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[2023] ZAFSHC 103
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Senekal v Legal Practice Council and Others (3858/2021) [2023] ZAFSHC 103; [2023] 2 All SA 834 (FB) (31 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION. BLOEMFONTEIN
Application
number: 3858/2021
Reportable:
Yes / No
Of
Interest To Other Judges: Yes / No
Circulate
To Magistrates: Yes / No
In
the matter between:
F
J
SENEKAL Applicant
and
THE
LEGAL PRACTICE COUNCIL 1st
Respondent
M
LITHEKO 2nd
Respondent
NW
PHALATSI 3rd
Respondent
CORAM:
VAN ZYL, J et MHLAMBI, J
HEARD
ON:
29 AUGUST 2022
JUDGMENT
BY:
VANZYL, J
DELIVERED
ON:
31 MARCH 2023
[1]
This is a review application in terms of Rule 53 of the Court Rules.
In terms of the Amended Notice of Motion
the applicant is seeking the
following relief:
"1. Reviewing
and setting aside the decision of the first and second respondents to
continue with an enquiry in contravention
of Rule 50.13 of the
Uniform Rules governing the Attorneys Profession promulgated in
Government Gazette No. 39740, dated 26 February
2016, against the
applicant before only one member of the Disciplinary Enquiry
Committee.
2. Reviewing
and setting aside the decision of the first and second respondents to
continue with an enquiry against
the applicant via any virtual
platform and/or video conference.
3. Reviewing
and setting aside the decision of the second respondent that he will
not recuse himself as chairperson
of the enquiry against the
applicant.
4. That any
respondents that oppose the application be ordered to pay the costs
jointly and severally, the one paying
the other to be absolved.
5. Further
and/or alternative relief."
[2]
The applicant is Mr FJ Senekal, a practising attorney, practising as
such in Bloemfontein, Free State Province.
[3]
The first respondent is the Legal Practice Council, Free State
Province, a statutory body created in terms
of
section 4
of the
Legal
Practice Act, 28 of 2014
, with its main place of business at 139
Zastron Street, Westdene, Bloemfontein ("the LPC").
[4]
The second respondent is Mr M Litheko, a practising attorney,
appointed to act as Chairperson of the disciplinary
hearing relevant
to this application ("Mr Litheko" or "the
chairperson").
[5]
The third respondent is Mr NW Phalatsi, a practising attorney,
appointed to act as pro forma Prosecutor in
the disciplinary hearing
relevant to this application ("Mr Phalatsi" or "the
prosecutor").
[6]
The LPC is opposing the review application and also filed a counter
application in terms whereof it is seeking,
inter alia, an order that
the applicant's name be struck off the roll of legal practitioners;
alternatively, that the applicant
be suspended from practice for such
period and on such conditions as the court may deem fit.
[7]
The LPC filed an answering affidavit in opposition of the review
application, which it requested should also
serve as founding
affidavit in support of the LPC's counter application.
[8]
The applicant subsequently filed a replying affidavit in the review
application, which he requested should
also serve as answering
affidavit in opposition to the LPC's counter application.
[9]
The LPC did not file a replying affidavit in response to the
applicant's last mentioned answering affidavit
in opposition to the
LPC's counter application.
[10] The
complete record which had been filed in this matter consists of 1 700
pages. Many personal and/or emotionally
loaded allegations are
contained in the papers and not necessarily all of them unfounded. I
will, however, refrain from unnecessarily
dealing with allegations
and issues which are unnecessary and/or not directly relevant to the
relief which is being sought by the
respective parties.
Condonation:
[11]
The applicant's replying affidavit in the review application, which
also constitutes his answering affidavit in the counter
application,
was filed a few days late. However, the applicant advanced acceptable
reasons for the slight delay and requested condonation
for the late
filing thereof, which condonation is granted.
[12]
The LPC's answering affidavit in opposition to the review
application, which also constitutes the founding affidavit
of the
counter application, was filed late and no reasons were advanced for
the late filing, no condonation application was filed
and no
condonation was even requested. It was consequently submitted on
behalf of the applicant that it is to be considered that
the said
answering affidavit, the counter application and the founding
affidavit in support thereof, are not before court.
[13]
The applicant also filed an application in terms of
Rule 6(15)
in
terms whereof the applicant requested that the said answering
affidavit in opposition to the review application, which also
constitutes the founding affidavit of the counter application,
constitutes hearsay evidence and stands to be struck out as
inadmissible
hearsay evidence.
[14]
Although both the aforesaid issues were very validly raised by the
applicant, I consider it in the interest of justice
and in the
interest of both parties that the said defects be condoned in order
for the application and the counter application,
with all issues
properly ventilated, be adjudicated on its merits. Condonation is
consequently granted.
[15]
The applicant furthermore raised the issue that the founding
affidavit in the counter application contains annexures
which have
not been properly placed before court and should not be taken into
consideration by the court. Although this point was
also very validly
raised, I do not deem it necessary to decide upon it for reasons
which will become evident later in the judgment.
The
factual background to the review application:
[16]
The factual background which led to the review application is very
relevant in the present matter.
[17]
During 2017, the Free State Law Society, the predecessor in title of
the LPC, received a referral from Lever AJ, at the
time an acting
Judge in the Northern Cape High Court, Kimberley, who presided in an
application under case number 2616/16 in which
the present applicant
was the third respondent, which referral formed part of the court
order issued under the aforesaid case number,
dated 24 March 2017.
[18]
In terms of paragraph 3 of the last mentioned court order, the
following order was made:
"3. In matter no.
2616/16 the matter is referred to the Free State Law Society to
determine whether Mr Senekal, the 3rd respondent,
misled the court or
acted in a manner inconsistent with his professional obligations to
this court on the following issues:
(a) The contentions
made in the founding affidavit at pp 63679, specifically paragraphs
122, 123 and 124 in relation to the
allegation that 2nd and 3rd
respondents were misappropriating the funds of the 1st respondent
(Kimcrush). The answer to such allegations
which appear at page 788
of the record, specifically paragraphs 37 and 38. The reply thereto
that appears at pp 999 - 1012, specifically
paragraph 11 thereof.
(b) The matter of
Senekal in full knowledge of the interdict on the bank account of
Kimcrush (Pty) Ltd used the Trust account
of his firm, Matsepes, in
order to circumvent the said interdict by Kimcrush (Pty) Ltd to pay
their debts into the relevant Trust
account. Further allowing such
Trust account to be used as a business account."
[19]
At an earlier date, 18 November 2016, a certain Mr A. Pan, who was
the applicant in the aforesaid matter which served
before Lever, AJ,
also filed a complaint against the applicant with the Free State Law
Society.
[20]
In the LPC's answering affidavit to the review application and
founding affidavit in the counter-application the following
was
stated at paragraph 5.9 thereof:
"The FSLS, because
of the seriousness of the allegations made against the applicant and
the prima facie infractions in the
record of proceedings under oath
from the hearing of the application under application number 2616/16
of the Northern Cape Divlsion,
Kimberley, decided to file an
application for the striking off of the name of the applicant from
the roll of attorneys."
[21]
The applicant then issued a review application in this court under
case number 1953/2018, in which he, inter alia, sought
an order that
the Free State Law Society·s decision to bring an application
to have his name struck from the roll of attorneys,
be reviewed and
set aside. The aforesaid decision by the Free State Law Society led
to an urgent interdictory application which
the applicant issued
against the Free State Law Society in which the applicant sought that
the Free State Law Society be interdicted
and restrained from
proceeding with the proceedings against him pending the finalization
of the review application. In the said
urgent application, the
applicant contended that he should first be heard by the Free State
Law Society in a disciplinary enquiry
before an application for the
striking off of his name from the roll of attorneys can be filed.
Judgment in that matter, Senekal
v Law Society of the Free State,
(1990/2018)
[2018] ZAFSHC 101
(8 June 2018), was delivered by Pohl,
AJ on 8 June 2018. I deem it necessary to firstly quote from the said
judgment where Pohl,
AJ dealt with the events preceding the issuing
of that urgent application:
"[7] On 23 May 2017,
the applicant received a letter from the respondent, advising the
applicant that the Council of the Respondent
has resolved on 19 May
2017, to proceed with an application to strike the applicant from the
roll of attorneys after the above
mentioned referral to it from Lever
AJ. I shall herein after refer to this resolution as 'the first
resolution'."
Thereafter
the events set out in paragraph [9] of the judgment followed:
"[9] On 24 May 2017,
the applicant wrote a letter to the respondent in reply to the letter
in which he was informed of the
first resolution. In this letter the
applicant informed the respondent that he did not have a chance to
place his version before
the Council prior to the Council of the
respondent reaching its first resolution. He indicated that he
throughout laboured under
the impression that he be afforded that
opportunity and that
rule 50
of the rules governing disciplinary
proceedings for the attorney's profession (published in a Government
Notice), would be adhered
to and applied in this instance. He placed
on record that according to him, the resolution was taken in
contravention of his rights."
Subsequently
the following occurred:
"[8] On 28 June
2017, the applicant was notified by the respondent that the
respondent's Council took another resolution on
23 June 2017, to the
effect that the applicant must appear before the Council to give
reasons why the Council should not proceed
to bring an application to
remove the applicant's name from the roll of attorneys. I shall
herein after refer to this resolution
as "the second
resolution".
[13] The applicant then
received a letter dated 2 February 2018, from the respondent. This
letter informed the applicant to appear
before the respondent's
council on 23 February 2018 to give reasons why the council should
not proceed with the applicant's "suspension"
application.
The letter specifically referred to a charge sheet annexed to it. The
charge sheet referred to a resolution adopted
by the respondent's
council, which was taken on 13 December 2017 that the applicant
should appear before the council and give reasons
why he should not
be removed from the roll of attorneys, alternatively suspended from
practice. This resolution will be referred
to herein later as "the
third resolution". The said charge sheet contained the two
matters referred by Lever AJ and a
third complaint lodged by one
Claassen and Joluza Boerdery (PTY) LTD.
[14] The applicant then
wrote a letter to the respondent on 12 February 2018, requesting a
formal hearing (in terms of the provisions
of
rule 50
(12) of the
disciplinary proceedings, referred to above.). The applicant also
requested a postponement of the appearance scheduled
for 23 February
2018. The respondent replied in a letter dated 21 February 2018, in
which the request for a formal enquiry was
denied. In this letter,
the respondent itself, referred to the provisions of
rule 50.6.2.2.
The respondent said that in terms of that rule, the applicant is
called upon to come and furnish reasons why the application to
strike
or suspend him should not be proceeded with.
[18] According to the
applicant, he was therefore compelled to bring this urgent
application for the above mentioned relief. He
thus instructed his
counsel to draw this application as well as the review and compel
application, which was annexed to this application
as an annexure. In
the review application under case number 1953/2018, which was issued
on 18 April 2018, the applicant in essence
seeks to have the
respondent's decision to bring an application to have his name struck
from the roll, reviewed and set aside and
he also wants the Court to
compel the respondent to furnish the applicant with the documentation
requested in terms of Act 2 of
2000."
[22]
Pohl AJ reasoned as follows before concluding that the applicant was
entitled to the urgent interdictory relief:
"[29] It is first of
all important to have regard to the fact that when Lever AJ referred
the matters before him to the respondent,
he did so on the basis that
the respondent must determine and investigate the matter thus
referred. He did not make a finding of
unprofessional conduct
himself. At best, he probably had a prima facie view of
unprofessional conduct by the applicant but his
referral envisaged a
process of determination by the respondent. That process had to be
procedurally and administratively fair
as contemplated by the
Constitution of the Republic of South Africa.
[34] There may well be
instances where the council of the respondent may approach the Court
to have the name of a member struck
of the roll without a formal
enquiry preceding the application to Court.
[35] To my mind, this
case before me is not one of those instances. The decisions referred
to in paragraphs [32) and [33], supra,
both predates the Constitution
of the Republic of South Africa. Besides the fact that they do, the
De Beer-case acknowledges the
need for the formulation of proper
charges, a trial and the opportunity of such an attorney to defend
himself at such a trial.
Despite the applicant's request for same in
casu, he was denied such a trial. In the Meyer-case, the far reaching
consequences
of the mere decision such as the one in casu, is
emphasized.
[36] Section 33 of the
Constitution of the Republic of South Africa clearly enshrines the
right of everyone to administrative action
which is lawful,
reasonable and procedurally fair. The above mentioned decisions and
the Attorneys Act, Act 53 of 1979, must be
viewed in that context.
[37] If this is properly
done, the argument raised on behalf of the respondent that the
applicant will get the chance to put his
version before Court when
the application for the striking of his name from the roll of
attorneys is brought, is fatally flawed.
In the circumstances and on
the factual basis I have already alluded to above, the applicant
should have had that opportunity to
state his case before the
decision was made to strike his name from the roll. The only sensible
way to have done that, was to hold
a formal enquiry as envisaged by
rule 50. The applicant's fundamental right to be heard before the
decision was made, was thus
denied and it can thus in the
circumstances not be said that the administrative action of the
respondent was lawful, reasonable
and administratively fair. To my
mind, the applicant thus has a reasonable chance of succeeding with
the review application. That
being so, I conclude that the applicant
satisfied the first requisite of an interim interdict, to wit, a
prima facie right."
(Own emphasis)
[23]
After the Pohl-judgment and order was granted on 8 June 2018, a
settlement was reached between the applicant's attorney
at the time,
Mr Holtzhausen and the prosecutor, at the instance of the LPC. This
settlement was on the basis that the applicant
will not proceed with
his review application, that each party was to pay its own costs and
that the disciplinary enquiry would
be proceeded with.
[24]
On the strength of the aforesaid settlement between the parties, two
presiding chairpersons were appointed, being retired
Judge Haneke and
Mr Litheko. Two pro forma prosecutors were also appointed, being Mr
Phalatsi and another practising attorney,
Mr Hechter.
[25]
Mr Phalatsi, without having consulted the applicant and his legal
team, set the disciplinary enquiry down for hearing
on 4 - 15
February 2019, by way of a notice dated 19 October 2018. The notice
further advised that all documents in the matters
will be provided to
all the parties on or before 16 November 2018, to enable them to
prepare for the enquiry.
[26]
The applicant objected to the unilateral set down of the enquiry,
which objection was based on a number of grounds. Subsequent
thereto
when Mr Hechter also became involved, it was agreed that a
pre-disciplinary enquiry meeting with the two chairpersons was
to be
held on 4 February 2019.
[27]
On 17 January 2019 Mr Hechter addressed an e-mail to both the
applicant and Mr Phalatsi in which he, inter alia, stated
the
following:
"2.
Skrywer se opdrag is die volgende:
2.1 Oat daar
op 4 Februarie 2019 (in die teenwoordigheid van die voorsittende
beamptes) 'n datum gereel sal word wanneer
die aangeleentheid sal
voortgaan.
2.2 Daar sal
op daardie ooreengekome datum voortgegaan word met die klagtes van
Pan en Joluza Boerdery - hierdie twee
klagtes sal met ander woorde
afgehandel word. U is neg nie in besit van die klagstaat in die Pan
aangeleentheid nie en sal dit
dan ook aan u beskikbaar gestel word."
[28]
On 7 February 2019 Mr Hechter wrote a memorandum which set out the
issues agreed upon at the aforesaid pre-disciplinary
enquiry meeting:
"1.
Die aangeleentheid insake bovermelde is op Maandag, 4 Februarie 2019
in die teenwoordigheid van die Voorsittende
Beamptes, Regter SPB
Haneke en Mnr Litheko, Mnr Senekal, Mnr Hechter en Mnr Phalatsi,
uitgestel na 3 -14 Junie 2019.
2.
Slegs die aangeleenthede van Mnr Pan en Joluza Boerdery sal in
daardie tyd aangehoor word.
3.
Die datums is vasgestel om al die partye te pas, ingesluit Mnr
Senekal se regsverteenwoordiger. Die omvang
van die dokumente is ook
in aggeneem met die vasstelling van die datums.
4.
Die volgende datums is van belang:
4.1 Mnr
Senekal sal voor of op 15 Februarie 2019 alle dokumentasie insake die
hofaansoeke wat op die twee aangeleenthede
van toepassing is aan Mnre
Hechter en Phalatsi beskikbaar stel.
4.2 Die
klagstaat van Joluza Boerdery is reeds aan Mnr Senekal gegee en die
klagstaat in Pan-aangeleentheid sal nie
later as 28 Februarie 2019
aan Mnr Senekal beskikbaar gestel word nie.
4.3 Mnr
Phalatsi en Hechter sal ook teen 28 Februarie 2019 die bundels van
die dokumente gereed he en aan Mnr Senekal
en die Voorsittende
Beamptes voorsien.
4.4 Mnr
Senekal sal 'n versoek om nadere besonderhede [indien enige], aanvra
nie later as 29 Maart 2019 nie en die antwoorde
daarop sal nie later
as 30 April 2019 daarop verskaf word nie.
4.5 Die
partye sal, indien nodig, 'n voorverhoor hou op 17 Mei 2019."
[29]
According to the applicant he complied with his obligations in terms
of paragraph 4.1 of the aforesaid memorandum. With
regard to
paragraph 4.2 of the memorandum, the charge sheet pertaining to the
Pan-matter was only provided to the applicant on
1O May 2019. With
regard to paragraph 4.3 of the memorandum, the applicant received the
bundles of documents in the Joluza Boerdery/Claassen-matter
only on
13 May 2019. The bundles of documents pertaining to the Pan-matter,
were not handed to the applicant at all.
[30]
The applicant brought his dissatisfaction with the aforesaid to the
attention of Mr Hechter, who suggested that the matters
be postponed
by agreement. However, the applicant insisted that the Joluza
Boerdery/Claassen-matter at least be proceeded with
on those dates.
It was then agreed that the Joluza Boerdery/Claassen-matter be
proceeded with on 11 to 14 June 2019.
[31]
According to the applicant he was consequently not the cause for the
delay in finalizing the disciplinary enquiry. He
would also have
proceeded with the Pan-matter on the agreed dates, had it not been
for the tardiness of Messrs Phalatsi and Hechter
as set out above.
[32]
The disciplinary enquiry against the applicant in the Joluza
Boerdery/Claassen-matter proceeded and was finalised. The
applicant
was found to be not guilty on all the charges in the Joluza
Boerdery/Claassen-matter. In his replying affidavit in the
review
application the following uncontested allegations were made by the
applicant:
"78.... Mrs
Claassen, the complainant, was constrained to concede during
cross-examination that she lied in lodging the complaint
that I stole
trust monies and she conceded that she in fact still owed Matsepes
Inc a certain amount of money.
79. Mrs Claassen also
conceded that her complaint that I failed to account for some R40
million of assets in the estate of Ludwig
Claassen/Joluza Boerdery
was also false."
[33]
As a result of what occurred during the Joluza
Boerdery/Claassen-matter, retired Judge Haneke was no longer prepared
to act as one of the chairpersons in the applicant's disciplinary
enquiry pertaining to the Pan-matter. He withdrew as chairperson.
The
decision to continue the disciplinary enquiry in the Pan-matter
before only chairperson:
[34]
As part of the record of proceedings which was filed, it came to the
applicant's knowledge that a resolution (at p. 236(73),
Volume 1 of
the record) was purportedly taken by the LPC on 20 August 2020 that
the formal enquiry committee should propose dates
for the hearing and
should the applicant not be available on the proposed dates, the
enquiry should proceed in his absence. Paragraph
3 of the said
resolution further reads as follows:
"The formal enquiry
should proceed with Mr Phalatsi as the prosecutor and Mr Litheko as
the chairperson."
It
needs to be pointed out that the said resolution was only signed on 8
September 2021.
[35]
In addition to the aforesaid a letter was addressed by the LPC to the
prosecutor in which it was stated that "Council
at its meeting
of 4 December 2020" resolved as follows:
"1. You must
set down a date on when the hearing should proceed and communicate
same to Mr Senekal.
2. The
absence of Mr Senekal's specific legal representative should not bar
the hearing from taking place, as Mr Senekal
has the right to legal
representation and not the right to a specific representative."
[36]
The applicant pointed out that the aforesaid decisions regarding the
arrangement of dates for the disciplinary enquiry
in the Pan
matter were contrary to the agreement and understanding reached at
the pre-disciplinary enquiry meeting.
[37]
However, the present review application is not seeking the review of
the aforesaid decisions regarding the continuation
of the
disciplinary enquiry even should Mr Senekal and/or his legal
representative not be present. I therefore do not intend dealing
with
it. The applicant specifically indicates in his replying affidavit
that this resolution will/may be the subject of a review
application
and consequently it may be inappropriate for me to express any view
on this issue at this stage.
[38]
On 6 April 2021 the applicant addressed a letter (at p. 236(42),
Volume 1 of the record) regarding the hearing of the
Pan-matter to
the prosecutor wherein the following was raised in paragraphs 3 and 4
of the said letter:
"3. Please
advise writer who is the disciplinary committee who will hear the
matter and when was the disciplinary committee
appointed?
4. Please
forward writer with contacting details of the members of the
disciplinary committee who will hear the matter."
[39]
An extract from the minutes of a meeting of the LPC held on 12 April
2021 (at p. 236(48), Volume 1 of the record) reflects
that the
aforesaid letter received from Mr Senekal should be responded to as
follows with regard to paragraphs 3 and 4 thereof:
"The disciplinary
hearing will be presided over by Mr Litheko, who has long been
appointed to preside over all the matters
of Mr Senekal. He was
appointed long before the hearing of the matter of Joluza. Mr Senekal
already has the contact details of
Mr Litheko."
[40]
Mr (LP) Halgryn SC, who appeared on behalf of the applicant, assisted
by Mr (T) Halgryn, submitted that because the parties
agreed that
both the Joluza Boerdery/Claassen-matter and the Pan-matter will be
presided over by two chairpersons and subsequent
thereto the Joluza
Boerdery/Claassen-matter was indeed heard and finalized by two
chairpersons, it created the legitimate expectation
for the applicant
that the Pan-matter will also be presided over by two chairpersons.
He further submitted that for the LPC to
have decided differently,
especially without having consulted the applicant, constituted an
unlawful decision.
[41]
Mr Halgryn pointed out that the aforesaid contention is more over so
considering that the fact that the hearing of the
Pan-matter could
not be continued with on the designated dates of 3 - 14 June 2021,
was due to the tardiness of the LPC and/or
the prosecutors in their
failure to have delivered the charge sheet and the supporting
documents to the applicant on or before
the agreed dates and/or at
all. It was not as a result of any conduct on the side of the
applicant.
[42]
Mr Mfazi, who appeared on behalf of the LPC, assisted by Ms Sogoni,
submitted that there was no decision taken by the
chairperson in this
regard which can be reviewed and set aside.
[43]
I cannot agree with the submission by Mr Mfazi. The chairperson .
clearly associated himself with the resolution taken
by the council
in this regard and he gave effect to it. In any event, one must be
mindful of the fact that the LPC is the first
respondent. Even if it
is to be considered to be a decision of the LPC, it in any event
constitutes an irregular decision in that
it is contrary to what was
agreed between the parties.
[44]
The further argument on behalf of the applicant is based on Rule
50(1)(3) which determines as follows:
"Where the Council
resolves to hold a formal enquiry, or where a member has called for
such an enquiry as contemplated above,
the Council shall refer the
matter to a Disciplinary Enquiry Committee appointed by it. The
committee may consist of two or more
members, who shall not have
participated in the finding and sanction imposed upon the member as
provided for above. The Council
may also appoint any practicing
attorney or advocate or an employee who is admitted as such as pro
forma prosecutor in the leading
of evidence against, and the
presentation of the case against, the member, at the enquiry."
(Own emphasis)
[45]
Mr Halgryn submitted that the language used is unambiguous. The
intention is that two or more members shall be appointed,
which
clearly means at least two, otherwise it would have determined "one
or more".
[46]
Mr Mfazi, however, submitted that it should be highlighted that the
Rule states "may'' and not "musf'. He relied
on the
principles to be applied for purposes of statutory interpretation as
set out by the Constitutional Court in Cool Ideas 1186
CC v Hubbard
and Another
[2014] ZACC 16
at para
[28]
. He consequently submitted
that the said provisions of the Rule are not peremptory and allow the
LPC a discretion to make a choice,
in appropriate circumstances,
according to the dictates of its own judgment and conscience and with
regard to what is fair and
equitable in each particular case.
[47]
I cannot agree with Mr Mfazi's construction of the relevant words. If
that was the intention, it would have stated "one
or more
members". I understand the word "may'' in this context to
mean that that is what is "allowed", being
two or more
members.
[48]
In the alternative, and should I be wrong in my interpretation of the
Rule, the fact remains that it was agreed upon
between the parties
that the enquiry committee will consist of two chairpersons, the
Joluza Boerdery/Claassen-matter commenced
and was finalized with two
presiding chairpersons and the Pan matter, which formed part and
parcel of the aforesaid decision,
is consequently also to be presided
over by two chairpersons. The LPC's decision to the contrary, and the
chairperson's implementation
thereof, especially without having
consulted the applicant, constituted an unlawful decision.
[49]
In my view the decision is consequently to be reviewed and set aside.
The
decision to continue with the enquiry against the applicant in the
Pan-matter via any virtual platform and/or video conference:
[50]
When considering this issue, it is important to note that it is not a
decision on the merits or de-merits of hearing
Mr Pan's evidence
virtually as opposed to in person. The review to set aside the
decision is based on the following two grounds:
1. The LPC is
not authorised to have made this decision, it was for the chairperson
of the enquiry to have done so;
and
2. The LPC
made the decision without affording the applicant an opportunity to
be heard.
[51]
Mr Mfazi submitted that no decision was taken by the chairperson in
this regard and that there consequently is no decision
which stands
to be reviewed. In this regard he relied on the following extracts
from the record of the proceedings on 19 April
2021 where the
chairperson stated as follows at p. 137, line 22 - p. 138 line 5 of
the record, Volume 1:
"....The issue that
I said I would give you an opportunity to address me on, Mr Senekal,
is that of the hearing proceeding
virtually but I think that decision
or my decision in as far as that is going to be concerned is not
dependent upon whether I grant
a postponement or I do not grant a
postponement, but it depends on what will be expedient considering
all the circumstances, including
the fact that Mr Pan, if we do not
proceed virtually will have to travel from China to South-Africa only
for the purposes of this
hearing..."
Mr
Mfazi further pointed out that at p. 142, lines 4 - 8 of the record
of the s me proceedings, the applicant said the following:
The question of the
virtual hearing, we will deal with at the appropriate time or place.
I do not know whether you want us to, when
we deal with it, but that
concludes my application for the postponement."
[52]
Mr Halgryn, however, pointed out that although the chairperson never
made a formal ruling during the April 2021 enquiry
on the manner of
hearing with regard to the evidence of Mr Pan, he did record that he
cannot take such a decision in his capacity
as chairperson and that
it was a decision which is to be taken by the LPC considering the
circumstances that they were in. In this
regard the chairperson
stated the following in his ruling in the disciplinary enquiry of 19
April 2021, at p. 51, lines 7 - 12
of the record, Volume 1:
"Now the decision
that these proceedings proceed virtually is not the decision that I,
in my capacity as a presiding officer,
took. It is a decision that
was taken by the council considering the circumstances that we are
now in and because of the fact that
I would not have had the proper
space where I would participate virtually today..."
[53]
During the disciplinary enquiry proceedings of 21 April 2021, the
applicant voiced his objections to Mr Pan's evidence
being heard on a
virtual platform and stated the following, as reflected in the record
of the disciplinary hearing of 21 April
2021, at p. 163 line 22 - p.
164 line 12 of the record, Volume 1:
"I want Mr Pan to be
cross-examined, because he committed numerous acts of perjury in this
matter. He lied under oath and I
want him to be properly
cross-examined and that was what I said from the beginning and that
is why I brought an interdict and the
Honourable Acting Pohl said I
have that right. Mr Pan, I have done a search on him, he has got
seven companies in South-Africa.
I am not going to accept that he
cannot be here. I want him to have his cross-examination conducted in
person because he has misled
the Court and I want to deal with it in
a proper manner and to have his matter heard piecemeal is in nobody's
interest. That is
why, Mr Litheko, you are the chairman, I absolutely
abide to your decision, considering your reasons for this matter, but
may I
ask that we have this matter concluded. We set it down for that
whole week and we get this matter finalized, please."
[54]
Subsequently to the aforesaid proceedings and despite the objections
raised by the applicant to the chairperson, the
LPC unilaterally took
a decision on 7 June 2021 that Mr Pan will be allowed to testify
virtually. This decision is reflected in
annexure "E" to
the first respondent's answering affidavit to the review application
and founding affidavit in the counter-application
(at p. 295, Volume
2 of the record), being an extract from the minutes of a meeting of
the LPC held on 7 June 2021 with regard
to the formal enquiry
pertaining to the applicant. In the said document it is recorded that
it was resolved by the council that:
"Mr Senekal should
be provided with the documents he requested for the formal enquiry
and that the matter must proceed at the
next sitting. Mr Pan will be
allowed to testify virtually."
[55]
As correctly submitted by Mr Halgryn, Rule 50(17)(1) determines that
"the duties, functions and powers of the disciplinary
enquiry
committee relating to its conduct of a formal enquiry shall be .. .to
determine through its chairman and subject always
to the provisions
of these rules and of the Act the manner in which the enquiry shall
be conducted". (Own emphasis)
[56]
The LPC consequently did not have the authority to have taken the
said decision. It was for the chairperson to have done
so. The fact
that the LPC took the decision unilaterally, without giving the
ppplicant the opportunity to be heard, makes it even
worse.
[57]
The decision is consequently unlawful and stands to be reviewed and
set aside.
The
decision by Mr Litheko not to recuse himself as chairperson of the
enquiry against the applicant in the Pan-matter:
[58]
When the virtual hearing commenced on 19 April 2021, the chairperson
and the prosecutor were not only sharing an office
at the offices of
the LPC, but they were making use of the same computer/laptop.
[59]
When the applicant requested an audience by means of a virtual
hearing with both the chairperson and the prosecutor prior
to the
hearing in April 2021 with a view to discuss the insufficiency of the
documents and other relevant issues (per email at
p. 236(52), Volume
1 of the record), his request was refused. At p. 27 - p. 29 of the
record of the hearing of 19 April 2021, Volume
1, the applicant
raised his concerns:
"No, I intend to do
it, Mr Litheko, for the reason that I honestly feel that I will be
severely prejudiced. I mean I request
you and Mr Phalatsi to have a
virtual hearing to discuss exactly the issues that is at point in
time here.... Then I am being excluded
from any discussions. Mr
Phalatsi phoned you and between the two of you, you decide after the
discussion you informed Mr Phalatsi,
not even replying to my request,
that you are not going to hear me, because you might compromise
yourself, but how on the same
token can you hear Mr Phalatsi in my
absence without compromising me?
... with the greatest of
respect towards you and Mr Phalatsi, it is absolutely unacceptable
that litigating parties have discussions
with one another to the
exclusion of the other party. I Mean, here today, without notice,
without any consideration of anybody
this trial or this hearing is
turned into a zoom meeting. I mean, how on earth can you have a zoom
meeting? You and Mr Phalatsi
sit there together, I do not know what
you discuss., I do not know what is being exchanged in documentation
between you and Mr
Phalatsi, and I sit here in my office and I have
no right to say I am objecting to the zoom meeting....There are just
decisions
taken and I am excluded out of it and I think it is very
unfair. So yes, I am persisting with my application for yourrecusal.
I honestly also fail to
understand why in the Claassen-matter you and Judge Haneke were
presiding in this matter. Now all of a sudden
there is only one
presiding officer. Was this just a game, another unilateral change of
the rules without my notification, or without
considering my view?
... I think it is totally
inappropriate that that you and Mr Phalatsi having a meeting without
firstly, my consent, secondly my
knowledge and thirdly, in total
exclusion of me and then without granting me the opportunity to say
anything you entertain and
give audience to Mr Phalatsi and today,
you sit there and Mr Phalatsi in the same room. The minute this zoom
meeting is discontinued
you can have whatever discussions you want
with Mr Phalatsi. So, in my absence you and Mr Phalatsi can proceed
to discuss this
matter while I am not there to protect my own
interest and I think it is totally unacceptable."
[60]
Despite the applicant's objections, the chairperson and the
prosecutor remained in the same office during the hearing.
According
to the chairperson he did not know how the computer/laptop worked and
the prosecutor was operating same on his behalf.
[61]
On the prosecutor's own concession, he took it upon himself to email
the chairperson regarding the letter he had received
from the
applicant and thereafter spoke to him telephonically so that the two
of them could "attend' to the contents of the
email. He also
conceded that he had received a sms message from the chairperson.
[62]
Mr Halgryn referred back to the instance when the LPC addressed a
letter to the prosecutor on 15 January 2021 on the
strength of the
resolution taken at a meeting on 4 December 2020, when Mr Phalatsi
was instructed to set the matter down on a date
and communicate the
date to the applicant, irrespective of whether his legal
representative was available or not. Mr Halgryn contended
that the
question that begs to be the answered is how Mr Phalatsi had secured
the attendance of the chairperson before he simply
advised the
applicant of the date.
[63]
Mr Mfatsi referred to the following extract from the proceedings of
19 April 2021 at p.34, lines 1 - 14, Volume 1 of
the record, where
the prosecutor stated the following:
...I want to put it on
record that as an officer of the court I will not do anything that
will compromise this hearing by discussing
the issues with you in the
absence of Mr S nekal...it is speculative and it is without any
factual basis that we might be discussing
or actually exchanging the
documents between yourself and myself in respect of Mr Senekal saying
that he saw the paper. The paper
it said he received summons without
annexure "A" and I want to place on record again that I was
asking the lady who helped
us with the sending of the summons to Mr
Senekal whether it was only the summons which was send or also the
annexure "A"
was also sent..."
[64]
The test for recusal as formulated in President of the Republic of
South Africa v South African Rugby Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC) was confirmed in the recent judgment of South African Human
Rights Commission obo South African Jewish Board of Deputies v
Masuku
2022 (4) SA 1
(CC), where the Constitutional Court pronounced as
follows at paras [56], [60] and [63]:
"[56] ... And,
because impartiality of judicial officers and the impartial
adjudication of disputes of law constitute the bedrock
upon which the
rule of law exists, there must, in any sound legal system, exist a
general presumption of impartiality on the part
of judicial officers.
In SARFU, this court stated:
'A cornerstone of any
fair and just legal system is the impartial adjudication of disputes
which come before the courts and other
tribunals. This applies, of
course, to both criminal and civil cases as well as to quasi-judicial
and administrative proceedings.
Nothing is more likely to impair
confidence in such proceedings, whether on the part of litigants or
the general public, than actual
bias or the appearance of bias in the
official or officials who have the power to adjudicate on disputes.'
[60]
That being said, there are of course instances where a judicial
officer may not be able to demonstrate impartiality or
there may
exist some apprehension of bias. Therefore, although the correct
point of departure must always be a presumption of impartiality,
'the
presumption can be displaced with "cogent evidence" that
demonstrates that something the judge or Magistrate has
done gives
rise to a reasonable apprehension of bias'.
[63]
As alluded to above, it has become trite law that the test for
recusal is the 'reasonable apprehension of bias' test.
And, as it
says on the tin, the 'existence of a reasonable suspicion of bias
satisfies the test'. The Code of Judicial Conduct
for judges
addresses recusal thus:
'A
judge must recuse him or herself from a case if there is a –
(a)
real or reasonably perceived conflict of interest; or
(b)
reasonable suspicion of bias based upon objective facts, and shall
not recuse him or herself on insubstantial
grounds.'
And
the test for recusal was later expanded upon by this court, for
example, in SARFU. We can do no better than cite the pertinent
finding of that case in full:
'It follows . . . that
the correct approach to this application for the recusal of members
of this court is objective and the onus
of establishing it rests upon
the applicant. The question is whether a reasonable, objective and
informed person would on the correct
facts reasonably apprehend that
the judge has not or will not bring an impartial mind to bear on the
adjudication of the case,
that is a mind open to persuasion by the
evidence and the submissions of counsel. The reasonableness of the
apprehension must be
assessed in the light of the oath of office
taken by the judges to administer justice without fear or favour; and
their ability
to carry out that oath by reason of their training and
experience. It must be assumed that they can disabuse their minds of
any
irrelevant personal beliefs or predispositions. They must take
into account the fact that they have a duty to sit in any case in
which they are not obliged to recuse themselves. At the same time, it
must never be forgotten that an impartial judge is a fundamental
prerequisite for a fair trial and a judicial officer should not
hesitate to recuse herself or himself if there are reasonable grounds
on the part of a litigant for apprehending that the judicial officer,
for whatever reasons. was not or will not be impartial."'
(Own
emphasis)
[65]
have to agree with the submission of Mr Halgryn that the suggestion
and argument that the conduct or the prosecutor and
the chairman by
having shared the same office and computer/laptop during the virtual
hearing on 19 April 2021 could not have caused
the applicant to have
a reasonable apprehension or suspicion of bias on the side of the
chairperson. It does not suffice for the
prosecutor and the
chairperson to contend that they never discussed anything to the
applicant's peril. It comes back to the well-known
saying that
"justice must be seen to be done".
[66]
The applicant's perception that the chairperson is biased, is
unfortunately bolstered by the pattern that the pattern
in this
matter whereby the LPC takes crucial decisions pertaining to the
conducting of the enquiry and the chairperson merely abides
by and
implements the decisions. He clearly allows the LPC to dictate to him
on issues in relation to which only he has the authority
to decide.
[67]
In the circumstances Mr Litheko ought to have withdrawn as
chairperson when the applicant requested him to do so. His
failure to
have done so was irrational, unfounded and arbitrary.
[68]
In the circumstances his decision stands to be reviewed and set
aside.
The
counter-application:
[69]
There are a number of grounds upon which the applicant is opposing
the counter application:
1.
The Pohl AJ-judgment already pronounced that the applicant is
entitled to state his case in a disciplinary
enquiry pertaining to
the Pan-matter before the LPC is entitled to approach court with an
application to have his name removed
from the roll of legal
practitioners. The said judgment was not appealed against and
therefore still stands. In the circumstances
the issue is res
judicata.
2.
In addition to the aforesaid, the parties agreed subsequent to the
Pohl AJ-judgment that the LPC will
continue with a disciplinary
enquiry against the applicant pertaining to the Pan-matter. The LPC
was consequently not entitled
to have filed the counter application.
3.
The lack of merits of the counter application.
[70]
In my view it is evident from the Pohl AJ judgment that the matter is
in fact res judicata and that the LPC was therefore
not entitled to
have instituted the counter application prior to the finalization of
the disciplinary enquiry against the applicant
in relation to the
Pan-matter.
[71]
Other than for the fact that the Claassen-mater has been finalised,
the relevant circumstances, facts and principles
are presently no
different than what they were when the Pohl AJ judgment was
delivered.
[72]
The counter application consequently stands to be dismissed.
Costs:
[73]
There is no reason why the costs of the application and the counter
application should not follow the outcome of the
respective
applications.
[74]
The Rule 6(15) application was, in my view, very validly filed. If I
had not granted the condonation indicated at the
beginning of the
judgment, the relief sought in the Rule 6(15) application would have
been granted. There is consequently no reason
why the LPC should not
also pay the costs thereof.
[75]
With regard to the scale of costs, Mr Halgryn requested that it be
ordered on an attorney and client scale. I agree.
The conduct of the
LPC to have, in the circumstances, again dragged the applicant to
court before finalization of the disciplinary
enquiry, reeks of
malice. The issues for which I have granted condonation with regard
to the LPC's papers, as well as the manner
in which the LPC attempted
to make the annexures to the LPC's founding affidavit to the counter
application part of the affidavit,
are also unacceptable. There is no
reason that the applicant should be out of pocket in the
circumstances.
Order:
[76]
The following order is consequently made:
1. The
counter-application is dismissed, with costs on an attorney and
client scale, which costs are to include the
costs of the application
in terms of Rule 6(15), and which costs are also to include the costs
of two counsel.
2. The
decision of the first and/or second respondents to continue with the
disciplinary enquiry against the applicant
in the Pan-matter before
only one member of the Disciplinary Enquiry Committee, is reviewed
and set aside.
3. The
decision of the first and/or second respondents to continue with the
disciplinary enquiry against the applicant
in the Pan-matter via any
virtual platform and/or video conference, is reviewed and set aside.
4. The
decision of the second respondent not to recuse himself as
chairperson of the disciplinary enquiry against the
applicant in the
Pan-matter, is reviewed and set aside.
5. The matter
is referred back to the first respondent to commence de novo with the
disciplinary enquiry in terms of
Rule 50 against the applicant in the
Pan-matter before two duly appointed members of a Disciplinary
Enquiry Committee, should the
first respondent wish to continue with
the said enquiry.
6. The first
respondent is -ordered to pay the costs of the application on a scale
as between attorney and client, which
costs are to include the costs
of two counsel.
VAN
ZYL, J
I
concur.
MHLAMBI,
J
On
behalf of the applicant: Adv LP.
Halgryn s·.c
Assisted
by:
Adv THalgryn
Instructed
by:
F.J. Senekal Inc.
BLOEMFONTEIN
On
behalf of the first respondent: Adv L. Mfazi
Assisted
by:
Adv P.R. Sogoni
Instructed
by:
N.W. Phalatsi & Partners
BLOEMFONTEIN