High Court violates Constitution for not granting an opportunity to have case heard in a public court

February 1st, 2023
Samuels v South African Legal Practice Council (formerly Law Society of the Northern Provinces) (SCA) (unreported case no 1112/2021, 7-12-2022) (Petse DP; Mothle JA; and Daffue, Windell and Siwendu AJJA)

In the case of Samuels, the Supreme Court of Appeal (SCA) upheld the appeal and referred the matter back to the High Court for determination by a differently constituted Bench. This was after the appellant, one, Paulus Lepekola Samuels went to the SCA after the High Court did not grant him an opportunity to have his case heard in a public court.

Ms Lydia Mabaso, instructed the appellant to act as her attorney in prosecuting a claim for compensation against the Road Accident Fund (RAF) for injuries she sustained in a motor vehicle accident on 26 December 2007. The appellant and Ms Mabaso concluded a written contingency fee agreement, entitling the appellant to receive 25% of the proceeds of the claim. The action against RAF was set down twice for hearing in the High Court. At the first hearing, a settlement agreement was reached with the RAF for payment of the past medical expenses and general damages in the amount of R 170 657,40. And at the second hearing on 5 February 2015 (a year later) the remaining part of the claim for the loss of earnings was settled in the amount of R 206 300,60.

A complaint filed by Ms Mabaso to the then Law Society of the Northern Provinces (the LSNP), detailed the unsuccessful inquiries from the appellant about the payment from RAF and failed correspondence from a law firm to the appellant, which went unanswered. According to the court papers, during the period between the two settlement agreements in February 2014 and February 2015, and after February 2015, Ms Mabaso had made repeated inquiries from the appellant concerning the payment of the amounts settled in court with the RAF. However, in respect of both payments the appellant failed to account to her, repeatedly informing her that his office had not received the payments due from the RAF.

Ms Mabaso, in both instances, inquired directly from the RAF, who confirmed that the payment of the February 2014 settlement had been made to the appellant’s trust account in July 2014. When Ms Mabaso conveyed that information to the appellant, he informed her that he was not aware of the payments made into his trust account and that he would verify. Four months later, the appellant, in a letter dated 20 November 2014, confirmed to Ms Mabaso that the R 170 657,40 had been received from the RAF. The appellant further informed Ms Mabaso that the amount ‘has been appropriated to fees and disbursements and the balances of our fees and disbursements will be taken from the last settlement of loss of earnings’. Ms Mabaso received no compensation in respect of the first payment effected by the RAF. The payment in respect of the outstanding claim for loss of earnings – settled in February 2015 – followed the same pattern.

Ms Mabaso confronted the appellant with regards to confirmation made to her by the RAF of the second payment. The appellant confirmed receipt of the money but indicated that the amount had not been cleared by the bank yet and that he was waiting for the bill of costs from the cost consultants before scheduling a meeting with Ms Mabaso. This was almost a month after payment had been received. On 5 October 2015, Ms Mabaso lodged a complaint with the LSNP. The Investigating Committee of the LSNP (the Committee) sent a letter dated 2 November 2015 to the appellant, and a reminder letter dated 9 December 2015, informing the appellant of the complaint, and requesting a response.

The appellant responded on 11 January 2016. On 29 June 2016, the Committee, having considered the complaint and the appellant’s response, decided to charge the appellant with contravention of various rules governing the attorney’s profession. The Committee further recommended that the LSNP’s Monitoring Unit must obtain consent from the Council of the LSNP (the Council) to conduct an inspection of the appellant’s accounting records. The appellant was informed of these charges on 8 July 2016. On 27 July 2016, the appellant issued summons against Ms Mabaso for an amount of R 1 million for defamation arising from the fact that she had lodged a complaint with the LSNP, as well as for allegedly having made disparaging statements against the appellant in the media, attacking his character.

On 23 February 2017, the LSNP launched an urgent application in the High Court, for the appellant’s name to be struck off the roll of attorneys, alternatively that he be suspended from practicing as an attorney. The application consisted of two parts, namely, Part A and Part B. Part A of the application was placed on the roll of urgent applications (urgent court) and was heard on 23 March 2017. The judgment (per Tlhapi J) was delivered on 21 July 2017, granting an order suspending the appellant from practicing as an attorney with ancillary relief, pending the hearing of Part B. The appellant, aggrieved by the outcome, successfully applied for leave to appeal the order of suspension by the urgent court and that order was granted on 12 March 2018.

The appellant duly lodged the appeal on 16 April 2018 to the Full Court. As at the hearing of the appeal against the order in Part B, the appeal against his suspension in the Full Court lodged in April 2018 was still pending. Two years after the appellant noted and failed to prosecute the suspension order on appeal, the LSNP placed the Part B application, on the normal High Court roll of opposed matters, initially on 7 May 2019, where it was postponed, sine die. Thereafter, on 15 October 2019 it was set down for hearing on 30 April 2020. The High Court ordered that the appellant’s name be struck off the roll of attorneys. On 27 May 2021, the appellant unsuccessfully applied to the High Court for leave to appeal.

On 24 August 2021, the appellant turned to the SCA, which granted him leave to appeal the High Court order in Part B. In his first ground of appeal the SCA said that the appellant contended both in the notice of appeal and his heads of argument that the High Court refused to grant him postponement of the proceedings. The SCA added that he further contended, invoking s 34 of the Constitution, that refusal denied him his fundamental right to have his case presented and argued in court. The appellant failed to notify the LSNP of his intention to oppose Part B and failed to deliver an answering affidavit within the time frames stated in the notice motion.

When the SCA considered the appellant’s appeal, he had neither delivered any notice to oppose nor an answering affidavit in respect of Part B. The SCA pointed out that the appellant was not on record as opposing Part B of the application. The SCA added that, secondly, on 15 October 2019, almost two years after suspension order under Part A, the LSNP delivered a notice of set down of Part B, scheduled for hearing the following year on 30 April 2020. Approaching the date of hearing for part B, the lackadaisical conduct of the appellant became evident. Notwithstanding his career being at risk. The appellant failed to appoint an attorney timeously, he failed to file his heads of argument on or before 14 April 2020 as was required of him.

The SCA said that the High Court, in refusing the appellant’s application for leave to appeal the order under Part B, expressed its view on the appellant’s conduct concerning the pending appeal against the order of his suspension as follows: ‘(3) It is common cause that the application for leave to appeal in the matter had lapsed for more than two years and when it was revived, the matter was postponed for the applicant to file his papers and that was done. It also common cause that at the time obtaining the date of 1 December 2021 for the hearing of that matter, the correct procedure had still not been followed in that the heads of argument and practice note had not been filed.’

The SCA added that the appellant was set on delaying the expeditious conclusion of this matter for as long as it would take. That, first he put his suspension on hold by lodging an appeal he was not prepared to prosecute for two years. Second, he lurched on the COVID-19 lockdown, in the attempt to secure a postponement for Part B application, when in fact, even two years, he was still not on record as intending to do so. The SCA pointed out that the appellant tendered no explanation as to why he did not deliver a substantive application for postponement. The SCA added that the appellant failed to deliver a substantive application for the postponement, because he had no valid reason to place before the High Court in support thereof. The SCA said that the appellant was not honest with both the High Court and the SCA. The SCA referred to the remarks of Malan JA in Law Society of the Northern Provinces v Sonntag 2012 (1) SA 372 (SCA), where he wrote:

‘The conduct of the respondent [the attorney] in defending the charges brought against her was wholly unsatisfactory. … The various defences and the manner in which they were raised by the respondent cannot be said to evince complete honesty and integrity’. The SCA said that the reasons aforesaid, the ground on appeal that the High Court denied him an opportunity to present his defence, has no merit and it falls to be rejected. The appellant contended in a second ground of appeal that the High Court application was launched contrary to an agreement he had with the legal officer of the LSNP. He stated that he had agreed with the LSNP that any matter concerning the complaint lodged by Ms Mabaso, including the decision by the Council to authorise an inspection of his accounting records, would be held in abeyance, pending the adjudication of a defamation action he had instituted against Ms Mabaso. The SCA pointed out that put differently, the appellant’s argument was that the defamation matter rendered the entire investigation of the complaint by Ms Mabaso sub judice.

The SCA said in concluding that the High Court denied the appellant the right to be heard, the second judgment refers to s 34 of the Constitution and relied extensively on case law on the subject. However, the case law authorities cited are applicable in this instance, due to the absence of evidence, namely, factual averments made on oath and presented as evidence in the SCA. The SCA added that the entire narrative or version of the appellant on the ground of this ground of appeal, ‘is inferred from e-mails improperly inserted in the record, in breach of an established authority of this court in [Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others 2008 (2) SA 184 (SCA)]’. The SCA added that there is no factual evidence on which it could apply authorities on s 34 of the Constitution as they are cited in the second judgment.

The SCA said that the appellant had failed to set out his case on affidavit, which would constitute both pleadings and evidence in support of his ground of appeal. The SCA added that, even if the e-mails were admissible, they do not provide proof that the appellant was denied a right to be heard. On 23 April 2020, seven days before the hearing, a second e-mail was sent by Mr John Njau to Mokose J. In that two-page e-mail Mr Njau, on behalf of the appellant requested that the High Court grant a postponement of hearing. The SCA pointed out that the second e-mail stated that the appellant’s attorneys were appointed on 3 March 2020. Further, that Mr Röntgen, aged 85, and apparently the attorney dealing with the applicant’s matter, was a high-risk person to contract the COVID-19 virus.

The SCA said that from its observation the first proposal for the ‘meeting via Zoom’ was an initiative of the High Court, not of the appellant. The SCA added that the proposed meeting came after Mokose J had declined to consider the appellant’s request for postponement in the form of an e-mail. The SCA pointed out that it is important to note that in the second e-mail the appellant neither requested audience with the court in any manner or form nor a case management as an alternative, in terms of the COVID-19 Directives of the Judge President, Gauteng Division of the High Court. The SCA, further, said that the Judge’s secretary requested contact details necessary to establish a link for the Zoom meeting, she was provided with a cellular phone number of Mr Röntgen, and not an e-mail address. The SCA added that there is no mention in the e-mails or any affidavit as to why Mr Njau and/or the appellant did not attend court personally or request a teleconference with the judges, linking all participants on 30 April 2020 to plead for the postponement.

At the SCA, Daffue AJA (Windell AJA concurring) said there is no quibble with the first judgment’s exposition of facts, nor the summary of the legal principles applicable. The SCA said the appeal must succeed and the matter should be referred to the High Court insofar as the appellant’s right to a fair public hearing before a court of law in terms of s 34 of the Constitution had been violated. The SCA pointed out that the High Court’s findings were clearly wrong for three reasons. First, although it acknowledged that the matter was opposed, it is not correct that the appellant ‘chose not to appear and present his case before the court’. That neither the appellant nor the LSNP was informed that the application would be dealt with ‘on paper’ and without the benefit of oral argument. The SCA said that the High Court informed the appellant’s attorney and the LNSP’s Counsel that the matter would be heard virtually on the Zoom platform.

Secondly, the SCA added that the High Court was not entitled to deal with the matter ‘on paper’ without hearing oral arguments. The SCA pointed out it is only in terms of s 19(a) of the Superior Courts Act 10 of 2013 that a High Court exercising appeal jurisdiction has the power to dispose of an appeal without hearing oral arguments. The SCA said that in dealing with matter ‘on paper’, the High Court failed to consider the appellant’s answering affidavit and erroneously found that the appellant ‘failed to place any evidence’ before it to challenge the LSNP’s allegations ‘which remained undisputed’. The SCA added that as set out above, the appellant filed an answering affidavit in opposition of Part A and Part B of the application.

Thirdly, the SCA said that the appellant was not given an opportunity to ‘present his arguments before court on 30 April 2020 through [virtual] platforms or other electronic means of hearing of matters’. The SCA pointed out that s 34 of the Constitution provides that ‘[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’.

The SCA made the following order:

‘1. The appeal is upheld and the order of the High Court dated 17 June 2020 is set aside.

2. The application is referred back to the High Court for determination by a differently constituted bench.

3. The appellant to pay the respondent’s costs of this appeal.’


Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2023 (Jan/Feb) DR 43.

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