Law Society of The Northern Provinces v Nkhangweleni Netshifhefhe
| Jurisdiction | South Africa |
| Judge | R Tolmay; NB Tuchten |
| Judgment Date | 13 August 2010 |
| Docket Number | 09/2009 |
| Court | Limpopo Local Division, Thohoyandu |
| Hearing Date | 13 August 2010 |
| Citation | 2010 JDR 1359 (LT) |
R Tolmay:
Introduction
This is an application by the applicant ("the Law Society") for an order striking the name of the first respondent ("the respondent"), one of its members, from the roll of attorneys of this court and for consequential relief such as commonly follows upon such an order. The second
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respondent is apparently defunct and plays no part in these proceedings.
Preliminary issue regarding jurisdiction of this court as presently constituted
Prior to the hearing of the main application, the Law Society sought interim relief suspending the respondent from practice as an attorney ("the suspension application") pending the adjudication of the main application. The suspension application was heard in this court (per Hetisani J and Mann AJ) on 30 September 2009 and adjourned to 5 October 2009.
On 5 October 2009, before judgment was delivered in the suspension application, the respondent applied for the recusal of Mann AJ ("the first recusal application"). The first recusal application was refused. On 9 October 2009 the respondent sought written reasons for the refusal of the recusal application.
On 19 October 2009, the court, per Hetisani J and Mann AJ, granted an order in the suspension application, suspending the respondent from practice ("the suspension order") pending the adjudication of the main application.
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On the same day, 19 October 2009, after granting the suspension order, reasons for the refusal of the first recusal application were furnished.
On 22 October 2009, the respondent delivered a notice of application for leave to appeal against the first recusal application.
The application for leave to appeal against the dismissal of the first recusal application was set down for hearing on 25 November 2009 but by notice dated 12 October 2009 [1] , the respondent unilaterally purported to remove the application for leave to appeal from the roll. By a further notice headed "Practice Note" dated 23 November 2009, the respondent gave notice of his intention to apply for an order that
his application for leave should be stayed and/or suspended pending the outcome of his intended application for recusation and for further and/or alternative relief hereon.
On 25 November 2009, the respondent brought a second recusal application against both members of the court as previously constituted. The second recusal application is still pending.
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The matter was then postponed from time to time.
On 25 March 2010, Hetisani J recused himself from the proceedings because, we understand from statements made during argument, he was retiring, and the court, per Mann AJ, directed that the matter be postponed to 26 May 2010. In a notice again called a practice notice dated 2 May 2010, the respondent requested the "Senior Honourable Judge of the above Court, Mr Justice KHAMI MAKHAFOLA" to direct that the matter should be set down for hearing on 27 and 28 May 2010 before a full bench. By separate notice dated 2 May 2010, the respondent applied for the matter to be allocated these trial dates because
The 1st Respondent is a Court official, the matter is of public interest, it is in the public interest that it should be finalised, on costs consideration and as the matter will be before Court for the 11th time/occasion on the 26th day of May 2010 and the matter may not be heard to finality on the 26th day of May 2010 and further that a full bench be constituted to hear the matter on the said dates. [emphasis as in original]
The matter was then postponed to "14 June 2010, being a holding date". On that date the matter was postponed to 30 July 2010 and the parties were directed to address the court on the issues of referral to
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a full bench, the recusal applications and the costs thereof and the "status of the interim order previously granted".
On 24 June 2010, Mann AJ wrote, through his secretary Mrs PF Meiring, the following letter to the attorneys for the applicant and the first respondent:
On 14 June 2010 the abovementioned matter was postponed until 30 July 2010 and inter alia ordered
"... that it is recorded that at the hearing on 30 July 2010 counsel will address the Court in regard to an order not only in the referral of the main application, but also in regard to the issues relating to:
the recusal applications and the costs related thereto; and
the status of the interim order previously granted.
Herewith you are informed that the honourable the Judge President Mr Justice Ngoepe had arranged for a full bench to hear the abovementioned matter on 11 and 12 August 2010.
You and counsel appearing on your behalf are requested to be available on both the 11th and 12th of August 2010. If the matter cannot be finalised on the 11th of August 2010 it will proceed on the 12th of August 2010.
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By notice styled Notice in Terms of Rule 49 of the Superior Court Rules and dated 28 June 2010, the respondent further requested the "written judgment delivered on the 14th day of June 2010 by Mr Justice CB Mann and written reasons thereof".
By notice of set down dated 8 July 2010, the Law Society gave notice that the "above case" had been set down for hearing
on the 11th and 12th August 2010 as per the letter of Mrs P. F. Meiring attached hereto dated 24th June 2010. Therefor it is hereby given notice of the Setdown of the above case for the above dates.
Pursuant to the direction by the learned Judge President, we were appointed acting judges of this court and assigned by the Judge President to hear this case. Our seat is in the North Gauteng High Court in Pretoria so at considerable cost to the public purse and inconvenience to the administration of justice in the North Gauteng High Court we travelled to and were accommodated near the seat of this court.
By notice dated 14 July 2010 styled "Notice of Removal from the Roll", the respondent purported to remove the matter from the roll for 11 and 12 August 2010 on the ground that
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The matter [has] become stagnant in Mr Justice CB Mann and immune from intervention by any other Court officer(s) including inter alia, the Honourable Judge President Mr Justice BM Ngoepe and Mrs PF Meiring, the 1st Respondent hereby removes the matter from the 11th and 12th days of August purported Court roll.
The reason why the respondent asserted that the matter could not proceed on 11 August 2010 is set out in the same notice. The respondent asserted in the notice that the matter could not proceed
... in compliance with the still sought and still awaited Court order and/or judgment by the 1st Respondent, delivered by the Honourable Judge, Mr CB Mann after deciding that he is still the presiding Judge on the matter ...
When the matter was called before us, on 11 August 2010, the parties sought a ruling on what was properly before us. The contention on behalf of the respondent was that the direction of the Judge President, properly interpreted, was to divest the court, as constituted before the direction, of jurisdiction in relation to the main application and all interlocutory proceedings and ancillary matters which were pending before the court as previously constituted when the direction was given. The argument on behalf of the Law Society, on the other hand, was that the direction merely excised the main application from the jurisdiction of the court as previously constituted.
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After the conclusion of argument, we made the following ruling:
It is hereby ruled that in accordance with the direction of the Judge President contained in the letter of 24 June 2010 (p48 of bundle 8), this court as presently constituted has jurisdiction to determine the main application and all other issues or interlocutory applications pending between the parties under case no. 09/2009;
It is hereby ruled that the applicant's legal representative is to begin his argument at 14h00 today and that the respondent's legal representative may, if he so chooses, begin his argument tomorrow, ie 12 August 2010, at 10h00.
We stated that we would give reasons at the conclusion of the case. Our reasons follow.
We must determine what has been set down before us. This requires an interpretation of the direction of the learned Judge President. The direction itself is contained in paragraph 2 of the letter dated 24 June 2010.
That the direction of the learned Judge President was lawful admits of no doubt: s 13 of the Supreme Court Act, 59 of 1959 provides that save for certain exceptional cases not relevant to this enquiry
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... the court of a provincial or local division shall, when sitting as a court of first instance for the hearing of any civil matter, be constituted before a single judge of the division concerned: Provided that the judge president ... may at any time direct that the matter be heard by a full court consisting of so many judges as he may determine.
Furthermore, the constitution of the present full bench was exactly what the respondent had asked for in the notice dated 2 May 2010 referred to in paragraph 10 above.
We are in no doubt that the plain meaning of the direction of the learned Judge President is that the main application and all other issues or interlocutory applications pending between the parties under case no. 09/2009 are before us for adjudication. If the Judge President had intended certain of the interlocutory proceedings or ancillary matters to remain within the jurisdiction of the court as previously constituted, the direction would have spelt this out, not left it open to interpretation and debate. The direction was made...
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