THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No.:  1121/17

In the matter between:

HENDRIK PETRUS HOUGH

Applicant

and

MZUBANZI SISILANA
(ASSISTANT MASTER,WCDHC)

First Respondent

SEARDEL INVESTMENT CORPORATION LIMITED
Second Respondent
(renamed: E MEDIA HOLDINGS LIMITED)

JOINT EXECUTORS: ESTATE LATE
AARON SEARLL

Third Respondent
(Master’s ref 6360/2010) [LAUREN SEARLL NO,
ELLIOT OSRIN NO, JEFFREY FLAX NO,
DAVID FRIEDLAND NO, QUINTIN HONEY NO]

EDWARD NATHAN SONNENBERGS INC.

Fourth Respondent

EUGENE NEL NO

Fifth Respondent
(Master’s ref C337/2015)

Neutral citation:
Hendrik Petrus Hough v Mzubanzi Sisilana and others (1121/2017)
[2018] ZASCA 04 (2 February 2018)

Coram:

Maya P

Heard:

In Chambers

Delivered:

2 February 2018

Summary:
Procedure – s 17(2)(f) of the Superior Courts Act 10 of 2013 – exceptional
circumstances warranting an order for the reconsideration and variation of the
dismissal of the application for leave to appeal not established – application
dismissed.

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ORDER
__________________________________________________________________
On application in terms of s 17(2)(f): Supreme Court of Appeal (Ponnan JA and
Schippers AJA):

1 Condonation as applied for is granted. The applicant is to pay the costs of the
application.
2 The application in terms of s 17(2)(f) of the Supreme Court Act 10 of 2013 is
dismissed with costs for the reason that no exceptional circumstances warranting
reconsideration or variation of the decision refusing the application for leave to
appeal have been established.

__________________________________________________________________

REASONS
__________________________________________________________________
Maya P:
[1] The applicant brought an application in terms of s 17(2)(f) of the Superior
Courts Act 10 of 2013 (the Act). He sought (a) condonation for his failure to bring
the proceedings within the prescribed time limits; (b) reconsideration and variation of
the order of this Court dated 22 August 2017 which dismissed his application for
leave to appeal against the judgment of the Western Cape High Court (Engers AJ); (c)
an order granting him such leave and (d) costs. I dismissed the application, without
furnishing substantive reasons therefor, on the basis that no exceptional
circumstances warranting the reconsideration or variation of the decision refusing the
application for leave to appeal had been established. The following are my reasons
for the decision.

[2] I mention at the outset that the applicant’s prayer to be granted leave to appeal
against the judgment of the high court was incompetent. In terms of s 17(2)(f) of the
Act ‘[t]he decision of the majority of judges considering an application referred to in
paragraph (b), or the decision of the court, as the case may be, to grant or refuse the
application [for leave to appeal] shall be final: Provided that the President of the
Supreme Court of Appeal may in exceptional circumstances, whether of … her own
accord or on application filed within one month of the decision, refer the decision to
the court for reconsideration and, if necessary, variation.’ Subsection (2)(b)
mentioned above refers to an application for leave to appeal to the Supreme Court of
Appeal made pursuant to the refusal of leave to appeal by the court against whose
decision an appeal is sought. It is readily apparent from the ordinary wording of these
provisions that the relief provided in s 17(2)(f) relates only to the dismissal of an
application for leave to appeal by the Supreme Court of Appeal. Thus the President of
this Court may only direct the appeal judges who considered the application to revisit
their decision and no more.
[3] The facts of the case and the parties’ contentions are comprehensively set out
in the two judgments of the high court and need not be rehashed in any great detail
for present purposes. As I understand it, the applicant’s estate was finally
sequestrated by the high court at the instance of the second respondent, Seardel
Investment Corporation Ltd (Seardel), on the basis of several taxed and allocated bills
of costs in the latter’s favour against the applicant. These proceedings arise from the
applicant’s challenge, inter alia, to the admission to prove certain claims, including
ENS’ taxed bill of costs, against his estate by the first respondent, the Assistant
Master of the Western Cape High Court, pursuant to a meeting of the creditors
convened under the provisions of s 40(1) of the Insolvency Act 24 of 1936. One of
the applicant’s grounds for the review proceedings he brought in terms of s 151 of the
Insolvency Act (upon which he solely relies in this application) was that Seardel had

no locus standi to sequestrate his estate as it was not his creditor. This was so, he
contended, because the taxed costs were incurred by Seardel’s attorneys, Edward
Nathan Sonnenbergs Inc (ENS), a personal liability company which had no Fidelity
Fund certificate in its own name. Even though ENS’ directors all have the certificates
in their personal names, the lack of its own certificate was in breach of the law as it is
a ‘practitioner’ as defined in s 1 read with s 23 of the Attorneys Act 53 of 1979 and
was thus obliged under s 41(1) and (2) of this Act to have the certificate in its name to
lawfully practise and earn fees and disbursements. The second to fourth respondent’s
disavowed the inclusion of a company or any other juristic person in the Act’s
definition of a ‘practitioner’. For that reason, so they argued, s 41 of the Act does not
apply to ENS and it is not required to have the certificate.  The high court dismissed
the review application with costs. The applicant’s subsequent applications for leave to
appeal to appeal against this decision both in the high court and in this Court failed,
hence this application.
[4] It appears that the applicant previously challenged ENS’ authority to represent
Seardel in the sequestration proceedings on the same ground that ENS could not
lawfully do so without the certificate. This argument found no favour in the high
court. It was rejected by this Court too. A further application to the Constitutional
Court, which was premised solely on the argument, was unsuccessful. The applicant’s
persistence with the argument is bolstered by Engers AJ’s comments in his main
judgment and in the judgment on application for leave to appeal that he found the
applicant’s objection ‘to be at best, arguable’ and that ‘[a]t best for the applicant, he
has shown that his interpretation of the Act may be a tenable one’. However, the
acting judge made clear that he was nonetheless not convinced that the argument was
correct but found it unnecessary to decide the issue in light of the nature of the
applicant’s onus which he failed to discharge. In the applicant’s opinion, these

throwaway comments (as I view them) also constitute exceptional circumstances
which warrant the reconsideration and variation of the SCA’s earlier order.
[5] Section 1 of the Attorneys’ Act defines ‘practitioner’ as ‘any attorney or a
notary or conveyancer’. An attorney means ‘any person duly admitted to practice as
an attorney in any part of the Republic’. In terms of s 23 a juristic person may also
conduct a practice subject to the conditions set out in ss (1) which requires that (a) the
private company must be a personal liability company; (b) only natural persons who
are practitioners and who are in possession of current fidelity fund certificates are
members or shareholders of the company or persons having any interest in the shares
of the company; (c) the name of the company consists solely of the name or names of
present or past members of the company who practised for their own account or in the
predecessor of the company provided that the words ‘and associates’ or ‘and
company’ may be included in the name of the company. Section 23(9) stipulates that
‘[a]ny reference in this Act or in any other law to a practitioner or to a partner or
partnership in relation to practitioners, shall be deemed to include a reference to a
company under this section or to a member of such a company, as the case may be,
unless the context indicates otherwise’. And s 23(2) provides that ‘[e]very
shareholder of the company shall be a director of the company, and only a
shareholder of the company shall be a director thereof’. Sections 41 and 42
respectively require practitioners practising for their own account or in partnership
(and, by necessary implication in terms of s 23(9), practitioners who practise in
personal liability companies) to be holders of the certificate and make provision for
the application procedure. Nothing in the wording of these provisions suggests that
the requirement to hold the certificate extends beyond the individual practitioner who
practices for her own account or in a partnership with other practitioners or in a
personal liability company. And such a reading does not detract from the objective
underlying the need for the certificate ie the protection of the public against the

misappropriation of their money entrusted to attorneys (see Law Society of the
Northern Province v le Roux [2015] ZASCA 168 paras 3 and 5). To my mind, the
public remains adequately protected if all the directors of the company which, in any
event, acts through their agency, have the certificate.  It is also instructive that, as a
matter of practice the law societies require only the directors of the company and not
the company itself, to have the certificate. It is difficult to accept the applicant’s
interpretation of these provisions in the circumstances.
[6] It is against this background that I considered whether the applicant established
the exceptional circumstances envisaged in s 17(2)(f). Furthermore, it is well to bear
that a court may review a Master’s decision in the present context only where the
Master has, in granting her approval, erred or misdirected herself on the factual
material placed before her (see, for example, Al-Kharafi & Sons v Pema & Others
NNO 2010 (2) SA 360 (WLD) at 396). She does not adjudicate the claim as would a
court of law. She is required simply to satisfy herself that there is prima facie
evidence that the creditor has a valid claim (see Sechaba Medical Solutions (Pty) Ltd
& others v Sekete & others (216/2014) [2015] ZASCA 8). Thus, the first respondent
merely had to be satisfied that the claims based on ENS’ taxed bill of costs had been
prima facie established when deciding whether to admit them to proof. In light of this
test the high court’s passing views on the weight of the argument could not assist the
applicant’s case as the court itself acknowledged. . They do not tilt the prospects of
success on appeal in his favour. Another contention advanced by the applicant as ‘a
compelling reason for the appeal to be heard’ was ‘the potential impact on the entire
legal profession if his interpretation of the Act were to prevail’ and the reason
underlying the need for practitioners to have the certificate ie to protect the public. It
is however common cause that this argument was advanced and failed to hold sway in
the application for leave to appeal against the sequestration to the Constitutional
Court. And the applicant’s further contention that his success in the appeal would be

dispositive of the entire sequestration proceedings against his estate as the basis
therefor would be invalid is obviously inaccurate. Only some and not all claims
against his insolvent estate would be set aside and he would remain in sequestration.
[7] For all these reasons I was satisfied that the application for leave to appeal was
rightly dismissed and that no basis for the reconsideration thereof had been
established.
oo

___________________________________________
MML MAYA
PRESIDENT OF THE SUPREME COURT OF APPEAL

APPEARANCES:

APPELLANT:
Horn & Van Rensburg, Bloemfontein

State Attorney, Bloemfontein

RESPONDENT:             Edward Nathan Sonnenbergs Inc., Cape Town

Matsepes Inc., Bloemfontein