A recent High Court ruling has reinforced a legal boundary: company directors cannot step in as legal representatives simply because the clock is ticking or lawyers have withdrawn.
In this case, a director’s attempt to file an appeal on behalf of his company was set aside after the Court found he was neither an admitted attorney nor an advocate and had not obtained the Court’s permission to act.
The judgment underscores that departures from this rule are rare and tightly controlled. Financial constraints, internal approvals, or procedural urgency do not, on their own, qualify as exceptional circumstances.
In Advertising Digital Services (Pty) Ltd v Standard Bank of South Africa and Another, Judge Nomsa Khumalo reaffirmed that, under common law, a juristic person may not be represented in court by a director or shareholder who is neither an attorney nor an advocate – unless a court has expressly granted leave in truly exceptional circumstances.
The case that triggered the warning
The ruling arose from a dispute between Advertising Digital Services (ADS) and Standard Bank that stretches back more than two decades.
The litigation stems from a damages claim instituted by ADS in 2003, based on allegations that Standard Bank unlawfully used its intellectual property in breach of an agreement between the parties.
Although the underlying dispute has been litigated through multiple courts over the years, the present judgment concerns only a procedural issue arising from ADS’s attempt to appeal a 2022 ruling that dismissed its claim on the basis of prescription.
A notice signed by the wrong person
In the latest chapter, Standard Bank successfully applied to have ADS’s notice of application for leave to appeal set aside as an irregular step, after it was signed and filed by ADS’s sole director and shareholder, Johan Reynders, who is not a legal practitioner.
The bank argued that the notice breached Rule 18(1) of the Uniform Rules of Court, which requires pleadings to be signed by an officer of the court. Reynders had not applied for, nor been granted, permission to represent the company.
The Court heard that ADS had been legally represented during the main action, which culminated in a July 2022 judgment dismissing its damages claim and upholding Standard Bank’s special plea of prescription. ADS’s attorneys withdrew shortly thereafter. Facing a looming deadline, Reynders filed the notice for leave to appeal himself the following day, explaining that he did so to ensure it was submitted on time.
Standard Bank responded by issuing a Rule 30 notice, alerting ADS to the defect and giving it an opportunity to remedy the irregularity. When no corrective steps were taken, the bank launched an interlocutory application to have the notice struck out.
Why the Court sided with the bank
Judge Khumalo accepted the bank’s argument that allowing the defective notice to stand would prejudice Standard Bank. She noted that, in previous proceedings, Reynders had attempted to challenge adverse outcomes by arguing that he lacked authority to represent ADS, despite being its sole director. Against that background, the bank’s concern that similar arguments might resurface was found to be genuine.
Although Reynders acknowledged in his affidavit that a juristic person must generally be represented by legal practitioners and conceded that exceptional circumstances and court approval are required for any deviation, he continued to file documents on ADS’s behalf. These included opposition papers, heads of argument, and a practice note – none of which were preceded by a formal application for leave.
The legal position: no shortcuts allowed
In setting out the legal framework, Judge Khumalo emphasised that the right to act in person does not extend to companies. Any relaxation of the rule, she said, is reserved for “rare and exceptional or at least unusual circumstances” and must be sought through a properly motivated, timeously lodged application.
Quoting from the Supreme Court of Appeal’s decision in Manong & Associates (Pty) Ltd v Minister of Public Works, the judge underscored it would be impermissible for a non-professional representative to take any step in proceedings, “including the signing of pleadings, notices or heads of argument … without the requisite leave of the court concerned first having been sought and obtained”.
The purpose of the rule, the Court explained, is to protect the integrity of the legal system, prevent abuse of judicial process, and ensure procedural fairness. Judges are expected to take a proactive approach where conduct undermines court processes or threatens to cause prejudice to other litigants.
‘Untenable’ conduct and a clear outcome
The judge described Reynders’ conduct as untenable. Despite undertaking to appoint attorneys, he failed to do so and persisted in acting on behalf of ADS in full knowledge that he required the Court’s permission. The Court found that his continued disregard for procedural requirements warranted a decisive response.
The notice of application for leave to appeal was accordingly set aside as an irregular step, and ADS was ordered to pay the costs of the interlocutory application.
Commenting on the judgment in a post on Norton Rose Fulbright’s website, director André Vos and candidate attorney Sayshan Moodley noted that the case illustrates why the rule exists. They observed that, given the director’s awareness of the need to appoint admitted lawyers or obtain leave from the Court, his persistence left the Court with little choice but to strike out the application with costs.
