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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: A3168/2018

In the matter between:

EMILE PAUL VAN DER HOVEN                                                                           Appellant

And

NEDBANK LIMITED                                                                                         Respondent

JUDGMENT

TSOKA J

[1] ‘A “judgment or order” is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible of alteration by the court of first instance; second it must be definitive of the rights of the parties; and third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings…’

So reasoned the then Appellate Division in Zweni v Minister of Law and Order 1993 (1) SA 523 (AD) at 532I – 533A.

[2] In this appeal, the appellant, Emile Paul Van der Hoven, a practising advocate belonging to the National Bar Council of South Africa, appeals an order made by the Magistrate Court, Roodepoort in terms of Rule 60A 2(c) of the Magistrate Court Rules in terms whereof the appellant’s notice in terms of Rule 27 enrolling the matter that was disposed of, was on 3 September 2018 ruled to be an irregular step.

[3] The crisp issue is whether the order made by the Magistrate Court has the three attributes stated in para [1] above and thus appealable.

[4] The order made on 3 September 2018 by the Magistrate Court is interlocutory in nature. It is neither final in effect nor unsusceptible to alteration by the court that made it. The said order is not definitive of the parties’ rights and by no stretch of the imagination does it dispose of any substantial relief sought, it being common cause that the relief sought was the making of the purported settlement agreement between the parties an order of court.

[5] In the result, the conclusion reached is that the order appealed against is not appealable. On this ground, the appeal must fail.

[6] The issue that is of major concern in the present appeal is the conduct of the appellant. In spite of the court’s ruling that the appellant’s attempt to enroll the application to make the purported settlement agreement between him and the respondent bank an order of court, which application was to the knowledge of the appellant dismissed with costs, the appellant persisted in enrolling the application. Not only once but twice.

[7] The appellant, in addition, taxed a bill of costs against the respondent well-knowing that the said bill of costs was not served on the respondent. In spite of the reviewing and setting aside of the said bill of costs, the appellant, a practising advocate and an officer of the court, attempted to appeal the said ruling. Instead of the taxation bearing the same case number as the present appeal, it bears a different case number thus creating the impression that the bill of costs relate to a different matter between the parties.

[8] After enrolling the application in terms of Rule 60A 2(c) instead of appearing in court, on which date the respondent was in court, he misrepresented to the court and the respondent that he has taken ill and would not be able to attend court. Sensing that the appellant’s allegations were untrue, the respondent attended at the hospital where the appellant was admitted. The respondent found no trace of a person by the name of the appellant having been admitted at the relevant hospital.

[9] In court, the appellant insisted that neither him nor his wife ever alleged that he was admitted in hospital. When confronted with an affidavit by his wife wherein the admission to the hospital is confirmed, he had nothing to say.

[10] It appears to me that the appellant does not appreciate that he is a member of a profession which over the years has been known to be an honourable profession. His conduct, in my view, falls far short of the conduct one would expect from counsel, who at all times must act honourably and be of assistance to the court. His repeated attempts to enroll the application in terms of Rule 60A 2(c), for a matter that has been disposed of, in my view, is nothing else but an attempt to avoid his obligation to the respondent bank. This conduct appears not only vexatious but dishonest. This dishonesty is, in my view, inconsistent with the profession as counsel.

[11] In the result, I direct the Registrar of this court to furnish the National Bar Council of South Africa with a copy of this judgment in order to make a determination as to whether the appellant is fit and proper to practise as an advocate of this court.

[12] Having regard to the aforesaid, the following order is made –

12.1 The appeal is dismissed;

12.2 The appellant is ordered to pay the costs of the appeal on the scale as between attorney and client.

 

 

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M TSOKA

JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

Date of hearing:                                                                               13 May 2019

Date of judgment:                                                                            16 May 2019

 

Appearances:

For the appellant:                                                                 Adv Van der Hoven (in person)

Attorney                                                                                Van Rooyen Attorneys

For the respondent:                                                             Adv Meyer

Instructed by:                                                                        Smit Jones & Pratt

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