SHAYANO MADZIKANDA In Person via AVL v PORT PIRIE REGIONAL COUNCIL [2024] SADC 65

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (AUXILIARY MASTER FAHEY) Appellant: SHAYANO MADZIKANDA In Person via AVL Respondent: PORT PIRIE REGIONAL COUNCIL Counsel: MR P QUINN - Solicitor: NORMAN WATERHOUSE Hearing Date/s: 30/04/2024 File No/s: CIV-24-001845 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil: Appeal Against a Master) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. MADZIKANDA v PORT PIRIE REGIONAL COUNCIL [2024] SADC 65 Judgment of her Honour Judge Bochner 31 May 2024 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA Leave for director to represent company. Uniform Civil Rules 2020 (SA), referred to. House v The King (1936) 55 CLR 499; Winn v Stewart Bros Constructions Pty Ltd [2012] SASC 150; Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68, considered. -- 1 of 15 -- -- 2 of 15 -- MADZIKANDA v PORT PIRIE REGIONAL COUNCIL [2024] SADC 65 CIVIL Background 1 The first applicant in the primary action is a company which supplies irrigation water. The second applicant in the primary action is its sole director and majority shareholder. I will refer to the first applicant as “the company” and the second applicant as Mr Madzikanda. Mr Madzikanda is the appellant in this appeal. 2 The applicants say that, in January 2016, Mr Madzikanda met with representatives of the respondent to discuss the supply of irrigation water by the company. A further discussion occurred in January 2017 and in March, the company presented a proposal to the respondent. The parties signed a memorandum of understanding (“the MOU”) in June 2017 to the effect that the applicant would design and manufacture a desalination system and deliver irrigation water through the system for a period of ten years. Suffice to say, the project was never realised. The applicants have brought this action against the respondent, seeking damages for breach of the contract. 3 At all times, Mr Madzikanda has represented the company, and by way of interlocutory application filed shortly after the commencement of the action, he sought formal leave to represent the company in lieu of a lawyer. In his supporting affidavit, he deposed that he is the sole director and 70% shareholder of the company and that neither he nor the other shareholders had the financial capacity to retain a lawyer. He exhibited to a later affidavit the company’s balance sheet as at 31 August 2023 and tax return for the year ended 30 June 2022 and a statement of his own assets and liabilities and a pay slip for the period 19 August 2023 to 1 September 2023. These documents demonstrated that the company had net assets of $52,732.42 and no net income for that financial year. Mr Madzikanda’s own gross income is $171,859 per annum. He does not own any real property. He is employed by a business other than the company. 4 I understand that the company is not trading. 5 The application was opposed by the respondent. 6 The application was heard by the Auxiliary Master. By way of reasons delivered on 6 February 2024, the Auxiliary Master dismissed Mr Mazikanda’s application for leave to represent the company. 1 7 Mr Madzikanda has appealed this decision. 1 Decision No 1 of 2024, delivered 6 February 2024. -- 3 of 15 -- [2024] SADC 65 2 The Auxiliary Master’s Reasons 8 The Auxiliary Master reviewed the authorities dealing with the granting of leave for a director to represent a company rather than instructing a lawyer, and he noted that the company was in a similar position to that of a litigant in person, as Mr Madzikanda is both the second applicant, the sole director of the company and its majority shareholder.2 He further noted that the proceedings are in their infancy, the company is the applicant rather than the respondent and that there are likely to be significant delays in the interlocutory process because the applicants are unrepresented.3 9 The Auxiliary Master then considered the financial position of the company and Mr Madzikanda. He noted that, as the company was not operating, its assets cannot be realised. He further noted Mr Madzikanda’s annual income and the fact that he would receive a substantial benefit if the action is successful.4 10 The Auxiliary Master concluded: I think the issue is finely balanced, but in view of Mr Madzikanda’s substantial income and the benefit he would receive if the claim was successful, I am of the view that Mr Madzikanda is in apposition to instruct a lawyer, and, in the interests of an efficient use of the court’s resources and the efficient conduct of the proceedings generally, I refuse the application for the company to be represented by Mr Madzikanda.5 The grounds of appeal and the notice of alternative contention 11 In essence, Mr Madzikanda’s grounds relate to the way in which the Auxiliary Master treated his gross salary. He says that the Auxiliary Master failed to take into consideration the effect of essential deductions, including tax, rent and other living expenses, when determining that he has sufficient resources to retain a lawyer to represent the company. He also contends that the Auxiliary Master erred when considering the efficient use of court resources and the conduct of the proceedings generally. 12 The respondent filed a notice of alternative contention. It says that, in addition to his reasons for dismissing Mr Madzikanda’s application, the Auxiliary Master should have found that the complexity of the matter weighs heavily against allowing the company to be represented by its director, and that as the key witness for the applicant, the line between witness and advocate would be impermissibly blurred. It further contends that the Auxiliary Master should have found that, as there was no significant distinction or conflict between the claims of the company and those of Mr Madzikanda and they were seeking common remedies, they should be required to be represented by a lawyer and that UCR 25.6(2) did not apply. 2 Ibid, [7]. 3 Ibid. 4 Ibid, [8]. 5 Ibid, [9]. -- 4 of 15 -- [2024] SADC 65 3 Mr Madzikanda’s submissions 13 Mr Madzikanda submitted that the Auxiliary Master erred in that he took into account only Mr Madzikanda’s gross annual salary rather than also considering the significant and regular deductions from that salary. By failing to take the deductions into account, he erred in determining that he had sufficient disposable income to be able to instruct a lawyer. Mr Madzikanda submitted that the failure to take the deductions into account was clearly irrational and led to error on the Auxiliary Master’s part. 14 Mr Madzikanda further submitted that the Auxiliary Master failed to take into consideration the fact that, even if he was refused leave to represent the company, he would continue to act on his own behalf in his own action. As a result, the action will continue in any event, albeit without the company’s separate claims being prosecuted. The same facts and questions of law will be raised and the use of court resources will not be decreased if the company is not a party to the action. It was a clear error on the part of the Auxiliary Master to fail to take into consideration the fact that the matter will continue in any event. 15 Mr Madzikanda contended that substantial injustice will be caused if he is not permitted to represent the company. The company will not be able to raise sufficient funds to instruct a lawyer, as a result of which the action will be stultified and it is likely that it would be dismissed for want of prosecution. 16 Mr Madzikanda said that any delay that had occurred to date was not significant. While he conceded that there had been a number of amendments to the statement of claim, he noted that the first tranche of amendments was made at the request of the respondent and were inconsequential, such as referring to the respondent’s chief executive officer by name rather than by title. The second tranche of amendments was made without conceding any defect in the pleading and the third tranche consisted of the deletion of references to the Australian Consumer Law because that cause of action is no longer relied on. 17 Mr Madzikanda rejected the respondent’s submission as to the complexity of the matter. The respondent has not yet filed a defence; as a result, Mr Madzikanda says that it is not possible to determine how complex the matter is. Further, he contends that the issues in dispute are not particularly complex. He notes that the evidence in the matter will largely be documentary, supplemented by some oral evidence about conversations between him and officers of the respondent. 18 Mr Madzikanda submitted that, while he and the company have common interests, they are not the same. The company has its own rights and it is not possible for him to pursue the company’s claims as his own. The respondent’s submissions 19 The respondent says that Mr Madzikanda requires leave to appeal, which application is opposed. -- 5 of 15 -- [2024] SADC 65 4 20 The respondent submits that the decision under appeal is a discretionary one; as a result, the principles set out in House v The King6 apply. 21 The respondent challenges Mr Madzikanda’s ability to rely on his regular expenses as they were not raised at the hearing before the Master. The respondent says that they have been raised for the first time on appeal. Further, Mr Madzikanda has sought to rely on an affidavit filed for the purpose of the appeal. The material set out in the affidavit, which relates to his regular expenses, was readily available before the hearing before the Auxiliary Master; as a result, he should not be entitled to adduce fresh evidence for the purpose of the appeal. The respondent conceded that it was not prejudiced by this evidence. 22 The respondent submits that Mr Madzikanda is not impecunious. His salary compares favourably to the weekly median wage reported by the Australian Bureau of Statistics. The Auxiliary Master appropriately took into consideration the evidence before him as well as the substantial size of the claim. 23 The respondent contends that Mr Madzikanda’s submissions are contradictory: he says, on the one hand that the action will be stultified if leave is not granted and on the other, that it will continue in any event. It says that the Auxiliary Master properly recognised the dual capacity held by Mr Madzikanda in exercising his discretion. He did not, however, address the complexities of the case and the difficulties that would be caused if the company was not represented by a lawyer. This consideration weighs heavily against the exercise of the discretion. The complexities of the matter will lead to Mr Madzikanda’s failure to satisfy the obligations placed on litigants by the Uniform Civil Rules 2020 and will result in the action being carried on in an inefficient way. The respondent notes that there have already been three iterations of the statement of claim and the current iteration is the subject of an application for summary judgment or further particulars. 24 The respondent submits that the position of the company and Mr Madzikanda are indistinguishable. Mr Madzikanda’s financial position demonstrates an ability to fund a lawyer to represent both himself and the company, which their commonality of interest would not prevent. 25 The respondent says that UCR3.1(1)(h) requires a party to use reasonable endeavours to ensure matters are prosecuted or defended in a reasonable and proportionate way. It says that UCR 25.6 should be read against the background of this rule, which would allow a finding that UCR 25.6(2) (which allows an individual to represent themselves) does not apply to Mr Madzikanda or that it applied in a way that required both the company and Mr Madzikanda to be represented by a lawyer. It says that a party’s right to act for themselves must be tempered by the overarching obligations contained in UCR 3.1; in fact, it argues 6 (1936) 55 CLR 499. -- 6 of 15 -- [2024] SADC 65 5 that a person’ right to represent themselves is not absolute and is not in reality a right: a person is simply not prevented from acting for themselves. 26 The respondent submits that no error can be identified in the reasons of the Auxiliary Master. The dismissal of Mr Madzikanda’s application was in the interest of justice, in light of the substantial resources at his disposable. Consideration 27 To the extent necessary, I grant Mr Madzikanda leave to appeal. I also grant leave to Mr Madzikanda to rely on the evidence in the affidavit filed for the purpose of the appeal, on the basis that the respondent has conceded that it is not prejudiced by it. 28 I accept the respondent’s submission that this appeal is governed by the considerations set out in House v The King. I accept that an appeal court should only intervene in decisions of a discretionary nature in exceptional circumstances. The principles to be applied when considering if a director should be granted leave to represent a company 29 UCR 25.6 provides: 25.6—No right of representation by non-lawyer General position (1) Subject to the following subrules and any applicable statute, a person may not appear or be represented in a proceeding or appellate proceeding by a person other than a lawyer legally entitled to practice in South Australia. (2) To avoid doubt, this rule does not prevent an individual from acting or appearing as a self-represented litigant without any representation. Exception—company director (3) The Court may give leave for a person other than a law firm to represent or appear for a party in a proceeding or appellate proceeding on such terms as the Court thinks fit if— (a) the party is a company; (b) the representative is a director of the company; (c) the director has power to bind the party in the proceeding; and (d) the Court considers that it is in the interests of justice to give such leave. (4) The Court may if it thinks fit give leave to a self-represented litigant to be assisted in the presentation of their case at a hearing by a person approved by the Court. Unless the Court otherwise orders, such leave does not permit the person assisting to address the Court. -- 7 of 15 -- [2024] SADC 65 6 (5) The Crown may be represented by a person nominated by the Attorney-General in certain stages of criminal injuries compensation proceedings under section 10A of the (repealed) Criminal Injuries Compensation Act 1978 and section 26 of the Victims of Crime Act 2001. Magistrates Court (6) A party may be represented or assisted in a minor civil action by a person other than a lawyer if and to the extent permitted under section 38(4) of the Magistrates Court Act 1991. 30 Thus, an individual is entitled to represent themselves; a company, on the other hand, requires the leave of the court to be represented by a director rather than by a lawyer. 31 UCR 25.6’s predecessor rule was considered by Blue J in Winn v Stewart Bros Constructions Pty Ltd.7 He said: While caution needs to be exercised in considering authorities in other jurisdictions which consider differently worded rules, those authorities do identify several rationales for the principle that a company does not have an absolute right to be represented by a person other than a legal practitioner. 1. The opposite party may be disadvantaged by the time and cost of the proceeding being extended due to the company not being represented by a legally qualified advocate. 2. The public interest in the efficient and timely administration of justice may be prejudiced by the time and cost of the proceeding being extended due to the company not being represented by a legally qualified advocate. 3. The public interest in the fair administration of justice may be prejudiced by the fact that a lay advocate (unlike a legally qualified advocate) does not owe a duty to the Court and to the parties in the litigation to ensure that the Court is properly informed and not misled. Relevant factors The factors relevant to the exercise of the discretion are not limited and will vary from case to case. The direction in which a factor points and the weight to be accorded to it will vary from case to case. However, authorities identify several recurring factors which are typically relevant. Those factors in a case such as the present in which a director seeks to represent the company as advocate at trial include the following. 1. The role of the company as plaintiff or defendant. It may be (depending on other relevant factors) that authorisation will be more readily granted to a defendant because the defendant is not invoking the jurisdiction of the Court and in this sense is an involuntary party. 2. Whether the director is also a party in his or her own right (co-plaintiff or co- defendant). It may be (depending on other relevant factors) that authorisation will be 7 [2012] SASC 150. -- 8 of 15 -- [2024] SADC 65 7 more readily granted if the director is co-plaintiff or co-defendant (as the case may be) with the company. In some cases, this may tend to point against authorisation. 3. The stage which the case has reached. It may be (depending on other relevant factors) that authorisation will be more readily granted if the case is well advanced rather than at the outset. In some cases, this may tend to point against authorisation. 4. The time over which and manner in which the case has progressed from inception to when the application is made and the conduct of both parties to that point. 5. The degree to which financial considerations inhibit the company from obtaining legal representation. In particular, if the denial of authorisation is likely to stultify the prosecution or defence of the action (as the case may be), that is a substantial factor in favour of the grant of authorisation. At least where the company is a plaintiff, regard will usually be had not only to the financial resources of the company itself but also of the shareholders who stand to benefit from the litigation if successful. 6. The degree to which the time and cost of the trial will be extended due to the company being represented by a lay, self-interested, advocate (which impacts both upon the interests of the other party and the public interest as described above). 7. The extent to which the director is to be a witness in the proceeding. 8. The importance of the lay advocate not being subject to the ethical precepts that bind a legally qualified advocate.8 (footnotes omitted) 32 One of the cases relied on by Blue J was the case of Molnar Engineering Pty Ltd v Burns.9 In that case, Smithers J said: The common reason for a company seeking to proceed without qualified assistance is, no doubt, that the company does not have the funds to engage such assistance. One would suppose that a company might successfully support an application to sue or defend without qualified assistance, not only where the company is bereft of funds, but also where having regard to the necessary or reasonable commitments of the company, the appropriation of funds to engage qualified assistance for the litigation in question would create financial difficulties with which the company could not cope, or with which it ought not be required to cope. The class of company involved, the nature of its undertaking, its financial structure, its ability to retain and pay its staff and no doubt other factors might be relevant in particular cases. Similarly the identity of the shareholders and the spread of the shareholding would be relevant. So also would the capacity of a person by whom the litigation might be commenced and carried on. In this case Mr Molnar is, from the point of view of substance, a one man company. In addition, he is the inventor of the hoist in question and understands the technical factors relating to its safety. It could no doubt be urged that, in the case of a one man company which seeks leave to carry on the proceedings without a solicitor and 8 Ibid, [39] – [40]. 9 (1984) 3 FCR 68. -- 9 of 15 -- [2024] SADC 65 8 which proposes that it be carried on by the one man of the company the situation approximates, in substance, that of a litigant in person.10 33 While there are numerous cases which deal with this question, these two cases set out concisely the factors which are relevant. They make it clear that each case turns on its own facts, and that there must be a careful balancing of the rights and circumstances of the parties to ensure that justice is done. 34 I will deal with the grounds set out in the notice of appeal first. I will then deal with the notice of alternative contention. The notice of appeal Grounds 1 to 6 and 8 1. The Master erred in the exercise of his discretion by failing to take into account factors he was obliged to take into account. 2. The Master considered the Second Applicant’s gross annual income of $171,859 as substantial disposable income available to the Second Applicant to instruct/pay for a solicitor for the company. 3. The Master erred by failing to take into account the fact that the income was gross, and subject to significant deductions, including taxes, living expenses and other financial obligations. 4. The Master failed to take into account the Second Applicant’s payslip that was provided, that showed the net income per fortnight of $3,890. This is an equivalent of $101,140 per year. 5. The Master failed to take into account other general living expenses that are reasonably expected to be serviced by this single net income, with the main expenses for the Second Applicant being, i. Rent and utilities - $42,000 ii. School fees for 3 children - $30,000 iii. Transportation expenses, fuel, insurance, repairs, etc - $20,000 iv. Groceries - $12,000 6. Based on the above factors, the Second Applicant does not have disposable income to instruct a solicitor as decided by the Master. … 8. In the Master’s assessment of the Second Applicant’s capacity to pay for a solicitor for the company, in regard to material considerations, the deductions from gross income were so obviously material that it was irrational not to have taken them into account. 35 These grounds are essentially the same and can be dealt with together. 10 Ibid, 74-75. -- 10 of 15 -- [2024] SADC 65 9 36 I consider that the Auxiliary Master erred in taking into consideration only Mr Madzikanda’s gross income when determining that he had the financial capacity to retain a lawyer on behalf of the company. At the time of the hearing, the Auxiliary Master had Mr Madzikanda’s statement of income and net assets and a recent pay slip.11 These documents disclosed that he owned no real property and had some savings but otherwise minimal assets. The pay slip showed that his fortnightly taxable income was $5,438 and his net fortnightly income was $3,890. I accept that the Auxiliary Master did not have the benefit of the information that is before me as to Mr Madzikanda’s regular payments; nonetheless, it should have been evident that, once living expenses, including rent, were deducted from his net fortnightly salary, and with no other source of funding behind him, it would be difficult to fund a lawyer. 37 The information that I now have confirms that position. Mr Madzikanda says, and it is not disputed, that he is a sole parent of three children, with all of the attendant expenses. The respondent criticised him for sending his older two children to an independent school and made the submission that as he had made a choice as to how to dispose of his net income, he could not now claim that he lacked the financial capacity to instruct a lawyer as a result. I reject that criticism. I do not consider that the choice that Mr Madzikanda made to send two of his three children to an independent school is an unreasonable one, or one that was designed to render him unable to instruct a lawyer. I consider that the expenses disclosed by Mr Madzikanda are within the realm of the usual expenses incurred by a family of four. Their effect is to diminish substantially the capacity of Mr Madzikanda to retain a lawyer to act on behalf of the company. 38 I find that the appeal should be allowed on this basis. Ground 7 7. The Master failed to take into account the fact that the Respondent’s solicitors estimate for legal fees for the matter was $350,000 (pre-action meeting report). This can be expected to be an accurate estimate of legal fees due to the fact that the Respondent’s solicitors are vastly experienced. The Second Applicant’s income would not be sufficient to cover similar legal fees. 39 I do not consider that this ground is sustainable. The Auxiliary Master would not have been aware of the estimate for legal fees given by the respondent in the pre-action meeting report. This is a document that is not accessible on the court system. Grounds 9 to 11 9. In considering the interests of an efficient use of the court’s resources and the efficient conduct of the proceedings generally, the Master erred by failing to take into account the fact that the Second Applicant was entitled, and intended to continue the matter without a solicitor, if leave was refused for the company. 11 Exhibited to FDN 13 in CIV-23-8485, the primary action. -- 11 of 15 -- [2024] SADC 65 10 10. The use of the court’s resources and the conduct of the proceedings generally would not become any more efficient when the Second Applicant proceeds with the matter self- represented. 11. On the contrary, the court’s resources would likely be doubled because the matter would be heard separately, the Second Applicant’s matter first without a solicitor, then the First Applicant’s matter whenever funding for a solicitor is found. 40 I consider that the Auxiliary Master erred in failing to take into account the fact that, even if leave was denied to him to represent the company, Mr Madzikanda intended to pursue his personal claim against the respondent. Mr Madzikanda made his intentions in this regard clear in his written submissions prepared for the argument at first instance.12 41 It seems to me that it is a relevant consideration that, regardless of whether leave is granted to Mr Madzikanda to represent the company, this action will continue nonetheless. Given that the claims that Mr Madzikanda makes personally and those he makes on behalf of the company are based on the same facts and involve the same causes of action, it is difficult if not impossible to accept the argument that the court’s resources will be additionally burdened by the company’s being represented by Mr Madzikanda. The notice of alternative contention 1. In addition to the finding at [7], it was open to the Master to find, and he should have found, that the degree of complexity in the Appellant’s and SusTech Pty Ltd’s (Company) claim weighed heavily against granting leave for the Appellant to represent, or appear for, the Company. 42 This ground would carry more weight if Mr Madzikanda did not seek to pursue claims personally as well as on behalf of the company. Given that Mr Madzikanda seeks to prosecute a similar claim on his own account, the complexity of the company’s claim is not a matter that is sufficient to tip the balance in favour of refusing leave. 2. Further and in addition to ground 1 above, it was open to the Master to find, and he should have found, that: 2.1. given the complexity of the kind referred to in ground 1 above; and 2.2. given the proceedings as constituted blur the distinction between the Appellant and the Company in that the Appellant is the advocate and a key witness in the proceedings for both himself and the Company, neither the Appellant nor the Company are able to satisfy the obligations placed on litigants by UCR 3.1(1)(h). 43 This ground must be rejected. Neither the complexity of a matter nor the fact of self representation prevents a party from behaving reasonably, honestly and diligently. To suggest that the complexity of a claim would prevent a party from 12 See for example, [35] and [54] of FDN 11 in the primary action. -- 12 of 15 -- [2024] SADC 65 11 making reasonable endeavours to ensure that the steps taken in the matter are reasonable and proportionate misunderstands the rule. A party is required to use reasonable endeavours to ensure that the time and costs incurred are reasonable and proportionate to the importance and value of the subject matter of the claim, and the complexity of the issues in dispute. It is clear from the wording of the rule the time and cost involved in prosecuting a claim may depend on the complexity of the issues in dispute. It is also clear that a party must make no more than reasonable endeavours to ensure that the steps employed in the action are reasonable and proportionate; there is no gold standard or benchmark that the party must meet. What is reasonable and proportionate will vary from case to case, as will the conduct that would be regarded as “reasonable endeavours”. 3. In addition to the findings at [8] and [9], it was open to the Master to find, and he should have found that the Appellant was financially capable of instructing a solicitor to represent and appear for both the Appellant and the Company because: 3.1. there is no significant distinction between the Appellant’s and the Company’s claims as pleaded; and 3.2. there is no apparent or suggested conflict between the Appellant and the Company in the prosecution of those claims. 44 I do not consider that this ground makes sense. The fact that there may be no distinction to be made between the position of Mr Madzikanda and the company does not inform or influence the financial capacity of Mr Madzikanda to instruct a lawyer. It might be a reason to argue that, if the company were to be represented, Mr Madzikanda should be represented by the same lawyer. But the fact that the interests of the two applicants collide does not mean that one of them attains the financial capacity to instruct a lawyer. 4. It was open to the Master to find, and he should have found that: 4.1. UCR 25.6(2) is to be read subject to a litigant’s obligations provided by UCR 3.1(1)(h); 4.2. where a director is pursuing a claim seeking common remedies and relief, the company and the director should be required to be represented by a solicitor; and 4.3. in the circumstances set out in ground 3 above, the Master should have held that UCR 25.6(2) either did not apply or applied in a modified way pursuant to UCR 12.1(2)(a) and (b). 45 This reading of the UCR cannot be sustained. There is no cause to read down the operation of UCR 25.6 so as to prevent an individual from representing themselves in any circumstances. If a self represented litigant does not comply with the requirements of UCR 3.1, the remedy is not to require them to be represented by a lawyer. The UCR provides other remedies, such as summary dismissal or the use of costs orders. -- 13 of 15 -- [2024] SADC 65 12 5. It was open to the Master to find, and he should have found that, on the basis of the grounds set out above and in addition to his reasons, that it was in the interests of justice to refuse the Appellant leave to represent the Company. 46 Given that I have rejected all of the other grounds of alternative contention, this one must also be rejected. 47 It follows that the appeal must be allowed. In the circumstances, I consider that I should exercise the discretion myself rather than remit the application for further hearing by a Master. I consider that, otherwise, further time and costs would be wasted with a further hearing on the question. 48 I note Blue J’s view that leave may be more readily granted where the company is the respondent to the claim rather than the applicant. I accept that there is force to this, as a respondent is usually brought unwillingly before the Court. Nonetheless, I do not consider, in this case, that the company’s status as an applicant should preclude Mr Madzikanda from acting on its behalf. I accept Mr Madzikanda’s evidence that the company’s action will be stultified if he is not given leave to represent it. An impecunious company should not be deprived the right of pursuing a legitimate claim, in the same way that an individual should not be so precluded. There are other avenues open to a respondent to protect their interests, such as an application for security for costs. 49 The fact that Mr Madzikanda is also a party tends to point towards allowing him to represent the company. He has asserted his intention to prosecute the claims in his own name; I consider that he may as well prosecute the company’s claims, given the overlap in factual matrix and causes of action. 50 The matter is at the very earliest stage. A defence has not yet been filed. Nonetheless, I do not consider that this militates against leave being granted. Mr Madzikanda has said that he has a solicitor who assists him on an ad hoc basis and that he will engage experts where necessary. Given this, and the applicants’ financial position, I consider that this does not point to leave being denied. 51 It is true that there have been numerous iterations of the statement of claim and that there is an application on foot for strike out or further particulars. Nonetheless, I consider that this does not lead to the conclusion that leave should be refused. Clearly, the standard of pleading required of a self represented litigant is different to that of litigant who is represented by a lawyer. Even if the statement of claim does not comply with the letter of the UCR, that is not to say that a claim cannot be drafted which gives the respondent fair notice of the claim it is to meet. As a result, I do not consider that the fact that there have been numerous iterations of the statement of claim precludes leave being granted for Mr Madzikanda to represent the company. This, of course is a different question to that of strike out or further particulars. 52 There is a real prospect that both the interlocutory process and the trial itself will be lengthened as a result of the applicants’ representing themselves. -- 14 of 15 -- [2024] SADC 65 13 Nonetheless, I do not consider that this should prevent leave being granted. Access to justice is a fundamental right that should be available to all, whether individuals or companies, regardless of their financial status. It would be a true indictment of our legal system if a person were prevented from bringing a legitimate claim before a court because they could not afford a lawyer. The fact of the matter is that it is out of the reach of many Australians, including many who would be regarded as well off, to instruct a lawyer for the purpose of bringing a claim. This includes companies as well as individuals. I consider that, given the many reports on access to justice and the cost of justice, I may take judicial notice of this fact. 53 I note that Mr Madzikanda will be a witness in the action. Given that he intends to prosecute his own claim even if he is prevented from bringing the action on behalf of the company, I do not consider that this suggests that leave should not be granted to him to represent the company. 54 It is true that Mr Madzikanda would not have the same professional obligations as an officer of the Court. Nonetheless, to date, Mr Madzikanda has demonstrated courtesy to the Court and he has complied with orders made. He has endeavoured to comply with the UCR. His written submissions were clear and his oral submissions were well made. 55 In the circumstances, I consider that leave should be granted to Mr Madzikanda to represent the company. I will hear the parties on the question of costs. -- 15 of 15 --