Matsi Law Chambers Inc v Mailula (Second Application)
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Sardiwalla J |
| Judgment Date | 07 September 2023 |
| Citation | 2023 JDR 3541 (GP) |
| Hearing Date | 07 September 2023 |
| Docket Number | 46358/2021 |
| Court | Gauteng Division, Pretoria |
Sardiwalla J:
2023 JDR 3541 p2
Sardiwalla J
Introduction
This the second section 18 application in terms of section 18 of the Superior Courts Act 10 of 2013 (“the Superior Courts Act”).
This second section application was instituted on 13 September 2021 and on 14 March 2022, the application was before me brought by the applicants against seeking that despite any application for leave to appeal the, based on exceptional circumstances that the order of Baqwa J that was made on 18 December 2020 under case number 93439/2019 remains operational and executable.
On even date I handed down the following order:
In order to avoid any confusion between the parties, it is hereby confirmed that since there is no direct appeal against the order of Baqwa J that was made on 18 December 2020 between these parties, that order remains effective and executable, and there is no need for this Court to grant any leave for its execution.
No order as to costs.”
Background
The first respondent was a legal practitioner employed by the applicant’s law firm. Following a separation between the parties, litigation ensued between the parties regarding the distribution of files.
On 18 December 2020 Baqwa J made an order the following order:
the first respondent is directed to return to his former employer, the applicant, within two (2) weeks of the date of the court order, any of the original client case files that he (the first respondent), took from the applicant, upon his resignation from the applicant.
The first respondent is directed to give the applicant, within 10 (ten) days of the court order, copies of termination of mandate documents and notices of substitution in respect of the clients of the applicant, whose legal cases or matters the first respondent and/or second respondent have been duly mandated by clients to take over from the applicant.
the first respondent and second respondent are directed not to subject for taxation
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Sardiwalla J
any party and party bill of costs in respect of any of the finalised matters, for the first respondent and/or the second respondent has been duly mandated to take over from the applicant, unless and/or before they obtain and incorporate the applicant’s bill of costs for the disbursements paid or incurred and fees for the work done by the applicant. In this regard the applicant is ordered to submit to the second respondent its bill of costs within a period of 2 (two) months after receiving the original cases files from the second respondent as directed in this order.
In the event that any client of the applicant duly terminated the mandate of the applicant in favour of the respondents, it is confirmed that the applicant is entitled to the reimbursement for disbursements it paid and/or incurred and fees for the services it rendered in respect of each case file, up to the date of such change or termination of mandate. In this regard and in the event that any client terminated the mandate previously given to the applicant, a written document must be submitted by the respondents in proving same, failure (should read failing) which it is confirmed that the applicant still holds mandate to act for each client for all intents and purposes.
It is confirmed that even in the event that some clients terminated the mandate previously given to the applicant, respondents had and still have no right to remove the original case files from the applicant, which files are confirmed as the property of the applicant on the basis of which the applicant will be able to prepare its bill of costs for each of those terminated or finalised files to ensure that applicant’s recovery of its file costs (so called disbursements) and accrued fees that the applicant is entitled to for the services it rendered up to the date of such termination of its mandate.
In the event that the first respondent fails and/or refuses to comply with paragraph of this court order, any relevant office of the Sheriff of this court is ordered and authorised to attend and enter the premises or offices of the second respondent or any offices and/or property at which the files may be hidden, using any effective method (including being accompanied by the SAPS), at which premises or offices or property the Sheriff must remove any and all of the original case files that the first respondent removed from the applicant’s offices upon his resignation. The list of the said case files must be furnished to the Sheriff or Sheriffs by the applicant. The file list is annexure “A”, and part of this court order.
deleted.
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Sardiwalla J
No order as to costs.”
The respondents then made an urgent application for the suspension of Baqwa’s order. This was dismissed on 15 January 2021 by Davis J. There were two parts to the application and Davis J made an order in terms of part A of the proceedings.
Davis J’s decision was taken on appeal and dismissed on 14 June 2021. This application was taken on leave to appeal which was also dismissed on 2 October 2021.
An application for reconsideration of the SCA decision was launched that is still pending.
Part B of the urgent application was the rescission application against Baqwa’s order which was heard by Lazarus AJ. I am unsure if the judgment has been handed down or is still pending on that.
The first section 18 application by applicant to execute order of Davis J was heard by E Labuschagne AJ on 16 November 2021 and judgment handed down on 26 November 2021 dismissing the application.
On 10 September 2021 Judge Seneke dismissed the applicant’s contempt of court application stating that a court would not be quick to hold a litigant in contempt where there is an application for leave to appeal against a related order unless there was a clear order in terms of section 18 of the Superior Courts Act declaring that order executable. It is on this basis that the applicant brings the present second section 18 application.
Applicant’s case
It is the applicants submission the normal suspension of Baqwa J’s order made on 18 December 2020 be removed pending the respondents application for leave to appeal, if any. That whilst it is the legal position that an order that is subject of an
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Sardiwalla J
appeal or pending appeal is suspended, section 18 of the Act permits the...
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