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[2016] ZAGPJHC 132
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Roberts v General Council of the Bar of South Africa and Others (2015/13360) [2016] ZAGPJHC 132 (2 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN THE
HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO:
2015/13360
DATE: 2
JUNE 2016
In the
matter between:
MATTHYS
GERHARDUS
ROBERTS
..................................................................................
Applicant
And
THE
GENERAL COUNCIL OF THE BAR OF
SOUTH
AFRICA
..........................................................................................................
First
Respondent
THE
CHAIRPERSON OF THE APPEAL TRIBUNAL
OF THE
GENERAL COUNCIL OF THE BAR OF
SOUTH
AFRICA
......................................................................................................
Second
Respondent
CAMERON
PETER
HUNT
......................................................................................
Third
Respondent
J U D G
M E N T
LAMONT, J
:
[1] The applicant has
brought an application to review the decision of the Appeal Tribunal
of the first respondent.
[2] The applicant and
the third respondent are both members of the Society of Advocates of
KwaZulu-Natal. (I hereafter refer
to that entity as the KZN
Bar.)
[3] The third
respondent lodged a complaint against the applicant with the KZN Bar.
The KZN Bar dealt with the complaint in terms
of Rule 15 of the Rules
relating to complaints and enquiries. The complaint was sent to the
Complaints Sub-Committee. That Sub-Committee
reported in due course
that no further action should be taken arising out of the complaint
and that recommendation was adopted
by the KZN Bar.
[4] The third
respondent objected that the Sub-Committee had not considered the
third respondent’s response to the complaint.
The KZN Bar
agreed that the third respondent’s complaint should be
considered afresh by a new Complaints Committee. That
Complaints
Committee investigated and in due course reported that in its view
the applicant was not guilty of misconduct and that
nothing further
should be done about the complaint. The KZN Bar notified the third
respondent of its decision in the following
terms:
“
The
Council considered the report of the Sub-Committee and the voting
members of Council unanimously adopted its recommendation
that the
explanation of Roberts SC should be accepted and that he should not
be found guilty of misconduct and that nothing further
should be done
with regard to the complaint and the file relating to it should be
closed.
”
It is apparent from the
decision that the KZN Bar did no more than accept what had been
proposed by its Sub-Committee. That proposal
is contained in
paragraph 19 of the report in the following terms:
“
19. It
is our view that Roberts’ explanation should be accepted, that
he is not guilty of misconduct and that nothing further
should be
done with regard to the complaint. The file relating to it
should be closed.
”
[5] The third
respondent applied for leave to appeal against the decision of the
KZN Bar.
[6] The applicant
accepts that the day after the third respondent applied for leave to
appeal an application was transmitted to
his chambers. He was on
leave and the application did not come to his attention until 24
th
February 2014, a date after the application had
been heard. In a letter dated 28
th
February 2014 the applicant stated:
“
4. I
was not given the opportunity to respond to the grounds of appeal.
I would no doubt have responded if the GCB gave me
an opportunity to
do so.
5.
By
virtue of the fact that leave to appeal has now been granted, I trust
that in future, before any decision is reached that I be
given an
opportunity to be heard.
6.
The
record of the KwaZulu-Natal Society given to me has not been properly
prepared and I suggest that all the documents be placed
in sequence
before being presented to the committee.
”
It was common cause
that the applicant did not make any input into the application for
leave to appeal either by way of writing
or by way of appearing. This
is consistent with his not having had knowledge of the application.
[7] In due course the
appeal came before a committee (the Appeal Tribunal) of the first
respondent. The Appeal Tribunal committee
was chaired by the second
respondent. At the hearing of the appeal the applicant submitted that
his rights had been affected when
a decision was made as he had not
been afforded an opportunity of dealing with the application for
leave to the Appeal Tribunal
inasmuch as same had not been brought to
his attention and that the Appeal Tribunal did not in any event have
jurisdiction as the
appeal did not arise out of disciplinary
proceedings.
[8] The
submissions of the applicant seeking a dismissal were rejected. A
ruling was made that the appeal be set down so that the
merits could
be determined. A further ruling was made that the procedure would be
as set out in a letter dated 28
th
May 2014. (The procedure involved the leading of
evidence, argument and a decision being made.)
[9] The applicant
sought to review the decision on three bases:
9.1
He had
not been afforded an opportunity to address the body hearing the
application for leave to appeal.
9.2
The
Appeal Tribunal did not have jurisdiction to hear the matter.
9.3
In the
event of the above two arguments being unsuccessful then the
procedure for the hearing set out by the Appeal Tribunal was
not
competent.
[10] In consequence of
the view I have taken on the issue of jurisdiction it is not
necessary for me to deal with the other two
submissions.
[11] The rules of the
first respondent provide:
“
6.
POWER
(a)
The
Council shall have no jurisdiction over any constituent Bar or its
members except to extend provided for in the three succeeding
subsections.
(b)
The
Council shall have the power to:
(i)
hear
and decide appeals by members of constituent Bars from decisions of
those Bars in any disciplinary proceedings in respect of
those
members …
(ii)
hear
and decide appeals by any complainant from decisions of a constituent
Bar in any disciplinary proceedings in respect of members
of such
Bar;
(iii)
…
(iv)
…
(c)
(i) the appeals
provided for in paragraphs (b)(i), (b)(ii) and (b)(iii) shall only be
heard after the appellant has exhausted the
appeal procedure, if any,
of a constituent Bar and is subject to the leave to appeal procedure
provided for in paragraph (c)(ii);
(ii)
the
member concerned and the complainant concerned may … apply for
leave to appeal to the Council …
(d)
[irrelevant
to the issues].”
[12] Jurisdiction is
only conferred upon the first respondent to decide appeals by members
of a constituent Bar in respect of disciplinary
proceedings in
respect of those members and to hear and decide appeals by a
complainant from a decision of a constituent Bar in
any disciplinary
proceedings in respect of members of such Bar.
[13] Such appeals are
only to be heard after the appellant has exhausted the appeal
procedure of a constituent Bar and after the
leave to appeal
procedure provided has been followed.
[14] The question
arises as to what constitutes disciplinary proceedings as for present
purposes jurisdiction is only conferred
upon the first respondent in
respect of disciplinary proceedings. This requires a consideration of
the KZN Bar rules.
[15] Rule 15 of the KZN
Bar rules is the rule setting out what is to occur in respect of
complaints and enquiries.
“
15.
RULES RELATING TO COMPLAINTS
AND ENQUIRIES
(a)
The
Chairman may appoint any member to investigate a complaint against a
member.
(b)
Any
person so investigating shall be entitled, after informing the member
of the complaint, to require the member whose conduct
is being
investigated to produce any books, records of documents with regard
to or relevant to the investigation of the matter
being
investigation.
(c)
If,
in the opinion of the member investigating, a proper investigation
requires that he should have the assistance of any other
member or
members or any other person whatsoever, he may approach the Chairman
with a view to obtaining the assistance of any person
herein before
referred to and, if so authorised, shall be entitled to obtain such
assistance.
(d)
If
the person so investigating is of the opinion that the member
concerned ought to be charged with misconduct (including any breach
of the Rules of Professional Conduct and Etiquette) he shall frame
the charge which shall be submitted to the Council.
(e)
The
Council shall thereupon decide whether the enquiry shall be conducted
by the Council or by a committee of members of the Society.
If
the enquiry is to be conducted by a committee, the Council shall
appoint the committee which shall consist of not less than
3 and not
more than 5 members of the Society and the Chairman of such committee
shall, where practicable, be a silk.
(f)
A
committee to appointed shall have all the powers of the Council with
regard to the conduct of the enquiry.
(g)
The
enquiry shall be conducted in such a manner as the Council or the
committee, as the case may be, shall direct.
(h)
If
the member concerned is found guilty of the charge the Council or the
committee may impose any penalty referred to in paragraph
9(e) of the
Constitution.
(i)
If
the enquiry is conducted by a committee any person found guilty may
appeal to the Council in such manner and in accordance with
such
procedure as the Council may direct.
”
[16] The Chairman of
the Bar may appoint a member to investigate a complaint made against
a member. The appointed person is given
various rights of access to
books, records and documents and with leave can require the
assistance of other members of the Bar.
Once his investigations
are complete he is required to consider the matter. If he forms the
opinion that the member concerned ought
to be charged with misconduct
he shall frame the charge which shall be submitted to the Council.
The Council is thereupon to decide
whether the charge as framed by
the appointed person should be enquired into.
[17] It is apparent
from the Rule that there is a two stage enquiry.
17.1 There is a
preliminary enquiry made by the appointed person. The appointed
person might decide that a member should not
be charged with
misconduct and that is the end of the matter. There are no further
steps provided for in the Rule.
The appointed person
might decide that the member concerned ought to be charged in which
case he is to frame the charge and submit
it to the Council.
17.2 The second step is
an enquiry once the Council after considering the report of the
appointed person decides there should be
such enquiry.
[18] At the stage of
the preliminary enquiry there is no decision to take steps to
discipline the member. There is only the appointment
of an
investigator. There are no disciplinary proceedings until the
decision is made to prosecute. That decision is only made after
conclusion (in a particular way) of the preliminary enquiry. The
enquiry made by the person appointed to investigate is preliminary
to
that step and independent of it.
[19] It was suggested
that a way to test whether or not a particular enquiry constitutes
disciplinary proceedings is to look at
the rights of a person who
complained and whose complaint did not result in the Bar deciding to
prosecute. Such person has no remedy
on the construction I have
placed on the Rule. The submission was made that as that position is
unacceptable that disciplinary
proceedings commence when what I have
called the preliminary enquiry commences. I do not believe this is an
appropriate test. The
test in my view is established by an
interpretation of the Rule in accordance with the well-established
principles of interpretation.
[20] In my view
(1) disciplinary
proceedings do not commence until a decision is made that they do,
(2) the procedure of a
preliminary enquiry is useful and sensible as it separates complaints
that merit further attention from those
that do not,
(3) the preliminary
enquiry is routinely triggered by a complaint. If this enquiry
constitutes disciplinary proceedings the effect
is that a member
institutes the disciplinary proceedings potentially against the will
of the Bar Council.
4) the fact that
the report emanating from the prelim enquiry is considered by the Bar
Council does not convert the nature of the
preliminary enquiry into
disciplinary proceedings.
(5) pending
disciplinary proceedings affect the member who is the subject of
them. On the construction that the preliminary
enquiry
constitutes disciplinary proceedings the proceedings would pend
immediately the complaint was lodged; the rights
of the member
to be heard would be ignored; no charge would have been laid; the
member would not know that he is subject to such
proceedings;
the Bar Council would not have decided there should be disciplinary
proceedings.
[21] I am of the view
that the Appellants Tribunal assumed a jurisdiction it does have and
that for that reason the orders it made
must be set aside.
[22] I express my
gratitude to the counsel who appeared and who ably argued all aspects
of the matter
pro amico
.
[23] I make the
following order.
(1) All the
decisions of the Appeal Tribunal of the General Council of the Bar of
South Africa made on 18
th
December 2014 in respect of the Third Respondent’s
appeal from the decision of the Bar Council of the Society of
Advocates
of KwaZulu-Natal are set aside.
C G LAMONT
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
ATTORNEY FOR
APPLICANT: Pieter Moolman Attorneys
COUNSEL FOR
APPLICAN: Adv. A.J. Dickson SC
ATTORNEY
FOR RESPONDENT: Tomlinson Mnguni James
COUNSEL
FOR THIRD RESPONDENT :
Adv.
P. Hodes SC
DATE
OF HEARING : 16 May 2016
DATE OF
JUDGMENT :
2
June2016