NW Civil Contractors CC v Anton Ramaano Inc and Another

• Jurisdiction: South Africa
• Citation: 2020 (3) SA 241 (SCA)

NW Civil Contractors CC v Anton Ramaano Inc and Another
2020 (3) SA 241 (SCA)

2020 (3) SA p241

Citation	2020 (3) SA 241 (SCA)
Case No	1024/2018 and 1076/2018; [2019] ZASCA 143
Court	Supreme Court of Appeal
Judge	Ponnan JA, Swain JA, Zondi JA, Mocumie JA and Dolamo AJA
Heard	October 14, 2019
Judgment	October 14, 2019
Counsel	N Ferreira (with A Armstrong) for the appellant.; KM Moketedi (with L Pasha) for the first respondent.; E Botha (with T Mogale) for the amicus curiae, the Legal Practitioners Indemnity Insurance Fund NPC.

Flynote : Sleutelwoorde

Attorney — Fidelity fund — Fidelity fund certificate — Work done by attorney not in possession of certificate — Whether section renders work null — Attorneys Act 53 of 1979, s 41(1).

Headnote : Kopnota

Appellant's attorney prosecuted an application for appellant, and obtained favourable orders in the matter against first respondent.

However, at the time of so acting, appellant's attorney was not in possession of a valid fidelity fund certificate (see [5]).

Section 41(1) of the Attorneys Act 53 of 1979 provides in this regard that 'A practitioner shall not practise . . . unless he is in possession of a fidelity fund certificate' (see [12]).

First respondent then approached the High Court, and it set aside the orders appellant had obtained (see [7]). In its view, absent certificate, all work done in the matter, including drafting of the notice of motion, was rendered null by the contravention of the section. This translated into the notice of motion, and the orders based thereon, requiring setting-aside (see [11]).

Appellant appealed to the Supreme Court of Appeal. It set aside the decision on the ground that the High Court's orders were impermissibly vague, and so contravened the principle of the rule of law; and also on the basis that where s 41(1) was contravened, then the attorney concerned was disentitled to his fee and guilty of an offence, but the work done by him was not rendered null (see [15] and [19] – [20]).

The appeal upheld; the order of the High Court set aside; and the order replaced with an order dismissing first respondent's application (see [23]).

Cases cited

Law Society of the Cape of Good Hope v Adams 2013 (2) SACR 480 (WCC): dictum in para [19] applied

2020 (3) SA p242

Law Society of the Northern Provinces v Mamatho 2003 (6) SA 467 (SCA): followed

Minister of Home Affairs and Others v Scalabrini Centre and Others 2013 (6) SA 421 (SCA) ([2013] ZASCA 134): dictum in para [77] applied

Minister of Water and Environmental Affairs v Kloof Conservancy [2016] 1 All SA 676 (SCA): dictum in paras [13] – [14] applied

Oilwell (Pty) Ltd v Protec International Ltd and Others 2011 (4) SA 394 (SCA) ([2011] ZASCA 29): dictum in para [19] applied

Oosthuizen and Another v Standard Credit Corporation Ltd 1993 (3) SA 891 (A): referred to

S v Theledi 1993 (2) SA 402 (T) (1992 (1) SACR 336): overruled

Schierhout v Minister of Justice 1926 AD 99: referred to

Standard Bank v Estate Van Rhyn 1925 AD 266: dictum at 274 applied

Summerley v Law Society, Northern Provinces 2006 (5) SA 613 (SCA): followed

Sutter v Scheepers 1932 AD 165: referred to

Swart v Smuts 1971 (1) SA 819 (A): dictum at 829C applied.

Legislation cited

The Attorneys Act 53 of 1979, s 41(1): see Juta's Statutes of South Africa 2018/19 vol 7 at 5-122.

Case Information

N Ferreira (with A Armstrong) for the appellant.

KM Moketedi (with L Pasha) for the first respondent.

E Botha (with T Mogale) for the amicus curiae, the Legal Practitioners Indemnity Insurance Fund NPC.

Appeals against decisions of the Limpopo Division.

Order

1.

Both appeals are upheld with costs.

2.

The order of the court a quo in each instance is set aside and substituted with the following:

2.1

Under case No 1024/2018 —

'The application is dismissed with costs.'

2.2

Under case No 1076/2018 —

'(a)

The application succeeds with costs.

(b)

The judgment of Mushasha AJ granted by default on 11 August 2016 is rescinded.'

Judgment

Ponnan JA (Swain JA, Zondi JA, Mocumie JA and Dolamo AJA concurring):

[1] Two appeals serve before us. Both, involving the same parties, are against judgments of the Limpopo Division of the High Court, Thohoyandou (per Phatudi J). The first, under case No 1024/2018, is an appeal against a judgment which set aside three orders previously granted in that division, on the basis that the attorney acting for the appellant in those matters was not possessed of a fidelity fund certificate. The second, under case No 1076/2018, is an appeal against the dismissal of an application by the appellant for the rescission of a judgment, granted by default against it by Mushasha AJ on 11 August 2016. Both appeals are with the leave of this court.

2020 (3) SA p243

Ponnan JA (Swain JA, Zondi JA, Mocumie JA and Dolamo AJA concurring)

[2] The litigation stems from a dispute between the parties over legal fees that Anton Ramaano, who practises as an attorney under the name and style of Anton Ramaano Inc (the first respondent), maintains is owed to him by the appellant, NW Civil Contractors CC. The first respondent had represented the appellant in litigation against a local municipality. That matter was eventually settled on 7 March 2015, when the municipality agreed to pay the appellant the sum of R14 million. When the first respondent's fees for the rendition of those services remained unpaid, it issued summons against the appellant for payment of its taxed costs in the sum of R1 305 459,06. After service of the summons, the appellant entered an appearance to defend the action, but failed to timeously file its plea, with the result that it was subsequently ipso facto barred from pleading. On 11 August 2016 default judgment was granted against the appellant. On 30 August 2016 the appellant applied to have the judgment rescinded on the basis that it did not owe any money to the first respondent and that the latter's bill of costs had been erroneously taxed in the absence of the appellant (the rescission application).

[3] Whilst the rescission application was pending, the parties became embroiled in further litigation in respect of a number of interlocutory matters. First, on 23 August 2016 the Sheriff, Thohoyandou (the second respondent), had attached and removed some of the appellant's goods, pursuant to a writ of attachment, which had been obtained by the first respondent some four days earlier. The appellant accordingly sought urgent interim relief pending finalisation of the rescission application (the first application). The first application succeeded before Kganyago AJ on 22 September 2016. It was thus ordered that, pending finalisation of the rescission application: the execution of the default judgment is suspended; the warrant of execution against the property of the appellant is stayed; and the goods of the appellant that had been attached and removed are forthwith to be returned to the appellant (the first order). Second, in the meanwhile and on 14 September 2016, the first respondent brought an application for the recusal of Kganyago AJ (the second application). This application was dismissed (the second order). Third, aggrieved at the failure of the recusal application, the first respondent applied for leave to appeal the dismissal of the recusal application (the third application). This application was also refused on 22 September 2016 (the third order).

[4] On 28 September 2016 the first respondent filed what was described as a 'Notice of application for rescission and/or setting aside of judgments/rulings in terms of the common law and/or appropriate relief in terms of section 38 and/or 173 of the Constitution of the Republic of South Africa Act 108 of 1996'.

The application read:

'Kindly take notice that the 1st Respondent intends to make an application to the above Honourable Court on a date and time to be allocated by the registrar for an order in the following terms:

1.1

That the following Court orders granted by the Honourable Judge, Judge M.F Kganyago be rescinded and/or set aside:

2020 (3) SA p244

Ponnan JA (Swain JA, Zondi JA, Mocumie JA and Dolamo AJA concurring)

1.1.1

Court order granted on the 14th day of September 2016 by Judge M.F Kganyago on the issue of recusal.

1.1.2

Court order granted on the 22nd day of September 2016 on the 1st Respondent's application for leave to appeal and

1.1.3

Court order granted on the 22nd day of September 2016 on the main application.

1.2

Alternatively, that the 1st Respondent be granted appropriate relief in terms of Section 38 and/or 173 of the Constitution of the Republic of South Africa Act, 108 of 1996

1.3

That the costs of this application be paid by any party which/who opposes same.'

[5] The basis of the application was that, unbeknown to the parties and the court...