Zeda Car Leasing (Pty) Ltd t/a Avis Fleet Services v Pillay and Others (7836/2005) [2006] ZAKZHC 19; 2007 (3) SA 89 (D) (5 June 2006)

IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE

DURBAN AND COAST LOCAL DIVISION

Case No. 7836/2005

ZEDA CAR LEASING (PTY) LTD Applicant

t/a AVIS FLEET SERVICES

and

NIREN PILLAY First Respondent

MADURAY PILLAY Second Respondent

PILLAY & PILLAY TRANSPORT BROKERS CC Third Respondent t/a MR CARRIERS

JUDGMENT

Delivered: 5 June 2006

TSHABALALA JP Salient Facts

[1] This is an application for summary judgment. The Applicant; Zeda Car Leasing (Pty) Ltd t/a Avis Fleet Services, leased a number of vehicles to the Third Respondent, a liquidated close corporation, Pillay & Pillay Transport Brokers CC t/a Mr Carriers, in terms of a written lease agreement. The Close Corporation failed to pay rentals to the Applicant as agreed upon, as a result of which the Applicant cancelled the written agreement and attached the vehicles in terms of a Magistrate's Court order.

[2] The Applicant alleges that it suffered damages in the sum of R1 751 827,10 arising from the lease and in this summary judgment

application claims payment of the said sum . The Applicant also sues the First Respondent, Niren Pillay, and Second Respondent, Maduray Pillay, by virtue of the deed of suretyship which was signed by them on 08 July 2003 in favour of the Applicant.

The issues

[3] The Respondents raise two points in resisting summary judgment. First they raise a point in limine whereby they contend that the Applicant's summons is irregular because the Applicant's attorney, S J Rothmann, who signed the particulars of claim, has not been admitted to practise in Natal Provincial Division or Durban Local Division, and consequently has no right of appearance in that division. It is common cause that SJ Rothmann has right of appearance in Transvaal Provincial Division.

[4] The second argument on which Respondents rely in resisting summary judgment is that the Applicant failed to comply with s11 of the Credit Agreements Act 75 of 1980. Respondents contend that the Applicant unlawfully cancelled the contract and that consequently

Applicant is not entitled to enforce the agreement and recover damages from the sureties.

[5] The first issue to be determined thus is whether an attorney is excluded from signing a pleading to be issued in a different province from where he/she was admitted or normally practises. Put differently, the question is whether an attorney is territorially

limited in his practice.

[6] The second issue is whether in the circumstances of this case the Applicant is entitled to enforce the agreement and recover the damages from the sureties.

The Law

[7] In dealing with the first issue it is important to have regard to the arguments put forth by the parties against the backdrop of the relevant legal framework.

[8] The Applicant argues that because the attorney who signed the pleadings is one who holds a certificate issued to him under the

provisions of section 4(2) of the Right of Appearance in Courts Act, 62 of 1995 (Right of Appearance Act) such attorney is entitled to sign pleadings, instead of counsel, throughout the Republic.

[9] In S v Sewnandan 1999 (2) SA 1087 OPD Lombard J was faced with the issue of whether Mr Singh, an attorney who was admitted and enrolled in the Natal Provincial Division, had right of appearance in the Orange Free State Provincial Division. Though the issue is not specifically the same as the one in casu, it is relevant in regard to the territorial limitations of an attorney's practice.

[10] The Applicant argues that in terms of the Right of Appearance Act, an attorney can appear without territorial constraint in the High Court. Further that there is no indication in the Attorneys Act No.53 of 1979 (Attorneys Act) that an attorney is territorially limited in his practice.

[11] Lombard J in Sewnandan case supra, considered the position in

terms of the Right of Appearance Act having regard to the object of that

Act which is according to its preamble:

"To regulate by Act of Parliament the right of advocates and attorneys to appear in courts in the Republic, and to extend the existing right of attorneys so to appear; and to provide for matters connected therewith."

[12] From the above, it is clear that the Right of Appearance Act aims to extend the existing rights of attorneys to appear in the Courts, and that the controlling thereof is governed by Statute. Therefore, in considering the manner in which the rights of attorneys to appear in the court has been extended, regards must be had to the Statute, and a proper interpretation thereof is imperative.

[13] I endorse Lombard J's approach of not reading the Right of Appearance Act exclusively but instead reading it with other relevant provisions of the Attorneys Act.

[14] Section 20 of the Attorneys Act, deals with the enrolment of practitioners admitted and enrolled by other courts and states:

"(1) Any person admitted and enrolled as an attorney, or a notary or conveyancer under this Act may in the manner prescribed by subsection (2), apply to the registrar of any court other than the court by which he was so admitted and enrolled to have his name placed on the roll of attorneys or of notaries or of conveyancers, as the case may be, of the court for which such registrar has been appointed.

A registrar receiving an application referred to in subsection (1), shall place the name of the applicant on the roll of attorneys or of notaries or of conveyancers, as the case may be, kept by him in terms of section 21...

When the name of a practitioner has in terms of subsection (3) been placed by the registrar upon the roll of attorneys or of notaries or of conveyancers, as the case may be, he shall be entitled to practise and shall have all the rights and privileges and be subject to all the obligations which he would have had and to which he would have been subject if he had been admitted and enrolled by that court..."

[15] Section 21 of the Attorneys Act deals with rolls of attorneys, of notaries

and of conveyancers. Subsection 1 states:

"(1) The registrar of every court shall keep separate alphabetical registers in which he shall record the names of all attorneys,

notaries and conveyancers admitted by such court and all names enrolled in terms of section 20, as well as the dates of admission or enrolment."

[16] Section 3 of the Right of Appearance Act deals with the right of attorneys to appear in court:

"(1) Any attorney shall have the right to appear on behalf of any person in any court in the Republic, except the Supreme Court and the Constitutional Court.

Any attorney who wishes to acquire the right to appear on behalf of any person in the Supreme Court may apply to the registrar of a provincial division of the Supreme Court in the manner provided for in section 4(1).

Any attorney who has acquired the right of appearance in the Supreme Court may also appear in the Constitutional Court.

An attorney who has been granted the right of appearance in the Supreme Court shall also be entitled to discharge the other functions of an advocate in any proceedings in the Supreme Court."

[17] Section 4 of the Right of Appearance Act deals with application of attorneys to appear in Supreme Court, and subsection 3 states that:

"

If the registrar is satisfied that an application referred to in subsection (1) complies with the provisions of this Act, he or she shall issue a certificate to the effect that the applicant has the right of appearance in the Supreme Court.

Section 21 of the Attorneys Act, 1979 (Act No. 53 of 1979), which requires rolls of attorneys to be kept, shall apply mutatis mutandis in respect of attorneys who have been granted the right of appearance in the Supreme Court."

[18] Lombard J in Sewnandan case supra at 1093 interpreted the aforementioned legal provisions in light of the object of the Right of Appearance Act. In respect to s4(3) of the Right of Appearance Act referring to s21 of the Attorneys Act, the Judge stated that the legislature intended:

'...that the Registrar of every Court shall in future keep two additional registers - one for recording the names of ail attorneys to whom certificates have been issued by him or her having the effect that such attorneys have the right of appearance in the Supreme Court for which such Registrar has been appointed and the other one for recording the names of all attorneys enrolled, ie attorneys to whom certificates that they have the right to appear in the Supreme Court had not been issued by that Registrar, but who have applied to him or her for the issue of certificates that they have the right to appear in the Supreme Court for which such Registrar has been appointed.'

[19] In Judge Lombard's opinion such an interpretation ensures that by extension of the right to appear in the Supreme Court the control over the professional conduct of attorneys by their governing body, the respective law societies, remains untouched, ie the same control is maintained over those members who are entitled to appear in the Supreme Court as over those who are not.

[20] I completely agree with the learned Judge's interpretation in the preceding paragraph. Though it has been accepted by Hefer ACJ as he then was, in the case of De Freitas and Another v Society of Advocates of Natal and Another, 2001 (3) SA 750 SCA at 760 para 15, that attorneys whose right of appearance has been extended in terms of the Right of Appearance Act, now are in direct competition with advocates. Whilst this is true, however, to my mind that does not afford sufficient reason to do away

with the control maintained over those attorneys who are not entitled to appear in the Supreme Court as regards those who are. Any difference in the control of the two types of attorneys would clearly be irrational and, as Lombard J stated, would frustrate the object of the Right of Appearance Act. Sewnandan case supra 1093-1094A

[21] From reading s20(4) of the Attorneys Act, it appears that every court may have rights, privileges and obligations specific to it. As such, every province has its own division, and each court division has its specific rules regulating it; each has its respective Registrar and a respective law society. This makes s20 and 21 of the Attorneys Act to be significant provisions which cannot be ignored.

[22] The Judicial matters Amendment Act 22 of 2005 (the 2005 Act/amendment) which was assented to on 23 December 2005 and commenced on 11 January 2006 amends section 4 of the Right of Appearance Act by adding subsection (4) which states that 'An attorney who has been granted the right of appearance in terms of this section shall be entitled to appear in any court throughout the Republic." (my emphasis).

[23] To my mind, the 2005 amendment is couched in broad terms which make it unclear whether its ambit goes further than to extend the right to appear by also extending the area of jurisdiction. The section does not say that an attorney may issue pleadings in any court other than where he was enrolled. Furthermore there is no indication of an intention to do away with the control purported in the Right of Appearance Act.

[24] I therefore do not regard the existence of these provisions sufficiently cogent to persuade me that an attorney whose right of appearance has been extended under the Right of Appearance Act is permitted to practice without any territorial restriction. Such an unfettered system to my mind, would pose a challenge in practice particularly because different rules may be applicable in respect of different court divisions. Such an interpretation certainly also undermines s20 and s21 of the Attorneys Act and renders those provisions redundant which, I am certain, is not what the Legislature intended.

[25] I Therefore accept the Respondents' assertion that the proper construction to be placed upon the legal provisions is that an

attorney who holds a certificate under s4 (2) of the Right of Appearance Act may carry out the functions of an advocate only within

the jurisdiction of the Registrar by whom such attorney's certificate was issued. Furthermore that, if such attorney wishes to exercise the functions of an attorney or advocate in any other jurisdiction, that attorney must apply under s20 of the Attorneys Act, to be enrolled in that other jurisdiction. Therefore, in the absence of being so enrolled, it does not seem proper that such attorney would be entitled to sign pleadings as an advocate or attorney in a different Division from where he/she was enrolled. The 2005 amendment affects right of appearance only and does not cover rights and obligations imposed by the Attorneys Act. In any event the pleadings herein were issued on 3 June 2005 before the said 2005 amendment.

Conclusion

[26] in the foregoing the point in limine raised by Respondents has merit, and on that ground alone, summary judgment is refused and the summons is dismissed with costs. It is, therefore, unnecessary to deal with the second issue.

TSHABALALA JP

Date of Hearing: 7 November 2005

Date of Judgment: 5 June 2006

Counsel for Applicant: Mr. TP. Kruger

Instructed by: Rothmann Phahlamohlaka

Counsel for Respondents: Mr. J.C. King

Instructed by: Livingston Leandy Inc