Bandra Investments CC and Another v Palmer and Others (17574/2022P) [2023] ZAKZPHC 119 (18 October 2023)

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION, PIETERMARITZBURG

Case No: 17574/2022P

In the matter between:

BANDRA INVESTMENTS CC FIRST APPLICANT

MERCHANT MOHAMMED SECOND APPLICANT

and

SIMON CHETWYND-PALMER FIRST RESPONDENT

LEGAL PRACTICE COUNCIL SECOND RESPONDENT

S. NAIDOO INVESTIGATOR LPC THIRD RESPONDENT

Coram: Davis AJ

Heard: 5 October 2023

Date of order: 5 October 2023

Reasons: 18 October 2023

REASONS FOR ORDER

Davis AJ:

[1] This is an opposed application in terms of which the applicants seek the following relief:

(a) Condoning the late filing of an application for the review and appeal of the dismissal by the Legal Practice Council, the second respondent, of the complaints of the applicants, Bandra Investments CC and Merchant Saleh Mohammed, against the first respondent, Simon Chetwynd-Palmer.

(b) An order that the respondents pay the costs of the application, if opposed.

It is clear that although the applicants seek to appeal and to review the decision of the Legal Practice Council, the correct remedy sought in law is a review in terms of section 7(1) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

Parties

[2] The first applicant is Bandra Investments CC, a duly registered closed corporation, and the second applicant is the sole member of the first applicant, who is duly authorized to bring this application on behalf of the first applicant. He can be described as the alter ego of the first applicant. He appears in person.

[3] The first respondent is a practising attorney, who conducts his practice from a home office located at Nyala Road, Kloof and who has been an admitted attorney since 27 January 1977. He is represented by Mr Campbell.

[4] The second respondent is the Legal Practice Council and the third respondent is S Naidoo who conducted the investigation into the complaints made by the applicants. The second and third respondents do not participate in the proceedings at all, and they abide by the decision of the court. For convenience, I will refer to the first and second applicants as the applicant, the first respondent as the respondent and the second and third respondent as the LPC.

Background

[5] The genesis of this application is the complaints filed by the applicant with the LPC, following the postponement of a trial that was due to be heard on 3 to 5 May 2021, wherein the applicant was the plaintiff.¹ Three days prior to the hearing of the action, which had been instituted in 2008, the defendants filed an application to amend their plea and requested that the matter be postponed for this purpose.

[6] The respondent was the attorney who had been instructed by the applicant in respect of this application to amend. The applicant’s instruction to the respondent was to strenuously oppose any application for a postponement. The applicant had witnesses in court ready to proceed should the application to amend the plea be refused. The matter was, as is apparent from the record but not acknowledged by the applicant, indeed opposed by counsel for the applicant.² A detailed history was placed before the trial judge of the delays occasioned by the conduct of the defendants and that the applicant wished to proceed.

[7] Olsen J, hearing the application to amend the plea, after being referred to Stand 242 Hendrik Potgieter Road Ruimsig v Göbel NO and others³ by the defendants’ counsel, and after taking time to read and consider it, granted the postponement to allow for the amendment of the pleadings by the defendants. Counsel for the applicant, quite properly in line with his duty as an officer of the court, conceded the following:

‘M’Lord, that is the law as I understand it . . . So that’s the reality, a legal reality, which I cannot get away from despite my instructions, but that I am not seen in any way conceding to a postponement.’⁴

[8] The second issue that generated the complaints from the applicant was the role of the respondent in the decision of the trial judge to rescind the Uniform Rule 33(4) order made in 2016. This order was to separate various issues pertaining to the action. It is common cause that the second applicant had passed a piece of paper to the respondent instructing him to oppose the rescission of the 2016 separation order.

[9] It is apparent from the record that the consolidation of issues was only done after the postponement had been granted by the court. The record reveals that this unforeseen occurrence was met with the following response by counsel for the applicant:

‘I have no instructions on that but the second plaintiff objects to such an order.’⁵

To which the presiding judge responded:

‘Is the second plaintiff not in a hurry to get his property?’

[10] The record thereafter reveals that both counsel for the applicant and the defendants agreed that the consolidation of the matter was the most optimal way of dealing with the issues in the trial and more importantly, of shortening the trial. The learned judge⁶ then directly engaged with the applicant after the applicant asked the court to stand down. The learned judge explained in considerable detail why rescinding the order to separate the issues would expedite the trial and ends his explanation as follows:

‘So if we can get rid of separated issues and have one hearing, that suits this court. Why would it not suit you? You are the person seeking relief in this case.’

[11] Notwithstanding Olsen J’s explanation, the applicant was extremely disappointed by the events in court and shortly afterwards, the respondent ceased to act as the attorney for the applicant. Various disputes followed and six weeks later, on 18 June 2021, the applicant filed complaints against the respondent with the LPC. These complaints, in summary, included inter alia:

(a) Counsel on brief, contrary to his express instructions, presented arguments in favour of an adjournment.

(b) Counsel on brief did not oppose the rescission of the order of 2016.

(c) There is a complaint over fees.

(d) There is a complaint about the unlawful use of trust funds by the respondent.

(e) There is a complaint over the payment of fees to counsel that was made

(f) contrary to the express instructions of the applicant.

(g) That the respondent leaked privileged information to an attorney.

(h) That the respondent gave advice which potentially exposed the applicant to a criminal charge.

(i) That the respondent, and counsel instructed by the respondent, failed to act in the best interests of the applicant.

[12] On 29 March 2022, the LPC dismissed the complaints against the respondent and advised the applicant of the right to approach the high court for a review of the Investigating Committee’s decision.⁷ On 9 June 2022, the LPC notified the applicant that his submissions made to the LPC for it to reconsider its original dismissal of the complaints were unsuccessful and once again notified him of his recourse to the high court by way of review or appeal.⁸ On 28 August 2022, the minutes of the directors’ meeting of the first applicant reflect the authorisation to appeal or review the decision of the LPC.

[13] On 15 December 2022, the applicant instituted the current application.⁹

[14] On 4 April 2023, the registrar allocated 5 October 2023 for the matter to be heard on the opposed roll. On 22 September 2023, the respondent filed his practice note and heads of argument and served these on the designated address of the applicant. The applicant failed to file heads of argument or a practice note.

Application for postponement

[15] At the hearing on 5 October 2023, the applicant appeared in person, armed with an affidavit seeking a postponement of the hearing, in order that he could instruct a legal representative to afford him a chance to file papers in response to the heads of argument and practice note filed by the respondent. The application for a postponement, six months after the matter was set down, with less than 48 hours’ notice to the respondent, was strenuously opposed by the respondent. The application was not filed with the registrar and the affidavit was handed to the court at the time of the hearing of the application.

[16] Generally, if a bona fide reason is furnished for such a postponement, and if the counter-side will not be unduly prejudiced by a postponement, such an application is granted, provided of course that there is any point to the postponement. As will appear, it is both aspects which form the basis of the opposition to the postponement application and the court’s decision to refuse the application.

[17] In Erasmus: Superior Court Practice,¹⁰ the following is said with regard to postponements:

‘The legal principles applicable to an application for the grant of a postponement by the court are as follows:

(a) The court has a discretion as to whether an application for a postponement should be granted or refused. Thus, the court has a discretion to refuse a postponement even when wasted costs are tendered or even when the parties have agreed to postpone the matter.

(b) That discretion must be exercised in a judicial manner. It should not be exercised capriciously or upon any wrong principle, but for substantial reasons. If it appears that a court has not exercised its discretion judicially, or that it has been influenced by wrong principles or a misdirection on the facts, or that it has reached a decision which could not reasonably have been made by a court properly directing itself to all the relevant facts and principles, its decision granting or refusing a postponement may be set aside on appeal.

(c) An applicant for a postponement seeks an indulgence. The applicant must show good and strong reasons, i e the applicant must furnish a full and satisfactory explanation of the circumstances that give rise to the application. A court should be slow to refuse a postponement where the true reason for a party’s non-preparedness has been fully explained, where his unreadiness to proceed is not due to delaying tactics, and where justice demands that he should have further time for the purpose of presenting his case.

(d) An application for a postponement must be made timeously, as soon as the circumstances which might justify such an application become known to the applicant. If, however, fundamental fairness and justice justify a postponement, the court may in an appropriate case allow such an application for postponement even if the application was not so timeously made.

(e) An application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled.

(f) Considerations of prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion of the court will be exercised; the court

has to consider whether any prejudice caused by a postponement can fairly be compensated by an appropriate order of costs or any other ancillary mechanism.

(g) The balance of convenience or inconvenience to both parties should be considered: the court should weigh the prejudice which will be caused to the respondent in such an application if the postponement is granted against the prejudice which will be caused to the applicant if it is not.’ (Footnotes omitted.)

[18] The application was set down for hearing just over six months ago, at the instance of the respondent. Documents were served on the applicant at his nominated address. In the applicant’s affidavit, he states that the person nominated to receive the documents, a friend, failed to forward the documents or even to notify him of their arrival.

[19] According to the averments in the affidavit, he only became aware of the matter 48 hours before the hearing, and was surprised to find that the condonation application was opposed because, as a lay person, he believed that such an application was a mere formality and would not be opposed. He was surprised when he finally received the notification that condonation was opposed and the cases cited in support of the respondent’s opposition. He, however, was constrained to concede that he had received the opposing affidavit of the respondent, to which he had replied, and he cannot thus be said to have reasonably not known that the application was opposed.

[20] His belief that condonation was a mere formality and his surprise that it was opposed is unsustainable: the applicant was fully appraised of the respondent’s contention that the applicant was acting mala fide and that he had previously used forged medical documents to mislead the court. The applicant could not have laboured under any illusion. The respondent strongly resisted the application for condonation. Condonation is an indulgence. The applicant, before Olsen J, had himself opposed any indulgence in a previous court hearing. He is being economical with the truth when he stated under oath that he believed that the condonation application was a formality.

[21] The applicant maintains that the failure by the recipient of the court papers to forward them to him or to inform him of the contents thereof, should be sufficient and that as a person not trained in law, his failure should be condoned. The explanation is clearly unsatisfactory. The applicant must show good and strong reasons why he should be granted an indulgence and he must furnish a full and satisfactory explanation of the circumstances that give rise to the application for a postponement.¹¹ He fails to do so by a considerable margin. The applicant is the litigant, who is under a duty to oversee his application, and he cannot lay the blame on the person nominated by him to receive the documents: he is the party responsible and accountable for this failure.

[22] The applicant omits to deal with the fact that from the time that the final exchange of all the papers had taken place, he had for six months failed to take a single step to prosecute the application. If he had taken steps to progress the hearing of his application, he would almost inevitably have known about the court date.

[23] The applicant maintains that he had some discussions with the respondent in the matter, including the possible settlement of the matter but maintains the date of set down of the application was not communicated to him by the respondent nor did the subject of the hearing date ever arise. With respect, on the facts of this matter, this is unacceptable. The applicant, although a lay person, is not a stranger to litigation in the high court. He was the driver of this application and was obliged to diligently pursue it. On his own version, he failed to do so. The applicant maintains that he never found out about the set down date but when the practice note and heads of argument of the respondent are sent to the same address, then the applicant hears about it. The explanation is, with respect, too convenient. It is clear that the inability or lack of preparedness of the applicant in this case is entirely due to his conduct and handling of the matter and generally this should not form the basis of a postponement.¹²

[24] On his own explanation, the applicant acted recklessly as to the consequences of a complete oversight on his part to manage the application he instituted. Seen in the context of this matter as a whole, and considered against all the material on record, it is in all likelihood mala fide and designed to prejudice the respondent.

[25] There is obvious prejudice to the respondent, both financially and to his reputation, in the granting of any postponement. There is also a bill of costs awaiting taxation that has been delayed by these proceedings. The respondent fairly logically seeks closure.

[26] A court should exercise its discretion to grant a postponement judiciously¹³ and after considering what is fair and just to both parties and balancing it with the interests of justice.¹⁴ It has also been stated that when making this decision, the court should, where appropriate, also take into account the broader public interest. The legal profession is a noble profession and misconduct by members of the profession should be addressed and decisively dealt with.

[27] However, a proper reading of the papers on record, and in particular the affidavits of the applicant, reveals that the complaints of the applicant are actually based on two false assertions. The first being that the respondent failed to oppose the application for a postponement in the original trial when the record reveals unequivocally that he in fact did so. The second being that the respondent was responsible for, and suggested, the rescission of the order in respect of the separation of issues in the trial, when that rescission in fact emanated from the trial judge. In these circumstances, the applicant’s approach to this court may well be mala fide and an abuse of the processes of court.

[28] The applicant has fallen woefully short of meeting the requirements for an application for a postponement to be successful and it is for these reasons that I refused to grant the application for the postponement.

Condonation

[29] Section 7(1) of PAJA provides that applicants are to institute review proceedings ‘without unreasonable delay and not later than 180 days’ after the applicants were informed of the decision, in this instance 180 days after the original notification on 29 March 2022. It is not in dispute that condonation is required, as according to section 7(1) of PAJA, the delay on the face of it is unreasonable, as the period out of time exceeds 180 days.

[30] Section 9 of PAJA provides as follows in connection with the late filing of review applications and condonation:

‘9. Variation of time.— (1) The period of—

(a) . . .

(b) 90 days or 180 days referred to in sections 5 and 7 may be extended for a fixed period,

by agreement between the parties or, failing such agreement, by a court or tribunal on application by the person or administrator concerned.

(2) The court or tribunal may grant an application in terms of subsection (1) where the interests of justice so require’

[31] _{The applicant has suggested that the interests of justice warrant the condonation of the failure to comply with the prescribed time period. The SCA, in Price Waterhouse Coopers} Inc v Van Vollenhoven NO,¹⁵ stated as follows in connection with PAJA condonation applications:

_‘[6] The concept “interests of justice” has been considered by the Constitutional Court on a number of occasions in the context of applications for condonation. Most recently, in Van Wyk v Unitas Hospital and another (Open Democratic Advice Centre as Amicus Curiae), the court expressed itself as follows:

“This court has held that the standard for considering an application for condonation is the interests of justice. Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. Factors that are relevant to this enquiry include but are not limited to the nature of the relief sought, the extent and cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, the importance of the issue to be raised in the intended appeal and the prospects of success.”

[7] With regard to the explanation for the delay, the court further held:

“An applicant for condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of delay. And, what is more, the explanation given must be reasonable.”’ (Footnotes omitted.)

[32] Dealing with condonation applications in terms of the Uniform rules, the Constitutional Court in Grootboom v National Prosecuting Authority and another,¹⁶ stated that

‘It is axiomatic that condoning a party's non-compliance with the rules of court or directions is an indulgence. The court seized with the matter has a discretion whether to grant condonation.’

[33] The court further reiterated that

‘In this court the test for determining whether condonation should be granted or refused is the interests of justice. If it is in the interests of justice that condonation be granted, it will be granted. If it is not in the interests of justice to do so, it will not be granted. The factors that are taken into account in that inquiry include:

(a) the length of the delay;

(b) the explanation for, or cause for, the delay;

(c) the prospects of success for the party seeking condonation;

(d) the importance of the issue(s) that the matter raises;

(e) the prejudice to the other party or parties; and

(f) the effect of the delay on the administration of justice.’¹⁷

[34] After the application for a postponement was refused, the applicant declined to address the court on the merits of the application. The court is thus confined to the evidentiary material contained in the court bundle. In this matter, condonation is strenuously opposed and the applicant’s explanation for the delay has been assailed by the respondent. The reasons for not complying with the time frames within which to note a review, as contained in the founding affidavit of the condonation application, can be described as follows:¹⁸

(a) He was seeking full and better reasons for the decision of the LPC and the composition of the members of the enquiry.

(b) He was overseas for a period.

(c) Various attorneys refused to assist him in the matter.

(d) He became severely ill from the fourth week of September 2022 until 2 November 2022.

(e) He maintains that the delay was also exacerbated by the fact that he is not a trained lawyer.

(f) In his condonation application, he does not engage this court on the prospects of success.

[35] It suffices to note that Mr Campbell, for the respondent, opposed the application with considerable vigour, pointing out the lengthy delay, in excess of 180 days, which is in terms of section 7 of PAJA automatically deemed to be unreasonable. The first letter addressed to the applicant by the LPC notified the applicant of his right of recourse to the high court. Any further postponement was strongly opposed.

[36] The riposte from the applicant is a weak one. There is no affidavit from the medical doctor, Dr Jadwat, who examined the applicant, and the documents filed in support of the applicant’s contention constitute hearsay evidence, the probative value of them depending on the evidence of the applicant’s doctor confirming them under oath.

[37] This is significant, for in motion proceedings, a real, genuine and bona fide dispute of fact properly raised by the respondent, and the reply thereto by the applicant being so inadequate, means that the issue falls to be decided on the basis of the facts averred in the respondent’s affidavit.¹⁹

[38] The applicant is unrepresented and has not dealt with the prospects of success in his application for condonation. I am mindful that as a layperson, he is at a disadvantage and I am reluctant as a result to impose upon him the standards expected of a legal professional. It is trite law that where an application for condonation does not traverse the prospects of success, then the application for condonation might fail on that point alone.²⁰ Indeed, for purposes of this application for condonation, I will take heed of the submissions he made in his papers but even doing so, the prospects of success are remote on nearly all aspects.

[39] There is a far more compelling reason for the court not to grant condonation, as the applicant has initiated the entire proceedings on two false assertions; two assertions that he knew were false at the outset when he lodged the complaints. His complaint that the respondent and counsel on brief failed to oppose the postponement is false. The applicant knew it was false, as he was in court and the record permits no other conclusion. The binding precedent of a decision of the Supreme Court of Appeal that had to be followed prevailed. The law of precedent which forms part of the rule of law, dictated to the presiding judge that the postponement had to be granted.²¹ Counsel for the applicant’s concession that the Supreme Court of Appeal decision was the law on this issue, did not amount to disobeying a client’s instructions but was in accordance with counsel’s first duty, which is to the court.²²

[40] The second complaint that the respondent, together with counsel, facilitated or engineered the consolidation of the trial action after the postponement and failed to comply with his instruction that it be opposed, is also false. Counsel on brief by the respondent informed the court that the applicant objected to the consolidation but that he had no specific instructions in that regard. The surrounding evidence in this matter was that counsel would have been passed a note that he should oppose the consolidation order.

[41] Quite properly, counsel then conceded that the consolidation would shorten proceedings but informed the learned judge that the applicant objected to this. The learned judge then ordered the consolidation of issues. Illuminatingly, Olsen J then, in detail, addressed the applicant and explained to him why he was doing so and why he chose to manage the trial going forward in this manner. It was for the benefit of the applicant. The explanation is in plain language and brooks no misunderstanding. The allegation that the respondent ignored his instructions in this regard is without doubt unfounded and in all likelihood made mala fide.

[42] There is no indication in the record of any bias by the LPC. The applicant has not referred this court to any examples of breaches of the rules governing misconduct investigations by the LPC. On receipt of the applicant’s complaints, the applicant made representations that were considered and the decision remained unaltered. The prospects of success are miniscule and, with respect to the applicant, eviscerated by the way in which he has conducted the application.

[43] In conclusion:

‘. . . the standard for considering an application for condonation is the interests of justice. Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. Factors that are relevant to this enquiry include but are not limited to the nature of the relief sought, the extent and cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation for the delay, the importance of the issue to be raised in the intended appeal and the prospects of success.’²³

[44] By a considerable margin, the conduct of the applicant demands that condonation of the late filing of the application be refused.

Costs

[45] It has been suggested by the respondent that a punitive costs order should be made against the applicant because of his conduct. While there might be some merit in the argument, I am of the view that the applicant, as a lay person, should be spared the financial burden of a punitive costs order.

Order

[46] It was for all of these reasons that the following order was granted:

1. The application for a postponement to allow the applicant to obtain legal representation and to file a practice note and heads of argument is refused.

2. The application for condonation of the late filing of the review is dismissed.

3. The applicant is ordered to pay the costs of the suit.

____________________________

DAVIS AJ

APPEARANCES

For the applicant: In person

c/o Imran Cassim

92 Dartnell Road

Mountain Rise

Pietermaritzburg

3201

KwaZulu-Natal

For the respondent Mr G Campbell

Instructed by Simon Chetwynd–Palmer

c/o Stowell & Company

295 Pietermaritz Street

Pietermaritzburg

KwaZulu-Natal

Date of hearing: 5 October 2023

Date of order: 5 October 2023

Date of furnishing of reasons: 18 October 2023