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[2011] ZASCA 122
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Law Society of the Northern Provinces v Mabando (736/10) [2011] ZASCA 122; [2011] 4 All SA 238 (SCA) (2 September 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 736/10
LAW SOCIETY OF THE
NORTHERN PROVINCES
…...............................................
Appellant
and
KASHAN RAMOKOKA
MABANDO
…...........................................................
First
Respondent
THE LAW SOCIETY OF
BOPHUTHATSWANA
….......................................
Second
Respondent
(The Law Society of the North West
Incorporated as the
Law Society of Bophuthatswana)
______________________________________________________________________
Neutral citation:
Law Society of the Northern Provinces v Mabando
(736/10)
[2011] ZASCA 122
(2 September 2011)
CORAM:
Navsa, Heher, Van Heerden, Majiedt JJA and Petse AJA
HEARD:
15 August
2011
DELIVERED:
2
September 2011
SUMMARY: Regulatory
jurisdictional conflict between appellant and second respondent
becoming a spectacle to the detriment of attorneys’
profession
─ second respondent repeatedly engaging in unnecessary and
unbecoming litigation challenges to appellant’s
statutory right
to regulate attorneys’ conduct within former Bophuthatswana ─
second respondent failing in its own
regulatory function ─ time
for Minister to inquire whether second respondent serves any useful
purpose ─ whatever the
source of the complaint the court on
whose roll name of attorney appears has the ultimate disciplinary
power ─ three-stage
inquiry by court considering complaints of
unprofessional, dishonourable or unworthy conduct restated and
applied.
______________________________________________________________________
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from:
North West High Court (Mafikeng) (Leeuw JP and Landman J sitting as
court of first instance):
1. The appeal is upheld
with costs on an attorney and client scale for which the first and
second respondents are jointly and severally
liable, the one paying
the other to be absolved.
2. The order of the court
below is set aside and substituted as follows:
‘
(a)
The application succeeds and the first and second respondents are
ordered to pay the applicant’s costs on an attorney
and client
scale jointly and severally, the one paying the other to be absolved.
(b) An order is made in
terms of paras 1-10.4, 11 and 12 of the applicant’s notice of
motion. ’
______________________________________________________________________
JUDGMENT
______________________________________________________________________
NAVSA JA (HEHER, VAN
HEERDEN, MAJIEDT JJA and PETSE AJA concurring)
[1] This appeal by the
Law Society of the Northern Provinces is directed against a judgment
of the Mafikeng High Court (Leeuw JP
and Landman J), in terms of
which an application by it to have the first respondent’s name
removed from the roll of attorneys
was dismissed and each party was
ordered to pay its own costs. Notwithstanding the dismissal of the
application, the high court
‘reprimanded’ the first
respondent, Mr Kashan Ramakoko Mabando, for his ‘unprofessional
conduct’. The appeal
is before us with the leave of that court.
[2] Before us the
appellant contended that the court below ought to have held that the
first respondent is not a fit and proper
person to continue
practising as an attorney, not only because of his conduct in
relation to two fellow practitioners and a client,
but also because
he failed to co-operate and comply with sanctions imposed by it,
subsequent to disciplinary proceedings. The appellant
also relied on
the fact that the first respondent had not taken steps to undo the
wrongs perpetrated against three of these four
parties, up until the
date of the hearing of the appeal. It was submitted that the
appellant’s application to have the first
respondent’s
name struck from the roll of attorneys was wrongly refused by the
court below.
[3] The first respondent
submitted that the conduct complained of was not such as to render
him liable to be struck from the roll
of attorneys
and
that he
had and continues to have a genuine belief that s 84A of the
Attorneys Act 53 of 1979 (the Act), in terms of which the appellant
claims to have concurrent jurisdiction over him and other attorneys
in the geographical area of the former Republic of Bophuthatswana,
is
unconstitutional. This latter point he accepted he was unable to
pursue before us because he had failed in the court below to
follow
the prescribed procedure for challenging the validity of the
legislation in question. That belief, he submitted, dictated
his
justifiable attitude towards the appellant.
[4] The present
litigation is the culmination of a long standing feud between the
appellant and the first respondent, concerning
the former’s
jurisdiction over attorneys practising in the geographical area that
constituted the former Bophuthatswana,
located within the area of
jurisdiction of the court below. Furthermore, as will be demonstrated
later in this judgment, it is
a continuation of a long running
litigation saga between the appellant on the one side, and
practitioners and the second respondent,
the Law Society of
Bophuthatswana,
1
on the other. As will be
demonstrated later, it is a sad indictment against the legal
profession in the geographical area over which
the second respondent
has concurrent jurisdiction that numerous courts have been
unnecessarily inundated with the same battle for
dominance and
exclusivity over and over again. For the sake of the dignity of the
legal profession as a whole it is a pattern that
has to end. Both in
the court below and before us, up until the eleventh hour, the second
respondent supported the first respondent.
These are aspects to which
I will revert in due course. The first respondent’s relevant
particulars, the details of the complaints
referred to above and the
facts leading up to the present litigation are all set out in the
paragraphs that follow.
[5] The first respondent
was admitted as an attorney on 25 June 1991 and practises as such in
Garankuwa, North West Province. His
name appears on the roll of
attorneys in the court below and he is a member of the second
respondent. On 5 November 2002 and 30
January 2003 the appellant
received two written complaints against the first respondent ─
one each from attorney Mr David
van Zyl and attorneys’ firm
Bell Dewar and Hall, respectively.
[6] Mr van Zyl complained
that he had obtained instructions from the first respondent to act as
the latter’s correspondent
in a matter in Vryburg and that he
had executed those instructions and performed the necessary services,
rendering an account for
R3 420, which, despite repeated demand,
remained unpaid. At the time he lodged the complaint with the
appellant Mr van Zyl’s
account had been outstanding for two
years. The first respondent, according to Mr van Zyl, had failed to
answer numerous letters
addressed to him in this regard.
[7] Landed with the
complaint, the appellant wrote to the first respondent requesting him
to comment. He failed to respond.
[8] According to Bell
Dewar and Hall they had instructed the first respondent to act as
their correspondent and to collect moneys
on behalf of their client,
United Distillers & Vintners, from a bottle store, which he did.
Bell Dewar and Hall alleged that
the first respondent subsequently
failed to account to them for the moneys so collected. Once again,
the appellant requested the
first respondent to comment on the
complaint received by it. Once again, he failed to do so.
[9] Unsurprisingly, the
appellant convened a disciplinary committee to consider the
complaints and to consider the first respondent’s
failure to
respond to its written communications. The appellant claims the right
to exercise concurrent disciplinary power over
attorneys practising
in the former Bophuthatswana, in terms of s 84A of the Act, which
provides as follows:
‘
Notwithstanding
any other law, the Law Society of the Transvaal and its council,
president and secretary, may in respect of practitioners
practising
in the areas of the former Republic of Bophuthatswana and Venda,
perform any function which is similar to a function
assigned to that
Law Society, council, president or secretary, as the case may be, by
section 22(1)
(d)
or
(e)
,
(2), 67 (2), 69
(a)
,
(e)
or
(m)
,
70, 71, 72, 73, 74(1)
(a)
,
(e)
and
(f)
,
78, 81(1)
(e)
and
(f)
,
(2)
(a)
,
(d)
,
(e)
,
(i)
or
(j)
,
(5) or 83(9), (13) or (15).’
[10] Section 71 of the
Act gives the council of a law society the power to enquire into
cases of alleged unprofessional or dishonourable
or unworthy conduct
on the part of any attorney, notary or conveyancer whose name has
been placed on the roll of any court within
its province, ‘whether
or not he is a member of such society’. Section 72(6) provides
for a court at the instance of
a law society to suspend any
practitioner from practice or to strike him from the roll.
[11] Acting in terms of s
71 the appellant charged the first respondent as follows:
‘
(a)
Complaint
by Attorneys David van Zyl
That you are guilty of
unprofessional or dishonourable or unworthy conduct on the part of a
practitioner in that you contravened
the following Rules of the Law
Society of the Northern Provinces, incorporated as the Law Society of
the Transvaal (the Rules);
1.) Rule 89.25 of the
Rules in that you failed or neglected to comply with a request by the
Secretary in that you failed to answer
correspondence addressed to
you by the Law Society of the Northern Provinces dated 17 December
2002; and
2.) Rule 89.23 of the
Rules in that you failed or neglected to answer or appropriately to
deal with within a reasonable time any
correspondence or other
communication which reasonably requires a reply or other response
addressed to you by Attorneys David van
Zyl dated 23 May 2002; and
3.) Rule 68.9 of the
Rules in that you failed or neglected to pay, within a reasonable
time, the reasonable fees and disbursements
of your correspondent
attorneys, David van Zyl in the matter of
J M
Mothusi and J M Mothusi Bottle Store (Pty) Ltd v Vryburg
Municipality
.
b)
Complaint
by Attorneys Bell Dewar & Hall
That you are guilty of
unprofessional or dishonourable or unworthy conduct on the part of a
practitioner in that you contravened
the following Rules of the Law
Society of the Northern Provinces, incorporated as the Law Society of
the Transvaal (the Rules);
1) Rule 89.23 of the
Rules in that you failed or neglected to answer or appropriately to
deal with within a reasonable time any
correspondence or other
communication which reasonably requires a reply or other response
addressed to you by Attorneys Bell Dewar
& Hall dated 18 June
2002, 26 July 2002, 11 September 2002, 23 October 2002 and 9 December
2002 in the matter of
Guinness UDV SA (Pty)
Ltd v
Lerato Bottle Store
;
and
2) Rule 89.9 of the Rules
in that you failed or neglected to pay, within a reasonable time, the
reasonable fees and disbursements
of your correspondent attorneys,
Bell Dewar & Hall in the matter of
Guinness
UDV SA (Pty) Ltd v Lerato Bottle Store
;
3) Rule 89.7 of the Rules
in that you without lawful excuse delayed the payment of trust monies
after due demand in the matter of
Guinness UDV
SA (Pty) Ltd v Lerato Bottle Store
.
’
[12] Replying to the
appellant’s letter requiring him to appear before the
disciplinary committee, the first respondent stated
the following:
‘
It
is therefore my submission that you do not have jurisdiction over the
matter as it was dealt with outside your jurisdiction and
at the time
when writer hereof was practicing outside your jurisdiction.
Writer hereof is
therefore not prepared to subject himself to any hearing by
yourselves over a matter in which you had no jurisdiction
unless you
provide me with any statutory law that converse (
sic
)
such jurisdiction on you.’
[13] That communication
notwithstanding, the first respondent appeared before the
disciplinary committee on 4 August 2005 and pleaded
not guilty to all
the charges. He raised the following point
in
limine
:
he was a member
of the Law Society of Bophuthatswana and the appellant consequently
had no jurisdiction over him.
[14] The appellant’s
disciplinary committee reserved its decision on the point
in
limine.
It subsequently dismissed the point,
providing written reasons for doing so and relying principally on s
84A of the Act. In response,
the first respondent addressed a letter
to the appellant, maintaining adamantly that it had no jurisdiction
over him, stating,
amongst others, that this section of the Act has
‘very serious shortcomings’. He went on to state the
following:
‘
I
find it rather unfortunate that the Law Society of the Transvaal,
despite all the transformation that has and is taking place
since the
advent of the new dispensation, is still clinging to the old
apartheid style of wanting to rule others by force or absorption
irrespective of all the protests. . . .
As a practitioner under
the Law Society of Bophuthatswana, I have freely associated myself
with that Society and I owe allegiance
to it for all my activities
that are carried out within its area of jurisdiction.’
[15] The regulatory
legislative history in the geographical area concerned and a
discussion of s 84A of the Act and judicial decisions
in relation
thereto will be dealt with in due course.
[16] The appellant
decided to proceed with the disciplinary enquiry. On 4 September 2006
it notified the first respondent to appear
before its disciplinary
committee on 21 September 2006, to answer the charges preferred
against him. He attended the proceedings.
The disciplinary committee
found him guilty on all three charges related to the complaint by
attorney Van Zyl. In respect of the
first respondent’s failure
to respond to the appellant’s invitation to comment on the
complaint, he was fined an amount
of R500. In respect of his failure
to respond to Van Zyl’s letters he was fined an amount of R500.
In respect of his failure
to pay the account he was fined an amount
of R500, suspended for a period of 60 days on condition that he paid
the amount due to
the attorney.
[17] The first respondent
paid the fines in respect of the first two charges. It is common
cause that the amount due to Van Zyl
remained unpaid for
approximately nine months after the sanctions were imposed and was
paid in two instalments after an amount
was finally agreed between
them.
[18] In relation to the
complaint by Bell Dewar and Hall the first respondent was found
guilty on two charges. The first was that
he had failed to respond to
correspondence from them and the second that he had failed to account
for the moneys collected on their
behalf. He was fined R1 000 on the
first charge and an amount of R2 000 on the second, suspended for 30
days, to allow him to account
to Bell Dewar and Hall.
[19] In respect of the
fines imposed, an amount of R2 000 was due to be paid to the
appellant by 30 November 2006. The first respondent
failed to pay the
fines and persisted in his failure to account to Bell Dewar and Hall.
On 18 October 2006 the first respondent
advised the appellant that he
intended to bring an application to review the decision of the
disciplinary committee, but that did
not eventuate.
[20] In respect of the
sanction in relation to the complaint by Bell Dewar and Hall, first
respondent did however, pay an amount
of R1 000 to the appellant,
leaving a balance in an amount of R1 000 in unpaid fines. The
appellant wrote to the first respondent
demanding that he pay what
was due. He failed to do so. In consequence, on 27 August 2008, the
appellant notified the first respondent
to appear before a
disciplinary committee to answer the following charge:
‘
That
you are guilty of unprofessional or dishonourable or unworthy conduct
on the part of a practitioner in that you contravened
Rule 89.25 of
the Rules of the Law Society of the Northern Provinces, incorporated
as the Law Society of the Transvaal (the Rules),
in that you failed
to pay the fine of R2 000.00 imposed by the disciplinary committee
held on 21 September 2006.’
[21] The first respondent
failed to appear before the committee and the conflict continued. In
October 2008 the appellant received
yet another complaint against the
first respondent, this time from a member of the public, Mr G M
Ntsweng. He alleged that he instructed
the first respondent to
recover damages he had sustained as a result of his motor vehicle
being damaged in a collision. According
to Mr Ntsweng, the offending
motorist had signed an acknowledgment of debt in an amount of R6
438.46, in terms of which he had
undertaken to pay over that amount
in instalments to the first respondent. Mr Ntsweng alleged that the
first respondent had failed
to carry out his instructions to recover
what was due and failed to account for monies actually received from
the other motorist.
[22] The appellant
notified the first respondent of this complaint and he was requested
to comment. His response was to once again
challenge the appellant’s
jurisdiction. This ultimately led to a further disciplinary committee
being convened on
9 October 2008,
where the following charges were brought against the first
respondent:
‘
That
you are guilty of unprofessional or dishonourable or unworthy conduct
on the part of a practitioner in that you contravened
the following
Rules of the Law Society of the Northern Provinces, incorporated as
the Law Society of the Transvaal (the Rules);
1.) Rule 89.25 of the
Rules, in that you failed or neglected, within a reasonable time, to
comply with a request by the Secretary
in that you failed to provide
the Law Society of the Northern Provinces with your comments to the
allegations against you, as conveyed
in the letter of the Law Society
dated 6 February 2008; and
2.) Rule 89.15 of the
Rules, in that you failed or neglected to give proper attention to Mr
G M Ntsweng’s claim against Mr
J J Zwane; and
3.) Rule 68.7 of the
Rules of the Law Society of the Northern Provinces, within a
reasonable time, after the performance or earlier
termination of any
mandate received from your client, Mr G M Ntsweng in regard to the
matter of Mr J J Zwane, to furnish your client
with a written
statement of account setting out within reasonable clarity:
a) details of all amounts
received by you in connection with the matter, appropriately
explained;
b) particulars of all
disbursements and other payments made by you in connection with the
matter;
c) fees and other charges
charged to or raised against your client and where any fee represents
an agreed fee, a statement that
such fee was agreed upon and the
amount so agreed;
d) the amount due to or
by your client.’
[23] The first respondent
failed to appear. Thus, the proceedings were conducted in his absence
and he was found guilty on all three
charges. In respect of the first
charge the first respondent was fined an amount of R5 000, half of
which was suspended for a period
of three years. The same penalty was
imposed in respect of the second charge. In relation to the third
charge a fine of R10 000
was imposed, half of which was suspended. In
addition, the first respondent was ordered to account to Mr Ntsweng
on or before 30
November 2008. He did not do so and failed to pay any
of the fines imposed.
[24] On 21 October 2008
the first respondent wrote to the appellant, once again challenging
its jurisdiction over him. Eight days
later he wrote to the
appellant, stating that the decision by the disciplinary committee
was wrong. For completeness it is necessary
to record that another
complaint against the first respondent, received from a member of the
public during October 2008, in respect
of which the appellant
convened a disciplinary committee attended by the first respondent,
was resolved in his favour.
[25] This unsatisfactory
state of affairs from the appellant’s perspective, and indeed
from the perspective of all interested
parties, led to an application
by the appellant in the court below, to have the first respondent’s
name removed from the
roll of attorneys, on the basis of
dishonourable, unprofessional and unworthy conduct. The appellant
also sought ancillary relief
that is conventional in this type of
application, including the appointment of a curator to take control
of the respondent’s
trust funds, in the event of the
application for removal being granted. The appellant also sought
costs on an attorney and client
scale. The appellant served the
application on the second respondent, for such interest as it might
have. As stated above, the
second respondent supported the first
respondent in resisting the appellant’s jurisdiction over him
and indeed over all attorneys
in that area. It must be said however,
that the answering affidavit filed on behalf of the second respondent
focused mainly on
the legitimacy of the appellant and centred on
whether the appellant’s council had been properly constituted
rather than
on the point taken by the first respondent, namely that s
84A was unconstitutional.
[26] The application was
opposed by the first respondent on the basis first, of a lack of
jurisdiction on the part of the appellant.
In respect of the merits
of the respective complaints the first respondent’s answering
affidavit is instructive. In respect
of the complaint by attorney Van
Zyl, the following parts of the answering affidavit bear repeating:
‘
The
allegations therein contained are admitted. I however did not have
knowledge of the complaint and correspondence allegedly directed
to
me in this regard in that I was not handling the matter to which the
Applicant refers and any correspondence relating to the
matter
directed to me was not brought to my attention by the person who was
dealing with the file. I only came to know of the matter
when I
received a notice from the Applicant calling me to appear before a
disciplinary committee. The notice came to my attention
as same was
served at my place of residence. I duly appeared before the
disciplinary committee as requested and I explained to
the committee
which was dealing to the reason for my failure to respond to
correspondence directed to me regarding the complaint.
I, however
pleaded guilty to the charge which was formulated against me on the
basis of vicarious liability as the person who dealt
with the matter
was in my employment. I later found out that the correspondence which
the Applicant and the complainant directed
to my office was
intercepted by the person who was handling the matter and did not
bring same to my attention on the ground that
fees were due to a
correspondent and the person realized that there were totally no
funds on the file which went against the policy
of the firm of
instructing a correspondent without a client placing us in funds to
cover correspondent’s fees.
I explained to the
committee that I was not aware of the correspondence the Applicant
addressed to me.’
[27] In respect of the
complaint by Bell Dewar and Hall the following is stated by the first
respondent:
‘
I
admit that I received instructions from Bell Dewar & Hall to act
on their behalf in several matters one of which is the one
referred
to by the Applicant [Appellant]. In all matters in which I acted on
their behalf, I duly accounted to them. The dispute
between me and
them arose after I had furnished Bell Dewar & Hall with my
statement of account in matter in which they had
instructed me to act
on their behalf. I was told to see how to recover my costs and I
informed them that I will be holding the
money I had in trust for
them until the issue of my outstanding account has been resolved. I
then suggested that I deduct my fees
from the money I had in trust
and pay the balance to them which they still did not accept. To date
my account has not been settled
and we have not come to any
resolution of the matter.
The Applicant failed to
play a mediatory role in the matter but instead concentrated on
finding fault on my part in order to deliver
a verdict of guilt. It
is further my submission that a proper complaint was not filed in
terms of the regulations to the Act and
therefore no valid charge
could be formulated in terms of the Act and that means no valid order
should be made on the matter.’
[28] The first respondent
admitted that in respect of the Bell Dewar and Hall complaint he had
received an invitation by the appellant
to comment and did not
respond on the merits, confining himself to raising the
jurisdictional point. He insisted he had a bona
fide belief in the
jurisdictional point. He denied that the conduct he was accused of
was of the kind that constituted a basis
for removal from the roll of
attorneys. In addition, the respondent made generalised and vague
allegations that the appellant,
in prosecuting him, failed to observe
its own rules and that the proceedings were thus invalid and
ineffective. This latter point
was not persisted in before us.
[29] The following
paragraph of the opposing affidavit is indicative of the fact that
the conflict was assuming personal and ego
dimensions:
‘
I
consider it as an insult to my intelligence for Mr Mnisi to allege
that I lack insight as to the meaning and import of the provisions
of
Section 84A of the Attorneys Act. In the legal profession people
always have different views and interpretation as regards the
law and
that cannot be regarded as lack of insight. It is clear that the
Applicant and I have different legal opinions on the application
of
Section 84A. My difference to Applicant on this Section is based on
the provisions of the Constitution which is the supreme
law of the
country.’
[30] Insofar as the
complaint by Mr Ntsweng is concerned, the respondent admitted that he
had received a letter from the appellant
concerning the complaint and
that he had objected to the appellant’s jurisdiction. The
respondent stated: ‘To my knowledge
the complainant referred
the complaint to the Law Society of the North-West (Bophuthatswana)
and the complaint was addressed.’
[31] As can be seen, the
assertions in the preceding paragraph are equivocal and we are not
told how the matter was resolved. In
respect of the jurisdictional
point taken by the first respondent he stated that he knew of no
court decision in which the constitutionality
of s 84A of the Act was
tested when read against the provisions of items 2(1)
(a)
and
(b)
read
with item 2(2) of Schedule 6 of the Constitution. These provisions
will be dealt with later in this judgment. He submitted
that he had a
constitutional right to hold a differing point of view.
[32] Startlingly, the
second respondent, in affidavits filed on its behalf in the court
below, adopted the position that the appellant
is an illegitimate
body and that its council was constituted irregularly, a point that
was abandoned in argument in the court below.
I must admit that parts
of the affidavit deposed to by the President of the second respondent
make for difficult reading and I
have strained to ascertain all the
points made therein. I quote but one of the paragraphs to illustrate
this:
‘
The
allegation resolution of the allegation council of the 17
th
June
2009 marked annexure 1 in the founding affidavit is not valid as it
was not taken by a legitaciate body as mentioned above
and the
founding affidavit is not valid as it was made illegally.‘
[33] In respect of the
merits of the complaints against the first respondent, there is no
effective engagement by the second respondent
with the allegations
made by the appellant. Alarmingly, the second respondent appears
unconcerned about the substance of the complaints.
In the affidavits
filed on its behalf it contented itself by stating that the first
respondent is ‘our member in good standing
and has never been
brought before the disciplinary committee for any misconduct’.
In respect of the complaint brought by
Mr Ntsweng the second
respondent merely refers to an exchange of correspondence between the
interested parties without stating
whether or how it was resolved.
[34] Before us counsel
representing the first respondent accepted that the only conclusion
that could be arrived at on the documents
filed in the court below is
that there had in fact been no final accounting by him to either Bell
Dewar and Hall or Mr Ntsweng.
It is common cause that the amount
the first respondent alleged Bell Dewar and Hall owed him as fees for
acting as correspondent
together with associated disbursements was a
fraction of the amount he had collected on their behalf, namely
R1 084.72 as
opposed to R3 960, leaving an amount of R2 875.28
due to them. In respect of Mr Ntsweng it was accepted by counsel
representing
the first respondent that on the latter’s own
version of events, as asserted in his answering affidavit,
notwithstanding
the fees he alleged the former owed him, an amount of
money was due to his former client that had still not been paid over.
[35] However, during
argument before us, first respondent’s counsel informed us that
he was in an invidious position as he
had instructions belying the
documents filed in the court below and the conclusion referred to in
the preceding paragraph. He informed
the court that his instructions
were that the amounts outstanding had been paid to the parties
concerned last year. Upon enquiry
from us counsel reported that he
was unable to provide any proof thereof. When it was pointed out to
counsel that in the heads
of argument filed in this court on first
respondent’s behalf in June
this
year it is clear that the amount still due to Bell Dewar
and Hall had not yet been paid, he was unable to make any further
submissions
in this regard.
[36] The court below
stated the following in relation to the complaints by the first
respondent’s colleagues and clients:
‘
I
am therefore of the view that based on the findings of the
applicant’s disciplinary committee, the first respondent acted
unprofessionally against his colleagues and client. However,
notwithstanding the aforesaid finding, I do not find his conduct to
be so gross as to warrant his . . . removal from the roll of
attorneys.’
[37] Having dealt with
the merits of the complaint in the manner referred to above, the
court below went on to consider the jurisdictional
point taken by the
first respondent, namely, that s 84A of the Act was unconstitutional,
particularly when read against the provisions
of items 2(1)
(a)
and
(b)
read
with item 2(2) of Schedule 6 of the Constitution, which provide:
‘
2(1)
All law that was in force when the new Constitution took effect,
continues in force, subject to-
(a)
any
amendment or repeal, and
(b)
consistency with the new Constitution.
(2) Old order legislation
that continues in force in terms of sub item (1)
(a)
does
not have a wider application, territorially or otherwise, than it had
before the previous Constitution took effect unless subsequently
amended to have a wider application; and
(c)
continues to be administered by the authorities that
administered it when the new Constitution took effect, subject to the
new Constitution.’
[38] The Attorneys
Amendment Act 115 of 1998 that introduced s 84A of the Act came into
operation on 15 January 1999. Before that
the second respondent was
the sole regulatory authority over attorneys in the former
Bophuthatswana. As best as can be discerned
the submission on behalf
of the first respondent is as follows. The legislation which
established the second respondent, namely,
the Bophuthatswana
statute, the Attorneys, Notaries and Conveyancers Act 29 of 1984,
continued in force when the new Constitution came into
effect and s 84A has not extended the territorial application of the
Act
with the result that the second respondent continues to enjoy
exclusive regulatory jurisdiction over attorneys in that territory.
Furthermore, if the legislature had intended to extend the
territorial application of the Act it would have repealed the whole
of the preceding legislation. In addition it was submitted that in
the event of it being accepted that the Act and the legislation
giving effect to the second respondent exist side by side then the
latter legislation takes precedence. I struggle to understand
how
this is a challenge to the constitutionality of s 84A rather
than an interpretation of that provision of the Act in the
context of
the stated items of Schedule 6 of the Constitution. However, as will
become apparent that distinction is not critical
to a decision in
this case.
[39] The appellant on the
other hand, in a submission that is easily understood, submitted that
items 2(1) and 2(2) of Schedule
6 of the Constitution clearly permit
amendments to old order legislation that enable wider statutory
application and that this
is exactly what occurred when s 84A was
introduced.
[40] In leading up to the
conclusion that the first respondent was unable to raise the
constitutional point referred to above because
of his failure to take
a necessary preceding procedural step, the court below had regard to
judgments of this court in which the
legality of the appellant’s
concurrent jurisdiction with the second respondent was upheld.
[41] It is necessary to
have regard to those cases. In
Mabaso v Law
Society, Northern Provinces
2004 (3) SA 453
(SCA), this court set out the history of the Law Society of the
Northern Provinces, the present appellant. It had regard to its
predecessors in title and to the fact that it had its origins in a
Volksraadbesluit 1307, dated 10 October 1892. In
Mabaso
this Court took into account the historical change in
provincial boundaries and took judicial notice of the fact that the
areas
served by that Law Society now make up the biggest part of what
used to be the old Transvaal. This court considered s 57 of the
Act
by Act 15 of 1998 which provides that every practitioner who
practises in any province, whether for his own account or otherwise,
shall be a member of the society of that province. Importantly, at
para 11 the following is stated:
‘
In
any event, Mr
Poswa
conceded
that at least the respondent is an association of attorneys. He
conceded too, though reluctantly, that a voluntary association
of
attorneys would have been entitled to launch the application.
Cadit
quaestio
.
’
[42] In
Law
Society, Northern Provinces v Mogami
2010 (1)
SA 186
(SCA), this court considered the position of attorneys
enrolled as attorneys of the Bophuthatswana High Court and who are
members
of the Law Society of Bophuthatswana, the second respondent
in the present appeal. In
Mogami
this court considered amendments to the Act in 1998 and
the effects thereof. First, for purposes of Chapter 2 of the Act (the
provisions
dealing with the Fidelity Fund) attorneys practising
within the former Bophuthatswana are deemed to be members of the Law
Society
of the Northern Provinces, the present appellant ─ s 55
of the Act. Second, the Law Society of the Northern Provinces
obtained
concurrent jurisdiction with the Law Society of
Bophuthatswana in relation to disciplinary matters ─ s 84A of
the Act.
[43] In
Mogami
this court stated the
following (para 7):
‘
The
powers given to the appellant by s 84A include the jurisdiction to
make rules as to conduct that constitutes unprofessional
or
dishonourable or unworthy conduct; to enquire into any case of
alleged unprofessional or dishonourable or unworthy conduct;
to apply
for the suspension or striking-off of an attorney on the ground that
the attorney is not a fit and proper person to continue
to practise
as an attorney; to prescribe the books, records, certificates or
other documents to be kept and inspection thereof;
and to direct any
practitioner to produce for inspection any book, document, record or
thing.’
[44] Dealing with the
reaction to the amendments, Harms DP in
Mogami
said the following (para
8):
‘
Practitioners
of Bophuthatswana and members of the Bophuthatswana society objected
to the fact that the appellant was given these
powers and refused to
comply with the law as it stands. The society even instructed their
members to ignore the law by refusing
to recognise the appellant’s
powers and jurisdiction as conferred by the Act. The judgment in
Law
Society, Northern Provinces (Incorporated as the Law Society of the
Transvaal) v Maseka
2
and
Another
2005
(6) SA 372
(B) is in this regard particularly important. It involved
an application permitting the appellant to inspect the books of the
then
chair and acting administrator of the society. Judgment was
delivered on 8 March 2005 and the court held that the appellant had
the powers referred to in the preceding paragraph (at 378D-G). On 23
May the society resolved more or less to ignore the judgment,
insisting that all disciplinary matters against its members should be
dealt with by it. Both this court and the Constitutional
Court
dismissed applications for leave to appeal, the latter on 4 October
2005. In spite of this the society made common cause
with the
respondents during May 2006 in rearguing the same point, namely that
the appellant had no locus standi to
(a)
investigate
complaints against the respondents;
(b)
require
an inspection of the respondents’ books; and
(c)
launch
the present application.’
[45] Harms DP went on
(para 11) to criticise the Bophuthatswana society for siding with
errant attorneys. He said the following:
‘
It
is bad enough for courts to deal with alleged unprofessional conduct
of practitioners but it is a sad day for the legal profession
in
particular and justice in general if a professional body acts
unprofessionally by ignoring the clear law and judgments of competent
courts, and by presenting spurious evidence.’
[46] The court below has
on a number of occasions pronounced on the legality of the
disciplinary powers of the appellant. In this
regard see
The
Law Society of the Northern Provinces v Gaborone Mothoagae
[2006] ZANWHC 43
per
Mogoeng JP and Leeuw J. It also pronounced in the
Mogami
matter per Hendricks J
which ultimately found its way on appeal to this court and in
Law
Society, Northern Provinces (Incorporated as the Law Society of the
Transvaal) v Maseka & another
2005
(6) SA 372
(BH) per Landman J.
[47] In the present case
the court below nevertheless took the view that s 84A created
confusion and in this regard referred to
the complaint laid by Mr
Ntsweng which was dealt with by both law societies. Leeuw JP stated
that the court below had in previous
decisions raised concerns in
relation to the concurrent jurisdiction of two bodies to institute
disciplinary proceedings. In the
learned Judge President’s view
this state of affairs required the urgent attention of either the two
bodies or legislative
intervention.
[48] Dealing with the
question whether the constitutional point raised by the first
respondent was justiciable the court below correctly
first had regard
to Uniform rule 10A which reads as follows:
‘
If
any proceedings before the court, the validity of a law is
challenged, whether in whole or in part and whether on constitutional
grounds or otherwise, the party challenging the validity of the law
shall join the provincial or national executive authorities
responsible for the administration of the law in the proceedings and
shall in the case of a challenge to a rule made in terms of
the Rules
Board for Courts of Law Act, 1985 (Act No. 107 of 1985), cause a
notice to be served on the Rules Board for Courts of
Law, informing
the Rules Board for Courts of Law thereof.’
[49] The Constitutional
Court has repeatedly explained why it was important that the relevant
authorities be provided an opportunity
to be heard when legislation
in respect of which they bear responsibility was challenged. In
Van
der Merwe v Road Accident Fund (Women’s Legal Centre Trust as
Amicus Curiae)
[2006] ZACC 4
;
2006
(4) SA 230
(CC) para 7 the following was stated:
‘
On
a number of occasions this Court has emphasised that when the
constitutional validity of an Act of Parliament is impugned the
Minister responsible for its administration must be a party to the
proceedings inasmuch as his or her views and evidence tendered
ought
to be heard and considered. Rudimentary fairness in litigation
dictates so. There is another important reason. When the
constitutional validity of legislation is in issue, considerations of
public interest and of separation of powers surface. Ordinarily
courts should not pronounce on the validity of impugned legislation
without the benefit of hearing the State organ concerned on
the
purpose pursued by the legislation, its legitimacy, the factual
context, the impact of its application, and the justification,
if
any, for limiting an entrenched right. The views of the State organ
concerned are also important when considering whether, and
on what
conditions, to suspend any declaration of invalidity.’
See also
Road
Accident Fund v Mdeyide (Minister of Transport Intervening)
[2007] ZACC 7
;
2008 (1) SA 535
(CC) and
the judgment of this court in
City
of Tswane Metropolitan Municipality v Cable City (Pty) Ltd
2010
(3) SA 589
(SCA) para 10-12.
[50] The court below
rightly concluded that since the first respondent did not join the
responsible Minister it could not entertain
the constitutional
challenge. Before us, counsel on behalf of the first respondent
readily conceded that that conclusion could
not be faulted. As stated
above, he nevertheless contended that it was necessary to consider
the challenge as one in which the
first respondent had a bona fide
belief which dictated his attitude towards the appellant. It was
submitted that this belief mitigated
the first respondent’s
conduct in relation to the appellant.
[51] At this stage, it is
necessary to restate the principles that apply to striking off
applications.
Jasat
v Natal Law Society
2000
(3) SA 44
;
[2000] 2 All SA 310
(SCA) para 10 states that s 22(1)
(d)
3
of the Act contemplates a
three-stage inquiry:
4
‘
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 “in the discretion of the court”
is 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
inquire whether in all 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.’
[52] It is abundantly
clear in the present case that offending conduct has been
established. Even the court below held that the
first respondent was
guilty of unprofessional conduct. In
Malan &
another v Law Society Northern Provinces
para
5, this court stated:
‘
[I]t
is well to remember that the Act contemplates that where an attorney
is guilty of unprofessional or dishonourable or unworthy
conduct
different consequences may follow. The nature of the conduct may be
such that it establishes that the person is not a fit
and proper
person to continue to practise. In other instances the conduct may
not be that serious and a law society may exercise
its disciplinary
powers, particularly by imposing a fine or reprimanding the attorney
(s 72(2)
(a)
).’
[53] A careful and proper
assessment of the conduct in question is what is required in the next
stage of the inquiry, when the court
considers whether the attorney
is a fit and proper person to continue to practise. As stated in
Jasat
and again in
Malan
,
this
involves weighing up the conduct complained of against the conduct
expected of an attorney and that involves a value judgment.
[54] The court below took
too lenient an approach to the misconduct complained of by the first
respondent’s fellow practitioners
who had either instructed him
to act as a correspondent or who did work for him as a correspondent.
It did the same in relation
to the complaint by Mr Ntsweng and failed
to appreciate the full import of the first respondent’s
persistent failure to finally
account to either Mr Ntsweng or Bell
Dewar and Hall. In the case of Bell Dewar and Hall the first
respondent has up to now failed
to account to them for a period of
more than eight years after the complaint was lodged and almost
eleven years after the account
was rendered. In October 2000 the
first respondent scandalously and in stereotypical errant debtor
style dispatched a letter to
Mr van Zyl allegedly enclosing a cheque
that in fact was not attached. In the case of Mr van Zyl the
amount due was paid approximately
five years after the complaint was
laid and then was paid in two instalments some nine months after the
appellant had ordered him
to so, following on the disciplinary
enquiry. In the ordinary course the amounts collected and due to the
instructing attorney
or client would have had to be retained in a
trust account. Considering the common cause facts the inference is
inescapable that
the amounts were not so retained ─ a grave and
usually fatal error on the part of any attorney.
[55] Furthermore, the
first respondent resisted all attempts by the appellant to get him to
address the complaints, stubbornly attacking
its jurisdiction, rather
than dealing with what were clearly legitimate complaints. In his
affidavit filed in the court below the
first respondent was evasive,
argumentative and disingenuous. To this day, the first respondent
continues to demonstrate a remarkable
lack of insight concerning the
professional and ethical standards expected of an attorney. Lastly,
even at the time of the hearing,
the first respondent showed
a
remarkable lack of contrition and unaccountability.
[56] It is necessary to
place the role of a court before which a Law Society brings a claim
into proper perspective. In
Solomon v The Law
Society of the Cape of Good Hope
1934 AD 401
at 408-409 the following appears:
‘
[T]he
Law Society claims nothing for itself from the applicant. It merely
brings the attorney before the Court by virtue of a statutory
right,
informs the Court what the attorney has done and asks the Court to
exercise its disciplinary powers over him. . . .Before
the Cape Law
Society received statutory recognition, the Court
mero
motu
dealt
with the unprofessional conduct of attorneys. In practice the
Attorney-
General
was
asked to lay the facts before the Court (in
re
Cairncross
,
1877, Buch, 122). . . . The Law Society protects the interests of the
public in its dealings with attorneys. It does not institute
any
action or civil suit against the attorney. It merely submits to the
Court facts which it contends constitutes unprofessional
conduct and
then leaves the Court to determine how it will deal with this
officer.’
[57] Section 71 of the
Act provides that a council of a law society may enquire into cases
of unprofessional, dishonourable or unworthy
conduct on the part of
any attorney, notary or conveyancer whose name has been placed on the
roll of a court within the province
of its society, whether or not
that practitioner is a member of such society. It will be recalled
that s 57 of the Act makes the
first respondent and other attorneys
in his situation
de iure
members
of the appellant’s society. Section 84A gives the appellant the
powers referred to in s 71. The first respondent did
not attack the
constitutionality of ss 57 or 71 of the Act.
[58] It is clear that it
is the court before which a complaint of misconduct is brought that
has the ultimate disciplinary power.
Courts should be concerned about
the professional conduct of those who appear before them or who
otherwise practise within their
areas of jurisdiction. However, there
can be no doubt that, whatever the jurisdiction of the Law Society, a
court has jurisdiction
to decide whether an attorney appearing on its
roll is a fit and proper person to continue to practise, particularly
where, as
in the present case, all the facts are known. This is made
abundantly clear by the dictum from
Mabaso
(para 11) referred to in para 41 above. The first and
second respondents’ energies therefore appear to be misdirected
and
wrongly focussed on the jurisdictional aspect.
[59] I turn to briefly
deal with the submission on behalf of the first respondent that his
attitude towards the appellant was dictated
by his bona fide belief
in the sustainability of his constitutional point. I have serious
doubts about the intelligibility and
viability of the point but
assuming it to encompass a proper challenge to the constitutionality
of s 84A of the Act, it is
for reasons stated above neither
competent nor necessary to make a decision in that regard. The
legality of the appellant’s
concurrent regulatory jurisdiction
over attorneys in the former Bophuthatswana as provided for in
provisions of the Act has repeatedly
been addressed in its favour in
the court decisions referred to above. It is not a question that
requires revisiting. The truth
is that it is not the first
respondent’s belief in the point, genuine or otherwise, that is
in issue. It is his conduct characterised
in paras 54 and 55 above
that is under scrutiny. That conduct is clearly unprofessional,
dishonourable and unworthy and renders
him liable to be struck off.
[60] It was submitted on
behalf of the first respondent that the appellant was not really
concerned about his conduct in relation
to his colleagues and client
but rather was disgruntled about his resistance to its authority over
him and accordingly sought to
punish him. Whilst it is true that the
appellant took umbrage at the first respondent’s attitude
towards its authority, it
is clear from the founding affidavit filed
on its behalf that it was particularly concerned about his
unrepentant lack of responsibility
towards his colleagues and client
up until the launch of its application. This attitude continued until
the end of the hearing
of the appeal. That attitude presents a danger
to the public who are deserving of protection both from law societies
and courts.
[61] To sum up: in
respect of the second inquiry referred to in
Jasat
it is quite
clear that the first respondent is not a fit and proper person to
continue to practise. In respect of the third inquiry
referred to in
Jasat
, the compelling conclusion is that the first respondent
is liable to be removed from the roll of attorneys. The court below
erred
in its assessment of the gravity of the first respondent’s
conduct and in holding that a reprimand would suffice.
[62] It is evident that
the second respondent is engaged in an unbecoming turf war with the
appellant which has led to unnecessary
and protracted litigation. It
ought to focus its attention on serving the interests of the public
by properly regulating the conduct
of practitioners within its area
and cooperating with its sister society with which it enjoys
concurrent jurisdiction. None of
the grounds on which its opposition
to the appellant’s authority was premised was persisted in
before us. It was of no assistance
in relation to the merits of the
complaints. Its presence in this appeal is highly questionable,
particularly when this court was
informed towards the end of the
hearing of this appeal that it was now willing to abide our decision.
Its lack of concern about
legitimate complaints brought by the public
against one of its members is remarkable. Its track record evidenced
by the present
and other litigation brings into question its
willingness to perform its regulatory function. It appears
preoccupied with its status
as opposed to the appellant’s. One
is entitled to ask whether its continued existence is justified. In
Mogami
this court accused the second respondent of dishonest
behaviour and it was warned that responsible members of its executive
themselves
ran the risk of disciplinary proceedings in the event of a
repetition. Considering how often the second respondent has
needlessly
engaged a number of courts misspending its funds the time
has come for a plea to the Minister of Justice and Constitutional
Development
to consider whether it serves a useful purpose. The
Registrar of this court is hereby directed to serve a copy of this
judgment
on the Minister and particularly to bring to his attention
the comments in this paragraph. In my view, a joint cost order
against
the second respondent on an attorney and client scale is
wholly deserved.
[63] The following order
is made:
1. The appeal is upheld
with costs on an attorney and client scale for which the first and
second respondents are jointly and severally
liable, the one paying
the other to be absolved.
2. The order of the court
below is set aside and substituted as follows:
‘
(a)
The application succeeds and the first and second respondents are
ordered to pay the applicant’s costs on an attorney
and client
scale jointly and severally, the one paying the other to be absolved.
(b) An order is made in
terms of paras 1-10.4, 11 and 12 of the applicant’s notice of
motion.’
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For Appellant: A T Lamey
Instructed by
Rooth & Wessels
Pretoria
Naudes Attorneys
Bloemfontein
For Respondent: P J
Loubser
Instructed by
Jerry Sithole Attorneys
Mmabatho
Mabalane Seobe Inc
Bloemfontein
1
The
second respondent was established by s 50 of the Attorneys, Notaries
and Conveyancers Act 29 of 1984 (the Bophuthatswana Attorneys
Act).
It recently changed its name to the Law Society of the North West
incorporated as the Law Society of Bophuthatswana.
2
It
is an aggravating feature of the second respondent’s conduct
in the present case that its opposition has apparently been
driven
by the same Mr Maseka who is now its President.
3
Section
22(1)
(d)
empowers a court on application by a Law Society to
strike an attorney off the roll if he ‘in the discretion of
the court,
is not a fit and proper person to continue to practise as
an attorney.’
4
As
summarised in
Malan & another v Law Society Northern
Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) para 4.