Pretoria Society of Advocates and Others v Nthai

• Jurisdiction: South Africa

Pretoria Society of Advocates and Others v Nthai
2020 (1) SA 267 (LP)

2020 (1) SA p267

Citation	2020 (1) SA 267 (LP)
Case No	6271/18
Court	Limpopo Division, Polokwane
Judge	Makgoba JP and Mabuse J
Heard	July 18, 2019
Judgment	July 18, 2019
Counsel	G Shakoane (with F Khunou and B Makuya) for the applicant.; P Kennedy SC (with Y Ntloko) for the second respondent.; T Matau SC (with R Tshetlo) for the fourth respondent.

Flynote : Sleutelwoorde

Legal Practitioners — Advocate — Admission — Standing of General Bar Council and its constituent member societies of advocates, to participate in readmission applications — Legal Practice Act 28 of 2014, ss 4 and 5.

Headnote : Kopnota

This case concerned two applications for leave to appeal, one by the Johannesburg Society of Advocates (the JSA) and another by the South African Legal Practice Council (the LPC), against the court's decision to admit the respondent — who had previously been struck from the roll of advocates for misconduct — as a legal practitioner to be enrolled as an advocate.

One of the grounds of appeal, taken up by the JSA, was a finding in the main judgment that ss 4 and 5 of the Legal Practice Act 28 of 2014 had the effect that the General Council of the Bar (the GCB) and its constituent members (like the JSA) no longer had any role to play as custos morum of the legal profession. The JSA argued that if this view were upheld or was left as a precedent, it would deprive the GCB and its constituent members of their formal standing to participate in readmission applications by their members who had been struck off the roll at their application (see [25]).

The court was not persuaded that it had erred in its interpretation. It held that the fact that the legislature intended regulating the legal profession by a single statute (the LPA) and furthermore repealed the Admission of Advocates Act 74 of 1964 in its entirety, meant that there was no residual power for the JSA to act in such matters. It accordingly concluded that there was no reasonable prospect of success if leave to appeal against this finding were granted. (See [14] – [17] and [26].)

Cases cited

Ex parte Pillay and Others GP 29768/2012: applied

Johannesburg Society of Advocates v Edeling 2019 (5) SA 79 (SCA):distinguished

Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170 (SCA) (2012 (11) BCLR 1239; [2012] ZASCA 115): referred to

Law Society, Transvaal v Behrman 1981 (4) SA 538 (A): referred to

Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC): dictum in para [6] applied

Nthai v Pretoria Society of Advocates and Others LP 6271/18: confirmed

S v Notshokovu and Another [2016] ZASCA 112: dictum in para [2] applied

S v Smith 2012 (1) SACR 567 (SCA) ([2011] ZASCA 15): dictum in para [7] applied

Schierhout v Union Government (Minister of Justice) 1919 AD 30: dictum at 44 applied

Schoultz v Voorsitter, Personeel-Advieskomitee van die Munisipale Raad van George en 'n Ander 1983 (4) SA 689 (C): referred to

South African Breweries (Pty) Ltd v The Commissioner of the South African Revenue Services [2017] ZAGPPHC 340: referred to

2020 (1) SA p268

Swartzberg v Law Society, Northern Provinces 2008 (5) SA 322 (SCA) ([2008] ZASCA 36): referred to.

Legislation cited

The Legal Practice Act 28 of 2014, ss 4 and 5: see Juta's Statutes of South Africa 2018/19 vol 7 at 5-89.

Case Information

G Shakoane (with F Khunou and B Makuya) for the applicant.

P Kennedy SC (with Y Ntloko) for the second respondent.

T Matau SC (with R Tshetlo) for the fourth respondent.

An application for leave to appeal against a decision of the Limpopo Division, Polokwane (Makgoba JP and Mabuse J). [1] The order, dismissing the application, is at [40].

Judgment

Makgoba JP and Mabuse J:

[1] These are two applications for leave to appeal against the judgment and order that the court handed down on 24 May 2019. One application was brought by the Johannesburg Society of Advocates (the JSA) while the other application was brought by the Legal Practice Council (the LPC).

[2] On 24 May 2019 the court handed down the judgment in which the order read as follows: 'The Applicant is hereby readmitted as a legal practitioner of the High Court of South Africa to be enrolled as an advocate.'

[3] Section 17 of the Superior Courts Act 10 of 2013 (the Superior Courts Act) governs the applications for leave to appeal. It provides as follows:

'(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that —

(a) (i)

the appeal would have a reasonable prospect of success; or

(ii)

there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b)

the decision sought on appeal does not fall within the ambit of section 16(2)(a); and

(c)

where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.'

[4] The enquiry as to whether leave should be granted is twofold. The first step that a court seized with such an application should do is to investigate whether there are any reasonable prospects that another court seized with the same set of facts would reach a different conclusion. If the answer is in the positive, the court should grant leave to appeal. But if the answer is in the negative, the next step of the enquiry is to determine the existence of any compelling reason why the appeal should be heard.

2020 (1) SA p269

Makgoba JP and Mabuse J

[5] It was submitted by Adv Shakoane SC, counsel for Nthai, that s 17(1) sets out an inflexible threshold to grant leave to appeal. Therefore, both the JSA and LPC must of necessity meet the stringent threshold set out in s 17 of the Superior Courts Act in order to succeed with their respective applications for leave to appeal. That the threshold under s 17(1) of the Superior Courts Act is now stringent — now even more stringent than when the now repealed Supreme Court Act 59 of 1959 was still applicable — is aptly demonstrated by S v Notshokovu and Another [2016] ZASCA 112 (7 September 2016) para 2, where Shongwe JA, writing for the court, had the following to say: 'An appellant, on the other hand, faces a higher and stringent threshold, in terms of the Act compared to the provisions of the repealed Supreme Court Act 59 of 1959.' Section 17(1) uses the word 'only'. It provides that '(l)eave to appeal may "only" be given', and then proceeds to set out the circumstances under which leave to appeal may be given. See South African Breweries (Pty) Ltd v The Commissioner of the South African Revenue Services [2017] ZAGPPHC 340 (28 March 2017) para 5, in which the court cited with approval the following passage from Mont Chevaux Trust v Goosen 2014 JDR 2325 (LCC) para 6:

'It is clear that the threshold for granting leave to appeal against a judgment of the High Court has been raised in the new Act. The former test whether leave to appeal should be granted was reasonable prospect that another court might come to a different conclusion. See Van Heerden v Cornwright and Others 1985 (2) SA 342 (T) at 343H. The use of the word ''would'' in the new statutes indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.'

Finally, on the rigidity of the threshold, Plaskett AJA, as he then was, wrote the following in the judgment, in which Cloete JA and Maya JA, as she then was, concurred, in S v Smith 2012 (1) SACR 567 (SCA) ([2011] ZASCA 15) para 7:

'What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that the Court of Appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success. That the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.'

[6] One small vexing question — of the locus standi of the JSA — has again raised its ugly head. Nthai maintains, in opposing the JSA's application for leave to appeal, that the JSA has no locus standi to apply for leave to appeal. It is an issue that the JSA intends taking up on appeal. The JSA intends appealing the finding in the main judgment that it has no locus standi in the matter and furthermore that there was no reason for it to be involved in the application. The JSA contends, inter alia, that in terms of s 12(2) of the Interpretation Act 33 of 1957 (the Interpretation Act), it

2020 (1) SA p270

Makgoba JP and Mabuse J

is presumed that where a law repeals any other law, unless the contrary intention appears, the repeal shall not affect the previous operation of any law so repealed or anything duly done or suffered under the law so repealed. Mr Shakoane SC, relying on the constitution of the JSA, contended that the JSA does not have jurisdiction in the main application and that it still has no jurisdiction in the application for leave to appeal.

[7] We fully agree with the law as set out in the said section of the Interpretation Act. This means that Nthai's application had to be dealt with in terms of the Admission of Advocates Act 74 of 1964 (the AAA). This is the Act that was in force before 1 November 2018. After all, Nthai's application was launched on 18 October 2018 in terms of the AAA and while the AAA was still in operation. Secondly, Nthai himself stated...