CASE LAW UPDATE

Facts: The judgment centres around the interpretation of section 60(11B)(c) of the Criminal Procedure Act 51 of 1977 (CPA). At the hearing of the trial against the accused, the State applied to introduce bail proceedings records from Bellville District court in respect of accused 3 and 14. The State seeks to utilise the testimony of the two accused at the bail hearing against them at trial. The legal representatives appearing on behalf of accused 3 and 14 objected to the State's application. The crux of their objection was that when the bail proceedings were heard before the bail court, the court failed to warn the accused before they could testify that anything they said as evidence in the bail proceedings might be used against them at their trial and that such evidence would become admissible in any subsequent proceedings.

Application: The State applies to introduce bail proceedings records in respect of accused 3 and 14 in this matter. The State seeks to utilise the testimony of the two accused at the bail hearing against them in the trial. The accused are facing various counts including murder and attempted murder.

Discussion: Without explaining the rights of the accused as envisaged in section 60(11B)(c) of the CPA, both accused were called to testify in support of their application to be released on bail. Accused 3 testified and denied the charges levelled against him. He explained to the court where he resided and stated that he had no pending cases. During cross-examination, he admitted that he was a gang member of the Firm Boys and that he was no longer a gang member. He asserted that he has repented and is now attending church. Accused 14 also testified at the bail proceedings. He explained that he was applying to be granted bail so that he could return to school. Accused 14 admitted that he was a Terrible Josters gang member but that he no longer belongs to that gang. He also admitted that he has one tattoo of the Terrible Josters. Accused 14 denied the charges levelled against him and stated that when the alleged murder was committed, he was in hospital. The two accused were eventually denied bail. Section 60(11B)(c) entrusts the bail court with a mandatory injunction that if the accused elects to testify during bail proceedings, the court must warn him that anything he says may be used against him at his trial and that such evidence becomes admissible in any such proceedings.

Findings: The magistrate who heard the bail proceedings did not explain or warn the two accused when they elected to testify that the evidence may be used against them at their subsequent trial and that such evidence would become admissible in such proceedings. The admission of the bail record will not affect the fairness of accused 3's trial as his gang membership in the trial has already been confirmed or admitted. The admission or exclusion of the bail application record will not impact any finding the court makes that accused 3 is or was a Terrible Joster member. Regarding accused 14, it is essential to underscore that he was a minor at the time the bail proceedings were conducted. He was 16 years of age. The bail court did not accord accused 14 with the fundamental protection envisaged in the Constitution and the Child Justice Act 75 of 2008. The admission of the purported evidence he tendered during the bail proceedings would render his trial unfair.

Accused 3: The State’s application for the admission of accused 3’s record and contents of bail proceedings is granted.

Accused 14: The State’s application for the admission of accused 14’s bail proceedings record is dismissed.

LEKHULENI J

Facts: The respondent instituted action against the municipality. The claim was for specific performance of the contract, alternatively enrichment. After negotiations, the respondent’s claim was settled. The settlement was initiated by an offer made at the instance of the municipality represented at the time by its then acting municipal manager, Mr Mosala, who had at all material times instructed their attorney and senior counsel. The respondent accepted the offer. The acceptance constituted a settlement in terms of which the municipality would pay the respondent the amount of R19,140,000 and culminated in the order taken by consent. The order recorded that the settlement shall, by agreement between the parties, be made an order of court and that it shall constitute a judgment of the court entitling the respondent to proceed to execution in the event of the municipality’s failure to comply therewith. During events following the consent order the municipality proposed a structured payment plan. The respondent declined acceptance and caused a writ of execution to be issued, whereupon the sheriff attached movable property to the value of R862,600.

Appeal: This case concerns the legality of a settlement agreement. The consent order between the parties emanated from a defended action instituted by the respondent against the municipality and was made an order of court. Subsequent thereto, the court dismissed the application by the municipality to have the consent order rescinded. Following that dismissal, the judge granted the municipality leave to appeal to this court. The central question is whether it would be appropriate for the court to rescind an earlier court order which had incorporated a compromise or settlement agreement concluded between the appellant (municipality) and the respondent during contested proceedings.

Discussion: The municipality posits that the legality issue is underpinned by the lack of authority of its manager to have concluded the agreement and maintains that it renders the consent order liable to be set aside. The municipality contends that the issue goes to the root of the matter and constitutes just cause for seeking rescission. The crux of the municipality’s case for rescission was that the acting municipal manager, Mr Mosala, acted contrary to the council resolution to defend the action instituted by the respondent and by concluding the settlement agreement it became obliged to incur expenditure that was not in accordance with an approved or adjusted budget, in terms of its approval process and the Local Government: Municipal Finance Management Act 56 of 2003 (MFMA). Where a party seeks to make a case that an official has exceeded the mandate conferred on him by a resolution of the municipal council it is incumbent on it to provide the resolution. While conceding that the resolution to defend is not included in the papers, counsel for the municipality argued that, in any event, Mr Mosala did not have the authority to conclude the settlement agreement because no budget was approved. The respondent disputed this.

Findings: The respondent’s main claim in the action was for specific performance of the contract that flowed from the award of a tender. While admitting that it had purported to contract with the respondent the municipality denied that a lawful contract had resulted. It filed a counterclaim in which it sought an order that the purported contract was unlawful and void ab initio. In respect of the alternative claim, it tendered to pay to the respondent such sum as may ultimately be determined as constituting any enrichment enjoyed by the municipality, because of goods and services delivered to the municipality pursuant to the purported agreement. The mandate given to counsel includes the authority to compromise the action or any matter in it, unless he has received instructions to the contrary. This did not amount to incurring “expenditure” as envisaged in section 15 or section 19 of the MFMA. It merely involved the determination of the extent of a pre-existing liability. Unless some impropriety in the conduct of the legal practitioners is established, and none was suggested, or the settlement is shown to be unlawful on another basis, the municipality is bound by it, and by the order of court. The municipality has advanced no persuasive argument for rescinding the order of the court a quo.

Order: The application for condoning the late filing of the notice of appeal is dismissed with costs. The appeal is dismissed with costs.

RUGUNANAN J (EKSTEEN J and BODLANI AJ concurring)

Facts: The applicant is a 47-year-old male South African citizen. He holds an LLB degree, conferred on him by the University of South Africa. He commenced his LLB studies in 2016. He completed them in 2023. He therefore obtained his LLB degree over more than four years of study. He has never been admitted as an attorney or advocate previously. He has met the requirements for service of his application for admission on the relevant Societies of Advocates and the Legal Practice Council as set out in section 24(2)(d) of the Legal Practice Act 28 of 2014 . On receipt of the application, the LPC considered it, but was not satisfied that the applicant meets the requirements for admission and did not issue the certificate.

Application: The LPC requested the applicant to withdraw the application. The applicant did not remove the application from the unopposed roll of 20 March 2024. This prompted the LPC to instruct its legal representative to attend court to secure the removal of the matter from the roll to file an answering affidavit. The court acquiesced the LPC’s request and reserved costs for that day’s appearance.

Discussion: Until 1 November 2018, the Admission of Advocates Act 74 of 1964 (AAA) regulated the admission of advocates. It set out various requirements for their admission. It is common cause that the applicant meets the requirements for admission under that Act. The difficulty confronting the applicant is that on 1 November 2018, the LPA came into operation, prescribing additional requirements. The additional requirements are set out in sections 26(1)(c) and (d). The applicant has not complied with these requirements. He has not undergone all the practical vocational training requirements as a candidate legal practitioner prescribed by the Minister and passed a competency-based examination or assessment for candidate legal practitioners as may be determined in the rules. The applicant seeks to avoid these requirements by invoking section 115. It provides for the admissions of persons who were previously entitled to be admitted and enrolled as an advocate or attorney under the Act. He relies on the full court’s judgment in Ex parte Goosen (GJ).*

Findings: The applicant fails on a plain reading of section 115. The date referred to in section 120(4) is 1 November 2018. It is common cause that he did not meet the requirements for admission in terms of section 3 whilst the AAA was still in force, that is, prior to 1 November 2018. Applicant’s reliance on the remarks in Goosen is unsustainable. What the full court posited is that persons who met requirements to be admitted in terms of section 3 may invoke section 115 even if their application for admission is instituted after 1 November 2018. The applicant does not fall under this category either. Since the applicant did not meet the requirements to be admitted in terms of section 3 of the AAA prior to 1 November 2018, when the LPA came into effect, it did not take away his right to be admitted in terms of section 3 because that right had not vested. Therefore, the requirements for admission set out in sections 24 and 26 of the LPA apply to him unequivocally.

Order: The application is dismissed with costs on the attorney and client scale, including the LPC’s costs of 20 March 2024.

MODIBA J (SUTHERLAND DJP concurring)

* See Ex parte: Goosen [2019] ZAGPJHC 68 and Ex parte: Goosen [2019] ZAGPJHC 154.

Facts: In 2019, a complaint was lodged with the Legal Practice Council by Squire Smith & Laurie Inc (Squires) regarding applicant’s conduct. Squires had been appointed by applicant’s firm, NJ du Plessis & Associates (NJDP), as local correspondent. Concerns were raised about the way NJDP had billed the State Attorney for work allegedly carried out by Squires when this had not been the case. Also in 2019, a complaint was lodged from the Eastern Cape Department of Education pertaining to NJDP’s alleged abuse of court process. The applicant followed up with the LPC about the complaints and heard that the complaint from Squires had been dismissed. However, in 2023 he was caught off guard when he was informed that the Investigating Committee had considered the matter in 2022 and referred it to the Disciplinary Committee.

Application: The applicant had indicated that he intended to rely on the undue delay, the respondent’s failure to reply to his response to the allegations levelled against him, and the dismissal of the complaint. However, at the proceedings, the Disciplinary Committee dismissed the applicant’s points in limine. This is an application for the review and setting aside of the decisions taken by the Disciplinary Committee. The applicant also seeks an order interdicting the LPC from continuing with the disciplinary proceedings, pending the outcome of the application, and directing the LPC to refer one of the complaints back to the Investigating Committee.

Discussion: The disciplinary proceedings against the applicant have not been finalized. The applicant’s case, in the present matter, rests on the delay that has occurred and the prejudice that has resulted. The complaint in the Squires matter was lodged in February 2019 and the disciplinary proceedings commenced in January 2023. This represents a period of almost four years. The closest that the LPC comes to explaining the delay is an allusion to the managerial shortcomings and inevitable complications caused by the transition of the administration of the legal profession from the Cape Law Society to the provincial LPC, involving two different offices. This is inexcusable. A professional body that has been established to regulate a profession must conduct itself according to the same high standards expected from the practitioners themselves. The delay in question was undue and chiefly attributable to the LPC’s inaction.

Findings: The applicant has drawn attention to the prejudice caused by the delay, both to his personal life and to his professional life. This is, to some extent, unavoidable, given the nature of the complaint and the inevitable anxiety that accompanies such proceedings. Importantly, however, there is no indication that the delay has materially prejudiced the applicant in the conduct of the proceedings themselves. The four-year delay in the present matter, the efforts made by the applicant to resolve it, and the inexcusable conduct on the part of the LPC must be balanced against the remaining factors. These include the absence of material prejudice caused to the applicant and the serious nature of the complaint itself. Considered holistically, the undue delay cannot be seen to have crossed the threshold for the proceedings to be deemed unreasonable and unfair. Similarly, when all the factors pertinent to the Department’s complaint are considered holistically, any undue delay has not inevitably and irremediably tainted the overall substantive fairness of the proceedings were they to continue. That threshold has simply not been crossed.

Order: The application is dismissed. The applicant is directed to pay the LPC’s costs on a party-and-party basis.

LAING J