Thema v Law Society of the Northern Provinces and Others (917/2007) [2007] ZAGPHC 184 (7 September 2007)

(TRANSVAAL PROVINCIAL DIVISION)

IN THE HIGH COURT OF SOUTH AFRICA

Case number: 917/2007 Date: 7 September 2007

In the matter between:

SETSHEPHI JEHIEL THEMA

Applicant

and

LAW SOCIETY OF THE NORTHERN PROVINCES

First Respondent

MS MAUD FERREIRA N.O.

Second Respondent

SIHLALI MOLE FE INC

Third Respondent

MR MAFIKA SIHLALI

Fourth Respondent

MR THEODORE MOKHA TLA

Fifth Respondent

MR LIMON PHUNGO

Sixth Respondent

NOT REPORTABLE

MS THOLOANA MAKHU

Seventh Respondent

MR PHINEAS MOT AUNG

Eight Respondent

MS GABRIELLA PALACIOS

Ninth Respondent

MS MONDL! SIBISI

Tenth Respondent

LEAVE TO APPEAL JUDGMENT

PRETORIUS J,

In this application for leave to appeal I was of the view that leave to appeal should be granted. This view was overtaken by subsequent events of which I had no knowledge until hearing argument for leave to appeal. Unfortunately the further affidavits by both Mr Mahon, for the applicant, and Mr Grobler, for the respondent did not reach me before I heard the matter on 4 September 2007.

These affidavits were handed up on 4 September 2007 and the applicant and respondent, it seems independently, were of the opinion that this court should be informed of the events subsequent to the court's judgment.

When perusing these affidavits it is common cause that on 11 June 2007 a Fidelity Fund certificate was issued to the applicant by the respondent. It was faxed through by the respondent to the applicant's present firm, Routledge

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This certificate was signed by Mr MJS Grobler, the director of the Law Society of the Northern Provinces and the Secretary of the Council. The contents of the Fidelity Fund certificate is relevant as it certifies:

"For the Year ending 31st December 2007-09-05

Pursuant to the provisions of Chapter 11 of the Attorneys Act, 1979, I hereby certify that SETSHEPHI JEHIEL THEMA

Of JOHANNESBURG

Has complied with the provisions of Sections 42 and 43 of the said Act in respect of the year ending 31 December 2007"

No conditions or provIsions were attached to the certificate when the

certificate was issued.

Only on 12 June 2007 did the respondent respond to the letter of 8 June 2007 by the attorneys for the applicant. In this letter the respondents, through their attorneys, Rooth & Wessels, confirm that a Fidelity Fund certificate had been issued on 11 June 2007 to the applicant. In this letter the respondent mentioned that:

"The Law Society is considering bringing an application for leave to appeal against the judgment and we are awaiting instructions in this regard.

As far as the cost order granted against the Law Society is concerned you are requested to consider abandoning that part of the order. Kindly advise us on your attitude."

The response by the applicant's attorneys on 14 June 2007 was that the Fidelity Fund certificate was not issued without prejudice to the Law Society's rights.

The reply to the letter by the attorneys for the respondent is clear that no decision had been taken at that time to apply for leave to appeal.

It is clear from these subsequent affidavits by both parties that a Fidelity Fund certificate was issued on 11 June 2007 without any conditions or provisions attached to the issuing of the certificate. Although Mr Grobler, for the respondent, tries to remedy it in his affidavit dated 15 August 2007 wich reads as follows:

"On 11 June 2007 I considered the contents of the letter and all the facts available to me. I decided to issue the applicant with a fidelity fund certificate pending a formal decision by the Law Society to lodge an application for leave to appeal and without prejudice to the Law Society's rights to bring such an application. II

He fails to explain why the Fidelity Fund certificate was issued on 11 June 2007 without reference to a pending application for leave to appeal or without prejudice to the Law Society's rights to bring such an application.

Mr Brett, for the applicant, argues that should the court grant leave to appeal to the Supreme Court of Appeal, it will be of academic interest only, as the respondent has complied with the order of 8 June 2007 and the Fidility Fund

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certificate has been issued for the period up to 31 December 2007.

Section 21 A (1) of Act 59 of 1959 provides that:

"When at the hearing of any civil appeal to the Appellate Division or

any Provincial or Local Division of the Supreme court the issues are of

such a nature that the judgment or order sought will have no practical

effect or result, the appeal may be dismissed on this ground alone."

The learned authors Farlam, Fichardt and van Loggerenberg Erasmus

Superior Court Practice revision service 28 at page A 1 - 54A sets out the

test as follows:

"The test is whether the judgment or order will have a practical effect or

rosulf nrlf 'Alhefher ,'f m,'ght be nf ,'rnnnrfan",", in a h"pofheti"al future

v I., IIVl VVI LI , L VI "'!JUI' live:;; II' Ity Ut Iv , l'

case,"

In Premier, Province Mpumalanga, en 'n Ander v Groblersdalse

Stadsraad 1998 (2) SA 1136 HHA at p 1141 Olivier JA found that section

21A of Act 59 of 1959 was enacted to:

"Die artikel is, myns insiens, daarop gerig am die drukkende werklas op

Howe van appel, insluitende en miskien veral hierdie Hot, te verlig, Dit

breek weg van die destydse vae begrippe so as 'abstrak', 'akademies' of

'hipoteties', as maatstawwe vir die uitoefening van 'n Hof van appel se

bevoegdheid am 'n appel nie aan te hoar nie, Oit stel nou In direkte en

positiewe toets: sat die uitspraak of bevel 'n praktiese uitwerking of

gevolg he? Gesien die doel en die duidelike betekenis van hierdie

farmulering, is die vraag of die uitspraak in die geding vaar die Haf 'n

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praktiese uitwerking of gevolg het en nie of dit Vir In hipotetiese toekomstige geding van belang mag wees nie."

And furthermore found at p 1143 (Supra):

"Praktisyns behoort dus deurgaans die doel van art 21 A voor oe te hou; in die besonder by In aansoek am na In hoer Hof te appelleer en by die va arts e tting, voorbereiding en beredenering van die appel."

In Radio Pretoria v Chairman ICASA 2005 (1) SA 47 SCA Navsa JA found at p 55 I -J:

"Courts of appeal often have to deal with congested court rolls. They do not give advice gratuitously. They decide real disputes and do not

speculate or theorise. Furthermore, statutory enactments are to be

applied to or interpreted against particular facts and disputes and not in isolation. "

In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) Ackermann J found at para [21] (footnote 18):

"A case is moot and therefore not justifiable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law. "

Mr Louw, for the respondent, argued that it is not for this court to decide whether the case is moot, but for the Supreme Court of Appeal to do so.

"7 I

I cannot agree with this submission, as it is clear that if this court realises the

result of an appeal will be academic and will have no practical effect or result

it will be a waste of time and money to grant leave to appeal for the Supreme

Court of Appeal to make such a finding. The intention can never be that if this

court knows that a case is moot, it nevertheless has to refer it to the Supreme

Court of Appeal.

The respondent has complied with the order of 8 June 2007 by issuing a

Fidelity Fund certificate for the year ending December 2007. An appeal will,

most likely, only be heard after the certificate has lapsed and will therefore

have no practical effect or result.

Section 21 A of Act 59 of 1959 does not limit this section to the Supreme

Court of Appeal, but provides:

"When at the hearing of any civil appeal to the Appellate ~ivision or

any Provincial or Local ~ivision of the Supreme court the issues are of

(my underlining)

I am of the opinion that in this instance leave to appeal should not be granted,

as it will have no practical effect or result. The Fidelity Fund certificate was

granted on 8 June 2007 without any strings attached.

The respondents argue that the court should grant leave to appeal against the

cost order as well. In Logistic Technologies (pty) Ltd v Coetzee and

Others 1998 (3) SA 1071 (WLD) at 1075 1- J to 1076 A Cloete J found:

"The result of the amendment to s 21 A, in my view, is that unless an applicant for leave to appeal against a cost order only can satisfy the Court a quo that an appeal Court may reasonably find that exceptional circumstances exists, leave to appeal should be refused; and in determining this question, the approach laid down by the Appellate Division in such matters remains relevant in that a failure to exercise a judicial discretion would (at least usually) constitute an exceptional circumstance - but conversely, the mere fact that an appeal Court might, or even probably would, give a different order, would not. "

I do not find that any exceptional circumstances exist in this matter regarding costs after I have carefully considered the mattei.

I make the following order:

The leave to appeal is dismissed with costs, including the costs of two counsel.

C Pretorius

Judge of the High Court

Case number Heard on

917/2005

Heard on

For the Applicant / Applicant

I nstructed by

For the Respondent / Respondent:

Instructed by Date of Judgment

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Adv JJ Brett SC Adv 0 Mahon Routledge Modise Adv Louw SC Rooth and Wessels 7 September 2007