THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable

Case no: 505/2021
In the matter between:
THANDI CAROLINE DHLAMINI
APPELLANT

and

SCHUMANN, VAN DEN HEEVER & SLABBERT INC
FIRST RESPONDENT

JAKKIE SUPRA
SECOND RESPONDENT

IZAK BOSMAN
THIRD RESPONDENT

AZELLE KLEINEN
FOURTH RESPONDENT

JACOBUS JOHANNES SLABBERT
FIFTH RESPONDENT

LEGAL PRACTICE COUNCIL
SIXTH RESPONDENT

ROAD ACCIDENT FUND
SEVENTH RESPONDENT

ALL PERSONS WITH CLAIMS AGAINST THE
SEVENTH RESPONDENT PROSECUTED TO FINALITY
BY THE FIRST RESPONDENT WITHIN THE 5 (FIVE)
YEARS PRECEDING THIS APPLICATION
EIGHTH RESPONDENT

Neutral Citation:
Dhlamini v Schumann, Van den Heever & Slabbert Inc and Others
(505/2021) [2023] ZASCA 79 (29 May 2023)
Coram:
DAMBUZA ADP, MABINDLA-BOQWANA JA and BASSON AJA
Heard:

2 November 2022
Delivered:

29 May 2023
Summary:

Civil procedure – Appeal – whether the appeal should be
dismissed for mootness – s 16(2)(a) of the Superior Courts Act 10 of 2013 – relief
sought in the appeal settled by a tender of the documents sought in an Anton Piller
application – exceptional circumstances justifying a reconsideration of the  appeal –
procedure for further consideration of costs provided for in the interim order - issue of
costs was not before the high court – high court costs order reversed.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Adams J, sitting
as a court of first instance):

To the extent set out below the appeal is upheld with each party paying their
own costs.
The order of the high court is set aside and replaced with the following:
‘The matter is struck from the roll.’

___________________________________________________________________

JUDGMENT
___________________________________________________________________

Basson AJA (Dambuza ADP and Mabindla-Boqwana JA):

[1] This is an appeal against the order of the Gauteng Division of the High Court,
Johannesburg, Adams J (the high court), in terms of which the appellant’s application
for an Anton Piller application was struck off the roll with a costs order against the
appellant. The issue to be determined is whether this appeal was rendered moot by a
tender made by the respondents to release to the appellant’s attorneys and the sixth
respondent, the Legal Practice Council (LPC), all the files that fell within the ambit of
the Anton Piller application, or whether the matter should be determined on the merits.

Background
[2] During September 2014 the appellant, Ms Thandi Caroline Dhlamini and three
other people were involved in a motor vehicle accident as a result of which she

sustained neck, spinal and head injuries. In January 2015 she was contacted by
someone from the firm of attorneys, Schumann, Van Den Heever & Slabbert
Incorporated (the first respondent), who offered to represent her in her claim for
damages against the Road Accident Fund (RAF or the seventh respondent), to which
she agreed. The appellant was later informed that her claim was settled in the amount
of R583 454.90, of which she received approximately R400 000. The appeal is with
leave of this Court.

[3] The second to fifth respondents are practising attorneys and directors of the
first respondent. I will refer to the first, third, fourth and fifth respondents collectively as
the respondents. The eighth respondent is described as ‘all persons with claims
against the (RAF) prosecuted to finality by the first respondent within the 5 (five) years
preceding the application’ (members of the class in the class action contemplated by
the appellant’s attorneys).

[4] During 2019, the appellant received a tipoff from a member of the press who
informed her that a whistle-blower within the first respondent had informed him that
she and others were victims of the respondents’ scheme of defrauding both their own
RAF clients and the RAF. The appellant then launched an application for an Anton
Piller order against the respondents to secure the records pertaining to her and the
eighth respondents’ RAF claims. The intention was to use the evidence obtained from
the files to institute a class action against the respondents for losses suffered as a
result of the alleged fraudulent scheme. In the application for the Anton Piller order the
appellant maintained that when paying over the settlement amount of her RAF claim,
the respondents, particularly Mr Schumann, misrepresented the settlement amount
and paid over to her only 40% of the amount actually received from the RAF.

[5] The respondents denied any fraudulent or unethical conduct on their part. They
tendered delivery to the appellant’s attorneys and the LPC, the appellant’s file and the
files of the four persons who had deposed to confirmatory affidavits in support of her
founding affidavit in the Anton Piller application. They pleaded, however, that the
appellant’s attorneys were not entitled to the files of the further respondents who were
part of the eighth respondent. They emphasised that only the LPC had authority to

conduct a wide ranging investigation of the nature threatened by the respondents
against them.

[6] On 24 March 2020 the high court granted an interim Anton Piller order. It
incorporated a rule nisi which was returnable on 6 July 2020. It authorised immediate
access to the respondents’ premises for the purpose of conducting a search for and
examination of any items or documents, and determination of whether they fell within
the ambit of the order. It provided for the preservation of the evidence, which was
described as comprising ‘client files’ and ‘accounting records’ relating to the first
respondent’s clients whose claims against the RAF had been ‘prosecuted to finality by
the first respondent’. The respondents were ordered to point out the relevant files to
the ‘search party’. Any item or document determined to fall within the ambit of the order
was to be removed from the premises and kept in the custody of the sheriff. The
appellant was ordered to institute the intended class action within 30 days of execution
of the interim order. In terms of the order the respondents were to file an affidavit
identifying items which they contended should not be inspected or copied, if there were
any.

[7] The order was served and executed two days later on 26 March 2020. A total
of 30/28 files, including the appellant’s, were identified as well as those belonging to
the eighth respondent - the intended class of persons. In their affidavit dated 22 June
2020, filed as directed in the order, the respondents made the tender by expressing
willingness to release the appellant’s file together with those of her supporters in the
Anton Piller application, to the appellant’s attorneys. They then tendered to release
the rest to the LPC, citing lack of authority from the clients and protection of attorney
client privilege.

[8] On 6 July 2020, the return day of the rule nisi, both parties attended court.
Although the respondents did not oppose the application, they raised, as a point in
limine, that the Anton Piller order had lapsed because the legal action which was to
be instituted against them within 30 days of execution of the interim order, had not
been instituted.

[9] On the following day, 7 July 2020, the high court made the following order:
‘(1)
It is declared that the order made by this Court on the 24th March 2020 has lapsed
and the matter is struck from the roll.
(2)
The applicant shall pay the first to fifth respondents’ costs of the application for the
Anton Piller order and the related proceedings.’
Central to the high court’s decision was the finding that the Anton Piller order was
subject to a ‘resolutive condition’ that [the class action] would be instituted within 30
days of the execution of the interim Anton Piller order’. Because there had been non-
compliance with the interim order, it had lapsed, the court concluded.

[10] Both parties were in agreement, however, that on the return day no argument
was tendered on costs. The intention was to bring a separate application for costs for
the Anton Piller application as provided for in the order. In the relevant part, the interim
order provided that costs (of the Anton Piller application) would be determined in the
anticipated class action. The interim order read as follows in the relevant part:
‘COSTS
(n)
The costs of this application are reserved for determination in the further proceedings
to be instituted by the applicants, foreshadowed in this application, save in the event of
opposition in which a punitive costs order will be sought, and save further that:
(i)
if no such proceedings are instituted within 30 (thirty) days of the execution of
this order, either party may, on no less than 5 (five) days’ notice to the other, apply to
this Court for an order determining liability for such costs and determining what must
be done about the identified items and any copies thereof; and
(ii)
any other person affected by the grant or execution of this order may, on no
less than 5 (five) days’ notice to the parties hereto, apply to this Court for an order
determining liability for the costs of such person and determining what must be done
about any of the identified items pertaining to such person or any copy thereof.’

[11] On appeal the respondents contended that the proposed appeal against the
order striking the matter from the roll and the resultant costs order is moot. They
asserted that the tender to release to the appellant’s attorneys and the LPC the files
in question, rendered the appeal moot. The appellant, on the other hand, insisted on
an order setting aside the high court order and confirming the rule nisi, alternatively an
order extending the rule nisi and a costs order on a punitive scale. It was submitted on
her behalf that despite the failure to institute the intended action the interim order

remained in operation and effective until the return date and that reference in the order
to institution of legal proceedings in the order did not constitute a resolutive condition
or provide for lapse of the rule nisi issued as the respondents claimed.

MOOTNESS
[12] In general, an appeal is moot when there no longer is ‘an existing or live
controversy’1 or where the order sought will have no practical effect or result.2 This
principle is neatly summarized in National Coalition for Gay and Lesbian Equality and
Others v Minister of Home Affairs and Others,3 where the Constitutional Court
confirmed that a ‘case is moot and therefore not justiciable, if it no longer presents an
existing or live controversy which should exist if the Court is to avoid giving advisory
opinions on abstract propositions of law’.

[13] Section 16(2)(a) of the Superior Courts Act 10 of 2013 provides that:
‘(i)
When at the hearing of an appeal the issues are of such a nature that the decision
sought will have no practical effect or result, the appeal may be dismissed on this ground
alone.
(ii)
Save under exceptional circumstances, the question whether the decision would have
no practical effect or result is to be determined without reference to any consideration of costs.’

[14] The purpose of the Anton Piller application was the identification, securing and
preservation of evidence from the relevant files for use in the intended action.4
Although the files were identified and secured on execution of the interim order, it
remained open to the respondents to oppose the application. There can be no dispute
that once the respondents tendered delivery of the files, the objective of the application
was satisfied. Any threat of possible destruction of the evidence was averted once the
files were uplifted from the respondents and placed in the possession of the sheriff

1 Member of the Executive Council for the Department of Cooperative Governance and Traditional
Affairs, KwaZulu-Natal v Nkandla Local Municipality and Others [2021] ZACC 46; (2022) 43 ILJ 505
(CC); 2022 (8) BCLR 959 (CC) para 16.
2 Kruger v Joint Trustees of the Insolvent Estate of Paulos Bhekinkosi Zulu and Another [2016] ZASCA
163; [2017] 1 All SA 1 (SCA) para 15.
3 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
2000 (1) BCLR 39 (SCA); 2000 (2) SA 1 (CC) fn 18.
4 Non-Detonating Solutions (Pty) Ltd v Durie and Another [2015] ZASCA 154; [2015] 4 All SA 630
(SCA); 2016 (3) SA 445 (SCA) para 19.

and finally dissipated once the tender was made. There was no evidence that the
respondents impeded the process of proceeding with the intended action subsequent
to the tender. Moreover, despite the application having been struck off the roll by the
high court, the appellant remains able to institute the intended proceedings against the
respondents. Consequently, the order relating to the merits of the appeal will have no
practical effect, and the appellant’s contention that the interim order remained valid
and in operation perpetually is unsustainable.

[15] That is, however, not the end of the matter. In determining whether the order
sought on appeal will have a practical effect a court may in exceptional circumstances
consider the question of costs.5 The costs referred to in this section are the costs
incurred in the court which granted the order against which the appeal lies – in this
case, the costs granted in the high court.6 It seems to me that in this case there are
exceptional circumstances that justify consideration of the costs order made by the
high court. At the hearing of the appeal both parties were in agreement that on the
return date the high court was reminded that the issue of costs was not before it and
that an application would be brought as provided in the Anton Piller order. As a result,
no submissions were made by the parties on costs in the high court.

[16] It is not clear why the court proceeded to award costs in the circumstances. No
reasons were given for the costs order granted. For that reason, the costs order
granted by that court has to be set aside. Whatever the reasons were, there could be
no judicious exercise of discretion when the issue was not before the court for
determination. The awarding of costs by the high court constitutes exceptional
circumstances in this instance. To this extent, the appeal must be considered. The
order must be set aside and matter be left to the parties to prosecute at their election.7

[17] Regarding the costs of the appeal, both parties have been partially successful.
An order that each party is to pay its own costs is appropriate.

5 Section 16(2)(a)(ii).
6 John Walker Pools v Consolidated Aone Trade & Invest 6 (Pty) Ltd (in liquidation) and Another [2018]
ZASCA 12; 2018 (4) SA 433 (SCA) paras 8 and 9.
7 Khumalo and Another v Twin City Developers (Pty) Ltd [2017] ZASCA 143 (SCA) paras 14-15.

Order
[18] In the result, the following order is granted:

To the extent set out below the appeal is upheld with each party paying their
own costs.
The order of the high court is set aside and replaced with the following:
‘The matter is struck from the roll.’

_________________________
A C BASSON
ACTING JUDGE OF APPEAL

Appearances

For first to fifth appellants:

R E G Willis (with G Badela)
Instructed by:

Stephen G May Attorney, Johannesburg

EG Cooper Majiedt Inc, Bloemfontein

For first, third, fourth and
fifth respondents:

C E Thompson
Instructed by:

MCE Janse van Vuuren, Johannesburg

Bezuidenhouts Inc, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

29 May 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Dhlamini v Schumann, Van den Heever & Slabbert Inc and Others (505/2021)
[2023] ZASCA 79 (29 May 2023)
Today, the Supreme Court of Appeal (SCA) upheld an appeal from the Gauteng Division of the High
Court, Johannesburg (high court). The order of the high court was replaced with one striking the matter
from the role.

During September 2014 the appellant was involved in a motor vehicle accident. The first respondent
contacted her in 2015 and offered to represent her in her claim against the Road Accident Fund (RAF).
Subsequently, the claim was settled but the appellant received a substantially lower amount. During
2019, the appellant received a tipoff from a member of the press who informed her that a whistle-blower
within the first respondent had informed him that she and others were victims of the respondents’
scheme of defrauding both their own RAF clients as well as the RAF. The appellant then launched an
application for an Anton Piller order against the respondents to secure the records pertaining to her
RAF claims, as well as RAF claims by other clients with the intent of using evidence obtained from the
files to institute a class action against the respondents for losses suffered as a result of the alleged
fraudulent scheme. In the application for the Anton Piller order, the appellant maintained that when
paying over the settlement amount of her RAF claim, the respondents misrepresented the settlement
amount and paid over to her only 40% of the amount actually received. The respondents, in turn, denied
any fraudulent or unethical conduct on their part. They tendered delivery to the appellant’s attorneys
and the Legal Practice Counsel (LPC), but held that the appellant was not entitled to the files of other
clients.

On 24 March 2020 the high court granted an interim Anton Piller order. It incorporated a rule nisi,
returnable on 6 July 2020, which authorised immediate access to the respondent’s premises for the
purpose of obtaining material relevant to the order, inter alia, client files and accounting records related
to claims against the RAF prosecuted to finality. Additionally, a class action was to be instituted by the
appellant within 30 days of execution of the interim order. On the return day of the rule nisi, the
respondents raised a point in limine that the Anton Piller order had lapsed as the legal action that was
to be instituted against them had never been instituted. The appellant, in turn, submitted that despite
the failure to institute the intended action, the interim order remained in operation and effective until the
return date and that reference in the order to institution of legal proceedings in the order did not
constitute a resolutive condition or provide for lapse of the rule nisi issued as the respondents claimed.
However, the high court stuck the matter from the roll after it found that the Anton Pillar order was
indeed subject to a resolutive condition that the class action would have been instituted within 30 days
of the execution of the interim order. Because there had been non-compliance with the interim order, it
had accordingly lapsed. The applicants in the high court were ordered to pay the costs of the application
for the Anton Piller order.

Upon appeal, the respondents contended that the proposed appeal and the order striking the matter
from the roll, as well as the resultant costs, were moot. They asserted that the tender to release the
files in question to the appellant’s attorneys and the LPC rendered the appeal moot. The appellant
contended that the high court ought to have confirmed the rule nisi, or at least, ought to have extended
it, with costs on a punitive scale.

This Court held that the purpose of the Anton Piller application was the identification, securing and
preservation of evidence from the relevant files for use in the intended action. Although the files were
identified and secured on execution of the interim order, it remained open to the respondents to oppose
the application. There could be no dispute that once the respondents tendered delivery of the files, the
objective of the appellant’s application was satisfied. Any concerns which pertained to the evidence
were averted once the files were uplifted from the respondents and placed in the possession of the
sheriff and finally dissipated once the tender was made. There was no evidence that the respondents
impeded the process of proceeding with the intended action subsequent to the tender. Moreover,
despite the application having been struck off the roll by the high court, the appellant remained capable
of instituting the intended proceedings against the respondents. Consequently, the order relating to the
merits of the appeal would have had no practical effect, and the appellant’s contention that the interim
order remained valid and in operation perpetually did not take the matter any further.

Furthermore, the SCA considered the question of costs and found that exceptional circumstances
existed which justified reconsideration of the costs order made by the high court. On appeal, both parties
were in agreement that on the return date, the high court was reminded that the issue of costs was not
before it and that an application would be brought as provided in the Anton Piller order. It was unclear
why the high court made a cost order, and in the result the order had to be set aside and the matter left
to the parties to prosecute at their election.

In the result, the SCA upheld the appeal and replaced the order of the high court with one striking the
matter from the role.
~~~~ends~~~~