The recent judgment of Administrator of Dr JS Moroka Municipality and Others v Kubheka (MM) (unreported case no 1170/20, 3-4-2020) (Brauckmann AJ) on the interpretation of the lockdown regulations has attracted both acclaim and criticism among legal practitioners.

The judgment follows hot on the heels of other cases, which will be discussed in the article below, wherein Judge President Francis Legodi of the Mpumalanga Division ordered that practitioners forfeit their fees owing to non-compliance with Practice Directives.

Reading the judgment by Brauckmann AJ, one cannot help but wonder if the court is not at war with its practitioners.

In the judgment, there does not appear to be any reason whatsoever that justifies the punitive cost order imposed on the legal practitioners who had permits in their possession issued by the Provincial Council where the practitioners are enrolled.

The regulations were promulgated to give effect to a legitimate government purpose of containing the spread of COVID-19 and were admittedly made in haste as various ministers have laboriously explained, mistakes will be made. Indeed, there were a lot of mistakes made as some of the provisions did not make sense and it was very clear that not much attention was paid to lucidity. The judge himself found that they are not a model of clarity.

If they are riddled with ambiguity (as the judge had so correctly found) and susceptible to multiple interpretations, why does the judge’s interpretation reign supreme in a matter where he was not called to offer interpretation. The Legal Practice Council (LPC) was not even called on to make representation and explain itself and its understanding of the regulations, as at the time, the LPC’s officials issued the permits.

The above, notwithstanding the fundamental legal question crying for an answer in the judgment is: Should failure to observe the regulations of necessity result in the disallowance of fees due to the practitioners by their respective clients?

The judge answered the question affirmatively and from the reading of the judgment the reason is that the practitioners, as officers of court, should have known that they were prohibited from travelling across the metropolitan and district boundaries to perform their essential service.

According to the judge, as legal practitioners they are judged at a higher standard than that of ordinary people and where they transgress the law, their penalty will be different. This is where he could not see the wood for the trees.

The basic and fundamental principle of South African law is that we are equal before the law. In the interpretation of the law and the application of legal principles, citizens should all be treated the same. The rule of law requires consistent application of the law to both the rich and poor in equal measure. In this instance, the regulations provide for a penalty in the event of the contravention. The penalty is imprisonment for a period not exceeding six months or a fine or both imprisonment and a fine. It is also a principle of South African law that any legislation that creates criminal and administrative penalties requires restrictive interpretation. Now, how did the judge arrive at a finding that is so egregious and disproportionate to the offence committed in total disregard of the penalty provisions?

The answer could be found in the case of Magagula v Minister of Police; Manzini v Minister of Police (MN) (unreported case no 1530/2017 and 2362/2017, 15-10-2019) (Legodi JP) and Nthabiseng and Others v Road Accident Fund (GP) (unreported case no 3492/2016, 19-6-2018) (Legodi JP) where the Judge President ordered that legal practitioners forfeit their fees in the matters they were instructed in.

In the Magagula case Legodi JP said at para 26:

‘[L]egal practitioners are expected to assist our courts in accelerating the pace of litigation and not to distract it.

A new division like this, still on its feet, deserves to be a model division and any distractive conduct in pursuit thereto, in appropriate circumstances, ought to be halted by resorting to the consequences.’

The above remarks were made as an expression of displeasure at the conduct of the legal practitioners who failed to adhere to the Practice Directives in the Mpumalanga Division. The Judge President found authority for the orders he made in r 37(9)(a)(ii) of the Uniform Rules of Court.

In this regard, the judge failed to appreciate context and went overboard as the provisions of r 37(9) were not applicable in this matter. Nowhere in the judgment does the judge express any displeasure in the conduct of any of the legal practitioners in the manner that they conducted themselves during the hearing of the matter.

On the contrary, the matter was properly enrolled and deserved to be heard on an urgent basis given the nature of the relief the applicant had sought and the consequences, which were to befall the community, if it was not heard.

What the judge failed to appreciate is that not every act done contrary to the law is visited with a nullity.

The law reports are replete with cases where that legal principle was expounded dating as far back as 1925. In Standard Bank v Estate van Rhyn 1925 AD 266 at 274, the court per Solomon JA expressed the legal position as follows:

‘The contention on behalf of the respondent is that when the Legislature penalises an act it impliedly prohibits it, and that the effect of the prohibition is to render the act null and void, even if no declaration of nullity is attached to the law. That, as a general proposition, may be accepted, but it is not a hard and fast rule universally applicable. After all, what we have to get at is the intention of the Legislature, and, if we are satisfied in any case that the Legislature did not intend to render the act invalid, we should not be justified in holding that it was’.

In Oilwell (Pty) Ltd v Protec International Ltd and Others 2011 (4) SA 394 (SCA), the court quoted J Voet as having written that ‘[t]hings done contrary to the laws are not ipso jure null if the law is content with enacting a penalty against transgressors.

…

Nay indeed there is no lack of laws which forbid, and yet do not invalidate things to the contrary, nor impose any penalty upon them. Hence came into vogue the famous maxim [m]any things are forbidden in law to be done which yet when done hold good’.

In this regard the overriding consideration is always whether greater inconveniences and impropriety would result from the rescission of what was done, than would follow the act itself done contrary to the law. The judge clearly failed to follow this approach and had he done so – as he is in law obliged to – he would have arrived at a different conclusion.

A consideration of the lockdown regulations reveals that they were enacted to control the movement of people as a measure to contain the spread of the COVID-19 disease and certain requirements were put in place for compliance. Failure to comply with them will attract a penalty as explained above and clearly it was never envisaged that a violation will result in the nullification of an act of travelling and provision of the services rendered.

It is, therefore, very clear that an order disallowing the payment of fees in cases where the legal practitioners had permits (albeit invalid according to the judge) was in the circumstances of this case a misapplication of the law. The judge failed to distinguish power and remedy.

To the extent that if he was right to declare the permits invalid in the exercise of his judicial power, it did not necessarily follow that an appropriate remedy, which is just and equitable is the disallowance of fees. In this regard, he acted overzealously and exceeded the judicial limits. He was not entitled to do so without affording the respective counsel an opportunity to explain themselves.

The judge failed to heed the wise counsel from the Supreme Court of Appeal in Motswai v Road Accident Fund 2014 (6) SA 360 (SCA) wherein the judges issued a reminder to all and sundry that charges of fraud and other conduct that carry serious consequences must be proved by the clearest evidence. While the judge was entitled to investigate the issue of the permits, he was, however, not entitled to make conclusions that appeared obvious to him only from those documents in his possession. To do so amounts to a reckless exercise of judicial power, which Cachalia JA cautioned against in Motswai at para 59 when he said:

‘Through the authority vested in the courts by s 165(1) of the Constitution judges wield tremendous power. Their findings often have serious repercussions for the persons affected by them. They may vindicate those who have been wronged but they may condemn others. Their judgments may destroy the livelihoods and reputations of those against whom they are directed. It is therefore a power that must be exercised judicially and within the parameters prescribed by law. In this case it required the judge to hold a public hearing so that the interested parties were given an opportunity to deal with the issues fully, including allowing them to make all the relevant facts available to the court before the impugned findings were made against them. The judge failed to do so and in the process did serious harm to several parties’.

The judgment, when considered together with the others mentioned above, ineluctably leads one to a conclusion that the Mpumalanga High Court is at war with its legal practitioners. This is not good for the judiciary, nor does it advance the noble cause of making justice accessible as legal practitioners.

Maboku Mangena BProc (UniVen) PG Dip Corporate law (Unisa) Taxation Adv (UP) is a De Rebus Editorial Committee member, a legal practitioner, notary and conveyancer at Maboku Mangena Attorneys Inc in Polokwane.

This article was first published in De Rebus in 2020 (June) DR 34.