The Johannesburg High Court recently delivered a judgment in an application for leave to appeal by the State Attorney against Viwe Notshe SC ("Mr Notshe") and the Solicitor-General of South Africa ("Solicitor-General").
The application for leave to appeal by the State Attorney related to a judgment delivered by the High Court on 11 September 2024 directing the State Attorney, to honour over ZAR5 million in unpaid invoices presented by Mr. Notshe. The deadline for seeking leave to appeal against this Judgment was in early October 2024.
On 19 November 2024, Mr Notshe's attorney wrote to the State Attorney and asked the State Attorney to pay the judgment debt, or face execution on it. The State Attorney did not respond to the letter. On 27 November 2024, Mr Notshe's attorney issued a writ of execution in respect of the judgment debt. On 4 December 2024, the Sheriff attached a range of office equipment at the State Attorney's office which also failed to result in payment by the State Attorney's office.
On 27 January 2025, the Sheriff took the further step of attaching the State Attorney's right, title and interest to its bank account. This resulted in the State Attorney on 28 January 2025 delivering an application for leave to appeal against the 11 September 2024 judgment, together with an application for condonation. These applications filed on 4 February 2025.
The High Court in considering the condonation application stated that the test applicable to applications for condonation requires a court to consider the nature and degree of non-compliance with a rule, the explanation for that non-compliance, any prejudice caused by the non- compliance, and the applicant's prospects of success in the main case.
The High Court held that the degree of non-compliance in the present matter was substantial. In particular, the State Attorney's application for leave to appeal was delivered just under four months late. The High Court noted that Mr Notshe had developed a good faith impression that the judgment had become final and went through the trouble and expense of executing on the judgment. In addition, the High Court noted that for two and a half months after the first steps towards execution were taken, the State Attorney did not communicate any intention to appeal the judgment to Mr Notshe.
The High Court went on to consider the State Attorney's explanation for the delay. The State Attorney explained that the Solicitor-General's contract expired on 30 September 2024. Therefore, one could not have expected him to take steps to appeal a judgment so close to the end of his term. The acting Solicitor- General, had to deal with a "backlog" of matters when she took office on 1 October 2024. That backlog together with the leave of absence that the head of the Johannesburg State Attorney's office took over December 2024 meant that the acting Solicitor-General could not consider the matter until mid-January 2025. The High Court noted that neither the previous Solicitor-General nor the acting Solicitor-General delivered affidavits explaining their failure to address the matter. The High Court found the explanations for the delay to be "extremely poor."
The High Court remarked that the State Attorney's case on the merits was also hopeless. The High Court highlighted that it was common cause that the 11 September 2024 judgment in favour of Mr Notshe related to work he had done for the State Attorney and to invoices that his instructing attorneys from the State Attorneys office had approved and forwarded for payment. The State Attorneys office argued that it had the right to withhold payment of the invoices because an investigation was being conducted by the Special Investigation Unit ("SIU") into amounts already paid to Mr Notshe on other work done by him for the State. In addition, it was argued that the 11 September 2024 judgment ought not to have been granted without joining the SIU. The High Court rejected these arguments because the SIU had expressed no interest in the invoices, which was the subject matter of the 11 September 2024 judgment.
Consequently, the High Court concluded that the State Attorney cannot lawfully withhold payment on the invoices. The High Court also rejected the State Attorney's allegations against Mr Notshe that he was over-reaching, dishonest, involved in double-briefing and other unethical conduct, as the current head of the State Attorney had no personal knowledge of the nature of the work or the basis on which Mr Notshe had charged for it.
Consequently, the High Court dismissed the State Attorney's condonation application with costs and remarked that the appeal was stillborn.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
