About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 248
|
|
Pretoria Society of Advocates v Cross (34800/2009) [2010] ZAGPPHC 248 (17 December 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
CASE
NO: 34800/2009
DATE:17/12/2010
In
the mailer between:
The
Pretoria Society of Advocates
….................................................................
Applicant
and
Craig
Grant
Cross
.................................................................................................
Respondent
Judgment
Louw
J
Introduction
[1]
The applicant is the Pretoria Society of Advocates, a voluntary
association duly constituted as such according to its constitution.
The respondent is a major male advocate. He was admitted as an
advocate in the Cape of Good Hope Provincial Division on 11 February
2000. His full career details will be set out hereunder.
[2]
The applicant applies that the name of the respondent be struck from
the roll of advocates alternatively that he be suspended
in his
practice as an advocate for such period as the court may deem fit.
[3]
The immediate cause of this application is that the applicant, having
previously successfully completed pupilage at the Cape
Bar, during
about the beginning of February 2009 applied for full ordinary
membership of the Pretoria Bar (the applicant). From
his application
it appeared that he was in the employment of Mothle, Jooma, Sabdia
Inc
(MJS),
a
firm of attorneys in Pretoria, as a consultant in the MVA department.
He however stated in his application form, in response to
a question
whether he had previously been removed from the roll of advocates,
that he had not.
[4]
Instead of admitting him as a member, the applicant investigated the
matter. The respondent was interviewed on various occasions
by
members of the applicant. On 11 February 2009 a member of the
applicant, Scholtz, laid a formal complaint against the respondent.
During the course of the investigation information was also obtained
from three other members of the applicant, namely Botha, Ridgard
and
Diederichs. On 29 May 2009 the Bar Council of the applicant decided
to launch the present application. The aforementioned four
advocates
also made affidavits in support of the applicant's application.
[5]
The essence of the case against the respondent as it crystallised in
argument before us is the following:
5.1.
That
he remained on the roll of advocates whilst employed by MJS
attorneys.
5.2.
That
he held himself out to be an attorney.
5.3.
That
his name appeared on the letterhead of MJS as a professional
assistant.
[6]
A chronology of the applicant's career is as follows:
•
1997
- Respondent achieves LL.B. degree.
•
1998-2000
- Respondent a candidate-attorney at McCallum's Inc.
•
11
February 2000 - Respondent admitted as an advocate in the Cape of
Good Hope Provincial Division.
•
21
August 2000 - Respondent admitted as a member of the Cape Bar
Association.
•
30
November 2001 - Respondent resigns as a member from the Cape Bar
Association.
•
December
2001-July 2002 - Respondent a legal advisor at Alexander Forbes.
•
August
2002-Septemper 2006 - Respondent a claims handler at the Road
Accident Fund (RAF).
•
October
2006-approximately March 2009 - Respondent in the employ of MJS Inc.
Attorneys.
•
24
November 2008 - A certificate of good standing issued by the Cape Bar
Association to the Respondent.
•
February
2009 - Respondent applies to be admitted as a member of the
Applicant.
The
Law
[7]
It is well-established that an application for the suspension or
removal from the roll requires a three-stage enquiry. This
applies to
both attorneys and advocates. In relation to attorneys the position
was recently reiterated by Harms DP in
Law
Society, Northern Provinces v Mogami,
2010
(1) SA 186
(SCA):
"First,
the court must decide whether the alleged offending conduct has been
established on a preponderance of probabilities,
which is a factual
inquiry. Second, it must consider whether the person concerned is 'in
the discretion of the court' not a fit
and proper person to continue
to practise. This involves a weighing-up of the conduct complained of
against the conduct expected
of an attorney and, to this extent, is a
value judgment. And third, the court must enquire whether in alt the
circumstances the
person in question is to be removed from the roll
of attorneys or whether an order of suspension from practice would
suffice (Jasat
v Natal Law Society
2000
(3) SA 44
(SCA)
([2000]
2 All SA 310)
; Malan and Another v Law Society Northern Provinces
[2008] ZASCA 90
;
2009
(1) SA 216
(SCA)
([20091
1 All SA 133:
[2008] ZASCA 90)
at para 10).
"
(paragraph 4 of the report)
[8]
In an application such as this, the court in terms of s 7(1 )(d) of
the
Admission of Advocates Act, 74 of 1964
, may grant the application
if the court is satisfied that the respondent is not a fit and proper
person to continue to practice
as an advocate.
[9]
The prohibition against dual practice, that is an advocate doing
attorneys' work, is clear. All the constituent Bars of the
General
Council of the Bar of South Africa ascribe to the rule that, with
minor exceptions, advocates do not accept instructions
from clients
without the intervention of attorneys. The highest courts of the land
have held that the rule exists and must be adhered
to by all
advocates
(Beyers
v Pretoria BalieRaad,
1966
(2) SA 593
(A);
General
Council of the Bar of South Africa v Van der Spuy,
1999
(1) SA 577
(TPD);
Society
of Advocates of Natal v De Freitas and Another (Natal Law Society
Intervening)
1997
(4) SA 1134
(NJ;
De
Freitas and Another v Society of Advocates of Natal and Another,
2001
(3) SA 750
(SCA)).
The
first enquiry: the offending conduct
[10]
The first issue outlined above, namely that he remained on the roll
of advocates whilst working for MJS, is not in dispute.
His
explanation in that regard, both in his explanation to the applicant
as well as in his answering affidavit is that he thought
that when he
resigned from the Cape Bar, his name was also removed from the roll
of advocates. He puts it as follows in his answering
affidavit:
"7.2
When I resigned from the Cape Bar, I was under the
bona
fide
belief
that as a matter of course the administrative procedure for resigning
would automatically result in me ceasing to be considered
an
advocate. I was furthermore under the belief that the Cape Bar would
automatically and simultaneously remove my name from the
roll of
advocates. I acted in good faith at all times, without realising that
my name had not been removed from the roll of advocates."
[11]
In the replying affidavit this is described by the applicant as "an
unbelievable conviction" which the respondent
does not motivate.
It is indeed difficult to believe. As an advocate the respondent must
have known that the procedure to be admitted
as an advocate and that
of becoming a member of a Bar are totally separate procedures. Why
his resignation from the Cape Bar would,
according to his
understanding, have lead to his removal from the roll of advocates is
difficult to understand. On a benevolent
reading of the papers it
seems rather to have been a matter which escaped his mind. During the
period of 5 years following upon
his resignation from the Cape Bar,
when he was employed by Alexander Forbes and by the RAF, it was no
issue that he was still on
the roll of advocates. When he joined MJS
it was not with the object of qualifying himself as an attorney - he
worked as a consultant
in the MVA department of the firm.
[12]
Advocate Botha, who knew the respondent, as Botha was sometimes
briefed by MJS in matters in which the respondent was involved,
has a
different recollection about this matter. He states that when he had
a discussion with the respondent about the possibility
of the
respondent joining the Bar, Botha told him that he needed to apply
for his readmission as advocate. Thereupon the respondent
told him
that he could not remember if he ever had himself removed from the
roll. Further, according to Botha's recollection, respondent
stated
that it was such an effort ("dit so 'n storie is") to have
one's name removed from the roll. The two versions,
on the one hand,
not remembering and, on the other hand, regarding it as an effort, do
not match.
[13]
I am however not prepared to, on these papers alone, reject the
respondent's version as false and dishonest. However it is
clear that
the respondent was grossly negligent. He was quite casual as to
whether he was on the roll of advocates or not. In this
regard he
failed to display the diligence, thoroughness and attention to detail
which is expected from members of this honourable
profession. He did
not pay regard to the well-established principles of the separation
of the professions as set out above.
[14]
I therefore find that the respondent acted unprofessionally in
remaining on the roll of advocates when employed by MJS.
[15]
Secondly, the four advocates mentioned above were under the
impression that the respondent was an attorney. It is indeed a
serious charge to pretend to be or hold oneself out as an attorney,
when you are not. Ridgard and Botha were under that impression
as
they received briefs with the respondent's reference thereon and he
also occasionally accompanied them to court. He however
never signed
any pleadings and, whenever an affidavit had to be made, said that it
had to be made by Mr Mothle or some other director
of the firm.
[16]
Mr Mothle's affidavit is clear. He says that the respondent was
employed as a consultant in the Road Accident Fund department,
of
which he is in charge. It is clearly a big department as, apart from
Cross, eleven professional assistants also worked in that
department.
The references on a file are internal administrative references,
setting out which person is "carrying" the
file. It is thus
not to be deducted from the fact that the respondent's name appeared
on correspondence or on briefs, that he pretended
to be an attorney.
Mothle makes the statement that respondent never accepted
instructions from the public, never had any dealings
with the public
at large, never had a pecuniary interest in the firm and never acted
as an attorney.
[17]
The affidavits of Scholtz and Diederichs do not take the matter any
further as they both made the assumption that the respondent
was an
attorney. These assumptions were not justified.
[18]
In argument Mr Pelser SC agreed that there was no evidence that the
respondent ever expressly held himself out to be an attorney.
[19]
The third aspect, namely that his name did on occasions appear on
the letterhead of MJS, is closely connected to the previous
aspect.
The respondent's explanation is that it was a mistake made by the
office manager and/or the fact that some secretaries
used different
letterheads. The office manager Hannelie Engelbrecht erroneously
instructed the letterhead to be changed so has
to incorporate the
respondent's name as that of a professional assistant. There is a
supporting affidavit by Hannelie Engelbrecht
that she made a mistake.
[20]
Although it is disturbing that his name appeared on letterheads dated
20 February, 5 May and 23 October 2008, it cannot be
accepted that
the respondent played any part in this. Instead, we have found above,
that the respondent did not hold himself out
to be an attorney and
therefore it must follow that he had no motive to have himself
represented as such on a letterhead. Only
one of the three letters
referred to bears the respondent's reference. This letter is the
October letter and forms part of a brief
sent by the respondent to
Botha.
[21]
The respondent states that the firm at that stage had a substantial
turnover of personnel and that various letterheads were
used.
[22]
Once again the respondent should have been much more careful. He
should never have allowed a letter from the firm to indicate
him as a
professional assistant. The term "professional assistant"
is universally understood in the attorneys' profession
to mean that,
that person is a qualified attorney. This is also appreciated by the
respondent and by Mr Mothle who refers to the
respondent as a
consultant.
[23]
To summarise: the respondent acted unprofessionally in practising at
an attorneys' firm whilst on the roll of advocates. Secondly,
at
least in one instance, he sent correspondence on a letterhead which
indicated him to be a professional assistant. However we
do not find
that the respondent expressly held himself out to be an attorney.
The
second enquiry: is the respondent fit and proper to continue
practising?
[24]
I have concluded that the respondent is not unfit to continue
practising. The conduct outlined in the aforegoing paragraph
shows
gross negligence in regard to his removal from the roll and, at
least, inattention in not noticing the mistake on the letterhead.
[25]
However, the concession was rightly made in argument that the
respondent did not bring the profession in disrepute. Neither
did
anyone suffer prejudice as result of the respondent's omissions.
[26]
In argument the applicant also did not contend that the respondent
was not fit and proper to practice and that the appropriate
sanction
would be striking from the roll.
The
sanction
[27]
An appropriate sanction would have been a suspension for a period of
approximately of three months. In the cases of
De
Freitas
and
Van
der Spuy
referred
to above periods of suspension of six months were imposed. In my view
the contraventions in this case are not as serious
as in those cases.
[28]
Unfortunately the respondent has already been effectively been
suspended for more that nineteen months. He resigned from MJS
with
effect 30 April 2009 and has been unemployed since. This lamentable
state of affairs is primarily due to the unacceptable
clogging of the
roll in having appeal cases and matters of this nature set down. I
notice from a previous notice of set down that
this matter was
actually set down for hearing on 27 May 2011, but has been moved
forward because of drastic steps taken recently
to remedy the
situation. In this case the Deputy Judge President should have been
approached to have the matter set down much earlier
and
on
an
expedited
basis. A
trial date was applied for as long ago as September 2009.
[29]
In the circumstances it would be futile to impose any further period
of suspension
(Mogaml
supra
paragraph
28).
[30]
The respondent still desires to join the applicant. Financially he
has suffered grossly as result of these events. He has two
small
children, his wife was the only breadwinner and the papers show that
they also had, or was about to, sell their home because
they could no
longer afford to pay the bond.
[31]
The respondent has to be reprimanded. I express the hope that he has
learnt from his mistakes and that he will in his future
practice at
the Bar conform to the highest standards of ethics, duty and
diligence expected of an advocate. An advocate who has
the tradition
of the Bar behind him will in regard to right or wrong "as a
rule not even be called upon to make any conscious
decision on the
subject. He will know instinctively whether on action is
permissible." (Judge RPB Davis in the foreword to
the first
edition of
The
Civil Practice of the Superior Courts in South Africa).
Costs
[32]
In this regard respondent's counsel argued that the founding
affidavit did not expressly state that respondent was not a fit
and
proper person and at the hearing applicant conceded that and
furthermore that striking off was not called for. The respondent
was
thus for a period of nineteen months deprived of the opportunity to
work in the legal profession. There is some merit in this
argument.
However
it
is
implied in the applicant's papers that respondent is not fit and
proper. Surely the applicant knows that an order for striking
off can
only follow on such a finding. The detailed memorandum by
SJ
Maritz SC and F du Toit SC, which supports this application, states
in paragraph 11.9 thereof that the respondent is not a fit
and proper
person
to
remain on
advocates.
It should be remembered that allegations of dishonesty in regard to
the respondent's explanations of his conduct were
made. The applicant
was obliged to put the available evidence before Court. If it were
not for these allegations the Bar Council
could well have dealt with
the matter internally.
[33]
The respondent has however already suffered unduly as a result of the
delay in having the matter finalised. He is also about
to embark on a
career at the Bar. It is notorious that it is difficult to establish
oneself in practice and our costs order should
not have the effect of
thwarting that ambition.
[34]
In all the circumstances each party should pay its/his own costs.
However the applicant should not be left out of pocket in
terms of
the attorneys' costs it had incurred.
[35]
It is therefore ordered as follows:
1.
The
respondent is reprimanded for his unprofessional conduct.
2.
The
respondent has to pay the applicant's attorney's costs.
AA
LOUW
JUDGE
OF
THE
HIGH COURT
I
agree
NJ
KOLLAPEN
ACTING
JUDGE OF THE HIGH COURT