

MABECE TILANA INCORPORATED

Applicant

And

ASHLEY BASSON

First Respondent

CLAUDIUS GOREMUSANDU

Second Respondent

ZILWA ATTORNEYS

Third Respondent

JUDGMENT

MAPOMA AJ:

[1] This is an application brought on an urgent basis. The application served before Beshe J on 28 February and was postponed to 5 March 2020. As per the notice of motion, over and above the usual prayer for dispensing with the uniform rules and for the matter to be heard as urgent, the applicant seeks the following order:

“2. That a rule nisi be and is hereby issued calling upon the respondents to show cause before the above Honourable Court on or before Tuesday 10 March 2020 why an order in the following terms should not be granted:

2.1 that the first and second respondent return forthwith all applicant’s clients files that were and continue to be in their possession prior to the termination of their employment with the applicant;

2.2 that the first and second respondents be interdicted and restrained from communicating with applicant’s out of town correspondent and or instructing attorneys, clients and interested parties and from advising to them that the applicant’s Grahamstown branch has merged with Zilwa Attorney’s Grahamstown branch;

2.3 that the first and second respondents be interdicted and restrained from communicating with applicant’s out of town correspondent attorneys, its clients and interested parties and from advising them that it has become incapacitated and has thereby become unable to protect the interests of its clients due to the cessation of their employment with it, and that they should appoint Messrs’ Zilwa Attorneys as the applicant’s replacement;

2.4 that the first and second respondents pay the costs of this application on a punitive attorney and own client basis;

2.5 that paragraphs 2.1, 2.2 and 2.3 operate as an interim relief and / or mandamus pending the finalization of this application; and

2.6 that the above Honourable Court grant applicant further and / or alternative relief.”[1]

[2] Applicant is Mabece-Tilana Incorporated, a firm of attorneys registered as such with the Legal Practice Council (LPC) and as a company registered in terms of the company laws of South Africa with its principal place of business situated at No. 8 Hillside Road, Metropolitan building, Parktown, Johannesburg. Applicant also has a branch office at No. 39 New Street, Grahamstown.

[3] The first respondent is an adult male attorney working at the third respondent. Second respondent is an adult male attorney also working as an attorney at the third respondent.

[4] The third respondent is a firm of attorneys registered as such with both the LPC in terms of the laws of South Africa. Its principal place of business situated at Office Suite 452, Fourth Floor, Development House, York Road, Mthatha. The third respondent as a branch office situated at No. 100 High Street, Grahamstown.

[5] The application is opposed. In such opposition the first and second respondents filed notices to oppose as well as opposing affidavits. A replying affidavit was subsequently filed on the morning of the hearing.

[6] Prior to the hearing I disclosed to the parties that I personally know and represent some parties in some of the matters listed in annexure CGJ 2 of the second respondent’s answering affidavits in unrelated matters which were disclosed to the parties. All the parties including myself were satisfied that no issue of conflict will arise in the determination of the issue at hand.

[7] At the hearing the applicant changed its argument and argued for a final interdict, instead of the interim relief initially sought as per the notice of motion, read with paragraph 14 of the founding affidavit. The application then proceeded on that basis. There are three requisites for such an order, all of which must be present. They are a clear right, an injury committed or reasonably apprehended and the absence of any other satisfactory remedy[2]. These three requirements must also be present for each of the prayers sought in paragraphs 2.1; 2.2 and 2.3 of the notice of motion, which are stand-alone prayers and can be granted or refused independently of each other.

[8] A final interdict is granted in order to secure a permanent cessation of an unlawful course of conduct or state of affairs. A party seeking to establish a clear right so as to justify a final interdict is required to establish, on a balance of probability, facts and evidence which prove that he has a definite right in terms of substantive law. Where the authorities refer to a clear right, it is reference to a right which is clearly established[3].

[9] The existence of a right is a matter of substantive law, and whether it is clearly established is a matter for evidence.

[10] Being a drastic remedy from the respondent’s point of view, and in the court’s discretion, a court will not in general, grant an interdict when an applicant can obtain adequate redress in some other form of ordinary relief. An applicant for a permanent interdict must allege and establish, on a balance of probability, that he has no alternative legal remedy[4].

[11] The factual disputes must be resolved by applying the test enunciated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[5], the effect of which is that the interdict can only be granted if the facts as stated by the respondents, together with the admitted facts in the applicant’s founding papers, justify the granting of the relief sought.

[12] The first thing to do then is to determine whether the application is urgent, and if found to be urgent, whether the relief sought ought to be granted. In doing so the court must consider the founding affidavit. The trite general rule is that an applicant must stand or fall by the founding affidavit and the facts alleged in it. For emphasis, the main foundation of an application is the allegations of fact stated in the founding affidavit[6]. A case cannot be made out in the replying affidavit for the first time[7].

[13] In this regard the first respondent raises three points in limine, which are captured in paragraph 9 of his answering affidavit as follows:

“9. The Respondents further raise the following points in limine:

9.1 The agreement entered into between the Applicant and I makes provision for the appointment the dispute is subject to an arbitration agreement, which terms have been invoked (sic);

9.2 that the application should be dismissed on account of the Applicant failing to make full and frank disclosure of all material facts relating to this application;

9.3 That the application is not urgent”

[14] As I understand the argument by Mr Cole, the second respondent also aligns himself with this argument, and any order given against the first respondent will be equally applicable to the Second Respondent. By agreement between the parties, sensibly so, it was determined that Applicant should begin argument in the usual manner, and in the process deal with the points in limine, and that Respondents should argue their case, and Applicant would argue in reply in the normal order of an application hearing.

[15] I deal with the points in limine below.

Urgency - the third point in limine

[16] The first and second respondents contend that the application is not urgent. They cite two main reasons for this – that the issue can be referred to arbitration as per the provisions of the memorandum of agreement between the applicant and the first respondent, and that the respondents, as per the mail of 26 February 2020[8], already undertook to refrain from the conduct complained above. I do not agree.

[17] In my view the issue is urgent and warrants the immediate attention of this court. The files in issue do not belong to the parties, but in truth belong to various clients who have entrusted them with the litigation matters in which they are involved. Such clients are innocent in the present litigation, did not cause it, and will suffer most if the matter is not resolved soon. From the papers I note that some of the matters have dates in court, and therefore

obviously certain things have to be done to comply with the court rules and probably various court directives.

[18] It is equally important that such clients know which attorneys are representing them at any given time. Their opponents, if any, should also know for purposes of service and other communication. The court itself (through the Registrar of course) should also know. It does not help anyone that the files are in limbo somewhere. One cannot help but note the letter by the third respondent, dated 19 February 2020 (annexure FA 15 to the founding affidavit), where the third respondent, very wisely in my view, disassociates himself with the dispute, and tellingly says, “…The writer would like to place on record that, with effect from next Monday, all the files in question will not be in possession of the above office and that their whereabouts will be known by Mr Basson, in an unlikely event that they have not been released to you. Therefore any further demand should not be directed to us but to Mr Basson, in his personal capacity”. The applicant seeks no relief against the third respondent.

[19] In light of the importance of the matter to innocent parties, who are not cited, who are not here, and who may not even be aware that there is a dispute about the files, I therefore determine that the matter is urgent. The third point in limine accordingly fails.

The Memorandum of Agreement (“the Agreement”) – the first point in limine

[20] The first respondent argues that the agreement entered into between the applicant and him makes provision for the appointment of an arbitrator where the dispute is subject to an arbitration agreement, and that they have invoked the arbitration clause in the said agreement. The agreement referred to is a memorandum of agreement entered into between the applicant and the first respondent. It was signed on 31 August 2018 and according to clause 7 thereof, “This agreement will, upon signature by both parties, commence on 1 September 2018, alternatively on the date when MTI Attorneys has complied with the requirements for the Cape Law Society”. First Respondent further argues that agreement is relevant in the determination of the prayer sought in paragraph 2.1 of the notice of motion.

[21] Paragraph 2.1 of the Notice of motion seeks the return forthwith of all the applicant’s clients’ files in the possession of the first and second respondents. According to applicant, as I understand the argument made, whether first and second respondents were employees, associates or professional assistants of the applicant - they are simply not entitled in law to hold any files belonging to an attorney’s firm. The files belong to the attorney’s firm and not to the first and second respondents in their personal capacities. In support of this argument Applicant makes reference to a letter, dated 19 February 2020 by the third respondent, in which the latter clearly disassociates itself with the files in dispute, and tells the applicant to ask for the files from the second respondent in his personal capacity.

[22] Applicant further contends that the risk regarding the files remains with it until proper notices of withdrawal are filed (by it) in terms of Rule 16 of the Uniform Rules. Applicant further argues that the agreement, in as far as it purports to enable the first and second respondents to own any of the files, is in contravention of the Legal Practice Act 28 of 2014. Put simply, the first and second respondents have no legal right to own any files.

[23] The existence of the arbitration agreement is not denied by the applicant. It is also not denied that it was invoked by correspondence, i.e by the email dated 26 February 2020 which was sent at 20h03, before the urgent application was launched. Applicant does not deny the receipt of the email, however there was an explanation that the attorney dealing with the matter only came to know of that email after the staff in his office had already proceeded with the launching of the application. Respondent’s Counsel argued that even so, when the matter came before Beshe J the application should have been suspended in order to have the dispute arbitrated.

[24] Applicant argues that the agreement is irrelevant for determination of the dispute at hand, since it has expired. On the other hand the first and second respondents argue that the agreement is relevant and should determine the issue before the court.

[25] Paragraphs 3 and 4 of what I will call the preamble of the agreement record the following:

“3. The relationship between Mr Basson and Enzo Meyers Attorneys is coming to an end on 31 August 2018 and it was agreed that the entire content of the Enzo Meyers Attorneys Grahamstown branch office will be assigned to Mr Basson;

4. MTI Attorneys and Mr Basson have agreed to merge the entire content of the Enzo Meyers Attorneys Grahamstown branch office into the MTI Attorneys branch office.”[9]

[26] Paragraph 3.2 of the agreement under the heading, ‘Formation of joint venture branch’, further provides that, “The joint venture branch will comprise the entire contents of both MTI Attorneys branch office in Grahamstown, and Enzo Meyers Attorneys’ Grahamstown branch office”.

[27] Apparently after the merger of such entire contents the applicant became the attorney of record on such files. As it is a firm of attorneys, Applicant contends that such files are now owned by it, and not by individual attorneys within the firm (i.e the first and second respondents). Mr Sishuba further argued that the Applicant has a legal lien over the files. From the argument it appears that from 1 February 2020 applicant left the premises from which the merger operations

practiced (at 100 High Street Grahamstown), and moved to 39 New Street Grahamstown.

[28] In the process of moving, applicant left behind all the files in dispute. It is such files that are the basis of the relief sought in paragraph 2.1 of the notice of motion.

[29] In the counter argument first and second respondents contend that clause 10.2 of the agreement should be applicable. Clause 10.2 provides:

“On termination of the agreement, both parties shall decide on the future handling of the files”

[30] The first and second respondents further support their argument by referring to the email sent on the 26 February 2020, seeking to invoke the arbitration clause of the agreement. The email states:

“…To the extent that it is necessary, the reply herein applies to mutandis mutantis to Mr Goremusandu…We propose that the issues to be submitted to arbitration are the following:

1. Whether the agreement between the parties and recorded in the writer’s email of 23 January 2020 to your client, constituted a decision as contemplated in para 10.2 of the agreement, being one ‘on the future handling of the files’;

2. Whether the files listed in the list emailed herewith constituted all of the ‘files that emanated from [the] office [of Mabece Tilana Inc], when we merged, and the files that [Messrs Mabece Tilana Inc / Mrs Tilana] referred to [the Grahamstown branch];

3. Whether those files, as identified above, had been forwarded to Messrs Mabece Tilana Inc;

4. …

5. …

6. … ’”

[31] The first and second respondent further refer to clause 18.1 of the agreement which provides that:

“All disputes arising out of or relating to this agreement including disputes as to the meaning or interpretation of any provision of this agreement or as to the carrying into effect of any such provision or as to the quantification or determination of any amount or thing required to be determined or quantified in terms of or pursuant to this agreement, will be referred to arbitration.”

[32] Clause 18.1 must be read in the present context with clause 18.2, which provides that, “Either party to the dispute will be entitled to require, by written notice addressed to the other party in which notice particulars of the dispute are set out, that the dispute be submitted to arbitration in terms of this clause.”

[33] The applicant contends that the present proceedings have not been brought to determine the clauses of the agreement, and to use the words of applicant’s counsel, ‘first things first’. He argued that before the agreement and its provisions are brought into play, the files must first be returned.

[34] In pursuing the point applicant pointed out that clause 18.8 of the agreement provides for the launching of the urgent application. The latter clause states that:

“Nothing contained in this clause will preclude either party from obtaining intermediate relief on an urgent or other basis from a court of competent jurisdiction, pending the decision of the arbitrator.”

[35] As much as the applicant now seeks final relief, and there is no pending decision of any arbitrator, I am of the view that in the circumstances there is nothing in law preventing the applicant in bringing these proceedings. I also agree that the present proceedings are not meant to resolve the matter on the terms of the agreement.

[36] The first respondent points out in paragraph 31 of his answering affidavit that the issue of the file distribution has clearly become highly disputed. That much is also clear to the court. In this regard it is argued that the applicant should have foreseen the dispute of fact. The parties have an agreement in place on how the dispute (which they foresaw and provided for) should be resolved. The dispute will not be resolved in these proceedings.

[37] I must point out that the papers reveal that some files have been returned by the first and second respondent to the applicant. The latter contends that not all the files were returned, and persists in seeking an order directing the return of the outstanding files as per the relief sought in paragraph 2.1 of the notice of motion. Applicant argued that the first and second respondents know which files are sought, as they were the ones manning the office.

[38] As much as I understand the tenor of the applicant’s argument on the return of the files, I struggle to find any assistance from the facts as set out in the founding affidavit. The basis of the relief sought in paragraph 2.1 of the notice of motion is found in paragraph 6 of the founding affidavit which states:

“Since the termination of the first and second respondent’s employment with the applicant, the first and second respondents have jointly and severally engaged themselves in unethical, unprofessional and prejudicial conduct as and against the applicant in that they have and continue to retain and have refused to return to it its clients’ files which were in their possession whilst they were in the employ of the applicant”.

[39] The only other paragraph in the founding affidavit which addresses paragraph 2.1. of the Notice of Motion is paragraph 14.1.1 – which states that:

“the first and second respondents have withheld and are continuing to withhold the return of its clients files (sic)”.

[40] In the replying affidavit the applicant addresses the issue at par 13 under the heading ‘Applicant’s prayer for return of the applicant’s files’, where Applicant states:

“13.1 as set out above, all files that the first and second respondent worked on during their employment with the applicant remain the responsibility of the applicant and deserve of being returned to it forthwith;

13.2 as the situation stands, the files are not with the third respondent who per their letter attached as annexure “FA 13” to the founding affidavit has indicated that ‘with effect from next Monday [24 February 2020], all the files in question will not be in possession of the above office and that their whereabouts will be known by Mr Basson’;

13.1 the applicant bears and continues to bear the risk associated with its files said to be in possession of the first respondent who cannot be said to be practicing and to possessing them as an attorney of this Honourable Court outside the employment of the third respondent;

13.4 as latest as on 2 March 2020, when the current proceedings have already been instituted, third respondent on a notice authored by the second respondent has issued a ‘notice of withdrawal and acting’ signed on behalf of both the applicant and third respondent”.

[41] A lien is the right to retain physical control of another’s property as a means of securing payment of a claim relating to the expenditure of money or something of monetary value by the possessor of that property, until the claim has been satisfied. A lien merely affords a defence against an owner’s rei vindicatio. It is not a cause of action. Its effect is to secure a claim for compensation in respect of the retained property[10].

[42] The applicant’s founding papers do not make out any case for a lien. The applicant is not in possession of the files, nor is there any allegation that Applicant has spent any money or labour (for the

applicant to be compensated for such actual expenditure or work done).

[43] For the lien to operate what is required is:

a) a contract express or implied;

b) as a term of the contract the doing of work on the property of the client for reward;

c) the doing of such work; and

d) possession by the attorney of the property on which the work was so performed[11].

[44] In my view the argument that the applicant has a lien cannot succeed.

[45] As much as the applicant’s argument is attractive and makes some sense in respect of its risk on the files, the flaw with it is that the files sought to be returned are not identified. The basis for the return of the unknown files is not sufficiently stated in the founding affidavit, nor in the replying affidavit. On the basis of the authorities referred to in paragraphs 11 and 12 above, I find that the applicant has failed to prove on a balance of probabilities that the prayer sought in paragraph 2.1 of the notice of motion should be granted.

[46] In paragraph 13 of the founding affidavit the applicant lists 15 documents as annexures setting forth communications between the parties (as annexures FA 1 – FA 15). Annexure FA 14 is a letter written by the applicant to the third respondent, dated 18 February 2020. The letter states:

“We refer to the above matter and various communique between the writer hereof and your Mr Zilwa regarding the unlawful withholding and / or refusal to release files and furniture (which has since been released belonging to MABECE TILANA INC)…We have for the past 2 weeks trying to get the files from your grahamstown office without any success…Hereunder is the list of the matters that I have identified wherein our firm was instructed and to date no letter was received terminating the mandate”.

[47] The letter then proceeds to list 34 matters and proceeds to state, “We have initially requested that your firm release a handful of the files and that has proved to be an impossibility from your side. In the light of the latest development, we now request all the matters wherein our firm was instructed between the period 18 September 2018 to 31 January 2020[12]”.

[48] It is not clear from FA 14 whether the files sought in paragraph 2.1 of the notice of motion are a handful from the 34 files listed, or whether they are all 34 listed files. It is also not clear from the founding affidavit whether the listed 34 files were those “our firm was instructed on between the period 18 September 2018 to 31 January 2020”. Furthermore it is also not clear whether “our firm” refers to the applicant as a firm of attorneys or to the joint venture.

[49] To further compound matters, paragraph 19.7 of the second respondent’s answering affidavit avers that the applicant’s files have been returned, and refers to annexure CGJ 2, which is a list of 252 files allegedly returned. In argument applicant stated that due to time constraints it could not deal with the second respondent’s answering affidavit. However, it seemed that there is no dispute that the 252 files have been returned already.

[50] I am mindful of the fact that paragraph 40 of the first respondent’s answering affidavit contends that the applicant has failed to identify the files she claims, and applicant replies to such allegations in paragraph 54 and 55 of the replying affidavit, where it is stated that applicant has identified some but not all the files[13], that irrespective of the number of files identified all the files in possession of the respondent should be returned to applicant, and that the respondents are not supposed to be in possession of any files, let alone those demanded by the applicant.

[51] One would have expected the applicant, at least by 5 March 2020, when the matter was heard, as the owner of the files carrying the risk on them, to be able to advise the court which files are sought to be returned. It has not done so.

[52] Paragraph 19.7 of the second respondent’s answering states:

“I ensured that, by 24 February 2020, the files belonging to the Applicant had been made available for collection. I attach hereto a list detailing the Applicant’s files, which at the time of the handover were either active or inactive, as annexure ‘CJG 2’. There is simply no legal basis for the relief sought in paragraph 2.1 as these files have been returned to the Applicant. The applicant has not sought to deal with this or attach a list of files that it believes belong to it.”

[53] On the authority of Plascon Evans I have to accept the version of the first and second respondents and refuse the prayer in paragraph 2.1 of the notice of motion. Furthermore the applicant has a legal remedy provided by clauses 10.2 and 18.1 of the agreement.

[54] This failure to identify the files makes it impossible for the court to make any specific order on any particular file. Any order made granting relief as sought in paragraph 2.1 of the notice of motion will be vague and unenforceable. There is no certainty as to which files the order will relate to.

Whether the application should be dismissed on account of the applicant failing to make full disclosure – the second point in limine

[55] First respondent further complains that the applicant failed to make full disclosure of material facts. He specifically mentions two instances, the agreement (already referred to above), and the reply to the letter of demand marked AFB 03. The latter is the email of the 26 February already referred to above. These two documents, very important in my view, were not disclosed in the founding affidavit.

[56] The applicants ought to disclose facts, which if true, would justify the relief sought and which would, at the same time, sufficiently inform the other party of the case he was required to meet[14]. The applicant therefore has a duty to make full disclosure of all material facts in his / her knowledge that have a bearing on the decision to be made by the court on the relief sought. Failure to do so, in appropriate circumstances, leads to a dismissal of the application.

[57] It is also not open to a party merely to annex documentation to its affidavit, and to ask the courts to have regard to it, which is what the applicant did in simply annexing annexures FA 1 to FA 15, without stating which parts of those annexures it relied upon. What is required is the identification of the portions of these documents on which reliance

is placed, and a clear indication of the case which is sought to be made out on the strength of the annexures.

[58] It cannot be expected of a party or of this Court to wade through lengthy annexures to the deponent’s affidavit and then be constrained to speculate on the relevance of the information contained in the annexures[15].

[59] Even if the court does so, it would still be imperative for an applicant to formulate the complaint properly, with relevant facts, to enable a response thereto.

[60] However, in the applicant’s view the agreement is not relevant in the determination of the application it brought to court. Applicant does not rely on the agreement. Furthermore the email of 26 February invoking was arbitration clause was received by the relevant attorney after the application was launched. I accept the applicant’s explanation for its reasons not to disclose the agreement and the e-mail, even though they should have disclosed the agreement, especially that it contains a provision on how the parties must deal with the files on termination of the agreement. In my view the agreement is also not relevant for the determination of the prayers sought in paragraphs 2.2 ad 2.3 of the notice of motion. I therefore find that the non-disclosure complained about does not warrant a dismissal of the application in its entirety.

[61] This brings me to the relief sought in prayers 2.2 and 2.3 of the notice of motion.

[62] In opposing these two prayers the first and second respondents rely on the email of 26February 2020 which was sent to the applicant’s attorney at 20h03[16]. As alluded to above, by the time the said attorney received the application had been launched. The first and second respondents argue that this email confirms that the first and second respondents have undertaken or guaranteed that they will desist from the conduct complained of, and hence there was no need for the interdict sought.

[63] According to available correspondence[17], the first respondent wrote an email on t 6 February 2020 at 12:19 with the subject matter: ‘Merger of Grahamstown branches: Mabece Tilana Inc and Zilwa Attorneys’. The text of the email reads,

“Dear Colleague

We write to advise that with effect from 01 February 2020, the erstwhile branch of Mabece Tilana Inc. in Grahamstown has merged with the Grahamstown branch of Zilwa Attorneys. We will cause Notices of Withdrawal and Acting to be delivered in due course (sic)”.

[64] The email referred to above was forwarded to Shirley Tilana (to tilanas@mtilaw.co.za) a few minutes later by Mgujulwa Sabelo at 12:26 with the following text in Xhosa:

“MamTshawe

Ndibhidekile

Siseyiphi kwamkhozi?

Ndicela ucacise”[18].

[65] On 26 February 2020, the applicant’s attorneys wrote a letter to the third respondent[19], the relevant paragraphs of which state as follows:

“2.2.2 you have written to client’s out of town correspondent attorneys and its clients and falsely advised the them that client has merged with your new employers Zilwa Attorneys; and

2.2.3 you have written to client’s out of town correspondent attorneys and clients and falsely advised them that because of the cessation of your employment with client, client has become incapacitated and would no longer be able to handle their matters and that they should appoint your new employer Zilwa Attorneys as client’s replacement”.

[66] The first respondent replied to the letter of 26 February, referred to above, stating, inter alia that:

“…To the extent that it is necessary, the reply herein applies mutandis mutantis to Mr Goremusandu…Fifthly, in respect of the word ‘merger’ alluded to in par 2.2.3 of your correspondence, the writer admits that it may have been inelegantly phrased. Your client complained to Mr Zilwa and, after engagement, it was agreed that we will utilize the word ‘joined’. Your client’s Mrs Tilana, being still agrgrieved, complained yet again to Mr Zilwa, as a consequence whereof we amended the content of the correspondence. This issue, to the mind of the writer, was therefore conclusively disposed of…In respect of your demands, we deny the allegations of misconduct set out in paragraphs 2.2.1 – 2.2.3 of your correspondence but, for what it is worth, the write undertakes not to engage in such conduct claimed, not having done so”.

[67] Mr Cole argued that there is no need for an interdict, seeing that the first and second respondents have undertaken not to engage in such conduct claimed. In his counter argument on the point, Mr Sishuba pointed out to the court that the respondents have signed a notice of withdrawal and acting in the matter of Clifford Bishop v The Honourable Minister of Safety and Security[20], where they purport to act on behalf of the applicant and the third respondent. He argues that this can be interpreted by anyone reading that notice as an indication that the applicant and the third respondent have merged, precisely as indicated in the email sent by the second respondent on 6 February 2020.

[68] In my view the wording of the email of 26 February does not indicate an unequivocal undertaking that the conduct complained of, i.e the use of the word ‘merger’ will not be used again. While I make no finding on misconduct, it is clear that the word ‘merger’ was used, yet there is a denial of its use, although it is common cause that there is no merger. I have also not been referred to any correspondence that explains the correct position to the same

recipient/s of the email in which the ‘merger’ was communicated as a fact. As Mr Sishuba correctly points out, the use of the word merger has the potential to cause damage to the applicant. The actions of the first respondent, as seen in the notice of withdrawal and acting referred to above, in my view, calls for an order interdicting the respondents from perpetuating any notion that there is a merger, where there is none. There is also no proof of any combination of the applicant’s Grahamstown branch and the third respondent’s Grahamstown branch. Consequently I find that a case has been made for the relief prayed for in paragraph 2.2 of the notice of motion.

[69] In paragraph 2.3 of the notice of motion the applicant further seeks an interdict to stop the first and the second respondents from communicating that applicant has become incapacitated and has thereby become unable to protect the interests of its clients due to the cessation of their employment with it, and that they should appoint third respondent as the applicant’s replacement.

[70] On 6 February 2020 the second respondent had written an email[21] to Shirley Tilana (to tilanas@mtilaw.co.za) in which the first respondent was copied, and several other persons apparently at various offices of the State Attorney were also copied, in which the second respondent stated:

“Dear Shirley,

…You are well aware of the requirement that a branch office is to be staffed by a practicing member, with at least 3 years experience and that, you being based in Johannesburg, there is, at the moment and to the write’s understanding, no compliant Mabece Tilana Inc. branch in Grahamstown. We therefore fail to see how you are able to take on work on behalf of correspondent firms”.

[71] Mr Cole argued that the email referred to above was in reply to correspondence written by the applicant, and secondly that it was the truth, a fact, as known to second respondent as at 6 February 2020. He argued therefore that the email of 26 February[22] simply confirms what the writer understood to still be the position as at 26 February.

[72] The first respondent also addresses the issues in paragraph 95 of his answering affidavit, where he states:

“The information was distributed, in reply, to attorneys at both offices of the State Attorney, and would have become public knowledge, both in those offices and in the legal advisory community in the Province”.

[73] It is not clear to me how such information would have become public knowledge at the time as alleged. There is no indication in the papers. In response thereto, in the replying affidavit[23] the applicant points out the in reply was in reference to a letter (annexure RA 15[24]) which had been sent by the applicant to the Court, Grahamstown Attorneys and The State Attorneys advising change of details of the applicant, and further advising that “…Mr Ashley Basson and Mr Goremusandu are no longer part of our team.” I find nothing in that letter that justifies a reply copying various officials of the State Attorneys’ offices about the capacity or incapacity of the applicant.

[74] Mr Sishuba argued that the consequences of the allegations led to the instructions from Mr Billlet that his department’s litigation matters must be referred to the third respondent, and that the mandate to the applicant should be terminated, thus causing irreparable harm to the applicant. He further argues that even though applicant may have other legal remedies in the future, the damage is immediate and continuing. I believe the applicant has made out a case for the relief prayed for in par 2.3 of the notice of motion.

[75] Both parties are asking for costs against each other on a punitive scale. In my view no case has been made for such an order. The applicant partially succeeds and is entitled to costs.

[76] I make the following order:

76.1 The prescribed time limits and forms of service prescribed by the Uniform Rules are hereby dispensed with and the applicant’s failure to comply with such rules is condoned;

76.2 The matter is heard as one of urgency in terms of Rule 6 (12) of these Rules;

76.3 The first and second respondent are hereby interdicted and restrained from communicating with applicant’s out of town correspondents and / or instructing attorneys, clients and other interested parties and from advising them that the applicant’s Grahamstown branch has merged or combined with Messrs Zilwa Attorney’s Grahamstown branch;

76.4 The first and second respondents are hereby interdicted and restrained from communicating with Applicant’s out of town correspondent attorneys and / or its clients and other interested parties, and from advising them that Applicant has been incapacitated and is thereby unable to protect its clients due to the first and second respondent’s association with applicant;

76.5 The first and second respondents are ordered to pay costs.

_____________

S X MAPOMA

JUDGE OF THE HIGH COURT (ACTING)

BHISHO

Counsel for Applicant: SH

Cole

Instructed by:

Zilwa

Attorneys

Counsel for First and Second Respondents: M H Sishuba

Instructed by:

Wheeldon,

Rushmere and Cole Inc

No appearance by / for the Third Respondent

Date heard: 05 March 2020

Date delivered: 10 March 2020

[1] Statements in parenthesis in this judgment are quoted directly from the original.

[2] Setlogelo v Setlogelo 1914 AD 221 at 227.

[3] Edrei Investments 9 Pty Ltd (In Liquidation) v Dis-Chem Pharmacies (Pty) Ltd 2012 (2) SA 553 (ECP) at page 556B-C.

[4] Erasmus v Afrikander Proprietary Mines Ltd 1976 (1) SA 950 (W) at 965H.

[5] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E – H.

[6] Herbstein and Van Winsen: The Civil Practice of the High Courts of South Africa, Vol. 1, 5th Ed, Juta, 2009 at page 440.

[7] Betlane v Shelly Court CC 2011 (1) SA 388 (CC) at par 29.

[8] Annexure AFB 03, page 98 of the paginated papers

[9] Clause 3.2 of the Agreement repeats par 4 of the preamble. It is common cause that MTI refers to the Applicant

[10] Firstrand Bank Limited v Linyana 2015 JDR 1714 (ECG); Brooklyn House Furnishers (Pty) Ltd v Knoetze and Sons 1970 (3) SA 264 A, at 270 E-G.

[11] Botha NO v EM Mchunu & Co 1992 (4) SA 740 (N) at 747C – D.

[12] Emphasis added.

[13] Emphasis added.

[14] Port Nolloth Municipality v Xhalisa and Others 1991 (3) SA 98 (C) at 111 E – F.

[15] Minister of Land Affairs and Agriculture v D & F Wevell Trust 2008 (2) SA 184 (SCA) at 200C; Van Zyl v Government of the Republic of South Africa 2008 (3) SA 294 (SCA) at 306D – E.

[16] Annexure AFB 03 to the first respondent’s answering affidavit.

[17] Annexure FA 1 to the founding affidavit, page 23 of the paginated papers.

[18] This can be translated to – “MamTshawe. I am confused. Which one must we take to the in laws” Please explain”. In the Xhosa language the interpretation of ‘Which one must we take to the in laws?’ is simply that, ‘What is the truth?’ or ‘Which one is the true version?’

[19] Page 43 of the paginated papers.

[20] Annexure RA 6, page 216 of the paginated papers.

[21] Annexure AFB 08, page 105 of the paginated papers.

[22] Annexure AFB 03, page 98 of the paginated papers.

[23] At paragraphs 87 and 88 of the replying affidavit, at page 173 of the paginated papers.

[24] At page 230 of the paginated papers.