Manong & Associates (Pty) Ltd v Minister of Public Works and Another

• Jurisdiction: South Africa
• Judge: Harms DP, Brand JA, Ponnan JA, Snyders JA and Bosielo AJA
• Judgment Date: 23 September 2009
• Citation: 2010 (2) SA 167 (SCA)
• Docket Number: 518/2008
• Hearing Date: 04 September 2009
• Counsel: MS Manong (in person) for the appellant. RG Tolmay SC (with T Khatri) for the respondents.
• Court: Supreme Court of Appeal

Ponnan JA:

Introduction

[1] State tenders have become fertile ground for litigation. The present G is one such matter. It commenced as what can only be described as a somewhat ambitious application in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act) to the Equality Court (Transvaal Provincial Division). In it, the appellant Manong and Associates (Pty) Ltd (the company), which describes itself as a national company specialising in civil, structural and H development engineering, sought against the Minister of Public Works and the Director-General, Department of Public Works (the first and second respondents respectively), in addition to condonation and the usual order for costs, the following relief,

'2.

Pending the determination of Part B of the relief sought by the I complainant, an interim interdict be granted preventing the first and second Respondents (the respondents) from implementing the Professional Services Supplier Register (The Register) including its key Principles.

3.

Ordering the respondents to furnish the complainant with the following information: J

Ponnan JA

3.1

A A record of the decision that was taken to abolish the current roster and its replacement by the register.

3.2

A list of Civil engineering Consultants who are on the current roster of the Department of Public Works (the DPW) from the year 2005 to date;

3.3

A schedule of fees showing appointments made to Consultants B and the fees received per project from the year 2005 to date.'

In Part B of the order prayed, the company sought the following relief:

'1.

Reviewing, correcting and setting aside the decision taken by the respondent to abolish the current roster and its replacement by the C register;

2.

Reviewing and setting aside the implementation of the register and declaring its key principles to be inconsistent with sections 9 and 217 of the Constitution of the Republic of South Africa, No. 108 of 1996 read with S.7(c) and 7(e) of the Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000 D (the Equality Act);

3.

Reviewing the conduct of the respondents in appointing Consultants as it is inconsistent with S.217 of the Constitution;

4.

Directing the respondents to undergo an audit of their procurement policies. . . .'

E [2] Botha J was called upon in the court below to adjudicate only Part A of the relief sought. The learned judge dismissed the application for an interim interdict with costs, but granted leave to the appellant to appeal to this court.

Right of appearance

F [3] Before turning to consider the merits of the appeal it is necessary to first consider whether Mr Mongezi Stanley Manong (Mr Manong), the managing director of the company, who signed the heads of argument on behalf of the company and purported to represent it before us, has what can be described as a right of audience on behalf of the company before G this court.

[4] The rule that a company cannot conduct a case in this court except by the appearance of counsel on its behalf was laid down in Yates Investments (Pty) Ltd v Commissioner for Inland Revenue. [1] The rule may H well have originated in early seventeenth century metaphysical reasoning that a corporation has 'no soul, is invisible and cannot do homage'. [2] It, according to Viscount Simon LC, secures that a court like this will be served by persons who observe the rules of their profession, are subject to a disciplinary code and are familiar with the methods and scope of I advocacy to be employed in presenting argument. [3]

Ponnan JA

[5] There is nothing to suggest that Mr Manong's decision to secure the A benefits of incorporation was not a genuine one. He did after all have the option of establishing and conducting the business as an unincorporated sole proprietorship. There is thus a persuasive argument that having chosen the benefits of incorporation, he must bear the corresponding burdens and not be allowed to escape them lightly. [4] B

[6] It has been thought, [5] somewhat cynically I dare say, that the rule is based on some misguided attempt to preserve an unjustified monopoly for legal practitioners. This is not the case. Litigation is based on the adversary system. In determining a dispute, a court is dependent on the way in which the case is presented. Factual admissions or denials are C made from time to time and a course of conduct has to be chosen by the litigants. When a corporation instructs an attorney who in turn instructs an advocate the law recognises their authority to bind the corporation for the purpose of litigation. In those circumstances a court need not concern itself about authority. Litigation will become very difficult indeed if a court had to be concerned at every step of the proceedings as D to the authority of the person conducting the litigation to make binding decisions. The litigant in person can of course make those decisions without any question of authority, but a corporation cannot act except through its agent and an agent cannot have more authority than the corporation legally gives to it. [6] Yet a further consideration is that E corporate officers could cause impecunious companies to litigate hopeless causes without any fear of personal risk. Thus, apart from the fact that there are usually rules of court that preclude a company from being represented by anyone other than a qualified practitioner, a review of the cases in England, Ireland, Australia, New Zealand and Canada shows that the courts, for pragmatic and policy reasons, have set their face F against unqualified persons presenting and conducting cases unless they are doing so on their own behalf. [7] So too, in Zimbabwe [8] and South Africa.

[7] That a person in the position of Mr Manong has no right, such as counsel and in certain circumstances attorneys have, to address this G court on behalf of the appellant is thus well settled. But to observe that he does not have a right of audience is not as Scott J put it [9] 'to answer the question whether the court does not have, and whether the court

Ponnan JA

A should not on the facts of the case exercise, a power to permit him to address the court on behalf of the corporate litigant'.

[8] Yates did not consider the question of a judicial discretion to allow non-professional representation in a particular case. For, as Gardiner B JP put it:

'The rules of procedure of this Court are devised for the purpose of administering justice and not of hampering it, and where the rules are deficient I shall go as far as I can in granting orders which would help to further the administration of justice.' [10]

C Likewise, Denning MR stated:

'It is well settled that every court of justice has the power of regulating its own proceedings; and, in doing so, to say whom it will hear as an advocate or representative of a party before it. As Parke J said in Collier v Hicks ((1831) 2 B & Ad 663 at 672, 109 ER 1290 at 1293): "No person has a right to act as an advocate without the leave of the Court, D which must of necessity have the power of regulating its own proceedings in all cases when they are not already regulated by ancient usage".' [11]

[9] The main reasons for relaxing the rule are, I suppose, obvious enough: a person in the position of the controlling mind of a small E corporate entity can be expected to have as much knowledge of the company's business and financial affairs as an individual would have of his own. It thus seems somewhat unrealistic and illogical to allow a private person a right of audience in a superior court as a party to proceedings, but deny it to him when he is the governing mind of a small F company which is in reality no more than his business alter ego. In those circumstances the principle that a company is a separate entity would suffer no erosion if he were to be granted that right. There may also be the cost of litigation which the director of a small company, as well acquainted with the facts as would be the case if a party to the dispute personally, might wish to avoid. Such companies are far removed from G the images of gigantic industrial corporations which references to company law may conjure up. [12]

[10] It follows that cases will arise where the administration of justice may require some relaxation of the general rule. Their occurrence, in my H view, is likely to be rare and their circumstances exceptional or at least unusual. I thus consider that our superior courts have a residual discretion in a matter such as this arising from their inherent power to regulate their own proceedings. After all, it seems to me that the power of a court to give leave to a corporation to carry on a proceeding otherwise than by a legal representative is of necessity an integral part of I the rule itself.

Ponnan JA

[11] That our courts were endowed with such power even in our A pre-constitutional era is evident from the following dictum of Corbett JA:

'There is no doubt the Supreme Court possesses an inherent...