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[2015] ZAGPJHC 217
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Pretoria Society of Advocates v Salemane and Another (14/33278) [2015] ZAGPJHC 217; [2016] 1 All SA 847 (GJ) (18 September 2015)
REPUBLIC
OF
SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 14/33278
DATE:
18 SEPTEMBER 2015
In the matter
between:
THE
PRETORIA SOCIETY OF
ADVOCATES
....................................................................
Applicant
And
MOKHELE
JOUBERT
SALEMANE
........................................................................
First
Respondent
THE SOCIETY OF
ADVOCATES
WITWATERSRAND
LOCAL
DIVISION
.............................................................
Second
Respondent
SUMMARY
Advocate
– admission – academic requirements in terms of s 3 of
the Admission of Advocates Act 74 of 1964 (“
the
Advocates Admission Act
”) –
the first respondent having a B.Proc degree for which he studied for
a period of 5 years at university –
successfully applying for
admission as an advocate – first respondent, contending that he
was properly qualified as envisaged
in s 3(2)(a)(i)(aa) or
3(2)(i)(bb) of the Advocates Admission Act – application for
admission as an advocate not opposed
by Advocates’ Societies
due to administrative oversight – subsequent application by
Society of Advocates based on Uniform
Rule 42(1)(a) on grounds that
order was erroneously sought and erroneously obtained by first
respondent due to first respondent
not being in possession of
requisite LLB degree and therefore not qualified to have been
admitted as advocate of High Court –
first respondent’s
interpretation of provisions of sec 3 of the Advocates Admission Act
flawed and untenable – order
purportedly admitting first
respondent as advocate reviewed and set aside – court
a
quo
not having been appraised fully of
first respondent’s academic qualification – applicant not
obliged to show good cause
– declaratory order not appropriate.
J
U D G M E N T
MOSHIDI,
J
:
INTRODUCTION
[1]
This matter essentially concerns the issue of the proper and
requisite academic qualification for admission as an advocate.
[2]
Mr Joubert Mokhele Salemane (“
the
first respondent
”) applied to
this local division for admission as an advocate. On 13 April
2011, he was duly admitted as such by Willis
J (as he then was), with
Kolbe AJ concurring.
THE
RELIEF SOUGHT
[3]
In the notice of motion, the Pretoria Society of Advocates (“
the
applicant
”), seeks relief in the
following terms:
“
1.
That the order of Willis J and Kolbe AJ in case no. 2011/02593,
dated 13 April 2011, be rescinded and set aside;
2.
That
the first respondent be ordered to pay the costs of this application
on the scale as between attorney and own client;
3.
That such further or alternative relief be granted to the applicant
as the Honourable Court should deem fit and proper.
”
The
Society of Advocates, Witwatersrand Local Division, is cited as the
second respondent.
THE
BACKGROUND
[4]
The background to the matter may be described as follows: the
first respondent’s application for admission as an
advocate of
the High Court was dated 21 November 2010. The application was duly
served on both the present applicant and the second
respondent on 17
February 2011.
[5]
In the founding affidavit, Mr J G Bergenthuin SC, the chairman of the
applicant, explained the usual procedure adopted or which
ought to
have been adopted, by the applicant’s offices, upon receipt of
applications of this nature. This was that
the application is
promptly given to one of two honorary secretaries of the Bar Council
in order to peruse, investigate and report
back to the administrative
clerk. In this matter, the honorary secretary concerned made a
note on the application to the
following effect:
“
We
refer to the above matter set down for the 12 April 2011, the
applicant has not attached a LLB Certificate to his application.
Kindly file a supplementary affidavit enclosing an LLB degree.
”
(
sic
)
The
procedure further required that the administrative clerk to
communicate with both the first respondent and the registrar,
recording
any concerns about the application. The registrar
would cause any objections or reservations to be placed on the court
file
and drawing the applicant’s concerns to the first
respondent and as well as to the court’s attention.
However,
the latter part of the usual procedure was not followed
strictly in the present matter, as seen below.
[6]
From the founding papers it appeared that there was a
misunderstanding and surely, a miscommunication between the
administrative
secretaries of the applicant and the second
respondent, even though they were aware of the blatant shortcoming in
the first respondent’s
application for admission. In my
view, not much significance ought to be placed on such
misunderstanding since it could not
be of any advantage to the first
respondent’s case, on the merits of this matter, in the end.
[7]
It is common cause that pursuant to the order purportedly admitting
the first respondent as an advocate, and on 2 July 2012,
he applied
for pupilage to the applicant for the year 2013. It is also
common cause that in both his application for admission,
and the
application for pupilage, the first respondent stated his academic
qualification to be Baccalaureus Procurationis (“
B.Proc
”),
obtained at the University of Durban-Westville (KwaZulu-Natal) in
1994. Based on the fact that in the application
for pupilage,
the first respondent attached the court order admitting him as an
advocate, it appeared that the full extent of the
deficiency in his
application was still not realised. As a consequence, he was
admitted as a pupil member of the applicant
on 28 November 2012.
This was unfortunate in the extreme. The long and short of all this
unfortunate incident and administrative
oversight on the part of the
advocates’ societies was that the applicant, on 10 September
2013, resolved, “
that the
Professional and Ethics Committee be instructed to apply for a
rescission order in the South Gauteng High Court for Salemane’s
admission as an advocate
”.
This led to the present application in which the applicant contended
that ‘
the first respondent was not
duly qualified to be admitted as an advocate of this Honourable Court
and that the order was therefore
erroneously sought and erroneously
granted
’. This, in the
absence of the applicant, and on the basis that the first respondent
had not complied with the peremptory
requirement for admission as an
advocate, i.e. being in possession of an LLB degree. The
applicant stated that it did not
oppose the first respondent’s
application for admission as an advocate, because it reasonably
believed that the application
would be opposed by the second
respondent instead, which did not happen.
THE
FIRST RESPONDENT’S OPPOSING PAPERS
[8]
The first respondent, in what I conceive as a rather surprising and
quite uncharacteristic move, filed opposing papers.
He denied
that the order purporting to admit him as an advocate was sought and
granted erroneously. He also denied that he
did not possess a
Bachelor of Laws (“
LLB degree
”).
He contended, and which was common cause anyway, that in January
1990, he enrolled for the B.Proc degree at the
University of
Durban-Westville, as a full-time student. He completed his
studies in 1994. The B.Proc degree was conferred
upon him
during May 1995. The first respondent further contended that
the period of study mentioned above, i.e. January 1990
to December
1994, covered at least 5 years of study, and that his B.Proc degree
is equivalent to the LLB degree. Based thereon,
so the contention
continued, the first respondent was duly qualified to be admitted as
an advocate, as envisaged in sec 3(2)(b)
of the Advocates Admission
Act, and that consequently, the impugned order was correctly granted
on 13 April 2011. In further
advancing his argument, that he
had duly ‘
complied with the
peremptory requirements as advocate
’,
the first respondent attached to his answering papers, a certificate
of good character, annexure “B”, issued
by the Faculty of
Law, University of Durban-Westville, KwaZulu-Natal, (“
the
certificate of good character
”)
on 12 July 2011. I shall deal in more detail with the
certificate of good character later in the judgment.
At the
hearing of the matter before us, the first respondent, who appeared
in person, repeated fundamentally the submissions contained
in the
answering papers.
THE
SUBMISSIONS OF THE SECOND RESPONDENT
[9]
In its answering papers, the second respondent, through its
chairman, Mr P F Louw SC, did not oppose the application as such.
However, the second respondent expressed the view that the first
respondent should never have been enrolled as an advocate since
he
lacks the prescribed academic qualification. The second
respondent also dealt with other issues, such as how the
administrative
oversight occurred leading to the admission of the
first respondent.
THE
LEGAL REQUIREMENTS
[10]
Section 3 of the Admission of Advocates Act 74 of 1964 (“
the
Advocates Admission Act
”) deals
with the admission of persons to practise as advocates.
Subsection (2) of this section, in particular, provides
as follows:
“
(2)
The following persons shall for the purposes of paragraph (b) of
subsection (1) be deemed to be duly qualified, namely:
(a)
Any
person who –
(i)
(aa) has satisfied all the requirements for
the
degree of baccalareus legum
of
any university in the Republic after completing a period of study of
not less than four years for that degree; or
[Item
(aa) substituted by s. 1 of Act No. 78 of 1997.]
(bb)
after
he or she has satisfied
all
the requirements for the degree of bachelor other than the degree of
baccalaureus legum
,
of any university in the Republic or after he or she has been
admitted to the status of any such degree by any such university,
has
satisfied all the requirements for the degree of baccalaureus legum
of any such university after completing a period of study
for such
degrees of not less than five years in the aggregate
;
or
(ii)
has
satisfied all the requirements for a degree or degrees of a
university in a country which has been designated by the Minister,
after consultation with the General Council of the Bar of South
Africa, by notice in the Gazette, and in respect of which a
university
in the Republic with a faculty of law has certified that
the syllabus and standard of instruction are equal or superior to
those
required for the degree of baccalareus legum of a university in
the Republic;
[Para.
(a) amended by s. 1 of Act No. 73 of 1965, substituted by s. 1
of Act No. 39 of 1977, amended by s. 1 of Act No. 17
of 1987 and
substituted by s. 2 of Act No. 106 of 1991, by s. 2(a) of Act No. 55
of 1994 and by s. 1 of Act No. 33 of 1995.]
(b)
any
person who before the commencement of this Act passed any examination
or satisfied all the requirements for any degree which
in terms of
any law repealed by section thirteen would immediately before such
commencement have entitled him to be admitted to
practise as an
advocate of any division on compliance with any other requirement of
the said law with regard to matters other than
such examination or
degree;
(c)
any
person who –
(i)
at
the commencement of this Act was registered as a student at a
university referred to in section one of the Admission of Advocates
Act, 1921 (Act No. 19 of 1921), and was engaged in a course of study
with a view to obtaining a certificate, diploma or degree
referred to
in the said section; and
(ii)
has
satisfied all the requirements for the said certificate, diploma or
degree and has on or before the thirty-first day of December,
1974,
passed the examination in Roman-Dutch law and the statute law of the
Republic referred to in section two of the said Act
or is in terms of
the said section not required to pass the examination in both or
either of the said subjects;
(d)
any
person who –
(i)
at
the commencement of this Act was registered as a student at any
university or university college in the Republic for the degree
of
baccalaureus legum; and
(ii)
has
satisfied all the requirements for the said degree;
(e)
any
person who –
(i)
at
the commencement of this Act was registered as a student at any
university or university college in the Republic for a degree
in any
faculty and was engaged in a course of study for such degree, the
successful completion of which would in accordance with
the
regulations of such university or university college then in force,
entitle him to be exempted from a portion of the examination
for the
degree of baccalaureus legum; and
(ii)
has satisfied all the requirements for the said degree and the said
degree of baccalaureus legum.
”
(underlining
added)
Section
3(4) of the Advocates Admission Act provides that any person admitted
and authorised to practise and to be enrolled as an
advocate in terms
of subsection (1), shall be enrolled as an advocate on the roll of
advocates. The Advocates Admission Act
defines “
advocate
”
to mean an advocate of the Supreme Court.
[1]
The Concise Oxford Dictionary defines ‘
advocate
’,
inter
alia,
as
“
a
person who pleads a case on someone else’s behalf
”.
[2]
[11]
By way of some historical case law: in
Jasat
v Incorporated Law Society Natal
,
[3]
the Court was concerned with the applicant’s qualification for
admission as an advocate since the applicant alleged that
he fell
within the terms of paragraph 4 of the First Schedule to the
Attorneys Admission Act 23 of 1934. The applicant also alleged
that
in terms of sec 3(2)(b) of the Advocates Admission Act, he was duly
qualified to be admitted as an advocate of the Court,
based on his
admission and enrolment as a barrister-at-law in England at the time
of the commencement of the Advocates Admission
Act. At p 439 of
the judgment, the Court said that:
“…
The
essential pre-requisite of due qualification in terms of sec 3(2)(b)
is that specified examinations must have been passed or
the
requirements for specified degrees satisfied. The examinations or
degrees in question are specified by reference to the laws
repealed
by sec 13. It is clear, therefore, that one who seeks admission
as an advocate in terms of sec 3(2)(b) must necessarily
satisfy the
Court that he has passed any of the indicated examinations or
satisfied the requirements for any of the specified degrees.
”
See
also
Ex
Parte Feetham,
[4]
where
the Court dealt with an application for admission as an advocate in
circumstances where, although the applicant had attained
the LLB
degree, such degree had not yet been officially conferred upon him.
In granting the application, and furnishing reasons
therefor, the
Court said that the intention of the Legislature, was that the
relevant qualification should be
the
applicant’s passing of the LLB examination
,
and not the extraneous act of the university in conferring the
degree.
The
matter of
Jasat
went on appeal. In dismissing the appeal, and in an unanimous
decision, the Court said:
“…
Appellant
has failed to show that he is ‘duly qualified’ to be
admitted as an advocate by virtue of the plain and unambiguous
meaning of the provisions of sec 3(2)(b) of the Act read with the
provisions of Rule 36(d). Counsels’ concluding
submission,
based on the contention that sec 3(2)(b) is ambiguous,
does not therefore arise for consideration.
”
[5]
(
Cf
Ex
Parte Haddad,
[6]
and
In
Re Rome
,
[7]
which dealt with the requirements of sec 3 of the Advocates Admission
Act in the context of foreign qualifications, and Lawsa.
[8]
Similarly, the application in
Nxumalo
v Northern Cape Society of Advocates
,
[9]
although in the context also of foreign qualifications, concerned the
requirements for admission as an advocate in terms of the
Advocates
Admission Act. In dismissing the application, Kgomo J (as he
then was), and at p 504 of the judgment, said:
“…
That
the foreign legal qualification for admission as an advocate must not
be inferior to the legal qualifications prescribed by
the Act.
This aspect is not difficult to comprehend. Not even for
applicant under whose signature his title is reflected
as:
‘Legal Advisor, Northern Cape Legislature’.
Section 2(1) of the Act makes the
injunction that ‘no person shall be admitted to practice as an
advocate save in accordance
with the provisions of this Act.
Section 3(1)(b) also provides that an
applicant must be “duly qualified”. A South African
law faculty can partly
provide or answer to this requirement.
The possession of the appropriate qualifications is a matter of
substance without
which an application for admission cannot succeed.
See University of Cape Town v Cape Bar Council
1986 (4) SA 903
(A);
Tyatya v University of Bophuthatswana
1994 (2) SA 375
(B).
”
The
matter of
University
of Cape Town
v Cape Bar Council and Another, supra
,
concerned the language requirements as set out in sec 3(2)(a)(i) and
(ii) of the Advocates Admission Act. There, it was held,
inter
alia
, that:
“
The
words of s 3(2), clear and unambiguous as they appear to be on the
face thereof, had to be read in the light of the subject-matter
with
which they were concerned, viz the requirements for the LLB degree
which had to be obtained by anyone who wished to be admitted
to
practise as an advocate and that it was logical and reasonable that,
when the Legislature prescribed that the curriculum for
that degree
should contain the language courses mentioned in s 3(2), it intended
that those courses should be true university courses,
i.e.
post-matriculation courses.
”
See
too,
Hayes
v The Bar Council,
[10]
in
which, although the applicant had attained the requisite LLB degree
for admission as an advocate, his application was declined.
There, the Court emphasised that the
onus
was on the applicant to establish that he was a fit and proper person
to be admitted as an advocate; that the test is an
objective,
and factual one; that the court had a duty to ensure that suitors
before courts were not exposed to improper officers
of the courts;
and generally, what was required of an applicant applying for
admission as an advocate.
[11]
[12]
From all the above case law, it is readily plain that the LLB degree
has always been the minimum academic qualification required
for
admission as an advocate. (See Annual Survey, (1964) p 454.)
The Qualification of Legal Practitioners Amendment Act,
[12]
amended,
inter
alia
,
the Admission of Advocates Act and the Attorneys Act,
[13]
in order to provide for the requirement of a universal legal
qualification in order to be admitted and enrolled to practise as
an
advocate or an attorney. In essence, and for present purposes,
the Qualification of Legal Practitioners Amendment Act
introduced the
four-year undergraduate LLB degree, and phasing out of the B.Juris
and B.Proc degrees. Currently, the now
controversial four-year
undergraduate LLB is the minimum requirement for most occupations,
including the advocacy profession.
I make reference to the
four-year LLB degree simply to demonstrate, as seen later, that the
first respondent does not possess such
academic qualification, as
well.
[13]
The legal principles set out above, when properly applied to the
facts of the instant matter, demonstrate readily that the
first
respondent’s interpretation and understanding of the applicable
legal provisions, in particular, sec 3(2)(a), were
completely
misplaced. In his heads of argument, the first respondent
contended that he is properly qualified since he ‘
has
satisfied all the requirements for the degree of baccalaureus legum
of any university …
after
completing a period of study of not less than four years for that
degree
’
,
or that he ‘
has
satisfied all the requirements for the degree of baccalaureus
other than the degree of
baccalaureus
legum of any university … after he has been admitted to the
status of any such degree by any university, has
satisfied all the
requirements for the degree of baccalaureus legum of any such
university
after completing a
period of study for such degrees of not less than five years in
aggregate
’
(underlining
added).
[14]
In short, the first respondent claimed that because he attained the
B.Proc degree which he completed over a period of five
years (i.e.
from 1990 to 1994), and/or that he studied for four years and
satisfied all the requirements of the LLB degree, and/or
that he
satisfied all the requirements of the LLB degree after completing a
period of study of not less than five years, he was
entitled to be
admitted as an advocate. In essence, the first respondent is
equating his B.Proc degree to the LLB degree.
[15]
The first respondent’s assertions set out above, were both
misconceived or untenable, for a number of obvious reasons.
The
starting point, and rather interesting too, is the observation that,
in both his application for admission as an advocate and
in his
answering papers in the present application, the first respondent
omitted to attach either his B.Proc degree certificate
or copies
thereof. The statement of results he attached instead, as well
as the certificate of good character referred to
in para [8] of the
judgment, do not serve as adequate proof at all. In closing
argument, the first respondent confirmed that
the latter certificate
was obtained by him after his purported admission as an advocate by
this High Court.
[16]
In any event, even if it were to be accepted in his favour that he
possesses the B.Proc degree, it is common cause that the
first
respondent does not in fact possess an LLB degree. In these
circumstances, and having in mind the requisite academic
qualifications outlined in the above case law, it can hardly be
contended that the first respondent has satisfied the requirements
for a four-year
baccalaureus legum
degree or has satisfied the requirements of a bachelor’s degree
other than a
baccalaureus legum
degree
after completing a period of study for such degrees of not less than
five years in aggregate. Neither can it be argued
that the
first respondent attained the four-year LLB degree as envisaged in
the Qualification of Legal Practitioners Amendment
Act. It
appears to me that the provisions of sec 3(2)(a)(i)(aa) and
2(a)(i)(bb) of the Advocates Admission Act should be
read together
and not, disjunctively. The rest of the provisions of sec 3(2)
and sec 2(3) are not relevant for present purposes.
[17]
The first respondent’s interpretation that a five-year study
towards a B.Proc degree, if any, was equivalent to an LLB
degree
cannot be sustained. It could never have been the intention of
the Legislature in the provisions of sec 3(2) of the
Advocates
Admission Act to equate a B.Proc degree to an LLB degree. This
would lead to absurdity. The words used in
sec 3(2) above, must
be given their plain, ordinary, literal and grammatical meaning as
was enunciated in,
inter
alia
,
Randburg
Town Council v Kerksay Investments (Pty) Ltd
,
[14]
and
Nyembezi
v Law Society, Natal.
[15]
[18]
The provisions of sec 3(2) of the Advocates Admission Act make it
readily clear that the academic requirement for admission
as an
advocate is the LLB degree. Indeed, Prof A Boraine, the Dean of
the Faculty of Law at the Pretoria University, who
has filed a
supporting affidavit in favour of the applicant (“
Boraine
”),
supported this view. Boraine stated that, pursuant to the
abolishment of the B.Proc degree by all universities,
a B.Proc
graduate who wishes to complete the four-year LLB degree at the
University of Pretoria must be registered for an additional
two years
of study and also do certain modules as attached to his affidavit, as
annexure “AB2”. In addition,
the current four-year
LLB degree as offered by the University of Pretoria, differs from the
former B.Proc degree,
inter alia
,
in that, the four-year LLB degree requires a dissertation which was
not prescribed for the former B.Proc degree; apart from
the
core subjects, students in their final year are required to do three
law subjects as electives for the LLB degree; and
that the LLB
curriculum
requires a course in research. Boraine concluded that as far as
the present matter is concerned, the first respondent has
not
obtained the requisite academic qualification as prescribed by the
Advocates Admission Act entitling him to be admitted as
an advocate
of this Court. The first respondent’s criticism of
Boraine’s opinion, including that Boraine does
not possess ‘
all
the specific professional attributes
’,
is ‘
irrelevant and inadmissible
’,
had no merit at all, to say the least.
CONCLUSION
[19]
From the above exposition of the facts, especially the common cause
ones, I conclude that the first respondent ought never
have applied
for admission as an advocate in the first instance. It is
readily ascertainable that, had the court
a
quo
been appraised fully of the factual
position, and had either the applicant or the second respondent
opposed the application for
admission timeously, the order purporting
to admit the first respondent as an advocate of this High Court would
never have been
granted. In my view, the administrative
oversight, to the extent attributable to the applicant and the second
respondent
ought not now, in retrospect, advantage the first
respondent unduly, even though his hopes may have been raised
falsely.
The first respondent himself, as a prospective
‘
officer of the court
’,
at least in his mistaken belief, had the responsibility and
obligation to place the correct factual circumstances of his
academic
qualification before the court
a quo
.
His insistence right up to, and during the hearing of this
application for rescission, that he has the requisite academic
qualification, and that he was properly admitted, remains puzzling
and worrisome. The same applies to the submission in his
heads
of argument that “
the first
respondent further wish to submit that, is currently completing a
degree masters in law (research), with modules, research
methodology
and full dissertation at the University of South Africa, and said
degree was enrolled over a period of two years
”
(
sic
).
THE
APPROPRIATE RELIEF
[20]
Based on the above finding, the only issue is what would be the
appropriate relief in the circumstances of this matter.
The
applicant in the notice of motion seeks the rescission and setting
aside of the order admitting the first respondent as an
advocate on
the basis that it was erroneously sought and erroneously granted.
The second respondent, although supporting
the application, was
however concerned that the ambit of Rule 42(1) is not wide enough to
accommodate the rescission of the initial
order. As an
alternative, the second respondent proposed that a declaratory order
should be issued - with effect from the
date of the order sought to
be rescinded - that the first respondent is not duly qualified to be
enrolled as an advocate.
[21]
The first respondent argued against the granting of a declaratory
order on three grounds. These are that the Court may in its
discretion decline to grant such order if the question raised before
it is hypothetical, abstract and academic. The other
ground was
that a declaratory order should not be granted on motion where there
is a real and
bona
fide
dispute of fact. The final ground was that the Court will not grant a
declaratory order where the legal position has been clearly
defined
by Statute. For the latter ground, the first respondent relied
on
Ex
parte Noriskin
.
[16]
In the second ground, the first respondent relied on
Hattingh
v Ngake
.
[17]
The contentions of the first respondent were difficult to
comprehend. There is no dispute of fact on the critical issue
in this matter that he does not possess an LLB degree, and the
provisions of sec 3(2) of the Advocates Admission Act, as interpreted
above, are unambiguous and clear.
[22]
The final view I take in this matter may be summarised as follows:
a declaratory order is not appropriate in the circumstances
of this
case. This is so since the provisions of Rule 42(1) are
sufficient to grant the order sought by the applicant; the
prerequisite provisions relating to the academic qualification for
admission as an advocate are clear and plain; the first respondent
does not have an LLB degree; his interpretation of the applicable
provisions is untenable; the Court has no room for exercising
its
discretion in favour of the first respondent; and there is no dispute
of fact. In short, the order he sought for admission
was
erroneously sought and erroneously granted.
THE
RELIEF UNDER RULE 42(1)(a
)
[23] The Rule provides as follows:
“
(1)
The court may, in addition to any other powers it may have, mero motu
or upon the application of any party affected, rescind
or vary:
(a)
An order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
”
[24]
It is by now settled that the applicant, in order to succeed in
obtaining an order under subrule 42(1)(a) of the Uniform Rules,
must
show that the prior order was ‘
erroneously
sought or erroneously granted
’.
[18]
Once the Court has established that an order was indeed erroneously
sought and erroneously granted, it is called upon, without
any
further enquiry, to rescind or vary the order. See
Tshabalala
and Another v Peer.
[19]
It is also not necessary for the applicant in such instance to show
good cause for the provisions of the subrule to apply. See
in this
regard,
Topol
and Others v LS Group Management Services (Pty) Ltd
.
[20]
The same approach entails where the judge in granting the impugned
order was not aware of certain facts. For example,
in
Nyingwa
v Moolman NO
,
[21]
the Court said:
“
It
therefore seems that a judgment has been erroneously granted
if
there existed at the time of its issue a fact of which the Judge was
unaware, which would have precluded the granting of the
judgment and
which would have induced the Judge, if he had been aware of it, not
to grant the judgment
.
”
(underlining
added)
See
also
Promedia
Drukkers and Uitgewers (Edms) Bpk v Kaimowitz and Others
,
[22]
where the same principle was emphasised, and the
dictum
in
Tshivhase
Royal Council v Tshivhase; Tshivhase v Tshivhase
[23]
at
862H to 863A, was applied.
[25]
From the facts of this matter, it is more than plain that had the two
Judges who granted the first respondent’s admission
application
been aware of the fact that the first respondent does not possess the
LLB degree, they would not have granted the order.
I venture to
suggest that the first respondent, on his part, as a potential
‘
officer
of the court
’,
was obliged to place the true facts before the court
a
quo
,
and not take advantage of the administrative inadvertence of the Bar
Council Societies. It is trite that in applications
for
admission, whether as advocate or attorney, the relevant professional
body would intervene invariably if the application is
defective and
non-compliant with statutory provisions. In any event, the
courts have the inherent power to protect and regulate
their own
process in the interests of justice, as enshrined in sec 173 of the
Constitution.
[24]
In my view, this is such a case where this Court ought to protect,
not only professional interest, but also public interest,
by not
allowing the impugned order to remain extant. “
The
High Courts exercise ultimate control over the standards of
professional conduct of members of both branches, however.
This
enables the courts to exclude those whom if they regard as lacking
integrity and/or the proper respect for the law expected
from someone
who is regarded as an officer of the court and whose duties to the
administration of justice may override his own
interests and those of
his clients
.”
(See Wille’s
Principles
of South African Law
.)
[25]
See also
Aarons
v Law Society of Transvaal.
[26]
It
follows that the applicant has succeeded in making out a case for the
relief claimed in the notice of motion. The order
relied on by
the first respondent must be set aside.
COSTS
[26]
I deal with the question of costs. There was no credible reason
advanced why the costs should not follow the result which
is tritely
a discretionary matter. In the notice of motion, the applicant
claimed costs on the scale as between attorney and own
client.
In my view, such a costs order is bordering on excessive punitiveness
having in mind the peculiar circumstances of
this matter. On the
other hand, the first respondent, for some inexplicable reason,
persisted throughout in his contention that
he was properly admitted
as an advocate. This, in the face of the objective evidence to
the contrary that he does not possess
the requisite academic
qualification. In my view, a costs order on the scale as
between party and party would be just and
equitable in the
circumstances of this matter.
ORDER
[27]
In the result the following order is made:
1.
The order of Willis J and Kolbe AJ in case no. 02593/2011 in
admitting the first respondent as an advocate of this High Court
on
13 April 2011, is hereby rescinded and set aside.
2. The first respondent shall pay the costs of
the application.
D S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur:
P
A MEYER
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur:
SIKHAKHANE
MUZI
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE APPLICANT
A T LAMEY
INSTRUCTED
BY
BERNHARD VAN DER HOVEN ATTORNEYS
COUNSEL
FOR THE FIRST
RESPONDENT
M J SALEMANE
INSTRUCTED
BY
MHLOBA AND MOSHONA INC
COUNSEL
FOR THE SECOND
RESPONDENT
NO APPEARANCE
INSTRUCTED
BY
MATHOPO MOSHIMANE MULANGAPHUMA INC
DATE
OF HEARING
7 AUGUST 2015
DATE
OF JUDGMENT
18 SEPTEMBER 2015
[1]
See
sec 1 of the Advocates Act.
[2]
10ed.
[3]
1969
(1) SA 437
(N).
[4]
1954
(2) SA 468
(N).
[5]
See
1970 (1) SA 221
(A) at 227H.
[6]
1954
(2) SA 568
(T).
[7]
1991
(3) SA 291
(A).
[8]
2ed,
Vol 14, Part 2, para 117.
[9]
[2001]
3 All SA 498
(NC).
[10]
1981
(3) SA 1070
(ZA).
[11]
See pp
1084 to 1085 of the judgment.
[12]
78 of
1997.
[13]
53 of
1979.
[14]
1998
(1) SA 98
(SCA) at 107A-C.
[15]
1981
(2) SA 752
(A) at 757B-E.
[16]
1962
(1) SA 856
(D).
[17]
1966
(1) SA 64
(O).
[18]
See
Uniform Rule 42(1)(a) or Uniform Rule 31(2)(b) or the common law.
[19]
1979
(4) SA 22
(T) at 30D.
[20]
1988
(1) SA 639
(W) at 650D-J.
[21]
At
510F-G.
[22]
1996
(4) SA 411
at 416J to 417.
[23]
1992
(4) SA 582
(A).
[24]
The
Constitution of the Republic of SA, 1996, at 108 of 1996.
[25]
9ed p
137.
[26]
1997
(3) SA 750
(T) at 758F-G.