[34] It should be noted, however, that sections 7 and 50 of ACAP provide that ACAP does not apply to documents provided for litigation if the application was made after the commencement of criminal or civil proceedings and access to records is provided for by another Act. [9] The Supreme Court of Appeal held that “disclosure prior to the filing of a section 50 application must remain the exception rather than the rule; that it can only be accessible to an applicant who has demonstrated the `element of necessity` or `substantial benefit` of access to the requested information. in the pre-action phase. [10] The information provided is not intended to provide a comprehensive overview of all legal and practical developments or to cover all aspects of the above. Readers should seek legal advice before applying it to a particular issue or transaction. [33] We can dispense with the third reason relatively quickly. Section 40 of the PAIA states: “The chief information officer of a public body shall refuse a request for access to a registration of the agency if the registration is protected by legal proceedings, unless the person entitled to the privilege has waived it.” However, this Division applies to public sector bodies and does not apply to such a request for access to information by a private body. [24] I find that Tsatsi did not provide an acceptable explanation for his lack of legal representation on October 20, 2015. [17] This raises the question of whether Tsatsi provided an acceptable explanation for his lack of legal representation at the time of the denial of his application. In his words (paragraph 68 of his affidavit), Tsatsi states: “I was not to blame for the failure of my former legal team to abandon me, creating a situation in which there is in fact a just reason to set aside and set aside the judgment obtained by default.” She also explains: “I can`t tell the lawyer or the lawyer why they decided to withdraw.
I`m not sure what to do if a lawyer and a lawyer decide to retire when I was out of town. (Response to affidavit, paragraph 11). On 19 and 20 October 2015, when the hearings took place, Tsatsi worked outside Gauteng in Bloemfontein, where he worked in a division of the High Court. It is clear that owners who wish to object to future restructuring plans are well advised to spend time carefully discussing with their legal team whether to challenge the composition of the group. [12] Tsatsi`s application to set aside was made in Rule 42, alternately Rule 31 and the other alternative to the common law. Tsatti`s main concern regarding the October 20, 2015 order is that it was issued in his absence. As she explains in her founding statement, she was not legally represented that day and was not present herself. [3] Tsetsi`s affidavit at paragraphs 15 and 16 repeats the story from there and states: “Para 15. This matter was then adjourned to a date set by my former counsel and the legal representative on behalf of the respondents, and during the week that this matter was to be heard, I was working out of town. On Monday morning [19 October 2015], when this case was heard by the Court of Requests, my former defence lawyer only seemed to have been informed that the case was not registered until the following day. As we prepared for the next day`s performance, my previous counsel was no longer available, so the board had to be informed again. However, it was not the problem in this particular case that led to a default judgment.
The problem was that, for no good reason, I was informed by the junior partner of my former law firm that the senior partner had advised the firm to withdraw from my representation and that he could not tell me for reasons because he had now been outvoted by his superiors in this regard. [20] This mindset is supported by Tsetsi`s apparent ability to immediately find a replacement lawyer. Contacting and hiring a lawyer to give them the necessary instructions to request a postponement due to a change in the legal team would not be too complicated. In fact, Virgin Active`s lawyer argued that Tsatsi deliberately breached his obligations by not appointing a lawyer, particularly in a situation where the lawyer was willing to prosecute. Is there an acceptable common law explanation for Tsatsi`s lack of legal representation at the October 20, 2015 hearing? [15] Counsel for Tsatsi argued in favour of the application of Rule 42, arguing that the decision to rescind was made in error in the absence of the Applicant. However, Article 42 is also inappropriate, as no procedural flaws are disputed – with the exception of the applicant`s lack of legal representation and the applicant`s absence. The only error reported was the very fact that the judicial proceedings were not postponed in the absence of the applicant and her legal representative. This takes the dispute outside the scope of Rule 42 and falls directly within the scope of the common law. [2] In a similar situation, the Court of First Instance held that in De Wet and Others v. Western Bank Ltd, 1979 (2) SA 1031 (A) (p. 1038): “The fact that the applicants were not informed in good time of their lawyer`s withdrawal is, of course, a factor which must be taken into account in examining whether a valid ground for setting aside the common law judgments has been established.
However, this is not a circumstance on which the applicant may validly rely for the purposes of filing an application under Rule 42(1)(a). [7] This incident led Tsatsi to file a complaint with the Old Eds Health Club, a Virgin Active investigation, and other communications (including phone calls and written correspondence) between Tsatsi and Virgin Active employees. Virgin Active attempted this interaction with a letter to Tsatsi on September 20. June 2014 as follows: Sign up to receive the latest legal developments, ideas and news from Ashurst. By registering, you agree to receive marketing messages from us. You can unsubscribe at any time. [38] The chances of success of this access to information request are low. Virgin Active initially rejected that application on the basis of Article 65 and on the ground that no such documents existed. Subsequently, it also relied on the reasoning in paragraph 40 that those recordings had been collected with a view to legal proceedings and were therefore protected by professional secrecy. [21] We find a rough parallel with the events in this case nearly four decades earlier in De Wet et al. v. Western Bank Ltd 1979 (2) SA 1031 (A). This case confirmed that the grounds on which it was possible to seek to set aside the judgment went beyond those of fraud and certain erroneous circumstances of Justus, as set out in Childerly Estate Stores v Standard Bank of SA Ltd 1924 OPD 163.
Even more relevant in the present case was the fact that the facts in De Wet concerned a group of five litigants who were faced with a default judgment against them following the withdrawal of lawyers. These litigants had left the conduct of the litigation largely in the hands of a sixth litigant and their co-counsel. After the lawyer`s withdrawal for “unclear” reasons, one of the five litigants was informed of the lawyer`s withdrawal – on a Saturday before the case hearing on a Monday – and “immediately”[4] began seeking alternative legal representation. The other litigants in this group of five did not have this knowledge or opportunity prior to the hearing of the case. Due to a misunderstanding between the lawyer and the defense lawyer, it turned out that none of the five litigants were represented at Monday`s hearing. In deciding whether one of these litigants was entitled to have the judgment set aside, the Appeal Division would have authorized the setting aside of one litigant who had taken immediate steps to obtain legal representation and would not have allowed the judgment to be set aside for the other four. 7. Virgin Active has a duty of confidentiality towards the third parties concerned. In this regard, we confirm that section 65 of the Act expressly prohibits granting a request if the disclosure constitutes an action for breach of confidentiality owed to a third party. In any event, no such document is in our possession or control.
[19] I believe it is reasonable to believe that an experienced jurist would be aware of the consequences of not being represented by counsel or not appearing in person to hear his or her own application, and that an experienced jurist would have access to networks of other legal practitioners, including lawyers and lawyers.