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[2010] ZAGPPHC 309
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Dykes and Others v Law Society of The Northern Provinces and Others (77720/09) [2010] ZAGPPHC 309 (30 April 2010)
THE
HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG - PRETORIA
Case
no
77720/09
DYKES, PETER
ARTHUR
1
ST
APPLICANT
RAMSAMY, CHERYL
2ND APPLICANT
SEGOGOBA,PHASUDI
DOCTOR
3RD APPLICANT
VAN HEERDEN,
JOHAN
4
TH
APPLICANT
V
LAW SOCIETY OF
THE NORTHERN PROVINCES
1
ST
RESPONDENT
THE ATTORNEYS
FIDELITY FUND BOARD OF CONTROL
2
ND
RESPONDENT
THE SECRETARY OF
THE LAW SOCIETY OF THE NORTHERN PROVINCES
3
RD
RESPONDENT
Application for
mandamus to compel issue of fidelity certificates
JUDGMENT
This was an
application heard by me as matter of urgency in the December 2009
recess. After hearing argument it became clear to
me that the matter
was indeed urgent and that the Applicants were entitled to the relief
they sought. I made an appropriate order
and indicated that my
reasons, if required would follow.
In January the
Respondents asked for my reasons. These are they.
My delay in
answering the request, for which I ask to be excused, is that the
complete court file containing material to which I
wished to refer
has gone astray. This also resulted in the request coming to my
attention later than would otherwise have been
the case.
The applicants
sought an order requiring the 3
rd
Respondent to issue to
each of them, a Fidelity Fund Certificate in the prescribed form for
the period 1 January to 31 December
2010. They also asked for costs.
The respondents opposed the application represented by counsel, who
appeared as I recall on behalf
of all of them. The relief claimed was
against the Third Respondent only.
The urgency lay in
the fact that unless fidelity fund certificates were issued to them
before January 1
st
they could no longer continue lawfully
in their practice as attorneys. They were at the time holders of
certificates which would
lapse by superannuation on 31 December 2009.
The certificates in question are provided for in section 42 of the
Attorneys Act 1979
(the Act). The section reads
“
S42
Application for and
issue of fidelity fund certificate
(1) A practitioner
practicing on his own account or in partnership, and any practitioner
intending so to practice, shall apply in
the prescribed form to the
secretary of the society concerned for a fidelity fund certificate.
(2) Any application
referred to in subsection (1) shall be accompanied by the
contribution (if any) payable in terms of section
43.
(3) (a) Upon receipt
of the application referred to in subsection (1), the secretary of
the society concerned shall, if he is satisfied
that the applicant
has discharged all his liabilities to the society in respect of his
contribution and that he has complied with
any other lawful
requirement of the society, forthwith issue to the applicant a
fidelity fund certificate in the prescribed form.
(b) A fidelity fund
certificate shall be valid until 31 December of the year in respect
of which it was issued.
(4) Any document
purporting to be a fidelity fund certificate which has been issued
contrary to the provisions of this Act shall
be null and void and
shall on demand be returned to the society concerned. ”
On 22
nd
October 2009 the Applicants who practice in association with each
other as Dykes van Heerden Inc., made application in due form
for the
issue to them of the certificates entitling them to continue in
practice after 31 December 2009. Their applications were
in order and
there has been no suggestion of non compliance with any of the
provisions of section 42 (2).
On 9 December 2009
the Head: Professional Affairs of the Law Society sent a reminder to
third applicant stating that according to
the Society’s records
no application for a fidelity certificate had yet been received and
calling for this to be attended
to.
The Head:
Professional Affairs, on behalf of the 1
st
Respondent, on
14
th
December2009 acknowledged receipt of the applications
of all the applicants but informed the applicants that the
certificates would
not be issued. The Applicants were referred to a
resolution of the first Respondent taken on 26
th
June
2009, which according to the letter sent to the applicants reads
“
Where
the Council had resolved to proceed with an application for the
suspension or the removal of the name of a member from the
roll of
attorneys, a Fidelity Fund Certificate should not be issued to the
member concerned, unless the Council for good reason
otherwise
decides.”
There is no evidence
of this resolution having been published and the applicants claim
that they had not until so being informed
been aware of the existence
of the resolution. Whether the applicants were aware of the
resolution or not, is not material to the
outcome of this
application.
The resolution
itself is open to criticism. It has to be seen as an instruction to
the Secretary of the Society not to issue fidelity
certificates to
attorneys if at the time of the application proceedings are pending
for the striking off, or suspension of the
attorney from the roll.
It may be that it
was passed in view of criticism by the courts of the Society for
issuing certificates to attorneys in such circumstances.
Particular
reference was made to the observations made in B S Setshogoe v The
Law Society, an unreported case. The observations
appeared to be
passing comment and obiter. The portions of the judgment quoted
express the view that where an application for the
suspension or
removal of an attorney from the roll of attorneys is to be made by
the society in terms of a resolution made by it
and such application
is pending, it would be irresponsible on the part of the Society to
issue a fidelity certificate to such attorney.
The observations do
not appear to take into account the considerations which persuaded me
to grant the relief sought by the applicants
and to which I now
advert.
The issuing of
Fidelity Certificates in terms of Section 42 is the function of the
Secretary of the Society, not the Society itself.
It is to the
secretary that applications for issue of certificates have to be
made. It is the Secretary, not the Society, who has
in terms of
Section 42(3) (a) to be satisfied
“
...that
the applicant has discharged all his liabilities to the society in
respect of his contribution and that he has complied
with any other
lawful requirement of the society”.
If so satisfied the
Secretary, not the Society, according to the wording of the section,
must issue a certificate to the practitioner
applying for such a
certificate.
In the present
proceedings the secretary, who is the Third Respondent, against whom
the relief is claimed has not filed an affidavit
to the effect that
he is satisfied that any one or all of the applicants have not
discharged all their liabilities to the society
or that they or any
specific one of them has not complied with any other lawful but
unspecified requirements of the Society. It
is the secretary’s
personal decision which is operative, and the criteria which he has
to take into account and upon which
he has to be satisfied are
specified and limited to what is expressly stated in the section
quoted above. The only affidavit filed
by the Respondents is that of
Grobler, who the Director of the 1st Respondent is. He cannot testify
as to matters on which the
Secretary has to be satisfied. This being
so the peremptory wording of the Act is clear, the certificates must
be issued.
The words “any
other lawful requirements of the Society" require comment. The
words usually refer to the auditor’s
certificate which has to
be filed annually. It seems that they must be limited to some
requirement of the Society relating to the
matters dealt with in
section 42. The purpose of the issue of certificates in terms of the
section is to provide a degree proof
that a practitioner in good
standing with the society in respect of his contributions, and is, as
far as can be ascertained from
his books of account, a good risk as
far as the Fidelity Fund is concerned. It is unlikely in most cases
that any client or prospective
client will have sight of the
certificate. In the present case no other lawful requirement of the
society, which has not been fulfilled,
has been mentioned.
The pending
application for the removal of the Applicants from the roll is not
such a lawful requirement. It is difficult to see
how the applicants
could be said to be required to comply with it. The applicants can do
no more than oppose the application as
they have done. There is no
presumption that while the application is pending that the
applicants’ continuing in practice,
presents an undue risk to
the Fidelity Fund, their clients, or potential clients.
In the previous
year, when the application for suspension or removal of the
Applicants was already pending, and all the allegations
on which the
application was based were known to the Respondents, the Applicants
were not refused their fidelity fund certificates.
Nor, it is to be
observed has the Society considered it necessaiy to approach the
court to suspend the applicants from practice
pending the outcome of
the striking off application. No such application has been made
notwithstanding the extended period over
which the application has
remained pending. It is only the court which can suspend or terminate
the Applicants’ right to
practice as attorneys. The provisions
of Section 42 were not intended to provide an alternative method of
interrupting practitioners,
who were in full compliance with the
requirements of Section 42, in the pursuit of their profession. Such
provisions do not afford
an opportunity to anticipate an order of
court.
The Respondents
suggested that the Applicants should have not made their application
before the executive of the Society had reviewed
the matter. The next
meeting of the executive was then scheduled for 21
st
January 2010, and no decision was to be expected before then.
Clearly if the applicants practiced after 31
st
December
2009, they would be doing so illegally. To meet this, Respondents
suggested that if on reconsideration of the matter it
was decided to
issue the certificates this could be done retrospectively to 1
st
January. I am not convinced that this would have been possible or
would have met the case. Applicants were entitled to certainty,
and
to be sure that they were not breaking the law. In any event and
above all, there was nothing to show why the Secretary, with
whom
alone the decision rested, could not act before the end of the year.
For these reasons
the Second respondent was ordered to issue the certificates
forthwith.
Costs followed the
result.
S W Sapire AJ
WEDNESDAY, 28 APRIL
2010
Attorneys for
Applicants: Dykes Attorneys Incorporated
c/o Maponya
Attorneys
950 Pretorius
Street
ARCADIA, PRETORIA
Ref: Mr Y
Jerushalm
Tel: 012-342 0523
Counsel for
Applicants: Adv Q Pelser SC
Attorneys for l
sl
and 3
rd
Respondents:
Rooth, Wessels,
Motla and Conradie Inc
Rooth and Wessels
Building
Parc Nouveau
225 Veale Street
Brooklyn
PRETORIA
Tel; 012-6137 239
Counsel for
Respondents: Adv Lamey
Law Society of
the Northern Provinces
Procforum
Building
123 Paul Kruger
Street
PRETORIA
Tel: 012-338 5800
Ref: Maud
Ferreira
The Attorneys
Fidelity Board of Control
Walburg Building
28 Wale Street
Cape Town