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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

(LOCAL SEAT)

CASE NO: 1170 / 2020

In the matter between:

ADV MXOLISI ZONDO                                                                                  1^st APPLICANT

SS MASONDO                                                                                             2^nd APPLICANT

ADV THAMI NCONGWANE SC                                                                    3^rd APPLICANT

ADV ANDREW PAPI LAKA SC                                                                     4^th APPLICANT

ADV LUCKY ZWANE                                                                                    5^th APPLICANT

TMN KGOMO AND ASSOCIATES                                                                6^th APPLICANT

SIMON MOHUBE SETSOALO                                                                      7^th APPLICANT

TSHEPO RAMPATLA                                                                                    8^th APPLICANT

HLULANI SHILENGE                                                                                   9^TH APPLICANT

IN RE:

THE ADMINISTRATOR OF JS MOROKA                                                    1^ST APPLICANT

DR JS MOROKA MUNICIPALITY                                                                2^ND APPLICANT

MEC FOR COGTA, MPUMALANGA                                                           3^RD APPLICANT

MINISTER OF COGTA                                                                                4^TH APPLICANT

And

THAMMY GOODWIN KUBHEKA                                                            1^ST RESPONDENT

THE ECONOMIC FREEDOM FIGHTERS                                              2^ND RESPONDENT

JUDGMENT

 

BRAUCKMANN AJ

 

INTRODUCTION

[1] ”The world has changed, and we are all in a quandary as to how to go about our daily lives in view of the pandemic. I would implore the applicants and all other students seeking to ignore the Directives issued by the University, in the spirit of Ubuntu, to follow the protocols issued by the University, the President, the NCID and the WHO. This is an unprecedented time for all of us. We are stronger if we work together. Nkosi sikelel' iAfrika[1]” A quotation from a recent judgment penned by Weiner J. It was not the spirit displayed by the applicants in this application when they attended court on 31 March 2020, in defiance of the regulations[2] by the Minister of Cooperative Governance and Traditional Affairs (“The Minister of COGTA”) and pleas by our President to cooperate to prevent the uncontrolled spread of this dreadful “deadly corona virus”[3].

[2] This is a “consolidated” application for leave to appeal (“The Applications”) this Court’s judgment of 3 April 2020[4] by nine applicants. With leave of the Judge President of this Division, the applications were initially enrolled for 23 April 2020. In a letter by Finger Attorneys, acting for Adv Zondo, and Mr Masondo, addressed to the Judge President and the Court, it was stated that the Legal Practice Council (“The LPC”) refused to issue permits to the practitioners from Gauteng to travel to Middelburg, as cross border travel was, according to the LPC, still prohibited.  According to the applicants and their attorneys, they could not legally travel to Middelburg on 23 April 2020. It was agreed that the applications would be heard on 4 May 2020. On 25 April 2020, in a letter by Finger Attorneys addressed to the Judge President, the exceptionally dire and dangerous nature of the COVID-19 pandemic, and their clients’ exposure thereto, was highlighted. This letter was penned by Finger Attorneys on instruction of his clients, and therein, less than a month after the main application was heard, and after the state of disaster was downgraded, the applicant’s attorneys lament about the dangerous situation in the country. Their attorneys describe it as follows:

“2. The President has announced on Thursday that the lock down will with effect from 1st May 2020 be eased from level 5 to level 4. This is due to the still increasing numbers of infections daily, signifying that we are not out of danger yet.

3. We however do not wish the [application for] leave to appeal to be postponed further. Our clients however do not wish it to take place in open Court due to the dangers of being infected by the deadly corona virus.

5. Our clients do not understand why the Mpumalanga High Courts are not using this technology to conduct proceedings in order to ensure that the lives of practitioners are not placed in danger. The practice directive of the Chief Justice is very clear on that aspect that first and foremost the Courts should use video link during this period and physical attendance at Court should happen as a last resort. [Own emphasis]

[3] The Court can therefore hardly be criticized for viewing the pandemic, the regulations to prevent the spread thereof and the measures (directions) which include, amongst other, the restriction on the of the movement of persons, on 31 March 2020. The Court pause to mention that the applicants and their legal representatives could obtain permits from the LPC to travel to the Court on 4 May 2020. It begs the question: why did the same practitioners travel to Middelburg on 31 March 2020, without valid permits, placing their lives in danger whilst violating a clear prohibition of cross border travel in the regulations, whilst the pandemic was rated at its most critical? Then on 25 April 2020, despite being able to legally travel to Middelburg, did not want to do so? That when Adv Laka SC, while the Court engaged the practitioners about the fact that they were not allowed to be in the court on 31 March 2020, with or without permits, having come from Gauteng, sarcastically informed the Court[5], to the amusement of all the other applicants in this application:

“ADV LAKA:  M’Lord you should not be overly worried, we do not have Corona.  I said ... (intervenes)”

This, to the Court, was a clear indication that the practitioners did not view the pandemic or the regulations made by the Minister of Cooperative Governance and Traditional Affairs (“The Minister of COGTA”) in a serious light.

 

BACKGROUND

[4] All the individual applicants for leave to appeal, (“herein jointly referred to as the applicants, and severally by their respective titles, and surnames, where applicable”) apply for leave to appeal  the judgment[6] handed down by this Court on 3 April 2020 in the main application. This judgment might be very lengthy, but was caused, amongst other, the accusations by the applicants of prejudice, dishonesty, collusion and incompetence on the part of the Court in their applications. In both their applications and heads of argument words are published which tend, or are calculated, to bring the administration of justice into contempt. Nothing can have a greater tendency to bring the administration of justice into contempt than to say, or suggest, in a public newspaper, and in social media that the Judge of the High Court of this territory, instead of being guided by principle and his conscience, has been guilty of dishonesty, concocting falsehoods, bad faith and ulterior motives in judicially deciding a matter in open Court[7].The Judge President of this Division also did not escape the applicants’ unfounded averments of inappropriate conduct by alleging that he is guilty of improper interference with  this Court thereby causing this Court to loose it’s judicial independence. The Court will deal with this later.

[5] In some of the applications the applicants deviated from the normal practice and expanded on the so-called “background” to the application for leave to appeal. This was not necessary, as the Court is privy to the facts and “background” in the matter. The Court therefore, in the light of the tone and distortion of facts in the applications and heads of argument filed, decided to deviate from normal practice, and to deal with the true background facts and the proceedings on 31 March 2020.

[6] It is important to deal with the proceedings in the main application in order to indicate that the applicants’ “background” is a distortion of what really transpired in court.  I will, for the purpose of this judgment, refer to specific portions in the transcribed record of the proceedings of 31^st March 2020 (“The Transcript”) which is in the court file.

[7] In the judgment the court ordered that the applicants were not allowed to charge their client any fees or expenses for preparation, travelling and appearance in this court in the application on 31 March 2020. The Court also directed the Registrar to send a copy of this judgement to the LPC. No findings or orders were made in respect of Mr Masondo.

[8] Adv Zondo, and Mr Masondo, stated in their applications, heads of argument, and an interview with the Citizen Newspaper (which the Court will revert to later in this judgment) that the court concocted falsehoods, and made statements that were patently false when the court found that they were not in possession of any permits issued by the LPC, or any other authority for that matter, as required on 31 March 2020. The Zondo-applicants’ statement to that effect is simply false and is proven to be so in their own correspondence inadvertently disclosed to the Judge President and the Court by their attorneys. That appears from an email sent to the LPC by Mr Masondo on 07 April 2020 wherein he applies to the LPC for the issuing of permits by the LPC for, Adv Zondo, Me Kwaza, and himself^[8]. To exacerbate matters Mr Masondo requested the LPC to backdate the permits to cover a period between 31 March 2020 and 7 April 2020, although the application was set down for only 31 March 2020. The letter dated 7 April 2020 to the LPC wherein they applied for the backdated permits were only written, and sent, on the day that their application for leave to appeal, containing the scandalous statements, was filed.  They did not have permits on 31 March 2020, and could never produce any permits to the Court.  The Court’s finding in the judgment to the effect that the practitioners from Gauteng were prohibited to travel to Middelburg on 31 March 2020, and that the Zondo-applicants did not have any permits, is supported by the LPC’s reply to Mr Masondo’s follow-up email of 14 April 2020 which reads:

“From: Sibusiso Masondo <sibusiso.masondo@ssmattorneys.co.za>
Sent: Tuesday, April 14, 2020 1:16 PM
To: LPC Gauteng Director's Office <directorgp@lpc.org.za>
Cc: Kulani S. Sambo <kulanis@lsnp.org.za>
Subject: Re: REQUEST FOR AN ESSENTIAL SERVICES PERMIT I.T.O REGULATION 11076 of 31 MARCH 2020

Good day,

I refer to a trailing set of emails below from last week where I requested permits in line with lockdown regulations to render essential services on two urgent applications.

We are required to consult with clients and prepare pleadings, serve and file as well as appear at Middelburg High Court hence we require permits.

Your urgent response will be greatly appreciated.

Many thanks and kind regards,

Sibusiso Masondo

Attorney”

“From: LPC Gauteng Director's Office <directorgp@lpc.org.za>
Date: Tuesday, 14 April 2020 at 13:19
To: Sibusiso Masondo <sibusiso.masondo@ssmattorneys.co.za>
Cc: "Kulani S. Sambo" <kulanis@lsnp.org.za>
Subject: Re: REQUEST FOR AN ESSENTIAL SERVICES PERMIT I.T.O REGULATION 11076 of 31 MARCH 202

Good day,

Kindly be advised that even in the Replacement/New Directions issued by the Minister on 31 March 2020 the limitation on travelling in terms of the Regulations remains effective and was in effect on 31 March 2020.

The amended Regulations and the 31 March 2020 New Directions remains as the cross border travel across provincial borders are still not allowed

Ms. Schmiedeskamp” [own emphasis]

The allegations levelled at the Court in their application, their heads of argument and Advocates Zondo and Laka SC’s statements to the Citizen Newspaper to the effect that the Court made false statements in the judgment is uncalled for and untrue. This in itself deserves further investigation by the LPC.

 

THE NON-COMPLIANCE WITH THE JUDGE PRESIDENT[9] AND THIS DIVISION’S PRACTICE DIRECTIVES[10]

[9] The matter was allocated to the Court on Thursday 26 March 2020.  The court file consisted only of the applicant’s notice of motion, founding affidavit as well as the annexures thereto.  The Court only became aware that the application was opposed on 31 March 2020 when the court was informed by Adv Ncongwane SC, appearing on behalf of the Economic Freedom Fighters (“The EFF”), and Adv Matlala, on behalf of Mr Kubheka, that there was an opposing affidavit filed on behalf of Mr Kubheka. This was served as long ago as 24 March 2020 already.  The EFF filed an application for leave to intervene in the main application during the course of the weekend prior. Neither of these documents were in the court file, nor was the court file properly indexed and paginated.

[10] The Court was caught by surprise, as during a telephonic conversation between Mr Masondo and the court on 30 March 2020 at18h07, the Court reminded Mr Masondo that according to the Court the application was unopposed, and that they (Mr Masondo and Adv Zondo) should not travel to Middelburg on 31 March 2020, as it was prohibited in terms of the Regulations issued by the Minister of COGTA.   Mr Masondo did not mention to the Court the fact that an opposing affidavit or application by EFF were filed. The Court reluctantly agreed to accept the papers from the bar.  I pause to mention that on 30 March 2020 a supplementary affidavit (with annexures and an “amended notice of motion”) was also filed by the administrator’s attorneys in terms whereof additional relief was sought against Mr Kubheka. 

[11] Although the filing of these documents did not comply with the rules of court or practice directives 10.2 and 10.11 of this Division, because of the urgency of the relief sought in the matter, as explained elsewhere in this judgment, the Court intended to condone the non-compliance with the directives by Mr Masondo’s firm and accepted the documents from the bar. According to the Registrar’s date stamp on the opposing affidavit’s filing notice it had already been served and filed with the Registrar on 24 March 2020.  The first applicant’s attorneys, who acts for the dominus litis in the main application, failed to update the index of the papers in terms of Practice Directive 10.11.

[12] On 30 March 2020, (one day before the hearing of the main application) at 15h55 Mr Masondo, sent an email to all relevant parties and the Court, attaching:

1. Supplementary notice of motion;

2. Supplementary affidavit;

3. The draft order; and

4. Annexure B to the Notice of Motion and Draft Order.

[13] The supplementary index filed on 30 March 2020 by the first applicant’s attorneys, reflects only three items, namely:

“1. Applicant’s supplementary notice of motion;

2. Applicant’s supplementary affidavit and

3. Draft order.”

These documents are numbered from page 1 to page 41.  The supplementary index that was filed by the applicant’s attorney’s offices was not updated at all and dismally failed to comply with this Division’s practice directive 10.11, as it did not include Mr Kubheka’s opposing affidavit or the EFF’s application to “intervene” in the proceedings.  The applicants’ attorneys were grossly negligent in preparing the court file. In consequence the court could not have been aware of the opposing affidavit, nor the EFF’s application to “intervene” in the application. The Court intended to stand the matter down to the 1^st April 2020 in order to read the papers filed by Mr Kubheka, and the EFF.  The Court should, at that stage, have struck the matter from the roll due to the first applicant’s attorneys’ failure to comply with the practice directives and have launched a summary inquiry into the cause of the non-compliance.  The court most probably would have ordered the municipality’s attorneys to pay the wasted costs out of pocket as it was most certainly not the municipality’s gross negligence that caused the matter not to be ready to be heard.

[14] On 27 March 2020, at 05:03:39 pm, Judge President Legodi sent an email to Mr Masondo, as well as all the attorneys on record on behalf of all the other parties. It was also sent to Mr Setsoalo who indicated that the EFF intended to apply to “intervene” in the application.  The email confirmed that the application under case number 1170/2020 would proceed on 31 March 2020 and directed further:

“..regarding the application under case number 1170/20 wherein Mr Kubheka is the applicant [should read “the respondent”] the application will remain on the urgent roll for 31 March 2020 and those appearing must comply and prove the following to the Judge who will be dealing with the matter:

5.1 Compliance with regulation 11B (iii) and (iv) published by the Minister of Cooperative and Traditional Affairs on 25 March 2020 under Government Gazette No. 43148 (the 25 March regulations).

5.2. Compliance with regulation 10 (a) published by the Minister of Justice on 26 March 2020 (the 26 March regulations) read together with whatever directive might be or might have been issued by the Mpumalanga Provincial Legal Practice Council.

5.3 Compliance with any relevant provisions of the 25 and 26 March regulations.”

(Own emphasis)

These directives clearly reached the offices of Mr Masondo as in an email letter to the Court dated 30 March 2020 at 15:55 he stated:

“As per the email communication as well as directives from Judge President Legodi we herewith file pleadings and notices of the first applicant”.  [Own emphasis]

 The only directives regarding the filing of affidavits appears in the Judge President’s email to Mr Masondo and the other practitioners on 27 March 2020.  The court was accordingly duty-bound to ensure that on 31 March 2020 all practitioners complied with the regulations of 25 March 2020 and the directions of 26 March 2020.  It is also significant to note that no mention was made or complaints raised by the applicant’s counsel about the early involvement by the Judge President in this matter. The court will return to this aspect later in the judgment.

[15] All the practitioners involved, being directed by the Judge President of the Division, and forewarned by this Court (as will later appear in this judgment) ignored the Regulations by the Minister of COGTA, the directions of 26 March 2020 (“The Directions”) by the Minister of Justice and Correctional Services (“The Minister of Justice”), and the directives by the Judge President dated 27 March 2020. The Court correctly found by in the judgment that on 31 March 2020 some practitioners decided to travel form Gauteng to Middelburg, knowing full-well that cross border travel was prohibited. All applicants were in wilful disregard of the regulations and directions.

[16] The Court was reluctant to strike the matter from the roll, due to the fact that the second respondent’s innocent residents would continue to suffer hardship and unnecessarily exposed to Covid-19 infections, due to the administrator’s attorney’s negligence. The Court decided to deal with the EFF’s “application to intervene”, but not before the parties’ counsels, including Mr Zondo, Laka and Ncgongwane, were engaged about their apparent intentional disregard of Regulation 11B (1) (a) (iii). 

[17] Although the Court intended to stand the matter to the next day in order to read the intervention application and the opposing affidavit, it was not prepared to allow the legal practitioner’s gross negligence to exacerbate the extreme prejudice suffered by the municipality’s residents of the any further. The proposal was met with opposition as Mr Laka SC alleged that the Court will then expose the practitioners to the COVID-19 infection[11].

 

THE TELEPHONE CONVERSATION WITH MR MASONDO ON 30 MARCH 2020

[18] On 30 March 2020 at about 18h07 the Court received a telephone call from Mr Masondo.  During the conversation the Court specifically stated that neither he, nor his counsel, who he indicated was Advocate Zondo from Johannesburg, are legally allowed to travel from Gauteng to Mpumalanga on 31 March 2020 as it is prohibited in terms of the lockdown regulations[12]. The Court advised him to make use of his local correspondent attorney, or counsel, to appear, as the application was, according to the Court, not only urgent, but also unopposed.

[19] Mr Masondo failed to draw the court’s attention to the fact that it   laboured under a misconception and that the application was opposed. One would have expected him to immediately correct the court’s misconception. The fact remains that he had duly been warned not to travel to Middelburg on 31 March 2020.  

[20] During the proceedings on 31 March 2020, and while the court was engaging Mr Zondo on the fact that he was not supposed to be in Middelburg, having travelled across provincial borders in contravention Regulation 11 B (1) (a) (iii)^[13], he was also informed by the Court of the telephonic conversation the Court had with Mr Masondo the previous day.

[21] I pause to note that Adv Zondo, Mr Masondo, Me Kwaza, and those copied in the mail by the Judge President, failed to heed the well-intended warning by the Judge President (and the Court) not to travel across borders and not to break the law.  

 

THE PROCEEDINGS ON 31 MARCH 2020

[22] On 31 March 2020, due to the nation-wide lockdown and strict regulations that were made by the Minister of COGTA, as an officer of court, more specifically because the Court was acutely aware of the severe travel restrictions in regulation 11B (1) (a) (iii), and the Judge President’s directives, the Court instructed its secretary, before the Court proceedings started, to collect the permits from all attendees inside the courtroom. The permits were already placed on the bench when the Court entered the court room.

[23] The Court decided to deal with the individual practitioners regarding their attendance of Court before it dealt with the application, as compliance with the Regulations was, and still remains critical for the prevention of the spreading of COVID-19. The judicial system should be at the forefront of setting an example to the general public when it comes to complying with, and applying the regulations.  Most of the practitioners that appeared in the main application were not known to the Court at that stage. Due to the directives by the Chief Justice, amongst others, the customary introductions prior to the court proceedings were no longer allowed.  Adv Laka, Mr Setsoalo and Mr Rampatla were known to the Court as they often appear in this Division, or have appeared before me in the past.

[24] As stated in the judgment, only practitioners from Mpumalanga, in possession of valid permits were entitled to appear in Middelburg Seat of the High Court on 31 March 2020. I pause to mention that at the time of writing of this judgment the legal position was still the same. Put differently no practitioners residing outside the Mpumalanga Province were allowed to travel to, and attend or appear in the Middelburg court on 31 March 2020. Not even in respect of even urgent and/or essential matters.  Even if permits were issued to practitioner based, and present in Gauteng on 30 March 2020, such practitioners’ appearance in court in Middelburg on 31 March 2020 would be illegal.  The simple reason is that they had to cross Provincial borders, which was prohibited in terms of the regulations.

[25] All the practitioners’ who presented “permits” to the Court’s secretary on 31 March 2020 were in the Court’s possession. The Court repeat that it did not, at any stage in court, as stated in the application for leave to appeal by Mr Masondo, and Advocate Zondo, request the practitioners for their permits or for it to be handed to its secretary. That much appears from the transcript, a copy of which was made available to the applicants and their attorneys. The allegation by Mr Masondo and Adv Zondo is therefore devoid of any truth.

[26] With a simple glance at the permits it was apparent to the Court that most of the practitioners were not entitled to appear in court for the reasons set out in the main judgment.

[27] The Court requested counsel in court to introduce themselves and to indicate whom they represented. The first person to introduce himself was Advocate Zondo who confirmed that he acted on behalf of the Administrator.  He indicated that he was from Johannesburg.  The Court then dealt with it as appears from the record of proceedings attached hereto[14]:

“COURT:  Thank you.  Who appears for who here?

ADV ZONDO:  M’Lord I appear, I appear for the first applicant. 

COURT:  And you are?

ADV ZONDO:  Advocate Xolisi Zondo.

COURT:  You are from?

ADV ZONDO:  I am from Johannesburg M’Lord.

COURT:  You are not allowed to be here sir. 

ADV ZONDO:  M’Lord ...(indistinct) a member of ...(indistinct).

COURT:  It does not matter where do you come from. 

ADV ZONDO:  (Indistinct).

COURT:  I spoke to your attorney last night.  The regulations are clear.  We are not allowed to cross borders, provincial borders.” 

[28] It was clear, without having regard to any permit issued to Advocate Zondo (it appeared from Adv Zondo’s attorneys correspondence that he had no permit) that he failed to comply with regulation 11B (1) (a) (iii). The Court only realised, whilst preparing for the hearing of the applications for leave to appeal, that Mr Masondo was apparently also present in court. Mr Masondo is not even referred to in the judgment at all.  No order or finding was made against him and the Court is surprised that he joined in the proceedings. He certainly has no legal interest in the proceedings, and therefore no locus standi to bring this application. The mere fact that the Court made findings against his counsel does not give him any standing to join in the matter. Me P Kwaza, who is apparently employed by Mr Masondo, handed a permit to my secretary, which permit issued was issued to her by Mr Masondo. The permit did not comply with the regulations or direction 10(a) nor was she entitled to be present in court, as she had to travel from Gauteng[15]. Advocates Laka SC, Ncongwane SC and Zwane, as appears from the judgment did not submit valid permits to attend Court, and further, Advocates Ncongwane SC and Laka SC travelled from Gauteng.

[29] It is clear from the transcript that the Court never approached the practitioners before or in Court to present their permits to Ms Human, as alleged in paragraph three of the Zondo-applicants’ application. The permits were presented to Ms Human, at her request, prior to the hearing and not during the hearing as alleged. The allegation by the applicants, and specifically Adv Zondo and Mr Masondo in paragraph three of their application, or any intimation in the application and heads of argument, that the Court  personally instructed or asked the practitioners to hand the permits to Ms Human is patently false[16].

[30] After Mr Zondo had introduced himself and while he was busy explaining his presence in court, advocate AP Laka SC, from the Pretoria Bar, interjected and started arguing without apologizing. He appeared with Adv Zwane. Both presented “permits” issued by an official of the Mpumalanga Government to the Court’s secretary. As can be seen from the transcript, the Court’s engagement with Mr Laka was extensive and dealt with the substance of regulation 11B (1) (a) (iii)[17]:

“ADV LAKA:  Yes.

COURT:  Mr Laka.

ADV LAKA:  I have appeared before you M’Lord.

COURT:  No, it is Mr Laka.

ADV LAKA:  Laka, yes.

COURT:  You are from?

ADV LAKA:  Pretoria Bar.

COURT:  That is the problem sir.  Mr Laka.  You are not allowed to be here.

ADV LAKA:  M’Lord it is not possible.

COURT:  It is possible.

ADV LAKA:  No it is not possible.

COURT:  Okay you address me on that Mr Laka.

ADV LAKA:  M’Lord I am admitted advocate of the Supreme Court of ... (intervenes)

COURT:  That is not in doubt, I do not doubt that.  You are a SC, you are in good standing with your bar, like your other learned friends here.

ADV LAKA:  Yes.

COURT:  But if you look at the regulations by 11B ... (intervenes)

ADV LAKA:  Yes.

COURT:  It says restriction on movement of persons and goods for the period of lockdown.  Every person is confined to his or her place of lockdown, unless you are sick and whatever. 

ADV LAKA:  Yes.

COURT:  Every day.  Movement between provinces is prohibited. 

ADV LAKA:  Unless you have a permit.

COURT:  Why?  No, no, it does not say that.

ADV LAKA:  That is why we have permits M’Lord.

COURT:  No, that is – now we must go and look at the regulation as far as that Minister Lamola made. 

ADV LAKA:  Yes.

COURT:  He said civil cases that are not identified as urgent will not be heard. Then he goes further, that is in Regulation 5.

ADV LAKA:  Yes.

COURT:  In Regulation ... (intervenes)

ADV ZONDO:  Sorry ...(indistinct) M’Lord I think it is 16B, Regulation 16B.

COURT:  Ja.  We will get there.  Travel by officers of the Court, enforcement officers must allow Judges, Magistrates, legal practitioners, those – and sheriffs to commute between their places of residences and the Court within their area of jurisdiction for purposes of performing essential services of presentation of proof an appointment to such office.  Now I will be glad if you can point me to where it states that legal practitioners may cross borders.  And believe you me I want to finish this matter, I want to go back home and not be exposed to a possible Corona virus infection. 

ADV ZONDO:  M’Lord.

COURT:  Yes Mr Laka.

ADV LAKA:  My able colleagues are directing me to Regulation 16.  Understand Annexure B that allows legal practitioners to do we are doing.

COURT:  Regulation 16B of which regulations? 

ADV LAKA:  I am not having it here M’Lord ...(indistinct).  I am told M’Lord it COGTA Minister Dlamini-Zuma who issued those directives.

COURT:  Yes, I have got Regulation 11A, 11B. 

ADV LAKA:  Dated the 25th of March 2020.

COURT:  I got them.  It is that in Government Gazette 43148.

ADV LAKA:  Yes. 

COURT:  Where do you get Regulation 16?  You see I cannot see it.  I got it here.  11A. 11B.  3.  It says persons performing essential services as determined so must be designated in writing by the head of the institution on a form that corresponds substantially.  We know that is the permit.

ADV LAKA:  Yes.

COURT:  But where does it say you are allowed to cross borders, provincial borders?  Because it is clear in this that and it is ... (intervenes)

ADV LAKA:  M’Lord you should not be overly worried, we do not have Corona.  I said ... (intervenes)

COURT:  It is not that.  No, no, it is not that Mr Laka. 

ADV LAKA:  No, if M’Lord the regulations are saying, if I have a permit I have a right to come to an agent court and I am ... (intervenes)

COURT:  But you are not allowed to cross provincial borders.

ADV LAKA:  No.  I have a permit to appear before you. 

COURT:  Alright.

ADV LAKA:  In my case it is both by the Premier’s office, from this province and by Legal Practice Council in Gauteng.  They both gave me a permit to be here.  And I would be worried if Your Lordship would then say I should not appear before him whilst I have the requisite permit to appear. 

COURT:  What I am going to do is, I am not going to hold up proceedings. I do not have your permit Mr Laka.

ADV LAKA:  I have handed in M’Lord.  There should be two permits that come from the Premier’s office.  One for Mr Zondo [Zwane], one for Laka. 

ADV ZONDO:  Excuse me, sorry M’Lord I did not mean to interrupt. 

COURT:  Oh here.

ADV ZONDO:  (Indistinct) I think there is something let us assist you, the junior to my learned friend is from this province, this is Mr Zondo and he is more than eligible to address you.  So ...(indistinct) if that is the case, then you can ...(indistinct) then Mr Zondo can address the Court.

ADV LAKA:  I am not sure whether my colleague is trying to debrief me and debrief Mr Zondo and I object to that.  I want to earn my fee M’Lord.  I do not want to sit here and be paid for sitting here.  I would ... (intervenes)

COURT:  I will just make copies.  What I will do is I am going to listen to the matter because I think it is urgent.  And I will, whatever I have to say about this will be said in the judgment.

ADV LAKA:  We appreciate that M’Lord, thank you.”[Own emphasis]

[31] The tone of the Court’s engagement with practitioners was always professional and from time to time interrupted by humorous remarks and exchanges between the court and the practitioners, and the practitioners amongst themselves.  So much can clearly be heard from the recording proceedings which the Court attended to listen to after it came to my attention that advocate Zondo, during an interview with the Citizen newspaper, related to the journalist that :

“I have never been so belittled in almost 20 years of my practice in the legal profession”[18].

[32] Adv Zondo shared with the journalist of the Citizen Newspaper that the Court was “rude” and “aggressive”.  The record of proceedings indicates a totally different picture, and it is apparent that Adv Zondo’ version is simply false. So too the version of Adv Laka SC as quoted by the Citizen:

“Laka also refuted the findings. He said he had “not one, but two” permits on the day of the hearing.

He said the first he had heard of the judgment was on Monday.

“The issue of permits was never discussed in court. It was only asked [about] by the secretary.

“The judge himself did not raise this question of permits except when he ordered three legal practitioners, who had said they didn’t have permits with them, to submit permits within three days,” Laka said. “So I was shocked.”

He believed the acting judge had exceeded his powers.

“And it is very unfortunate because had he discussed this with us, chances are he wouldn’t have made this type of judgment.

“For instance, he incorrectly assumed my junior stays in Gauteng when, in fact, he stays in Mpumalanga.”

Laka indicated he would also challenge the judgment.”[19] [Own emphasis]

Advocates Zondo and Laka deliberately conveyed falsehoods to the journalist. Both of them, and if Mr Masondo was present in court he too, clearly went about in a totally adversarial fashion with the truth considering the contents of the transcript.[20]

[33] The court fails to understand, Advocate Zondo’s complaint to the Citizen that the judge was “rude” and “aggressive”.  So too the averments to the effect that the Court acted in bad faith and in breach of its judicial oath of office.  Nowhere in the transcribed record does it appear that the court had any malicious intent to impugn the integrity of any of the practitioners in court.  It appears as though the applicants have failed to appreciate the roll of courts in applying, and complying with the regulations, and more so in these exceptional, extremely dangerous and troubling times. The Applicants could not expect of this Court after it became aware of the untoward conduct of the practitioners, to simply ignore the fact that it has happened, and to continue, as if it was business as usual. That would have made the Court complicit in the unlawful conduct by the practitioners, and set an unacceptable precedent[21]. The COVID-19 regulations were promulgated for very good reasons.  The court and legal practitioners have a more onerous obligation to comply with these regulations. It is not for the practitioners to see how these measures can be side-stepped, and expect the Court to turn a blind eye on such inappropriate conduct.    

[34] On 8 April 2020, and in order to accommodate the application for leave to appeal during the lockdown period, the Court issued a directive to all practitioners including Mr Masondo and advocate Zondo.  In terms of the directive it was confirmed that a copy of the transcribed record will be provided to the applicants, and they were invited to obtain a copy of the recording by arranging with the Registrar for it.  A copy of the transcript was provided to the applicants but for reasons that now becomes apparent, turned down the Court’s invitation to listen to the recording.  Should they have made use of the invitation it would have become clear to them that the court was never rude or aggressive towards Adv Zondo, or any of the legal practitioners in attendance on 31 March 2020.  The question begs, why such an allegation was made without any foundation. It was clearly made by them to save face public, after being confronted with the findings by the Court. From the applications and the content of the Citizen’s article it seems as if they failed to remember that the proceedings were recorded and that the truth will finally come forth.  

[35] On 8 April 2020 the Court issued the following directive to Advocate Zondo and Mr Masondo:

“3. ADV Zondo, and Mr SS Masondo are directed to provide, by email, to the above email address, a copy of their permits (referred to in the application for leave to appeal) that I never had, nor was it given to my secretary.” [Own emphasis]

[36] To this invitation Messrs Zondo and Masondo’s attorneys (Finger attorneys) replied on 8 April 2020:

“3. Our clients have filed a leave to appeal against your judgment based on the grounds set out in the leave to appeal.  The appeal is a matter of law is confined to the record of proceedings and nothing else. 

4. We await the record to be transcribed so it can form part of the leave to appeal.  As a result the directive you have issued is ultra vires and unlawful.

5. Our clients will regrettably not be in a position to comply with it. … the procedure you sort (sic) to introduce ex-post facto is flawed and legally impermissible.” [Own emphasis]

[37] As stated earlier in this the judgment, it seems that Mr Masondo was not present in court nor was any finding made against him in the judgment.  The question begs then; why did he refuse to co-operate and provide a copy of his permit as well as that of advocate Zondo to the court.

[38] The two practitioners’ (Adv Zondo and Mr Masondo) permits were not handed to my secretary as it will appear later from this judgment that they did not have permits, and on 7 April 2020 applied to the LPC to have permits, backdated, issued to them. No wonder they failed to comply with the directive. They simply could not. If they had any semblance to “permits”, and have handed it to the Court’s secretary, it would have dealt with in the judgment, just as the other practitioners’ permits were dealt with.  Upon a question by the court, strangely enough, advocate Zondo confirmed that his attorney was present in court and was one of the individuals that did not have a permit[22].    Even after a humble and reasonable invitation by the Court in a directive to Advocate Zondo and Mr Masondo, they refused to be bona fide and to provide the permits to the court.  One would have expected both practitioners to be keen to prove, as was stated in their application, and in the Citizen, that the Court and judge “concocted a story” with the sole intention to berate, discredit and destroy them.  The only inference any reasonable person can draw is that the Court never had any permits (valid or not) issued in favour of Mr Zondo or Mr Masondo, and that their conduct ex post facto is not only unreasonable, but also defiant, if not contemptuous. Advocate Zondo never informed the Court on 31March 2020 that he did not have a permit, despite having been given the opportunity to do so at the end of the day. This conduct, read with Advocate Zondo’s statements to the Citizen’s journalist, and the contents of the application for leave to appeal showed a total lack of respect, and publicly so, for the judiciary. Practitioners are entitled to disagree with the Court, but the language used in their application for leave to appeal was inappropriate, disrespectful, and unnecessarily belligerent of the institution, the judge and judiciary, and is conduct unbecoming of an advocate of ‘twenty years’ experience, and a senior attorney. Judges are not respected so much for their own sake as it is in the interest of an institution and the cause it serves. It is one thing not to have respect, but quite another to actually show the disrespect openly and in public as Advocates Zondo, Laka SC and Mr Masondo, did[23].

[39] After the Court heard three practitioners with regards to the requirements of the regulations the Court heard the application for joinder by the EFF, as well as the opposing arguments. The court then on request of the practitioners stood the matter down for more than an hour to accommodate possible settlement of the matter.  The parties’ representatives’ explored settlement, and eventually reached an interim settlement as appears from the order.

[40] Before the Court made the draft order an order of Court, a handwritten, proposed draft order was presented to my secretary for the Court’s perusal and approval.  The Court was satisfied that the order would solve, at least for the interim, the municipality’s residents’ plight. The Court affected certain amendments before it was typed by the Court’s secretary,  specifically ensuring the costs remained ”reserved” ^[24], as it always intended to deal with the practitioner’s lack of legitimate permits and breach of the regulations[25] in a judgment, as stated to the practitioners in Court. The costs in respect of the day, was therefore not dealt with at all, and the Court was therefore not functus officio in that respect. Accordingly there are no reasonable prospects that another court would reach a different conclusion on the ground raised by all applicants that the court erred to make a cost award, as it was functus officio after it made the draft order an order of court.

[41] The statement in Adv Zondo and Mr Masondo’s application that:

“Without prior warning to the parties and the legal representatives, the acting Judge emailed a judgment on 3 April 2020…”

is thus of course not only incorrect, but also false, and made to cast a bad light on the Court.  The court indicated very early that it would: “listen to the matter because I think it is urgent.  And whatever I have to say about this (the permits and the breach of the regulations) will be said in the judgment”[26].

[42] Moments before the Court turned to deal with the EFF’s joinder application, advocate Zondo, realising that advocate Laka SC was struggling to justify his presence in court vis-a vis regulation 11B (1) (a) (iii), to the amusement of the court, and the practitioners, stated[27]:

“… province, this is Mr Zondo [Zwane] and he is more than eligible to address you.  So ...(indistinct) if that is the case, then you can ...(indistinct) then Mr Zondo can address the Court.

ADV LAKA:  I am not sure whether my colleague is trying to debrief me and debrief Mr Zondo and I object to that… .”

[43] The Court accepted at that stage that Advocate Zondo must have realised that most of the practitioners are from Gauteng and wanted Adv Zwane, who also did not have permit, and is apparently from Mpumalanga to address the court.  Advocate Zondo was serious in advancing the “possible solution” which only caused advocate Laka SC to object to advocate Zondo’s attempted “de-briefing” of Mr Laka[28].

[44] It became apparent to the court that the practitioners are not going to agree with the court’s correct interpretation of regulation 11 B(1) (a) (iii) and that it might cause the matter to be postponed and thereby prejudice the unfortunate  residents of Kwamahlanga even further.  The COVID-19 lockdown’s worst consequences are felt by the poorest of the poor.  To continue arguing with the practitioners who clearly did not attempt to study the regulations was going to heed no result.

[45] The statement by Advocates Zondo and Laka that the court failed to deal with the permits at all and that it came to them as a surprise in the judgment is therefore patently false. Not only does the transcript, as quoted above indicate the fallacy of the statement, but also applications for leave to appeal raised as ground of appeal the fact that the Court reviewed the permits, only to disingenuously and falsely state in the next breath that the Court failed to deal with the permits.

[46] The purpose of the Court’s plea with Mr Masondo in the telephone discussion with him on 30 March 2020 was to avoid any possible postponement as a result of practitioners not having valid, or no permits, alternatively attending court in breach of regulation 11B (1) (a) (iii).  The court wanted to avoid having to turn practitioners around or refusing to hear them in court, to their and the Court’s embarrassment.

[47] It is not true, as the EFF’s attorney’s state in their application, that the Court, in its findings:

“…simply suggest that the EFF was not entitled to be legally represented in Court, despite the learned judge having read the papers and admitted them to the main application… ”.  [Own emphasis]

At that stage the Court have not had the opportunity to read the EFF’s joinder application or Mr Kubheka’s opposing affidavit. The allegations are not borne out by the record of proceedings, and to the contrary the Court proceeded, for the reasons stated elsewhere in this judgment, to hear full arguments, by all the parties’ legal representatives, on the EFF’s application for their joinder. Before the Court could adjourn to consider the joinder application, and postpone /stand the matter down to 1 April 2020 to read the affidavits, the Court was requested to adjourn to enable the parties to discuss possible interim settlement.

[48] The judgment could not have come as a surprise to the practitioners. They might have wished that the Court had forgotten about its intention, but the court was always going to write a judgment about the non-compliance of the practitioners with the regulations as well as the requirements of the directions.  From the transcript it is abundantly clear that the practitioner’s constitutional rights were not flouted with at all and the court did not fail to adhere to the rule of law.  To the contrary, it was the practitioners that flouted with the Constitution, regulations and rule of law. The tone of some of the applications for leave to appeal, and more specifically that of Adv Zondo and Mr Masondo, were inappropriate, disrespectful, defamatory, and scandalous in the extreme. The Heads of argument filed on their behalf (Advocate Zondo and Mr Masondo) contains the same uncalled for inappropriate insinuations about the Court.

[49] As indicated herein, supra, the court never had sight of Advocate Zondo’s permit, and to the contrary, he never had a permit issued to him. Any permits that the court were not favoured with were to be handed to it through Ms Human’s email address. Neither Advocate Zondo, nor Mr Masondo took the Court into their confidence by conceding that they had no permits. It became apparent that Mrs Setsoalo and Rampatla never had valid permits (or any permits for that matter), and only applied for their permits from the Mpumalanga LPC on the 1^st of April 2020. They applied to have the permits backdated, which request the LPC, for some undisclosed reason, apparently heeded. Although it was argued by Mr Sestsoalo that their permits were allegedly in a car that has left, it appears that it could not be true in the light of his admission in court that he had no permit[29].

[50] In their heads of argument, drafted by Advocate Mokhare SC, Advocate Zondo and Mr Masondo’s, argues that the statements in paragraph 50 of the Court’s judgment are “patently false” and “a concocted story” based on “falsehoods with the sole intention to impugn the integrity of the applicants”. This is however not borne out by the facts that appears from the transcript of the proceedings, and amounts to disrespectful and inappropriate conduct. Whether advocate Zondo and Mr Masondo’ s “permits”, which they never had, were issued by the Directors of either Mpumalanga, or the Gauteng LPC’S, or by Mr Masondo himself was  irrelevant. They conveniently, and against this Court’s well intended warning to Mr Masondo on 30 March 2020, ignored the inter-provincial travel ban that was in force at the time. Put differently, it did not matter whether they had valid permits, in terms of Regulation 11B (1) (a) (iii) or not cross border travel was forbidden for very good reasons, as explained in the judgment.  The severity of the pandemic, and it’s extremely devastating consequences became all the more obvious when our President extended the nation-wide lockdown for a further fourteen days on 9 April 2020, and only limited relief was afforded when phase 4 of the lockdown was announced.  Inter provincial travel was still prohibited as the Court was writing this judgment. No permit or court, could grant any of the practitioners permission to cross the borders between Gauteng and Mpumalanga on 31 March 2020.  The act or regulations do not provide the Court with powers to relax the regulations in that regard at all[30]. The fact that the practitioners were allowed by members of the enforcement agencies to pass through two roadblocks that day is of no moment.  If all the experienced, legally trained practioners, including two counsels awarded with senior consultus status, and Advocate Zondo, an advocate with twenty years of experience, failed to establish that they were not allowed to cross borders, how would the enforcement officials do if provided with documents by officers of the court, purporting to be legal documents? They were fully aware that they could not ignore the regulations, and for the sake of enriching themselves, possibly place many other people’s health and lives at risk.

[51] The severity of non-compliance with the regulations is apparent when one notes the State President’s recent condemnation of Minister Stella Ndabeni-Abrahams’s conduct by attending a lunch with friends during the lockdown period.  The President summoned the Minister and placed her on special leave for two months – one month of which will be unpaid. She was also fined R 1000.00, but it seems as if it did not satisfy the other political parties, as some of them are calling for additional steps to be taken against the Minister[31].  The Minister now has a criminal record.

[52] The President said:

“the nation-wide lockdown calls for absolute compliance on the part of all South Africans, members of the National Executive.  Members of the National Executive carry a special responsibility setting an example to South Africans who are having to make great sacrifices.  None of us - not least a member of the National Executive - should undermine our national effort to save lives in this very serious situation”[32].

[53] None of the current applicants was legally allowed to be in Middelburg High Court on 31 March 2020. The fact that Advocate Zwane is from Mpumalanga and was, according to Adv Laka SC, in possession of a “permit” that was “issued” by a Provincial Government Employee, does not change his position at all. He should have been in possession of a permit issued by the Director of the Mpumalanga LPC. He was most certainly not in the employ of the Mpumalanga Government at the time. Travelling between districts was in any event forbidden as well, and he is not from Middelburg.

[54] As stated in the judgment, this matter has an unfortunate history.  The first respondent (“Mr Kubheka”), the second respondent’s erstwhile municipal manager,  the Executive Mayor of the second applicant in the main application, Dr JS Maroka Municipality (“The Municipality”), and the municipality have been involved in various applications in this court, the Labour Court, and Siyabuswa Regional Court in the past.  The particulars are not relevant to the matter at hand, but what is important, is the fact that the acrimonious litigation had a very negative effect on service delivery to the residents of the municipality, which led to the appointment of the first applicant as administrator of the municipality in terms of section 139(1) of the Constitution of the Republic of South Africa^[33] (“the Constitution”) 

[55] The municipality serves a rural community with very limited amenities and resources, and does not have a proper water reticulation system.  As consequence water must to be transported to distribution points for the residents by water trucks failing which the residents would not have access to potable water.

[56] In the main application the administrator, and other applicants, sought interdictory relief against Mr Kubheka, whose services have been terminated by the municipality’s council on 8 January 2020, refused to vacate his office or post.

[57] The administrator’s appointment in terms of section 139 (1) of the Constitution was disputed by the EFF, and Mr Kubekha.  Mr Kubheka, despite the fact that his employment was terminated, remained in the premises and proceeded with rendering services as if he was not dismissed. He undermined the administrator’s operation of the municipality to such an extent that the municipality could not comply with its Constitutional obligations to render basic services to its residents.  Amongst other, Mr Kubheka, according to the administrator, instructed water trucks that had to deliver essential water to the community not to act on the instructions of the administrator, which resulted in hardship as the water was not delivered to the community. They are expected to thoroughly wash their hands and to remain in generally acceptable hygienic circumstances in order to prevent the uncontrolled spread of Covid-19 pandemic.  The administrator applied to the court to interdict Mr Kubheka from controlling the municipality. The parties’ conduct was not acceptable and the Court decided that relief for the sole benefit of the residents of the municipality must be forthcoming, as it was apparent that the parties did not have that in mind.  The court was acutely aware of the hardship and difficult circumstances that had already raised its head during the last quarter of 2019 at the municipality.   

 

E. THE LAW ON APPLICATIONS FOR LEAVE TO APPEAL

[58] Without going into the law, the Court will accept for the purposes of this application, that the applicants do have the necessary locus standi in terms of section 38(a) of the Constitution[34]. 

[59] The court is independent and subject only to the Constitution of the Republic of South Africa[35].  Before a judge may perform judicial functions (that includes acting judges) she or he must take an oath in terms whereof she or he undertakes to uphold and protect the Constitution[36].  A judge must, without fear or favour, and in terms of the inherent powers of the court[37] protect, and regulate its own process.  As such, a court is called upon to, without hesitation prevent and discourage its officers from breaking laws or failing to comply with any rules and regulations.

[60] Section 16 and 17 of the Superior Court’s Act[38] regulates appeals in the High Court.  Section 17(1)[39] stipulates the requirements for an application for leave to appeal.  Leave to appeal will only be granted if there is a sound and rational basis for the conclusion that there are prospects of success on appeal[40].

[61] The criteria, which had been adopted over many years in applications for leave to appeal now has statutory force[41]. The wording of section 17(1) (a) raised the bar, and leave to appeal will only be granted if the court is of the opinion that the appeal would have reasonable success[42].

[62] Generally leave to appeal will only be granted against costs orders if an applicant could satisfy the court from which leave is sought, that an appeal court may reasonably find that exceptional circumstances existed, justifying the interference with its court order.  If the court of first instance does not find accordingly it must refuse leave[43]. The award of costs is a matter in respect of which courts exercise a true discretion[44]. Compelling reasons must exist why the appeal should be heard[45].

[63] If leave to appeal is granted, the appellate court may only interfere with the court a quo’s judgment when it appears that the court had not exercised its discretion, where costs are involved, judicially, or that it had been influenced by the wrong principles, or misdirection of facts, or that it had reached a decision within the result could not reasonably have been made by a court properly directing itself to all the relevant facts and principles[46].

[64] The well-known principles in the matter of R v Dhlumayo[47] still guides a court in an appeal purely on fact.  These principles will also guide the court in an application for leave to appeal in determining whether an applicant has prospects of success.  The trial judge is steeped in the atmosphere of the trial.  Consequently an appeal court will be very reluctant to upset findings of a trial judge.  Even in drawing inferences the trial judge may be in a better position.  He may be more able to estimate what is probable or improbable.  Where there is no misdirection of fact by the trail judge the presumption is that his conclusion is correct.  The appeal court will only interfere where it is convinced that it is wrong.  Where the appeal court is in doubt as to the correctness it will uphold the trail court’s judgment.  It is important to note that where an appellant cannot satisfy the appeal court that there has been some miscarriage of justice or violation of some principle in law or procedure, he will fail.

[66] The principle of “lifting the judicial veil” is not known in our law.  A court may however, under certain circumstances, order a judicial officer to pay costs.  Such order against judicial officers will only be made if bad faith on their part has been proven[48].

[67] Public office bearers must be allowed the space to be human.  And to err is human.  It ought to take much more than ignorance, limited competence in one’s area of responsibility, poor judgment or incidental but harmless unfairness, to others to order personal costs against an office bearer.  Failure to guard against an easy award of costs of this nature could undermine the willpower to deal with everybody, as they deserve to be dealt with[49].

[68] Constitutional office-bearers should not be allowed to abuse their power of office with impunity[50]. The Constitutional Court[51] had the opportunity to consider what the meaning of bad faith is.

[69] It is only in rare cases that judicial officers will be ordered to pay the costs of a matter and not in matters where the judicial officer was clearly not acting in bad faith but acting in compliance with his oath of office.

[70] Another pertinent question the court must answer in considering whether leave to appeal should be granted is whether the intended appeal is directed at the reasons, or findings, as opposed to the substantive order of court.  It must be considered whether the court’s finding against the applicants:

1. Constituted a final and binding finding which is binding on the appeal court.

2. An appeal lies against those findings[52]. 

[71] The Supreme Court of Appeal[53] discussed this question with reference inter alia to Administrator Cape and Another v Ntshwqela and Others 1990 (1) SA 705 (A) where the court said:

“In legal usage the word judgment has at least two meanings: a general meaning and a technical meaning. In the general sense it is the English equivalent of the American opinion, which is '(t)he statement by a Judge or Court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based'. (Black's Law Dictionary 5th Ed sv opinion.) In its technical sense it is the equivalent of order . . .”.

[72] An appeal that seeks to set aside the approach and reasoning of a court a quo to the disputed factual issue was also found to be lacking merit in the matter of Tecmed Africa (Pty) Ltd v Minister of Health and Another[54] where the court concluded that:

“First, appeals do not lie against the reasons for judgment but against the substantive order of a lower court.  Thus whether or not a court of appeal agrees with a lower court’s reasoning would be of no consequence if the result would remain the same.”[55]

 

DISCUSSION

[73] The Court will discuss the various applications for leave to appeal separately, but where the grounds of appeal overlap, it will be dealt with as such. Adv Mokare SC represented the 1^st to 6^th applicants, as well as the applicant that applied to be joined as fourth applicant in the Laka-application. Adv Madonsela SC appeared for Adv Ncongwane SC, and Mr Setsoalo on behalf of Mr Rampatla, and himself. All the applications had similar grounds of appeal that were relied on, namely:

1. That the Court failed to afford the applicants the opportunity to address the Court regarding the finding the Court made that they violated the regulations, and their code of conduct before the court came to the conclusion that all counsels, and attorneys that attended court should forfeit their fees as ordered, and sending the judgment to the LPC (The procedural attack”).

2. The Court’s interpretation of the regulations by the Minister of COGTTA, as well as the directions by the Minister of Justice was incorrect (The substantive attack).

3. The Court erred in “reviewing” the permits in the possession of the applicants.

4. The Court arrogated itself the roll of enforcement officer when it sanctioned the applicants for the violation of the regulations.

In consequence, the applicants say, there are reasonable prospects that another court would find in favour of the applicants.

 

ADV ZONDO AND MR MASOSNDO (THE ZONDO-APPLICANTS)

[74] On reading the application, which was widely publicised in the social media, it seems that the Zondo-applicants were aggrieved by the factual findings that were made by the Court in the course of the judgment.  Even in the application’s “background”, in the Court’s view sketched solely for purposes of the “social media gallery“(as the court was fully aware of all the facts and the background was not necessary for the purpose of the application) the court is criticised for its alleged “uncharacteristic beratement of the legal practitioners”, and an attack on the applicants that was “unprecedented” and “without prior notice”. In their view the Court made false statements and concocted facts. The judge demonstrated, according to the two applicants, amongst other:

1.” Malicious intent”;

2. “Bad faith” and “breach of his judicial oath of office”;

3. “Demonstrated exceptional levels of incompetence and irrationality”;

4. “..makes false statements” and “This statement is patently false…”, and

5. “Concocted a story..”

[75] To start with, the factual findings that the court made were based on facts presented to the court by the practitioners at the hearing on 31 March 2020. (I.e. The permits handed to the Court’s secretary, or not, and the explanation by the practitioners during the engagement with the Court). The Judge President’s directive to the practitioners of 27 March 2020 alerted the court of the fact that he had communicated his concerns about the practitioners travelling to Middelburg[56]. None of the practitioners can be heard to say that they were not made aware of the specific regulation and direction regulating their travelling during the lockdown period. The Court also mentioned this concern to Mr Masondo during the telephone conversation referred to earlier in this judgment.  Neither advocate Zondo nor Mr Masondo can state that they were not forewarned of the need to comply with the regulations to have a permit to attend court, and to heed the regulation not to cross provincial borders. I pause to mention that it seems to the Court as if none of the practitioners involved in this matter availed themselves the trouble of perusing the relevant regulation.  That much appears from Advocate Laka SC’s engagement with the court about regulation 11 B (1) (a) (iii) and the incorrect information provided to him by his colleagues, who tried to assist him during argument. One expects senior practitioners, with twenty years’ experience, and even more if the seniority of Messrs Laka and Ncongwane is taken into account, when preparing to attend Court, and more so having been made aware thereof by the Head of Court, to first study the regulations and ensure strict compliance therewith, as failure to comply therewith, might have serious consequences. They simply could not legally have left their respective residences on 31 March 2020, without facing the consequences of their illegal conduct[57].

[76] The Judge President’s email of 27 March 2020 contained a stern warning and directive to the practitioners to the effect that they would have to comply, and prove to the Judge that they have complied with the regulations and directions or face the consequences. This Court was obliged to check the practitioners’ permits, and their compliance with regulation 11 B (1) (a) (iii).  One would have accepted the cautioning coming from the Head of the division to be respected and heeded.  The last thing this court expected after the directive issued by the Judge President and this Court’s telephone conversation with Mr Masondo was for the practitioners(all the applicants in this application) to attend court on 31 March 2020 in flagrant violation of the peremptory prohibition contained in the regulations.

[77] The facts that the court were presented with at the hearing were very simple. The facts appear from the background sketched in this judgment. Not one of the applicants presented a legitimate permit to my secretary before the Court started.  No authority could issue a valid permit to cross provincial borders anyway. Not even when invited in terms of a directive by this court did the Zondo-applicants produce such permits?  Their attitude towards the court in general was, to say the least surprising, shocking and concerning. I pause to mention that Advocate Zondo and Mr Masondo could not have been prejudiced in any way by providing the court with the “permits” that they allegedly had in their possession on 31 March 2020 if they were bona fide.  They chose to shun the reasonable request by the Court.

[78] Even if advocate Zondo and Mr Masondo presented permits to the court on 31 March 2020, be it from either LPC of Gauteng or Mpumalanga, or issued by himself or Mr Masondo’s firm, such would not have had any influence on the conclusion the court came to regarding the presence of the practitioners in court. Therefor and in so far as the applicants stated that the court committed a fundamental misdirection on the factual situation or based its finding on facts not sustained by evidence is incorrect. I pause to state that in so far as this ground of appeal overlaps with all the other applicants’ grounds, I am of the view that there are no reasonable prospects of success, and another court would not come to another conclusion faced with the same facts.

[79] The applicants did not have to be joined in the application to make an adverse costs order against them.  To the contrary no costs order was made against either of the applicants. To put it differently, why have the applicants for leave to appeal not applied to be joined as parties to the matter prior to launching these applications for leave to appeal? There was no order, or finding in respect of Mr Masondo made at all. In the past where orders were made by courts ordering practitioners to forfeit fees, such attorneys and counsels were not joined as parties to the proceedings.  In recent times it has become a tendency in our courts and more specifically in this Division that legal practitioners have been penalised financially for non-compliance with the rules, practice directives or accepted practice.

[80] Erasmus in the commentary on the Superior Court Act and Rules[58] refers to this tendency by the courts.  Although it concentrates to a large extent on the state of records of appeal or bundles status the principle is similar as the courts dealt with practitioners’ unacceptable conduct[59].  I could not find any authority for the applicants ground of appeal to this effect.  It accordingly follows that this ground of appeal would not have a reasonable prospect of success that another court would come to a different conclusion either.

[81] The factual findings made by the Court in respect of Advocate Zondo is justified as I have indicated above.  The failure to present a permit to the court’s secretary or the court is a given on the facts, and confirmed by his instructing attorney’s email[60] to the LPC, dated 07 April 2020, wherein he applied, as an afterthought, for backdated permits for Advocate Zondo, Me Kwaza and himself.  It is significant to note that neither Advocate Zondo nor Mr Masondo, in their application for leave to appeal, ventures into the facts found by the court, namely that Mr Zondo, an advocate from Gauteng, who in his own words[61], “ADV ZONDO:  I am from Johannesburg M’Lord.”,  travelled across a provincial boundary in flagrant disregard of the regulations[62].  The main complaint was that he and the other practitioners travelled from Gauteng to Mpumalanga.  The only and obvious reason they stay clear from this is because they realised that they violated the regulation and the court was correct in its findings.  No evidence was necessary to prove that regulation 11B (1) (a) (iii) was violated by Advocate Zondo or the other practitioners, and if Mr Masondo was in Middelburg that day, by him too.  The permits are irrelevant, as stated earlier.

[82] The court does not have to be “called upon to” deliver a judgment where the legal practitioners’ conduct are the subject of enquiry. The High Court has inherent power to regulate its process[63].  That includes the conduct of parties and their representatives in court.  There are numerous judgments reported where practitioner’s conduct was criticized and orders made, including referral of the judgment regarding the practitioner’s conduct, to his/her professional body for investigation[64].

[83] As stated earlier, the relevant issues were canvassed with Advocate Zondo and Laka during the engagement in court.  No argument of whatsoever length or nature, would have had an effect on Advocate Zondo’s (and the other practitioners’), attendance of court in direct and clear violation of the regulations.  I do not intent revisiting my judgment and the reasons why I found that their attendance was unlawful and could potentially amount criminal conduct.  This ground of appeal have no reasonable prospect of success at all. 

[84] The court did not, and could not, as stated in the application, embark on a “review” of Advocate Zondo’s, and Mr Masondo’s permits, as they had no permits to review. In respect of all other applicants, their permits were issued in violation of the regulation, and they were not allowed to travel to Middelburg in any way. This ground of appeal is therefore bad in law and stands to be rejected. However the court need to mention, in passing, that any court of law will, when called upon to do so, examine the permit/s of a person/s (in case of the practitioners) when they appear in the country’s courts during this lockdown period.  Everybody is acutely aware of the devastating attack on our nation by this invisible enemy, transmitted from person to person, named COVID-19[65]. 

[85] The finding that there was non-compliance with the regulations and directions are a far cry from a review from the permits This court and any may at any time call on a practitioner to produce his/her admission certificate, and letter of good standing by the LPC, and upon production thereof the court will scrutinise it.  In the event the court is concerned about the veracity of these documents, it will be referred to the LPC and the court should refuse to allow the practitioner an audience.  Therefore, on this ground the appeal would not have any reasonable prospects of success.

[86] Having found that advocate Zondo violated regulation 11B (1) (a) (iii) (on his own version) the Court’s findings made about his presence in court on 31 March 2020, cannot be said to be malicious, in bad faith or the breach of the Court’s judicial oath of office. 

[87] The allegation that the judge was malicious is of a very serious nature, and even more so under circumstances where the averment is not substantiated by any facts and amounts to, as read with the other serious averments in the paragraph to an attitude towards court which is deplorable and highly contemptuous. In a last ditch, straw-clutching effort to justify the outrageous allegations by them, Advocate Mokhare SC, and his junior counsels, in their Heads of Argument attempted to draw a comparison between the Court’s conduct in the main application, and an application the Court presided over in Mbombela on 7 April 2020, during the lockdown period. It is abundantly clear to the Court the Mr Mokhare did not have access to the transcript of the Mbombela proceedings, and therefore relied on the blatantly untrue version relayed to him by his junior counsel, Advocate Ngwenya who appeared as a junior counsel for the Applicants in the Mbombela-matter. The grounds proffered (that the Court acted maliciously, and in bad faith) is an attempt to appeal findings by the court and not the order of the court[66].  On these grounds of appeal there would not be any prospects of success. 

[88] Adv Du Plessis SC, did not admit in those proceedings that he was not in possession of a valid permit, as stated in the heads of argument, nor did the court at any stage, allege or admit that its judgment in this matter in the main application and the judgment currently under appeal, was possibly wrong^[67].All the applicants, but more pertinently, Advocates Laka SC, Zondo, and Mr Masondo, and their counsel, are inclined to ascribe words to the Court that was never used, and decisions that the Court never made. This in itself is an unacceptable and dishonest attempt by the applicants involved to bring the good name and reputation of the judge, and the judiciary in disrepute. The principle laid down in the judgement was not applicable to the Mbombela case on 7 April 2020, as the 25 March 2020 regulations by the Minister of COGTA had been repealed, and replaced with the regulations of 2 April 2020 at that time. The 2 April 2020 regulations made inter-provincial travel possible, subject to the directives by the Minister of Justice^[68].

[89] The court never stated that the judgment only applied in Middelburg. This is simply false. The mere inclusion of these obvious false averments, or statements, in the heads of argument by Adv Mokhare SC and his junior counsels are indicative of the fact that the Laka-, and the Zondo-applicants who were all represented by the Mokhare-team, will at all costs endeavour to discredit the court, even going to the lengths of telling blatant untruths, knowing well that the transcript might become available proving them to be incorrect. This is, to say the least, opportunistic and reckless. No possible basis for the conclusion that the court acted in bad faith or that the court had any ulterior motive is disclosed at all. The court simply applied the law, as it was known to it at that stage.  The “ground of appeal” was also not raised in the application for leave to appeal by the Laka-applicants.

[90] I pause to mention that this “ground of appeal” is not contained in the application for leave to appeal, and was, in the Court’s view incorporated in the heads of argument to intimidate the Court. So too the reference to this Division’s Judge President’s involvement in the proceedings, which I will deal with later. The basis for not dealing with the regulations and permits in the Mbombela-matter on the 7^th of April was properly and duly explained in a judgment handed down by the court in that case. 

[91] The grounds of appeal contained in paragraph 26, 27 and 28 of the application for leave to appeal constitutes, in the reality, one ground of appeal.  The regulations by the Minister of COGTA followed a declaration by the President of South Africa of a total lockdown. This was done to severely limit the movement of persons to prevent the uncontrolled spread of the Corona virus.  The enforcement agencies must enforce the regulations in terms of the act. The regulations criminalised conduct in breach of the act and the regulations. 

[92] As discussed above, the regulations are clear.  The applicants did not provide any grounds for its averment that the court “demonstrated exceptional levels of incompetence and irrationality in the legal conclusions he reached in respect of the applicants, other practitioners, and flawed interpretation of the regulations”.

[93] As stated earlier, and at the risk of repetition, it is clear that Advocate Zondo, without a permit issued to him by the director of the LPC, or any other form of “permit” (which would have been irrelevant anyway) could not even consider accepting the instruction to appear and represent the administrator in court during the lockdown period. Nobody could legitimately issue a permit to travel to Middelburg to them before 31 March 2020. The official that issued such permit would also be guilty of an offence, as regulation 11B (1) (a) (iii) prohibited “movement between provinces”.  He failed in both these criteria.  The court’s interpretation of 11B (1) (a) (iii) was also applied in Ex Parte van Heerden[69], a matter decided in this Division, that dealt with the movement between provinces, and the regulations.  The regulations were later amended to cater for inter-provincial movement in exceptional circumstances.  These amendments were affected after 31 March 2020.  They were not effective with retrospective effect and that is also not the applicant’s case. 

[94] If the all the applicants’ interpretation of regulation 11 B (1) (a) (iii) was correct, one wonders why the Minister would go to the trouble of amending the regulations on 2 April 2020 as she did[70].  The only inference is that the interpretation by this Court, and the Court in Ex Parte van Heerden-matter, was indeed correct, and the Minister of COGTA, so advised, realised she had to amend the regulations in order to allow practitioners cross border travel.

[95] The reference by the Zondo-applicants in their heads of argument to the directive issued by the Court to Adv Zondo, and Mr Masondo, after the Zondo-application for leave to appeal had been filed, as being grossly irregular and ultra vires is of no moment.  As referred to earlier in this judgment, the Court, in the directive to the Zondo-applicants, afforded them an opportunity to produce the permits they alleged to have had on 31 March 2020. Neither of the practitioners had a permit.  Their failure to produce the permits are indicative of the malicious and scandalous intent towards the Court in the allegations by him and Adv Laka SC in their applications for leave to appeal and their interviews with the Citizen newspaper. 

[96] In the Zondo-applicants’ heads of argument (with which the Laka-applicants associates themselves) reference is made by Adv Mokhare SC to the alleged “interference” by the Judge President with this court’s independence. This unwarranted attack never formed part of the Zondo-applicant’s application, and is referred to in the heads of argument only. The following is stated by the Zondo-applicants’ counsels about the Judge President and the Court:

“20. The transcript was emailed to the applicants attorneys on 14 April 2020 by the Presiding Judge. Prior to that, the transcript was given to the Judge President who had nothing to do with the matter, because he was not the presiding judge. The judge who heard the matter and delivered judgment ought to have been the judge who was seized with the matter and not be directed by the Judge President on how to deal with the matter. Instead, the presiding judge allowed the Judge President to interfere in the matter in which he was judicially seized with. This is highly inappropriate and shows the presiding judge’s lack of independence and inability to comprehend judicial independence.

21. It is worrying that the Judge President has interfered with the leave to appeal including issuing directives which contradicted the directives issued by the presiding judge. The Judge President was given the transcript of the proceedings for him to peruse when the applicants waited for the transcript to be given to them. The judge president commented about the leave to appeal which is pending before another judge including expressing his views about the tone of the leave to appeal but neglected to comment about the tone of the judgment and its character assassination of legal practitioners.

22. This interference resulted in the Judge President taking over and issuing directives with the presiding judge looking on, including deciding when and how the leave to appeal will be dealt with without consulting with the presiding judge. It is also worrisome that the presiding judge allowed the Judge President to interfere with his judicial functions in conflict with his oath of office. This conduct is a demonstration of the presiding judge’s lack of independence as a judicial officer. The fact that senior legal practitioners were castigated in a judgment that was unwarranted and the active participation of the Judge President when the judgment is challenged is a cause for concern, which requires to be further scrutinised outside this leave to appeal.”

[97] In terms of section 8 (4) (b) and 8 (6) of the Superior Courts Act^[71] the Judge President is responsible for the administration of the Division. It is a Head of Court’s prerogative to arrange the administration of her/his Division. Section 8 stipulates that:

“(4) (b) The management of the judicial functions of each court is the responsibility of the head of that court.

6) The judicial functions referred to in subsection (2) and subsection (4)(b) include the

(b) assignment of judicial officers to sittings;

(c) assignment of cases and other judicial duties to judicial officers;

(d) determination of the sitting schedules and places of sittings for judicial officers;

(e) management of procedures to be adhered to in respect of —

(ii) the finalisation of any matter before a judicial officer, including any outstanding judgment, decision or order; and.” [Own Emphasis]

[98] The Judge President as the head of the court, more so under these exceptional lockdown circumstances, is obliged to determine whether matters are urgent or not, and to direct how and when matters should be heard^[72]. Even if there is no challenge like COVID-19, he must oversee the management of the procedures to be adhered to in respect of the finalisation of any matter before any judicial officer.  That is exactly what the Judge President did in this instance.  Any attempt to impugn inappropriate conduct on behalf of the Judge President and the Court in this regard is imply disingenuous, malicious and scandalous.

[99] Adv Mokhare SC stated during argument that the court lacked independence. He went further by insinuating that the court was prescribed by the Judge President as to what the judgment should contain. That is simply wrong, and not substantiated by any facts. On 10 April 2020, the Judge President addressed a letter to the “ATTORNEYS” involved in the application and said the following:

“I refer to above matter and wish to advise that the judgment, application for leave to appeal and the record of the proceedings have been brought to my attention. I have also been informed that in anticipation of the expire (sic) of the lockdown the application for leave to appeal in this matter was enrolled for hearing on 23 April 2020 at 08h45.

In the light of the tone of the application for leave to appeal it is hereby directed as follows:

“The application for leave to appeal shall proceed to be heard as enrolled on 23 April 2020 despite the extension of the lockdown until 30th April 2020.”

[100] Finger Attorneys responded to this letter I almost the same terms as the heads of argument. The Judge President, aptly, and correctly so responded to all attorneys involved on 13 April 2020 and stated:

“Dear Mr Finger

I refer to your email letter sent to me yesterday and I do not intend to deal with the detail of your insinuation and aspersions at this stage. For now I think it is necessary to state as follows:

1. I gave the directive as I did as the head of the division to ensure that the image of both the legal profession and or the judiciary is restored as swiftly as possible regard being heard to the nature and tone of the application for leave to appeal and its widely publicised circumstances.

2. Secondly, when I so issued the directive, I was not aware of the directive issued by Brauckmann AJ on 8 April 2020. However, even if I was, I would still have issued the directive for reasons stated in paragraph 1 above.

3. In the light the judgement which was already a public document and the application for leave to appeal both widely publicised, my office was entitled to be provided with same. The transcription of the record of the proceedings was at the request of the presiding judge. Even if the presiding judge did not ask for the transcript, I would have done so for reasons stated in paragraph 1 above and also for the fact that the judge concerned is a candidate to be interviewed by the JSC.

4. You were inadvertently omitted, as the email addresses used were those used when the initial directive concerning this matter was issued. I would have thought this would not be an issue to justify the insinuation.”

[101] The Court accepts that the remarks, once again only contained in heads of argument, and not in any application for leave to appeal, was included by the counsel that drafted, and those that settled the heads of argument solely to besmear the Judge President and the Court, as it is obvious that the allegations are unfounded. The Judge President did not act inappropriately at all. This was yet another inappropriate attack on the judiciary that was totally uncalled for.

[102] This is however not where it ended. The Zondo-applicants and their attorneys persisted with the disrespectful attitude throughout the application for leave to appeal, and even thereafter. On 22 May 2020 the Court received a letter from the Zondo-applicant’s attorneys. The applications were heard on 4^th May 2020, and judgment reserved. In the letter the Zondo-applicants’ tone and approach was once again aggressive, disrespectful, sarcastic and belittling. Their attorneys enquired about the judgment in the application, and instead of directing a normal enquiry, the following is said:

“2. Our clients wish to enquire as to when can we (sic) expect the handing down of the long-awaited judgment in respect of the application for leave to appeal which, for the record, was argued on Monday the 4^th of May 2020. Even if only to point out the obvious, it is our client’s strongly held view that,…..the judgment, in all fairness, should be out (sic) by now.

It is our instructions that there is simply no compelling reason whatsoever why the judgment ought not to have been delivered extempore (sic).Our client therefore wonder on what conceivable basis could such a simple and straightforward application for leave to appeal take this long, especially when regard is had to the importance and magnitude of the matter and the pressing need to reach finality and certainty.”

[103] The Judge President’s administrative functions and control over matters, which includes this matter for the exceptional reasons stated by him, did not influence this Court in any way or took away the independence of the Court. It does not constitute a ground for appeal and if it does, the Court is of the view that there are no reasonable prospects that another court would come to a different conclusion based on the same facts.

[104] The directive to the Registrar to send the judgment to the LPC is not a final order.  It is for the LPC to decide whether it wishes to proceed with any enquiry into the Zondo-applicants’ conduct terms of the relevant rules. 

 

ADV NCONGWANE SC

[105] An application for rescission of the judgment in terms of Rule 42(1) of the Uniform Rules of Court (the Rules) was incorporated in Adv Ncongwane’s application.  Adv Madonsela SC, acting on behalf of the applicant, correctly conceded that the application is still-born, and abandoned it. Advocate Madonsela SC prepared very professional and will written heads of argument that was extremely helpful. The Court wish to thank him.

[106] Advocate Ncongwane SC represented the EFF, and was briefed by Mahube Setswalo attorneys.  The whole basis of the EFF’s application to join as a respondent in the main application was to oppose the relief the administrator sought against Mr Kubheka.  If the EFF was successful in the opposition of the main application, and the application was dismissed or struck off the roll, the consequence would have been the residents of the municipality would have been left without water for a further extended period.  In the application for leave to appeal, and in the letter directed to the Gauteng LPC’s Director applying for a permit to attend court (as disclosed in paragraph 13 of the application for leave to appeal) the reason for the urgency proffered by Advocate Ncongwane SC was:

“The matter involves an urgent need for the supply of water and other services within the municipal area of Siyabushwa”.

[107] It is strange, to say the least, that Advocate Ncongwane, representing the EFF, failed to disclose to the LPC that they were instructed to oppose the urgent application by the administrator that had as its sole purpose, to restore and secure the provision and delivery of potable water to the residents of the municipality. The reason proffered by him was therefore not to come to the assistance of the community, but to further frustrate them in their plight to have basic services provided that included water, a basic necessity to survive.

[108] There was no need for this court to review or Advocate Ncongwane’s permit, as with or without a permit Advocate Ncongwane SC was not allowed to travel across provincial borders. Therefore the submission that the court should have joined the Directors of the LPC and any other relevant persons/body holds no prospects of success and leave to appeal on this ground cannot be granted.  The court, as it did, was obliged to interrogate into the applicant’s entitlement to be present in court.  Any practitioner attending court to render the service to any person whilst he is not lawfully permitted to be in that court should not be entitled to charge any fees to his/her client.

[109] Although the validity of the applicants’ permits or the applicants’ presence in court was not raised in any of the affidavits in the main application, or papers, that did not mean that the Court was prohibited from  taking note thereof, and dealing with it. 

[110] According to Mr Ncongwane SC, the Court maligned his and other legal practitioners integrity and reputation by reporting an unprofessional ethical conduct to the LPC, and that a startling findings were made without any basis therefore. From the judgment, and this judgment, is abundantly clear that the Court had genuine reasons to be gravely concerned about the practitioners’ conduct. The findings the Court arrived at was not only reasonable given the facts before the Court, but also the only finding that could be made on the facts as it presented it to Court. Findings of fact does not constitute grounds for appeal.  Adv Ncongwane SC’s conduct, in so far as it was referred to the LPC, should follow its course. The court had no intention to act maliciously, or to defame any of the practitioners involved. This does not constitute grounds for appeal and bears no reasonable prospects of success. 

[111] The court, as it is obliged to do, enquired from the practitioners why they were present in court when it was obvious that in terms of regulation 11 B (1) (a) (iii) all of the practitioners, excluding Advocate Matlala, Mr Rampatla, Setsoalo and Adv Zwane, were not from Middelburg, and therefore prima facie not allowed to attend Court in their respective capacities. They did not attend court on 31 March 2020 in their capacity as parties or persons referred to in direction 2 (a) of the directions by the Minister of Justice[73]. The validity of the permits that purportedly authorised and entitled the applicants to be present in court was irrelevant to the enquiry. The applicant does not have reasonable prospects of success that another court would come to a different conclusion.

[112] The Court commented on the validity of the permits, but did not base its findings thereon.  The court concluded that the practitioners were not entitled to be present in the court precinct on the relevant date as, on their own undisputed versions they were not from Mpumalanga. This court did not have to enquire into the correctness of the judgment in Ex Parte Van Heerden[74] to come to that finding. The Court is of the view that the matter was correctly decided. The constitutionality of the regulations by the Minister of COGTA was not questioned in Van Heerden. This court, whether interpreting regulation 11B (1) (a) (iii) holistically and conjunctively, or in any other way, could not have arrived at any other conclusion than it did in the judgment.  Cross border travelling was prohibited.  The Minister of Justice and the directions issued by him had no effect on the regulations.  The regulations issued by the Minister of Justice of 26 March 2020 only dealt with the requirements for a valid permit.  It did not authorise the LPC’s Directors, or Courts, to condone non-compliance with regulation 11 B (1) (a) (iii).  The Director of the LPC could only issue a permit to a legal practitioner to appear in a court to render an essential service in its own province.

[113] The regulations by the Minister of COGTA are unambiguous.  More specifically the regulation prohibiting cross-border travelling[75]. The limitation on the freedom of movement of persons is reasonable and justifiable in relation to the purpose it intends to achieve. The directives by the Minister of Justice only provides the procedure and requirements for the issuing of the permits and does not deal with cross border travel. The directions by the Minister of Justice can therefore not be ultra vires. The affected parties, in casu, the practitioners, including Adv Ncongwane’s, right to freedom of movement, and right to freedom of trade, occupation, and profession were limited.  His right to discharge his obligations to attend to briefs was only limited in so far as he was not entitled to cross the provincial borders on 31 March 2020. He could also not travel between the metropolitans and between districts within Gauteng.  No reasonable prospects of success exists that another court, faced with the facts in this matter would come to a different conclusion.

[114] Mr Ncongwane SC most certainly did not travel to Middelbrug on 31 March 2020 to ensure that water would reach the municipality’s residents. To the contrary, his instructions were to vehemently oppose the relief sought by the administrator. That much is clear from Adv Ncongwane’s arguments in Court which went as follow[76]:

“ADV HLONGWANE [Ncongwane]:  Yes, in short M’Lord the intervening party’s contention is that the applicant, the first applicant has no longer standing [locus standi] to bring his interdictory application.  He has not been appointed in terms of the Constitution as an administrator and in any event his appointment as an administrator is in itself irrational and unlawful. 

And the intervening party intends to launch in due course an application for review of the decision to appoint him as an administrator.  And we are saying then, because of lack of locus standi which on two bases, one which I have already mentioned in that his appointment is not in terms of the Constitution. 

Second M’Lord, he has not been authorised by the counsel and he does not even attach any letter of authorisation to the application itself.  Although in the papers he asserts that he has been duly authorised by the counsel. 

But as the EFF being a party in the counsel itself, as the major opposition party, he is then informing Your Lordship that no such resolution was taken, no any meeting was held in terms of which where he was appointed to act on behalf of the municipality. 

So as such we say on that bases again, he is or he does not have the proper locus standi.  Yes, but there are other aspects that we will deal with in due course.  But those are the ... (intervenes)”[77] and further:

“ADV HLONGWANE [Ncongwane]:  No there is not M’Lord.  Our simple approach was to indicate the lack of locus standi because if there is no locus standi, then the interdict cannot be granted”[78].

[115] If Mr Ncongwane succeeded to convince the Court in his argument, the application by the administrator would have been dismissed with tragic consequences for the resident of Kwamahlanga (or Siyabuswa as Mr Ncongwane states in his application for a permit”)

[116] This Court is of the view that it interpreted the regulations correctly. The regulations are clear.  The court applied the regulations as per the meaning thereof. Interpretation of the regulations are not necessary, as the language used is clear[79]. There are no reasonable prospects of success and this ground of appeal.

 

ADV LAKA SC; ADV ZWANE; TM KGOMO & ASSOCIATES AND APPLICATION FOR JOINDER MR SHILENGE (“The Laka-applicants”)

[117] Mr Shilenge, the attorney referred to in paragraphs 82 and 83 of the judgment, applied, very belatedly, to be joined as an applicant in the application for leave to appeal. The application is not opposed. The Court finds no reason not to agree to his joinder, and he will be joined as ninth applicant in this application, but no order as to costs will be made.

[118] In the first ground of appeal the Laka-applicants raise is that the court made findings in the applicants’ absence without disclosing any of the allegations to them, and without having any evidence.  This is simply not correct.  As alluded to earlier in this judgment the court afforded Mr Laka more than sufficient opportunity to explain his presence in court.  Mr Laka was the lead counsel on behalf of the team that he represented.  Even his junior counsel, Mr Zwane, attended court without a valid permit. Sindisiwe P Xulu, apparently a Director General in the Mpumalanga Provincial Government, signed the “permits” of Advocates Laka and Zwane. He/she is not the CEO, or head of institution, in whose employ the counsel was at the time, and most certainly not the Director of the LPC.

[119] Advocate Zwane was not entitled to be present in court with a permit, and he failed to produce a permit issued by the Director of the LPC of Mpumalanga as required in terms of the directions by the Minister of Justice.

[120] The facts before court clearly indicated that not one of the Laka-applicants were entitled to be in court on the relevant day as it would require Mr Laka SC to cross provincial borders. The court had the authority and, as stated earlier, an obligation to ensure that individuals and practitioners entering the court precinct does so in compliance with the law which includes the regulations by the Minister of COGTA

[121] The Laka-applicants further state, as do the other applicants in their applications, that the court arrogated itself the duties of an enforcement officer.  The court never acted accordingly and only acted as a responsible judicial officer would by ensuring that legal representatives appearing in its court comply with the regulations and directions by the Ministers of COGTA and Justice which regulations and directions are published in the Government Gazette for everybody’s notice, but was also brought to their attention by the Judge President on 27 March 2020, to no avail. 

[122] Enforcement of the regulations and legal practitioner’s’ code of conduct is left for the South African Police Services and LPC investigate and prosecute.  The LPC must investigate the individual applicants’ conduct by attending court without valid permits, and in breach of the regulations, and to exacerbate their cause, the attacks on the Court in the applications for leave to appeal, heads of arguments, social media, and the printed press, relying on patent falsehoods.  The Court have dealt with this ground of appeal, and is of the view that there are no reasonable prospects that another court would come to a different conclusion.

[123] A separate ground of appeal, not pursued in the heads of argument, or during argument held with the use of video-link, on the insistence of the Zondo-applicants, was that the court should have found that the amended regulations of 2 April 2020 by the Minister of COGTA, and the resultant amended directions by the Minister of Justice applied to the applicants attendance of Court on 31 March 2020.  I have dealt with it in the judgment and provided sufficient authority by the Supreme Court of Appeal that the new regulations did not have retrospective effect.  There are no reasonable prospects that another court would come to a different conclusion.

[124] The applicants, attending court rendering services while knowingly in breach of the regulations and their code of conduct cannot be seen to be entitled to any fees earned for the said day.  Even if such relief was not sought by their individual clients, the Court may mero motu sanction such conduct by ordering the forfeiture of fees by the practitioners involved. Such order is also not absurd or irrational, as a person who is not legally entitled to represent another person in court is not entitled to a fee. If the attendance of Court by the practitioners constituted a crime, punishable in law with a fine or jail sentence, or both, then most certainly such person/s is/are not entitled to be enriched by their participation in the crime. The Court cannot be seen to condone such conduct by practitioners, and even worse, to allow them to be rewarded for it.

[125] The Laka-applicants’ statement in the application that the court went onto a “mere joy-ride and an ego-trip” is incorrect, and yet another unwarranted, disrespectful attack on the Court and judicial system by the disgruntled applicants.  That much appears from the Court’s analysis of the regulations and directions in the judgment, and in this judgment.

[126] The  statement in the Zondo- applicants’  heads of argument, drafted   by Adv Mokhare’s team,  to the effect  that advocate Laka’s argument in court persuaded the court to believe that the practitioners were entitled to appear in court is not borne out by what transpired in court.  The Court have already indicated that it intended to write a judgment, about, inter alia, the practitioners from Gauteng’s presence in Court.  That is exactly what the court did. The “permits” that were handed to the Court’s secretary by Laka SC and Zwane, were issued by a Director-General employed in the Mpumalanga Provincial Government. It is glaringly clear that the permits were not issued in terms of the regulations or the directions. As far as TM Kgomo and Associates is concerned, no valid permit was tendered by them at all. Their interest in the application remains unclear.  I pause to mention that Mr ShIlenge also failed to produce a valid permit. The “permit” submitted by him to the Court’s secretary was issued by TM Kgomo and Associates. The Court discussed the requirements for a valid permit, and his permit clearly did not meet those simple requirements, but that did not prevent him from attending court illegally.

[127] In their heads of argument (not in the application for leave to appeal) it is stated that the court could not rely on the information presented to it by its secretary as it amounted to inadmissible hearsay evidence. To allege that the information amounts to “hearsay evidence” implies that there was evidence presented that the Court could take into account. According to the applicants no evidence were tendered upon which the Court could rely to arrive at its conclusion. Therefore the Court fails to see how the fact that the permits were handed to it by its secretary can constitute hearsay evidence, if according to applicants there was no evidence before Court at all. The fact remains that the permits handed to the Court’s secretary was handed to the Court by her. This is not denied by any of the applicants, and the attempt by the applicants’ counsel to discredit the Court’s secretary is opportunistic and ill-conceived.

[128] The court’s inference that the permits handed to it were the only permits in possession of its secretary, so handed to her by the practitioners, is the only reasonable inference to be drawn, and therefore it cannot be said that the Court came to the conclusions reached about it, and the findings with ulterior motives, malice or in bad faith.  The argument is without any foundation at all. It is a finding of fact by the Court that is not appealable. Even if it was appealable, no reasonable prospects of success exists that another court would come to a different conclusion on the same facts.

[129] It was not only the presiding judge that had an issue with the permits.  The Judge President on 27 March 2020 also directed that the individuals must ensure that they have permits and prove to the court that they were entitled to travel to Mpumalanga and appear in the Middelburg High Court.

[130] It is also interesting to note that when interviewed by the Citizen newspaper Advocate Laka SC denied that he was afforded the opportunity to address court regarding the permits and cross-border travelling.  According to him he was caught by surprise by the judgment, as the Court never referred to the permits during the hearing of the application on 31 March 2020.  His disclosures to the Citizen was obviously to create sensation and seek sympathy from the public after being caught out by the Court that he had ignored the regulations.  His disclosures to the Citizen newspaper was also blatantly untrue.  The transcript referred to earlier bears the truth. This conduct also deserves further investigation by the LPC.

 

MESSRS SETSOALO AND RAMPATLA (The Setsoalo-applicants)

[131] Mr Setsoalo represented the Setsoalo-applicants in Court.  The grounds of appeal relied upon by them corresponds to a large extent with those of the other applicants. The only new point raised by them was that the Court erred in its interpretation, and application of the definition of a “head of institution” contained in the regulations.

The regulations defines it as follows:

“head of an institution' means the accounting officer of a public institution and the chief executive officer or the equivalent of a chief executive officer of a private institution;

'institution' means any public or private institution that is engaged in the supply or distribution of an essential good or service”

[132] The Setsoalo-applicants’ case is that the permits purportedly issued by themselves,  as Chief Executive Officers of their respective law firms were in compliance with regulation 11 B (3)[80] and consequently permitted them to perform essential legal services as defined the Regulations. The Court pauses to mention that the alleged self-issued permits were never presented to Court. Further, that the ‘certificate’ that appears in the directions, issued by Minister of Justice, serves the same purpose as a ”permit” as defined in the regulations. It is the Applicants contention that the permit that was sought by the Court, issued by the LPC as required by the direction is a document that is not a compulsory document and required by the regulations. The head of the LPC, so the argument goes, could not consult with their client (the EFF) to determine the urgency of the matter due to the fact that the EFF is not a practicing attorney. This argument is absurd, as it was never the intention of the directions that the LPC should issue permits to attorneys’ clients.

[134] The interpretation of the regulations and directions by the Setsoalo-applicants is incorrect. The directions by the Minister of Justice were issued in terms of section 27 (2), read with regulation 10 (2), of the DMA. In terms of the directions a permit or a certificate must be issued by the head of institution. The directions defines the head of institution, for the purpose of the directions, as the Director of a Provincial LPC, and not a partner, or owner of an attorneys firm. Even if the Court’s view is wrong, the only permits that the Court had in its possession were those issued by the Director of Mpumalanga LPC on 1 April 2020, and mailed to the Court’s secretary as directed in the order of 31 March 2020. If the argument by Mr Setsoalo was sound, he would not have applied for permits to be issued after the event, but he would have provided the Court with those permits issued by themselves that according to them were in a car that left. The only inference the Court can draw is that both Mr Setsoalo, and Rampatla appeared in Court on 31 March 2020, without any permits, and that their version as conveyed to the Court’s secretary on 31 March 2020 was not true. The Court’s inference is corroborated by Mr Setsoalo’s confirmation to Court that he had no permit to attend Court on 31 March 2020[81]. The Court is of the view that there are no reasonable prospects of success that another court would interpret the regulations and directions differently.

 

CLOSING REMARKS

[135] As stated earlier, the Zondo-applicants’ application for leave to appeal was widely published in the social and the printed media. Judges receive and consider the evidence and argument before him or her and decide he dispute in terms of procedure and the law. Of course, Judges can get it wrong no matter how easy or difficult the dispute is to resolve or how clear the evidence or competent the argument before the Judge was. For that, parties may seek a reconsideration by a higher court. The Office of a Judge must however be respected. It is not about the person of the judge - it is about the office[82].

[136] Judges are open to criticism and, if fair and reasonable commentary is offered against any judicial decision or act which is said to be bad in law or contrary to the public good, no Court would treat that as contempt of court. It is the right of every citizen of this country to make fair comment, even robust comment, on the conduct of Judges as matters of public interest, provided, of course, that it is done bona fide, free of malice and without any oblique motive. However, when the tendered criticism amounts to scurrilous abuse of a Judge in his capacity as such, then the law of contempt may be invoked[83]

[137] In the context of contempt of court, the Constitutional Court had the following to say:

“'[24] Having established the general nature and purpose of the crime, it is necessary to delineate its scope. First, the interest that is served by punishing

scandalising is not the private interest of the member or members of the court concerned. The offence was created and has been kept extant in the interest of

the public at large:

"(T)he real offence is the wrong done to the public by weakening the authority and influence of a tribunal which exists for their good alone."

In the second place it is important to keep in mind that it is not the selfesteem,

feelings or dignity of any judicial officer, or even  the reputation, status or

standing of a particular court that is sought to be protected, but the moral authority of the judicial process as such:

"The purpose which the law seeks to achieve by making contempt a criminal offence is to protect 'the fount of justice' by preventing unlawful attacks upon individual judicial officers or the administration of justice in general which are calculated to undermine public confidence in the courts. The criminal remedy of contempt of court is not intended for the benefit of the judicial officer concerned or to enable him to vindicate his reputation or to assuage his wounded feelings. . . ."

To this one could usefully add with endorsement the following statement of principle by Gubbay CJ in Chinamasa:

"The recognition given to this form of contempt is not to protect the tender and hurt feelings of the Judge or to grant him any additional protection against defamation other than that available to any person by way of a civil action for damages. Rather it is to protect public confidence in the administration of justice, without which the standard of conduct of all those who may have business before the courts is likely to be weakened, if not destroyed."

[25] The crucial point is that the crime of scandalising is a public injury. The reason behind it being a crime is not to protect the dignity of the individual judicial officer, but to protect the integrity of the administration of justice. Unless that is assailed, there can be no valid charge of scandalising the court.”[84]

[138] It is in the public interest to maintain the integrity of the Judiciary, an essential strut supporting the rule of law. More so when it is considered that an independent Judiciary constitutes the third pillar upon which our constitutional democracy rests. The only way in which that pillar can function as such is through the due administration of justice. Accordingly, where the administration of justice is hampered by holding it up to ridicule and inculcating in the minds of the people distrust of the Judges charged with the administration of justice between man and man by acts of the nature disclosed by the applicants, and more specifically by Advocates Zondo, Laka SC, Zwane, Mr Masondo, TMN Kgomo And Associates, Mr Simon Setsoalo, Mr Tshepo Rampatla and Mr Hlulani Shilenge the claim to have done so pursuant to freedom of expression can, at best, be disingenuous and fatuous.

[139] The court fulfilled its constitutional obligations by judging the matter without fear or favour.  The applicants were aware of the regulations, directions, and the Judge President’s directives of 27 March 2020.  That, and with respect to the Zondo-applicants, the discussion between Mr Masondo and the Court on 30 March 2020 should have prevented the applicants from travelling to Middelburg.  Their disregard for directives, directions and regulations earned them the ire of the court. 

[140] Advocates Zondo and Laka SC were thoroughly engaged by the Court, and afforded the opportunity to address the Court about the regulations and its effect on the travelling to Middelburg.  Despite having been afforded the opportunity to prove that they failed to convince the Court that they were not in the wrong.

[140] Finally, the directives by the Judge President were instructive and directed the practitioners to comply with practice directives 10.11 and 29, and the regulations. The applicants’ (in the main application) disregard of the regulations, directions, and directives of this court started as early as 27 March 2020. Mr Masondo and his counsel should count themselves lucky that the court entertained the application, and that the merits became provisionally settled by way of a draft order that was made an order of court. The Court should have struck the application from the roll with a special costs award against them for non-compliance with the directives and the regulations.

[141] The applicant’s conduct by launching an unprecedented attack on the judge which spilled over to the printed and social media, based on falsehoods was to the detriment of our legal system. It is one thing to disrespect a person, but another thing to show disrespect to the court as an institution. Even if the practitioners differed from the court on its interpretation of the regulations and directions as it read on 31 March 2020, which they clearly did, they were still not entitled to be disrespectful and scandalous to the institution[85].

[142] The Court is of the view that the language used by the practitioners in their applications for leave to appeal, and to a larger extent the Zondo, and Laka – applicants, was inappropriate, disrespectful, and unnecessarily belligerent towards the Court, and Judge President.  The applicants are well within their rights to differ from the Court and the Judge President, but did not have to stoop to the levels they did by referring to the Court in, in the applications for leave to appeal and heads of argument, inter alia in the following derogatory terms;

“…call in question the …integrity and propriety of the acting Judge Brauckmann”

“Concocted a story not obtained from any admissible evidence….”

“Was malicious in making findings….”

“…acted in bad faith…”

“..defamed the applicants, particularly the 1^st applicant…through a narrative which is  false…”

“Demonstrated exceptional levels of incompetence …..”

“..was on a mere joy-ride and ego-trip’

“Judge’s (sic) power cannot be used for ulterior purposes..”;

“..got off the rails and went on a tirade of his own..”;

“..the presiding judges sole motive was to besmear the practitioners’ names”;

“ the judgment was motivated by ulterior motive, bad faith……., and incompetence”; and

“sole purpose to (sic) tarnishing the legal practitioners even if it meant relying on false information.”.

[143] The Court’s findings were based on the facts and the law as it stood on 31 March 2020, and not with ulterior motives or bad faith. There was no legal foundation whatsoever laid to support the “lifting of the judicial veil” warranting a punitive cost order of any nature against the judicial officer. The further indicates the applicants’ disrespectful attitude. Nobody is above the law.  No judge, no minister nor any other office bearer is above the reach of the law.  So too no practitioner, no matter what his seniority is.

[144] Advocate Zondo, Mr Masondo, Adv Ncongwane SC, Adv Zwane and Me Kwaza were not known to the Court before 31 March 2020.  The question begs why would the Court conceivably malicious, in bad faith and with the sole intention to damage their reputations as officers of the court, make findings against them. That whilst it afforded some practitioners the opportunity to produce their permits and to prove compliance, and when the Court found them to be non-compliant, it dealt with them accordingly.  Why could Mr Matlala comply fully with the regulations? He was in exactly the same position as the other applicants.

[146] The applicant’s arguments simply defies all logic. It is clearly a misplaced and ill-advised attempt to shift the blame for their own failures to comply with the regulations and the directives. They are not prepared to face the consequences of their own failures.

[147] The practitioners simply failed to comply with their own code of conduct and failed to uphold the constitution which requires them to uphold all laws (which includes regulations in terms thereof) as per the oath of office taken by them when they were admitted to practice as advocates and attorneys

 

CONCLUSION

[148] A ground of appeal common to all the applications before the Court is that the Court erred by failing to afford the applicants an opportunity to address the Court about their failure to comply with the regulations and where applicable the directions before the Court made the findings that led to the order the Court the practitioners must forfeit their fees, and directing the Registrar to send a copy of the judgment to the relevant LPC’s.  The Court is of the view that it afforded them an opportunity to address the Court about the regulations, and that there were no justification for their non-compliance with the regulations and directions. No explanation, no matter how long, or of what nature would have convinced this Court that the practitioners complied with their duties as practitioners, and that they were entitled to legally cross the border from Gauteng to Mpumalanga to render essential services on 31 March 2020. This is the only ground of appeal that bears a reasonable prospect of success.

[149] The Court is further of the view, given the reasons provided in this judgment, that leave to appeal should be granted to the all applicants to a full court of this division, but only with respect to the ground whether the Court committed a procedural irregularity by allegedly not affording the applicants an opportunity to make submissions to the Court before making the order depriving them of their fees and sending the judgment to the LPC. No prospects of success lies in any of the other the applicants’ grounds of appeal.

 

ORDER

[150] The Court accordingly makes the following order:

[150.1] The applicants are granted leave to appeal to a full court of this Division only in respect of the question whether the court failed to afford the applicants an opportunity to state their cases before the Court arrived at the findings and order the order the Court made on 31 March 2020;

[150.2] There is no order as to costs.

           

 

 HF BRAUCKMANNN

 ACTING JUDGE OF THE HIGH COURT

 

         

JUDGMENT DELIVERED ELECTRONICALLY DUE TO COVID-19

REPRESENTATIVE FOR THE 1^st; 2^nd; 4^th; 5^th and 6^th Applicants: ADV W Mokhare SC, Adv T Ngwenya and Adv C Lithole    

INSTRUCTED BY: Finger Attorneys

REPRESENTATIVE FOR THE 4^th APPLICANT: Adv TG Madonsela SC        

INSTRUCTED BY: Mohube Setsoalo Attorneys

REPRESENTATIVE FOR THE 7^th; 8^th and 9^th APPLICANTS: Mr Setsoalo

INSTRUCTED BY: MOHUBE SETSOALO ATTORNEYS

DATE OF HEARING: 04 MAY 2020                                        

DATE OF JUDGMENT: 29 MAY 2020                               

 

[1]Weiner J, unreported case: Lerato Moela and Another v Adam Habib and Another, High Court South Africa, Gauteng Local Division, Johannesburg, Case no 9215 / 2020, paragraph [1].

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