You can't unscramble eggs, SCA tell Judge Phatudi

Date: 20 October 2019 By: Anton van Zyl

“You cannot unscramble a scrambled egg” was, in short, the message that the Supreme Court of Appeal (SCA) sent to Limpopo High Court judge George Phatudi. Judge Phatudi ruled in 2018 that all cases in which “attorney” Vhutshilo Nange had appeared for clients be declared null and void. Judge Phatudi’s ruling was overturned by the SCA this week, which came as a relief to many people who had made use of Nange’s services as legal representative.

Judge Phatudi’s ruling in April 2018 put the cat among the pigeons and caused widespread uncertainty. In a case that appeared before him, he had to decide in a dispute between Anton Ramaano Attorneys and NW Civil Contractors (NWCC). NWCC was previously represented by Vhutshilo Nange.

Ramaano’s legal team argued that Nange was not in possession of the required fidelity fund certificate, which effectively disqualified him from practising as an attorney. Judge Phatudi agreed with them and declared the previous cases in which Nange had appeared as null and void. This had a ripple effect, because it meant that all cases where Nange had appeared, such as divorce settlements, would have to start afresh. NWCC subsequently applied directly to the SCA to appeal this ruling.

The dispute between Ramaano and NWCC started around March 2015. Ramaano represented the construction company in a case against a local municipality. The matter was settled on 7 March 2015 and the municipality agreed to pay R14 million to NWCC. Several months later, Ramaano sent a bill of just over R1,3 million to NWCC for legal services rendered.

When the bill remained unpaid, Ramaano issued summons against NWCC. The latter disputed the bill and later argued that a barter agreement was in place whereby construction work at the attorney’s premises were to be offset against the legal bill. None of these arguments were, however, presented in court because NWCC had filed its plea a day too late.

NWCC’s legal representatives subsequently filed a rescission application, asking the court to condone the late filing of the plea. While this was still in the process of being heard, the Thohoyandou sheriff started with the process to attach and remove some of the goods of NWCC. Their legal team rushed to court to ask for interim relief to stop the process while the rescission application was still pending. This application served before acting judge Maake Kganyago on 22 September 2016. He agreed with NWCC’s legal team (led by Nange) and ordered that the warrant of execution be stayed, pending the rescission application.

On 28 September 2016, Ramaano went to court again in trying to set aside acting judge Kganyago’s ruling. The basis for the application was that NWCC’s legal representative, Vhutshilo Nange, did not have a valid certificate that allowed him to appear on behalf of clients.

The case served before judge Phatudi and he was not very sympathetic towards Nange and NWCC. He declared that all the cases in which Vhutshilo Nange Attorneys had appeared be declared null and void ab ininito (from the beginning). NWCC’s initial applications to stop the processes were dismissed with cost. Judge Phatudi also dismissed the application for rescission of the default judgment, saying that the appellant had failed to supply a reasonable defense for the late filing of a plea.

The case eventually found its way to the SCA and served before a panel of five judges. On Monday (14^th) the judges made their ruling public and provided clarity on what should happen when a client’s legal representative is discovered not to possess the necessary documents allowing him or her to represent such a client legally.

Judge Phatudi is criticised for allowing relief that a respondent seemingly never sought and for making a ruling that was near impossible to implement. “How, it must be asked, is the order to be enforced and, by whom? Moreover, was it competent for a single judge to appropriate himself the power to simply set aside ‘all rulings and judgments’ that had previously (been) issued in that court?” the judges remark.

The SCA provides clarity on situations where legal representatives fall short of the requirements set by the law, especially insofar as the need for a fidelity fund certificate is concerned. “The primary purpose of the fidelity fund is to reimburse clients of legal practitioners who may suffer pecuniary loss due to the theft of money or property that they had entrusted to an attorney,” the ruling reads. The legislation tries to prevent a case where an attorney is “let loose on unsuspecting members of the public”.

The SCA judges point out that remedies are specified in the legislation, should attorneys not adhere to the rules. A person who acts as a legal practitioner without the necessary certificates may not charge any fee, reward or disbursement for services delivered. The Act also provides for criminal prosecution.

“To uphold the approach of (judge) Phatudi would undermine the primary purpose of the Act, which is to protect the public and would have grave consequences for the administration of justice, the rule of law and legal certainty,” the judgments states.

The SCA has also ruled that the application for the rescission ought to have succeeded and effectively reverses the default judgement of acting judge Mushasha that was issued on 11 August 2016. NWCC was awarded costs in all the cases.

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Anton van Zyl

Anton van Zyl has been with the Zoutpansberger and Limpopo Mirror since 1990. He graduated from the Rand Afrikaans University (now University of Johannesburg) and obtained a BA Communications degree. He is a founder member of the Association of Independent Publishers.

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