Summary
An Application was brought by the Applicant for leave to Appeal to the Supreme Court of Appeal but only in respect of the cost order.
Subsequently the Applicant launched an application to seek leave to amend its notice of Application for leave to appeal to seek leave to appeal also in respect of the sanction imposed by this court in its judgment delivered on 14 February 2017.
FACTS
The Applicant, the Law Society sought by way of application proceedings to have the name of the First Respondent struck from the roll of Attorneys.
In a written judgement, the FirstRespondent was held to have acted dishonestly but, whilst deserving of censure, her conduct was held not to have rendered her unfit to continue in practice. The application to strike her name from the roll of attorneys was accordingly refused, but she was nevertheless sentenced to pay a fine of R20 000 (Twenty Thousand Rand), and/or conditionally suspended for 3 (Three) years. The Court made no order as to costs.
The applicant delivered a substantive application for leave to appeal, but only in respect of the costs order.
During the course of the same day, Counsel for the Applicant delivered a written argument in anticipation of the hearing of the application for leave to appeal. The opening paragraph read as follows
“at the hearing of this matter the applicant will seek leave to amend its notice of application for leave to appeal to seek leave to appeal also in respect of the sanction imposed by this court in its judgement delivered on 14 February 2017”.
The counsel for the First Respondent delivered additional written argument dated 23 March 2017 dealing mainly with the belated attempt to broaden the appeal.
• Counsel firstly drew attention to the provisions of Rule 49(1)(b) of the Uniform Rules of Court which provide for an application for leave to appeal to be made within 15(Fifteen) days and pointed out that whilst the application for leave to appeal against the cost order had been lodged on the last day permitted leave to appeal against the sanction imposed upon the First Respondent and as contained in counsel’s heads of argument, was well out of time.
• The First Respondent submitted that the Applicant, by giving notice of intention to seek leave to appeal against the costs order only, had thereby made a conscious election to abide by the remainder of the judgement including the sanction imposed.
• Relying upon Natal Rugby Union v Gould [1998] ZASCA;1999(1) SA 432 (SCA)
Counsel submitted that the Applicant was precluded, by virtue of the doctrine of pre-emption, from bringing a late application for leave to appeal against the sanction imposed.
Counsel for the First Respondent contended that it was impermissible for the Applicant to informally bring a late application to amend its notice of leave to appeal to include leave also against the sanction without a substantive and timeous application for condonation.
Counsel for the Applicant informed the court that it accepts the court’s determination with regard to the first and second enquiries with the latter being that the respondent despite her misconduct remains a fit and proper person to continue in practice. Counsel for the Applicant faintly suggested the possibility of an increased fine.
Counsel for the Applicant stipulated that in all matters involving dishonesty, the Applicant was obliged to place them before the court for decision and that the Applicant, as custos porum was then entitled to costs order in its favour.
In Law Society v Taute formulated the correct approach as follows-
“ I think that the court should now lay down that the mere failure of the Law Society to prove the charges made, will not entitle the respondent, to costs against the society, that the liability of the society for the respondent’s costs in unsuccessful proceedings must depend upon the circumstances of each case and that the society will not be ordered to pay such costs where there are no special circumstances calling for such an order, such, for example, as the failure of the society to investigate the change adequately before proceeding with it or the unreasonable pressing of a charge which is without foundation”.
Applying this test to the present proceedings, there is no doubt that the correct order is no order as to costs. The society’s conduct in the matter is not open to the least criticism.
Held
The correct principle is rather that the decision regarding costs in such circumstances would depend upon the particular facts of the matter, would fall within the discretion of the court of first instance and that a court on appeal would be reluctant to intervene in this regard, unless the lower court failed to exercise a judicial discretion.
The court held that;
(a) The belated informal application to amend the notice of application for leave to appeal to include leave to appeal the sanction imposed upon the first respondent, is dismissed.
(b) The application for leave to appeal the costs order contained in the written judgement of this court and as delivered on 14 February 2017, is likewise dismissed.
The Applicant is to pay the First Respondent’s costs of the application, including the costs of two Counsel, where actually employed.
Value
The mere failure of the Applicant to prove the charges made, will not entitle the Respondent to costs against the Applicant that the liability of the Plaintiff for the Respondent’s costs in unsuccessful proceedings must depend upon the circumstances of each case.
The Applicant will not be ordered to pay such costs where there are no special circumstances calling for such an order, such, for example, as the failure of the Applicant to investigate the change adequately before proceeding with it or the unreasonable pressing of a charge which is without foundation.
