In Manamela v Maite, the Johannesburg High Court dealt with an urgent contempt application which stemmed from legal proceedings between the parties. It was launched by way of a spoliation application by the applicant's attorney over a weekend in the urgent court, which resulted in an order being granted on 10 June 2023 by Shepstone AJ ("the spoliation order").

On 15 June 2023, the applicant launched an urgent contempt application based on the respondent's alleged wilful non-compliance with the spoliation order, which failed on the urgent roll for 20 June 2023. The application was eventually enrolled in the urgent court on 27 June 2023, but the matter was not heard as the judge found that proper service had not been effected on the respondent.

On 11 July 2023, the applicant again enrolled the first contempt application on the urgent roll. The respondent opposed the application and launched a counter application in two parts: seeking the stay of the execution of the spoliation order on an urgent basis and the rescission of the spoliation order in the normal course. Based on undisputed facts, the spoliation order and the contempt application were only properly served on the respondent on 5 July 2023, which served as one of the defences that the respondent raised in their opposition to the first contempt application. The matter of the first contempt application and the respondent's counter application was eventually heard on 13 July 2023 but was struck from the roll for a lack of urgency.

Both applications remained pending and were due to be heard in the normal course on the opposed motion roll. Despite this, on 17 July 2023, the applicant's attorney addressed a letter to the respondent's attorney, demanding that the respondent comply within 24 hours with the spoilation order, failing which an urgent contempt application would be launched.

In response, on 20 July 2023, the respondent's attorney inter alia pointed out that the applications which had been struck from the urgent court's roll remained pending and should be heard in the normal course. Notwithstanding the response from the respondent, a second urgent contempt application was launched by the applicant on 20 July 2023 and enrolled for hearing on 1 August 2023.

Subsequent proceedings before the Johannesburg High Court concern the second contempt application. On the evening before the hearing, the applicant's attorney addressed a letter to the judge requesting a postponement due to their counsel having taken ill. On 1 August 2023, the applicant's attorney's candidate attorney appeared and sought a postponement of the matter to 8 August 2023. The respondent objected to the postponement and argued that the matter should be removed from the roll as it was not urgent. The Court noted that the applicant's attorney had not briefed counsel and, instead, simply sent a candidate attorney, who had no right of appearance in the High Court.

Opperman J removed the matter from the roll and reserved costs, cautioning the applicant against re-enrolling the application on an urgent basis as it could result in an adverse costs order. The applicant was further warned about the proper processes and advised that the recission application would follow in due time.

Despite this, however, the applicant's attorney simply re-enrolled the application for hearing on the urgent roll of 8 August 2023 without notifying the respondent's attorneys or serving a notice of set down. When counsel for the applicant appeared on 8 August 2023, they failed to alert the judge that no notice of set down had been served on the respondent, and as a result, the respondent's counsel was not present. The Court then ordered that the respondent's counsel be called to court, and he later appeared in court.

The respondent's counsel informed the Court that they had been unaware of the re-enrolment and had only appeared due to the court's directive. During the proceedings, the applicant made the same arguments as they did with the first contempt application, with the respondent referring to the defences it had previously raised in the same application. In addition, the respondent sought the dismissal of the application with a de bonis propriis costs order against the respondent's attorney. Despite being given an opportunity to make submissions on why costs should not be awarded de bonis propriis, the applicant's attorney did not meaningfully address the issue.

The Court noted that the applicant's attorney had attempted to enrol the matter without serving the application papers on the respondent via Sheriff until directed to do so on 27 June 2023. The Court also rejected the applicant's argument that the respondent had refused to comply with the spoilation order on the grounds of the factual background set out above. Furthermore, the court noted that the applicant sought a de bonis propriis cost order against the respondent but had not sufficiently advanced grounds in support of such an order. The respondent, in response, set out in detail the history of the matter, as mentioned above, which was not disputed by the applicant.

The court stated that it was clear that the applicant had failed to make out any case for urgency or why the matter was to be dealt with on the urgent roll for 8 August 2023 and that the pending rescission application of the spoliation order nullified any contention of urgency in respect the second contempt application.

The court also remarked that contempt proceedings were not automatically urgent proceedings, but the issue of urgency had to be evaluated in the context of the specific facts of the matter. It was said that legal proceedings which commenced on an urgent basis do not render whatever follows as also urgent. As such, the court found that it was justified in striking the application from the roll for lack of urgency.

The court further remarked that the second contempt application can best be described as an abuse of process as the first contempt application was still pending. As such, it was sufficient to dismiss the second contempt application.

The court also noted that the applicant's attorney acted mala fides by not notifying the respondents that the matter had been enrolled for 8 August 2023 and that all facts had not been presented before the court in the second contempt application, including the pending recission application against the spoliation order. The Court also pointed out that the applicant's attorney had ignored the warning of Opperman J by re-enrolling the application on the urgent court roll for 8 August 2023.

Consequently, the Court found that a< em>de bonis propriis cost order would be appropriate to show the Court's displeasure at the applicant's attorney's disrespectful conduct, which was granted on an attorney and client scale.

In addition to the above order, the respondent further sought an order that the applicant's attorney be disentitled to charge his client any fees in the matter. In this regard, the Court noted that a layperson would not have been aware of the legal processes, and such a person would have to rely on his/her attorney's advice on such issues. The Court held that it would be appropriate to disentitle the applicant's attorney from charging any fees in relation to the second contempt application dated 20 July 2023.

Manamela v Maite serves as a reminder that attorneys should be careful not to abuse the court processes, as cost can be awarded against them in their personal capacity and that they may also be disentitled to charge their own clients for work done.

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