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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 1st APPLICANT

SS MASONDO 2nd APPLICANT

ADV THAMI NCONGWANE SC 3rd APPLICANT

ADV ANDREW PAPI LAKA SC 4th APPLICANT

ADV LUCKY ZWANE 5th APPLICANT

TMN KGOMO AND ASSOCIATES 6th APPLICANT

SIMON MOHUBE SETSOALO 7th APPLICANT

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: YES

………………………………. 27 May 2020

SIGNATURE DATE

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TSHEPO RAMPATLA 8th APPLICANT

HLULANI SHILENGE 9TH APPLICANT

IN RE:

THE ADMINISTRATOR OF JS MOROKA 1ST APPLICANT

DR JS MOROKA MUNICIPALITY 2ND APPLICANT

MEC FOR COGTA, MPUMALANGA 3RD APPLICANT

MINISTER OF COGTA 4TH APPLICANT

And

THAMMY GOODWIN KUBHEKA 1ST RESPONDENT

THE ECONOMIC FREEDOM FIGHTERS 2ND 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

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together. Nkosi sikelel' iAfrika1” 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 20204 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,

1Weiner 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]. 2 GOVERNMENT GAZETTE No 43148 of 25 MARCH 2020 Department of Co-operative Governance and Traditional Affairs R 398 Disaster Management Act (57/2002): Regulations made in terms of Section 27(2) by the Minister of Cooperative 3 Description given to the COVID10 virus by the 1st and 2nd applicants attorneys in paragraph 4 of a letter by 1st and 2nd applicants’ attorney to the Judge President (see paragraph 2 of this judgment). 4 Now reported by Saflii: (1170/20) [2020] ZAMPMHC 3 (3 April 2020

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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

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(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 Court5, to the amusement of all the other applicants in

this application:

“A D V L A K A : M ’ L or d y o u s h o u l d n ot b e o v e r l y w or r i e d , w e d o n ot

h a v e C or o n a . I s a i d . . . ( in t e r v en es ) ”

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

5 Transcript page 5, lines 4 &5.

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[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

judgment6 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 Court7.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.

6 Now reported by Saflii: (1170/20) [2020] ZAMPMHC 3 (3 April 2020) 7 In re Phelan (1877 81); S v MOILA 2006 (1) SA 330 (T) p346 F to H

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[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 31st 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.

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[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 himself8. To exacerbate matters Mr Masondo

8 “From: Sibusiso Masondo <sibusiso.masondo@ssmattorneys.co.za>

Date: Tuesday, 07 April 2020 at 10:28

To: <kulisanis@lpc.org.za>

Cc: Mxolisi Zondo <mxo.zondo@thulamelachambers.co.za>, Thisha Mhlanga <thisha.principal@icloud.com>

Subject: REQUEST FOR AN ESSENTIAL SERVICES PERMIT I.T.O REGULATION 11076 of 31 MARCH 2020

Dear Sir,

1. We refer to the above matter.

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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

2. I wish to hereby confirm that our firm, SSM Attorneys Incorporated, has been instructed to

represent Dr. J.S Moroka Local Municipality and the Department of Co-operative Government and

Traditional Affairs in two urgent applications before Judge President Legodi and Acting Justice Brickmann (sic)

with case numbers – 1114/2020 and 1170/2020 in Middleburg, High Court.

3. We can confirm that the law (sic) the urgent applications will be heard between 31 March 2020 to 07 May

2020. We require permits for purposes of consulting clients, drafting as well as settling various legal pleadings

and notices which requires us to consult with our Counsel Adv. Zondo as well our clients for purposes of

preparation and argument in the Middleburg High Court.

4. Our firm will be represented by the following representatives of the firm:

4.1. Mr. Sibusiso Masondo – […]

4.2. Advocate Mxolisi Zondo – […]

4.3. Ms. Patience Kwaza - […] – (the assistant)

Many thanks and kind regards,

Sibusiso Masondo

Attorney” [Own emphasis added]

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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>

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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 DIRECTIVES10

[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

9 See paragraph [14] of this judgment. 10 Practice Directive for Mpumalanga Division of the High Court [2020] ZARC 2 (29 January 2020)

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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.

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[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.

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[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 1st 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.

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[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:

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“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.

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[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 infection11.

THE TELEPHONE CONVERSATION WITH MR MASONDO ON 30 MARCH

2020

11 “ADV LAKA ADDRESSES THE COURT: M’Lord we will not, we would not like to come back tomorrow. COURT: …………..And I do not want to expose everybody unnecessary to this horrible virus that is around. ADV LAKA: But M’Lord if we come tomorrow you are exposing us.”

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[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 regulations12. 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

12 The final lockdown Regulations Government Gazette 25 March 2020, Government Gazette No 43148 number 398, regulation 11B (1) (a) (iii) dated 25 March 2020 and the directions by the Minister of Justice and Correctional Services Government Gazette 43167 of 26 March 2020 and Government Notice No 418. 13 Record p 1 line 20-24.

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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

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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.

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[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 hereto14:

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

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

14 Record p 1 line 6-19.

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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

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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 false16.

[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

15 Main judgment par [78]. 16 See transcript p6 line 12-15.

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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.

17 See transcript p1 line 25 – p6 line 14.

25

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

26

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.

27

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.

28

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.

18 Citizen, 8 April 2020 by Bernadette Wicks “Acting Judge slams legal eagles for breaking lockdown ‘rules’.

29

“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

19 Source: https://citizen.co.za/news/covid-19/2266682/acting-judge-slams-legal-eagles-for-breaking- lockdown-rules/ 20 See footnote 15 above.

30

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

21 Ex Parte: van Heerden (1079/2020) [2020] ZAMPMBHC 5 (27 March 2020)

31

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.

32

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 permit22.

Even after a humble and reasonable invitation by the Court in a

22 Transcript p44 line 18.

33

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, did23.

23 State v Ernest Mavimbela and 3 Other Skukuza Matters, Unreported judgment, Mpumalanga Division,

34

[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 regulations25

Mbombela, Case No R 113/19 (Full Court) paras 23.1 to 23.2; S v Mamabolo (E TV and Others

Intervening) 2001 (3) SA 409 (CC) 24 “1. The Rule Nisi hereby issue, returnable on the 7th May 2020 at 10h00, or as soon thereafter as the

matter can be heard (NO 9 on the Opposed Roll); calling upon the respondents to show cause why the following interim order should not be made final.

2. The intervening party, the Economic Freedom Fighters is admitted to the proceedings as the second respondent.

3. The first respondent is hereby ordered to vacate the premises of the second applicant with immediate effect on 31 March 2020.

……. 12. Costs are reserved.” [OWN EMPHASIS] 25 Regulation 11 B (1) (a) (iii)

35

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

26 Transcript page 6 line 12-15.

36

struggling to justify his presence in court vis-a vis regulation 11B (1) (a)

(iii), to the amusement of the court, and the practitioners, stated27:

“… 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

Laka28.

[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

27 Page 6 line 3-7. 28 Transcript page 6 lines 8-11.

37

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:

38

“…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

39

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 1st 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 permit29.

29“ COURT: The other thing that I just want to quickly just want to deal with, there are three individuals here that do not have permits. Who are they? MR ZONDO: That is my attorney My Lordship, that is ...(indistinct). COURT: Ja and Mr Setswalo, you do not have one. MR SETSWALO: I also do not have one.” [Own emphasis]

40

[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

41

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

30 See Van Heerden, supra.

42

additional steps to be taken against the Minister31. 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.

31 https://ewn.co.za/2020/04/23/da-eff-want-more-measures-taken-against-ndabeni-abrahams-for-

lockdown-breach: AND https://citizen.co.za/news/south-africa/courts/2273189/stella-ndabeni-

abrahams-given-r1000-fine-for-lockdown-lunch-violation/

32 South African Government website www.gov.za “President Cyril Ramaphosa censures Minister Stella Ndabeni-Abrahams for Corona Virus see COVID-19 lockdown lunch “ 8 April 2020.

43

[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 Africa33 (“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.

33 Act no 108 of 1996

44

[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

45

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 Constitution34.

[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

Constitution36. A judge must, without fear or favour, and in terms of the

inherent powers of the court37 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.

34 Campus Law Clinic, University of KwaZulu-Natal v Standard Bank 2006 (6) SA 103 (CC) at par 20 and 21. 35 Section 165(2) of the Constitution. 36 Section 174(a) of the Constitution. 37 Section 173 of the Constitution.

46

[60] Section 16 and 17 of the Superior Court’s Act38 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 appeal40.

[61] The criteria, which had been adopted over many years in applications

for leave to appeal now has statutory force41. 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

success42.

[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 leave43. The award of

38 Act 10 of 2013. 39 Leave to appeal may only be given where the judge or judges concerned are of the opinion that – (a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration: (b) the decision sought on appeal does not fall within the ambit of section 16(2)(a); and (c) where the decision sought to be appealed does not dispose of all the issues in the case, the appeal would lead to a just and prompt resolution on the real issues between the parties.

40 Four Wheel Drive Accessories Distribution CC v Ratan NO 2019 (3) SA 451 (SCA) at para [34]. 41 Erasmus; Superior Court Practice; RS 11, 2019, A255. 42 Erasmus, supra. 43 Logistic Technologies (Pty) Ltd v Coetzee and Others 1998 (3) SA 1071 (W) at p1075.

47

costs is a matter in respect of which courts exercise a true discretion44.

Compelling reasons must exist why the appeal should be heard45.

[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 principles46.

[64] The well-known principles in the matter of R v Dhlumayo47 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

44 Public Protector v SA Reserve Bank 2019 (6) SA 253 (CC) 45 Tsoane v Minister of Prisons 1982 (3) SA 1075 (C) at 1076 E – 1077 B. 46 Erasmus, supra, A2-72B. 47 1948(2) SA 677 (AD) at 198 – 199.

48

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 proven48.

[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 with49.

48 Magistrate Pangaker v Botha and Another 2015(1) SA 503 (SCA) at par [39]. 49 Public Protector v SA Reserve Bank 2019(6) SA 253 (cc) par [46] and [47].

49

[68] Constitutional office-bearers should not be allowed to abuse their

power of office with impunity50 . The Constitutional Court51 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:

50 Public Protector, supra par [49]. 51 Public Protector, supra par [71] and [72] [71] A proper starting point is in my view to remind ourselves of what the ordinary meaning of bad faith is.

A dictionary meaning is “[i]ntent to deceive”. The meaning of bad faith or malicious intent is generally accepted as extending to fraudulent, dishonest or perverse conduct; it is also known to extend to gross illegality. Here too the perverse, seriously dishonest or malicious conduct must link up, not merely with the seniority of the person or high office occupied, but also with the seriousness of the actual or reasonably foreseeable consequences of that conduct.

[72] The correct approach to determining the existence of bad faith is therefore one that recognises that bad faith exists only when the office-bearer acted with the specific intent to deceive, harm or prejudice another person or by proof of serious or gross recklessness that reveals a breakdown of the orderly exercise of authority so fundamental that absence of good faith can be reasonably inferred and bad faith presumed. This is so because the mischief sought to be rooted out by rendering bad faith so severely punishable, particularly within the public sector space, is to curb abuse of office which invariably has prejudicial consequences for others. Abuse of office undermines the efficacy of State machinery and denies justice and fairness to all people and institutions.

50

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

appeal court.

2. An appeal lies against those findings52.

[71] The Supreme Court of Appeal53 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

Another54 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

52 Atholl Developments (Pty) Ltd v Evaluation Appeal board for the City Johannesburg 2015[JOL] 33081 (SCA). 53 Atholl Developments, supra, at para [8] 54 [2012] 4 ALL SA 149 (SCA) paras [16] – [17].

51

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 1st to 6th 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”).

55 Tecmed supra par [17].

52

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, t6here 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

53

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 Middelburg56. 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

56 See paragraph [14]

54

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 conduct57.

[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

57 Minister Bheki Cele: Coronavirus Covid-19 regulations levels of compliance and adherence 22 May 2020. https://www.gov.za/speeches/minister-bheki-cele-coronavirus-covid-19-regulations-level “Arrests for contravention of regulations At one point towards the end of April when we were still on Level 5, we had about 107 000 cases opened with 118 000 people charged for contravention of the lockdown regulations. In just over a month, this number has more than doubled and is almost at 230 000 for contraventions that include: Cross border and inter-provincial movement”

55

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.

56

[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

57

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 Rules58 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 conduct59.

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 email60 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

58 5th edition, 2009, chapter 36 – page 987 to 988.

60 See footnote 2 above.

58

to appeal, ventures into the facts found by the court, namely that Mr

Zondo, an advocate from Gauteng, who in his own words61, “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 process63. 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

investigation64.

61 Transcript page 1 line 13 62 Regulation 11B (1) (a) (iii). 63 Section 173 of the Constitution. 64 Eric H Magagula, and L Manzini v Minister of Police (2019) ZAMPMBHC 6, 1530/20 (15 October 2015; Zulu v Majola 2002 (5) SA 466 (SCA); Plaaslike Oorgangsraad Bronkhorstspruit v Senekal 2001 (3) SA (9HHA).

59

[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-1965.

65 See Applicant’s own concerns raised in the letter in para 4 of this judgment.

60

[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

61

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 court66. 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 wrong67.All the applicants, but more pertinently,

66 Athol Developments (Pty) Ltd v Valuation Appeal Board for City of Johannesburg [2015] JOL 33081 (SCA) at paras [8] to [10]. 67 “ M R D U P L E S S I S : I h a v e g o t y o u r j u d g m e nt M y L o r d .

C O U R T : I t i s n o t a b o u t t h a t . I m i g ht b e w r o n g a n d I d o n o t t h i n k t h a t

j u d g m e nt i s a p p l i c a b l e h e r e .

M R D U P L E S S I S : T h a t j u d g m e nt c a m e f l y i n g t h r o u g h t h e l e g a l c i r c l e s M y

62

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 Justice68.

[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,

L o r d l i ke a m e r a s c h [ M i r a g e ] o f o l d M y L o r d .

C O U R T : I h e a r d f r o m o n e o f m y c o l l e a g u e s l a s t n i g h t s o I d i d n o t s l e e p w e l l . B u t b e t h a t a s i t m a y t h a t i s n o t I d o n o t t h i n k t h a t j u d g m e n t i s a p p l i c a b l e h e r e .” Tr a n s c r i p t i n S H M k h a t s h w a a n d 3 o t h e r v E S M k h a t s h w a a n d 7 o t h e r s , c a s e n o 3 9 1 / 2 0 2 0 M p u m a l a n g a D i v i s i o n o f t h e H i g h C o u r t ( M b o m b e l a - M a i n S e a t ) . 68 Regulation 43191 of 31 March 2020. Direction 9.2 (b), and (c).

63

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 7th 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

64

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

65

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,

69 Unreported case, referred to supra. 70 Ex parte van Heerden, supra.

66

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.

67

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 Act71 the

Judge President is responsible for the administration of the Division. It is

71 Act 10 of 2013.

68

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

72 Disaster Management Act 57 of 2002/Directions Issued in terms of Regulation 10 of the

Regulations under the Act – GN R440 of 2020

“5 (a) Cases that are not identified as urgent and essential services shall not be placed

on the court roll for the duration of the period of lockdown, provided that Heads of

Court shall retain the discretion to authorise the hearing of matters through

teleconference or videoconference or any other electronic mode, which dispenses with

the necessity to be physically present in a courtroom.”

69

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.”

70

[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.

71

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 4th 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:

72

“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 4th 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

73

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

74

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

75

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.

76

[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 Justice73. The validity of the permits that

73 “RESTRICTED ACCESS TO THE COURT PRECINCT AND ALL JUSTICE SERVICE POINTS 2 (a) Persons with a material interest in acase such as, litigants, accused, witnesess, those who may be needed to provide support such as those accompanying children. Victims of domestic violence or sexual abuse and persons with disabilities, family members, and members of the media will be permitted to enter the court precinct, ……..”

77

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 Heerden74 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

74 See footnote 26, supra.

78

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

75 Regulation 11 B (1) (a) (iii) of the COGTA regulations of 25 March 20920.

79

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 follow76:

“ A D V H L O N G W A N E [ N c o n g w a n e] : Y es , i n s h o r t M ’ L or d t h e

i n t e r v en i n g p a r t y ’ s c o n t en t i o n i s t h a t t h e a p p l i c a n t , t h e f i r s t

a p p l i c a n t h a s n o l o n g er s t a n d i n g [ l o c u s s t a n d i ] t o b r i n g h i s

in t e r d i c t o r y a p p l i c a t i o n . H e h a s n ot b e en a p p o i n t e d in t e r m s o f

t h e C on s t i t u t i o n a s a n a d m i n i s t r a t o r a n d in a n y e v en t h i s

a p p o i n t m e n t a s a n a d m in i s t r a t o r i s in i t s e l f i r r a t i o n a l a n d

u n l a w f u l .

A n d t h e i n t e r v en i n g p a r t y in t e n ds t o l a u n c h i n d u e c o u r s e a n

a p p l i c a t i o n f o r r e v i ew o f t h e d ec i s i o n t o a p p o i n t h i m a s a n

a d m in i s t r a t o r . A n d w e a r e s a y in g t h e n , b e c a us e o f l a c k o f l o c u s

s t a n d i w h i c h on t w o b a s e s , on e w h ic h I h a v e a l r ea d y m en t i o n e d

in t h a t h i s a p p o i n t m en t i s n o t i n t e r m s o f t h e C o n s t i t u t i o n .

S ec o n d M ’ L o r d , h e h a s n o t b e e n a ut h or i s e d b y t h e c o u n s e l

a n d h e d o es n ot e v en a t t a c h a n y l e t t e r o f a ut h or i s a t i o n t o t h e

a p p l i c a t i o n i t s e l f . A l t h o u g h i n t h e p a p er s h e a s s e r t s t h a t h e h a s

76 Transcript, page 9, lines 12 to 25, and page 10, lines 1 to 13.

80

b e en d u l y a ut h o r i s e d b y t h e c o u n s e l .

B u t a s t h e E FF b e in g a p a r t y in t h e c o u n s e l i t s e l f , a s t h e m a jo r

o p p o s i t i on p a r t y , h e i s t h e n in f o r m i n g Y o ur L o r ds h ip t h a t n o s u c h

r e s o l u t i o n w a s t a k en , n o a n y m e et in g w a s h e l d in t e r m s o f w h ic h

w h er e h e w a s a p p o i n t e d t o a c t o n b eh a l f o f t h e m un i c i p a l i t y .

S o a s s u c h w e s a y on t h a t b a s es a g a in , h e i s o r h e d o es n ot

h a v e t h e p r op er l o c u s s t a n d i . Ye s , b ut t h e r e a r e o t h e r a s p ec t s

t h a t w e w i l l d e a l w i t h i n d u e c o u r s e . B u t t h o s e a r e t h e . . .

( in t e r v e n es ) ” 77 a n d f u r t h e r :

“ A D V H L O N G W A N E [ N c o n gw a n e] : N o t h e r e i s n ot M ’ L or d . O ur

s i m p l e a p p r o a c h w a s t o in d i c a t e t h e l a c k o f l o c u s s t a n d i

b ec a u s e i f t h e r e i s n o l o c us s t a n d i , t h e n t h e i n t e r d i c t c a n n ot b e

g r a n t e d ” 78.

[ 1 1 5 ] I f Mr Ncongwane succeeded to conv ince the Court in

h i s argument , the appl icat ion by the admin is t rator

would have been d ismis sed w i th t rag ic consequences

for the res ident of Kwamahlanga (or S iyabuswa as Mr

Ncongwane s tates in h i s appl icat ion 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

77 Transcript page 10, lines 10 – 25, and page 10, lines 1 – 13. 78 Transcript page 34, lines 24 to 26, and page 35, lines 1 to 2.

81

the language used is clear79. 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

79 Natal Joint Municipal Pension Fund v Endumeni Municipality2012 (4) SA 593 (SCA)

82

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

83

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

84

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

85

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.

86

[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,

87

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.

88

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’

80 “Regulation 11 B (3) Persons performing essential services as determined in sub regulation (2), must be duly designated in writing by the head of an institution, on a form that corresponds substantially with From 1 in Annexure C;”

89

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

90

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 202081. 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

81 “COURT: Ja and Mr Setswalo, you do not have one. MR SETSWALO: I also do not have one.” Transcript, page 44, lines 20 and 21.

91

be respected. It is not about the person of the judge - it is about the

office82.

[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 invoked83

[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

82 Mkhatshwa and Another v Mkhatshwa and Others (391/2020) [2020] ZAMPMBHC 11 (5 May 2020) 83 Moila, supra, at page 346 I to J, and 347 A to B.

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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.

84 S v Mamabolo (E TV and Others Intervening) 2001 (3) SA 409 (CC), paragraphs 24

and 25.

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[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

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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 institution85.

[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;

85 State v Ernest Mavimbela & Various Others, supra, Para 23.3

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“…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 1st 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

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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

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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

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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.

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HF BRAUCKMANNN

ACTING JUDGE OF THE HIGH COURT

JUDGMENT DELIVERED ELECTRONICALLY DUE TO COVID-19

REPRESENTATIVE FOR THE 1st; 2nd; 4th; 5th and 6th Applicants: ADV W Mokhare

SC, Adv T Ngwenya and Adv C Lithole

INSTRUCTED BY: Finger Attorneys

REPRESENTATIVE FOR THE 4th APPLICANT: Adv TG Madonsela SC

INSTRUCTED BY: Mohube Setsoalo Attorneys

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

INSTRUCTED BY: MOHUBE SETSOALO ATTORNEYS

DATE OF HEARING: 04 MAY 2020

DATE OF JUDGMENT: 29 MAY 2020