1
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA HELD IN JOHANNESBURG
CCT 192 / 2018
In the matter between:
GENERAL COUNCIL OF THE BAR Applicant and
NOMGCOBO JIBA First Respondent
LAWRENCE SITHEMBISO MRWEBI Second Respondent
SIBONGILE MZINYATHI Third Respondent
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THE THIRD RESPONDENT’S PRACTICE NOTE
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A. THE NATURE OF THE PROCEEDINGS
1. This is an application for leave to appeal against the judgment and order of the Supreme Court of Appeal setting aside the decision of the High Court which found that the First and Second Respondent were no longer fit and proper to continue practicing as officers of the Court. The applicant also seeks to cross-appeal the High Court’s cost order granted in favour of the Third Respondent.
2 B. THE ISSUES THAT WILL BE ARGUED
2. The Third Respondent will argue that no case has been made for leave to appeal to be granted by this Court.
3. Furthermore, the Third Respondent will argue that no case has been made by the Applicant for this Court to interfere with the costs order of the High Court.
C. PORTIONS OF THE RECORD THAT ARE NECESSARY FOR THE DETERMINATION OF THE MATTER
4. For the cross-appeal, the following should be read:
i. The GCB’s Founding Affidavit in the High Court (Vol. 1, pages 5 – 68)
ii. The Third Respondent’s Answering Affidavit in the High Court (Vol. 8, pages 675 – 738)
iii. The High Court’s judgment (Vol. 13, pages 1097 – 1206)
iv. The Supreme Court of Appeal’s judgment (Vol. 16, pages 1415 – 1454)
v. The GCB’s application in this Court (Vol. 16, pages 1459 – 1488).
vi. The Third Respondent’s Answering Affidavit in this Court (Vol. 17, pages 1540 - 1552)
D. AN ESTIMATE OF THE DURATION OF ORAL ARGUMENT
3 5. 1 hour for the Third Respondent.
E. A SUMMARY OF THE ARGUMENT 6. On leave to appeal:
i. The Third Respondent will argue that this Court can only interfere with the High Court’s costs order if it is shown that it exercised its discretion capriciously, injudiciously or that the court a quo was misdirected.
ii. The Applicant has not made a case why this Court should interfere with that costs order, let alone attempted to demonstrate that the High Court exercised its discretion injudiciously.
iii. Leave to cross-appeal should be refused.
iv. If leave is granted, the Third Respondent will argue that:
i. This matter does not involve constitutional issues, thus the ordinary rules of cost should follow.
ii. The Applicant had been unsuccessful in its application against the Third Respondent and it was appropriately mulcted with costs.
iii. The Applicant has been reckless and irresponsible in its litigation against the Third Respondent and was appropriately mulcted with cost.
iv. There is no factual or legal basis for granting the Applicant exemption from paying legal costs.
4 v. There is no basis alleged for the interference with the High
Court’s order.
F. AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED DURING ORAL ARGUMENT.
7. In addition to the specific references made in our written submissions, the Third Respondent will place specific reliance on the following authorities:
i. Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd 2015 (5) SA 245 (CC).
ii. Trustees for the time being of the Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC)
iii. Limpopo Legal Solutions and Another v Eskom Holdings Soc Limited [2017] ZACC 34; 2017 (12) BCLR 1497 (CC);
iv. Khumalo v Twin City Developers (328) [2017] ZASCA 143 (02 October 2017), at par 14-15; 41-2; 60-61
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DUMISA B NTSEBEZA SC
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SIYABULELA X MAPOMA
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TSHIDISO E RAMOGALE
5 Chambers
Johannesburg and East London 24 January 2019
