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[2022] ZAFSHC 317
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Ex parte Mhlekwa (881/2018) [2022] ZAFSHC 317 (16 November 2022)
FLYNOTES:
THEFT AND ADMISSION AS ATTORNEY
Profession
– Attorney – Admission – Maintaining innocence
despite conviction for theft – Identifying
defect of
character and permanently reformed herself – Admitted to
practice.
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO: 881/2018
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between: In the
EX PARTE
application of:
TLALENG
ALINA
MHLEKWA
Applicant
(For
her admission and enrolment as an Attorney,
Conveyancer
and Notary of the High Court)
CORAM:
MHLAMBI, J
et
OPPERMAN,
J
HEARD
ON:
15 SEPTEMBER 2022
ORDER
ON
:
15 SEPTEMBER 2022
JUDGMENT
BY:
MHLAMBI, J
DELIVERED
ON:
16
November 2022. These reasons were handed down electronically by
circulation to the parties’ legal representatives by email
and
released to SAFLII. The date and time for the hand-down are deemed to
be 14h00 on 16 November 2022
Introduction
[1]
The applicant is a 49-year-old black woman who applied for admission
as a legal practitioner,
a notary, and a conveyancer. On 9 September
2010, she was convicted of the theft of money from the Guardian’s
Fund. The offence
was committed on 12 April 2001 as she, in her
capacity as an Assistant Master, counter-signed a Guardian’s
Fund cheque in
the amount of R 181 858.12. She was 27 years old
at the time and had served in that position for about seven and a
half months.
She pleaded not guilty to the charge and pursued the
matter unsuccessfully to the apex court. In this application, she
still maintained
her innocence. It is this attitude that the
respondent contended militated against her permanent reformation.
[2]
The question that seeks an answer is: Can a person who maintains
his/her innocence
despite a conviction be regarded as a fit and
proper person in terms of the Legal Practice Act?
[3]
On 15 September 2022, I, sitting as a member of the full court,
granted an order as
follows:
“
1.
The applicant complies with all the requirements to be admitted and
enrolled as an attorney, notary,
and conveyancer.
2.
The applicant is admitted to practice as a Legal Practitioner,
notary, and conveyancer, and
the Legal Practice Council is authorised
to enrol the applicant as an attorney, notary, and conveyancer.
3.
Each party is to pay its own costs”.
Background
[4]
The application
4.1
The application for admission as a legal practitioner, notary and
conveyancer was filed on 21 February 2018
and served on the Secretary
of the erstwhile Law Society of the Free State, the Director of
Public Prosecutions for the Free State,
the Master of the High Court,
and the Department of Correctional Services. It was set down for
hearing on 19 April 2018 but was
postponed to 10 May 2018 to enable
the Law Society to consider the application. The application was
favourably considered subject
to the applicant providing confirmation
that her sentence was completed
[1]
.
4.2
The Department of Correctional Services confirmed on 2 May 2018 that
the applicant had completed her sentence
and that she had shown
excellent insight into her whole behaviour, changed her ways, and was
committed to making a success of her
life
[2]
.
On the same day, the Law Society issued a certificate to the effect
that the applicant had satisfied the Council that she was
a fit and
proper person to be admitted as provided by the Attorney’s
Act
[3]
.
4.3
On 10 May 2018, the Presiding Judge removed the matter from the roll.
The reason therefor appears from the
letter dated 4 July 2018
addressed, at the instance of the Presiding Judge, to the Chief
Executive Office of the erstwhile Law
Society of the Free State which
reads as follows:
“
The
Judge raised concerns that although the applicant mentioned her
previous conviction(s), she continued to deny responsibility
and
relied steadfastly on the defence that was rejected throughout up to
the Constitutional Court. To this extent she was advised
to
supplement her papers to deal with this aspect.
The
society in this matter did not participate in the proceedings but
filed an affidavit endorsing the application. It is unclear
on what
basis did this society conclude that the applicant was a fit and
proper person to be admitted as an attorney. The Judge
found it
prudent that notwithstanding the decision not to oppose, the Society
must be invited to appear and advanced(sic) submissions
in this
matter to assist the court to exercise its discretion”
[4]
.
4.4
The Council, having considered the Judge’s comments, requested
the applicant to supplement her application
to deal with the aspects
raised by the Judge
[5]
. On 3
October 2018, the applicant served a supplementary affidavit
[6]
,
the salient portions of which read as follows:
“
4.
During
the meeting with Judge Mathebula, the concern was raised that I
continued to deny responsibility and relied steadfastly on
the
defence that was rejected throughout up to the Constitutional Court.
The learned Judge indicated that he would communicate
the concerns to
the Law Society.
8.
Regarding
the concern raised by the learned Judge, it is correct that I have
always denied my involvement in the fraudulent scheme
perpetrated at
the Master’s office and it is also correct that I pursued
various appeal processes culminating in an application
for leave to
appeal to the Constitutional Court, which was dismissed.
9.
I
attach affidavits from Andries Masoanganye and Abdul Ahmed (my two
co-accused in the criminal case) who both agreed to sign affidavits
that confirm the version I have maintained for years. The affidavits
are attached as
annexures “SA3”
and “
SA4”.
I fully appreciate that the weight of the affidavits is likely to be
negatively influenced by the background of the deponents,
but I
placed them before the Honourable Court nonetheless.
10.
I
beg the honourable court to consider that I was acting within my
rights to appeal. My version has always been consistent and I
consistently acted in good faith in the belief that the appeal held
prospects. I respectfully submit that it will be unfair to
hold this
against me as I never made myself guilty of abusing any process, nor
did I act disrespectfully or inappropriately in
any manner.
11.
When
I was being considered for parole, the Parole Board suggested that my
application might be considered more favourably if I
were to admit my
involvement in the scheme, but I simply could not. I informed the
Board that if they were not prepared to approve
my application unless
I made the admission, I should rather remain incarcerated. The
application for parole was however granted.
12.
I
am still unable to admit committing the offence of which I was
accused and convicted and I cannot, in good conscience, make any
statement to the contrary.
13.
I
however beg the Honourable Court to consider that the dismissal of
the application for leave to appeal to the Constitutional Court
marked a distinct turning point in my life and brought me to realise
that my attitude and especially my unwillingness to take
responsibility for my prior conduct was wrong. I also realised that I
would have to come to terms with my conviction of a serious
criminal
offence and also the sentence which was imposed. I gave my full
co-operation to the Correctional Officials and benefited
from
intensive rehabilitation and reformation courses.
14.
It
is my respectful submission that setting admission of guilt as an
absolute requirement for admission is not reasonable or fair
and that
each matter has to be considered on its facts and merits.
[7]
15.
I
submit with the greatest of respect, that I am fit and proper to be
admitted on basis of the considerations in the founding affidavit
(particularly paragraph 18 thereof) notwithstanding my inability to
admit guilt. I have to especially emphasise the positive effects
that
the ordeal has had on my personal and professional life.”
4.5
In his affidavit, Andries Masoanganye, the erstwhile Master of the
High Court, stated that his testimony during
the trial was not honest
as he was fearful that he would be imprisoned and as a result did not
give truthful evidence
[8]
. He
deposed to the affidavit in order to clear his conscience as he had
nothing to gain thereby
[9]
. He
was approached by Patrick Mogorosi who was an employee of the law
firm, AK Ahmed Attorneys, and requested to approve the payment
of
funds from the Guardian’s Fund inappropriately and without such
funds being due and payable
[10]
.
In order for payments to be effected from the Guardian’s Fund,
cheques had to be signed and then counter-signed by a second
person.
He identified Mrs Mhlekwa, the applicant, who was not familiar with
insolvent estates and still in training, to counter-sign
the cheque.
He knew that she being inexperienced, would not question such
payment. Documents were shown to Mrs Mhlekwa to substantiate
such
payment
[11]
. The applicant had
no knowledge of the scam he had with Mr Mogorosi as she was never
approached to participate therein nor did
she receive or was
considered to receiving a benefit therefrom
[12]
.
4.6
A confirmatory affidavit by Abdul Ahmed was also attached in which he
stated that he was the accused in the
relevant criminal case with the
Master and the applicant.
4.7
On 13 March 2019, the Legal Practice Council, addressed a letter to
the registrar of this court, stating that
the Admission Assessment
Committee of the Free State Provincial Legal Practice Council,
considered and approved the applicant’s
application for
admission. The council had no objection to the applicant’s
admission as an attorney and the granting of the
applicant’s
prayers were left to the court to decide
[13]
.
4.8
On 6 June 2019, the application served before the same Judge that
issued the following order:
“
1.
The Legal Practice Council is invited as amicus curiae to submit
written and oral submissions why the
applicant is considered to be a
fit and proper person to be admitted as a Legal Practitioner of this
court despite her averments
in her papers of innocence in the light
of her criminal conviction.
2.
The written submissions (if any) must be served on the applicant and
filed on/or before 5
July 2019.
3.
The applicant is granted leave to supplement her papers, if she so
chooses, on/or before
26 July 2019.
4.
The amicus curiae must file the heads of argument on or before 08
August 2019.
5.
The applicant must file the heads of argument on or before 15 August
2019.
6.
The matter is postponed to 19 August 2019 before the full court of
this division”
[14]
.
4.9
On 10 July 2019, the Legal Practice Council
(“the LPC”)
addressed a letter to the Judge President of the Free State High
Court, requesting a postponement of the date within which to make
submissions as requested by the court, to 5 August 2019 and to file
heads of argument, if any, on 12 August 2019 for the following
reasons:
“
1.
The decision not to oppose the application was taken by the erstwhile
Council at the time of its existence.
As a result, neither the LPC
nor the newly established Provincial Council of the LPC considered
nor resolved on the matter.
2.
The matter is currently referred to the Provincial Council for
consideration. As a result,
we request the Court to afford the
Provincial Council an opportunity to consider the application and
revert to the court on its
resolution on the matter”
[15]
.
4.10
The management committee of the LPC considered the application on 18
July 2019 and on 29 July 2019, the committee, having
noted that the
erstwhile Council of the Free State Law Society resolved not to
oppose the applicant’s admission application,
resolved that the
application be opposed and the decision of the erstwhile council be
rescinded
[16]
. The application
was removed from the roll on 19 August 2019.
4.11
Following the removal of the application from the roll of 19 August
2019, the LPC obtained a copy of the record of the
criminal
proceedings in the North West High Court, Mafikeng, as well as
various applications for leave to appeal to the full bench,
the
Supreme Court of Appeal and the Constitutional Court
[17]
.
4.12
The LPC filed its opposing affidavit on 7 April 2021 whilst the
replying affidavit was filed on 9 November 2021. The
matter was set
down for hearing on 15 September 2022.
The
employment history
[5]
The applicant was appointed as a legal administrative officer in
January 1997 at Jure
Consultant which later converted to a firm known
as Elna Wessels Attorneys in Bloemfontein. On 12 February 1998, she
was employed
as principal deeds controller at the Bloemfontein Deeds
Office and was transferred in January 2000 to the King Willam’s
Town
Deeds office and promoted to Chief Deeds Controller. She worked
as an Assistant Master at the Mafikeng office on 4 September 2000
where she reported to the then Master, Mr Masoanganye. After the
latter was charged with theft, she was requested to assist the
investigators by providing necessary information and explanations
regarding procedures which she duly did. She was transferred
to the
Bloemfontein Master’s Office in June 2002 and continued to
assist the investigators at the Mafikeng Master’s
Office
whenever called upon. She was promoted to the position of Deputy
Master at the Master’s Office in 2003 and was required
to serve
as Head of the Office on various occasions between 2003 and 2004. She
was suspended in 2004 when she was linked with the
Mafikeng Master’s
theft charges, but was acquitted during the disciplinary hearings in
early 2005. She continued to work
for the Master’s Office until
December 2013 when her appeal to the full bench was dismissed.
[6]
After her release in November 2014, she took up a position as a
consultant at Werner
Vermaak Attorneys on 20 January 2015, a position
she has filled to date.
The
conviction
[7]
As an Assistant Master of the High Court in Mafikeng, one of her
duties was to counter-sign
the cheques that were approved and signed
by the Master. She had never worked in the Master’s Office
before and when the
offence took place, she was still undergoing
training under the supervision of the Master. In April/ May 2002, the
Master was charged
criminally for having approved amounts that were
suspected to have been irregular. Two years later the applicant was
arrested as
she was implicated in two charges of theft of which she
was convicted of one and acquitted on the other
[18]
.
The
LPC’s main objectives
[8]
The LPC maintains that the applicant is not a fit and proper person
to be admitted
as an attorney
[19]
in terms of section 24(2)(c) of the Legal Practise Act and the LPC is
highly concerned of:
1.
The applicant’s lack of honour to the court and lack of reform;
2.
The applicant still maintained her innocence notwithstanding a
well-reasoned judgment in
the court
a quo,
the strong views
expressed by the full bench on appeal in the North West High Court,
Mafikeng and the dismissal of the application
for leave to appeal by
both the Supreme Court of Appeal and the Constitutional Court;
3.
The applicant showed no remorse and has not accepted the courts’
authority which consisted
of the North West High Court, the full
bench of the North West High Court, the Supreme Court of Appeal and
the Constitutional Court;
4.
The applicant appeared to have poor insight and reformation could
only begin when a person
acknowledged that he or she had committed a
wrongful act.
The
replying affidavit
[9]
In her reply, the applicant lamented the LPC’s opposition to
her application,
seen in the light that the erstwhile Law Society and
the LPC, did not oppose it; the latter, however, decided to do so
only after
the meeting of its management committee on 29 July 2019.
It would appear that the only decision that the LPC subsequently
rescinded,
was the one taken by the Law Society and not the one taken
by itself earlier. The opposing affidavit was silent on the Law
Society
and the LPC’s resolution that she was a fit and proper
person to be admitted. She stated that the management committee of
the LPC did not have the power and authority to rescind a decision
taken by the Council of the Law Society not to oppose her
application.
The provincial council of the LPC failed to make any
determination on the endorsements made by the Law Society and the
LPC, declaring
her to be a fit and proper person to be admitted. The
decisions by those bodies should remain unchanged as the opposing
affidavit
did not explain to the court how those decisions were
reached.
[10]
The LPC failed to join the proceedings as
amicus
curiae
as
requested by the presiding judge on more than one occasion to enable
the presiding judge to understand how the Law Society, and
thereafter
the LPC found her to be a fit and proper person to be admitted. Such
a submission would have assisted and enabled the
court to properly
exercise its discretion to grant or refuse her application
[20]
.
The meeting of the management committee of the LPC which was held
after the court order of 6 June 2019, gave the impression that
the
LPC may not have been objective in its decision to oppose the
application and may have been influenced. That decision to oppose
the
application, coupled with the long delay in so opposing, seemed to be
neither fair nor objective
[21]
.
[11]
The applicant stated that it would appear that Mr Motloung, in his
reply, confused what she stated
in her founding and supplementary
affidavits
[22]
. She did not
state that she was innocent of the crimes committed and in the same
breath stated that she was sorry for having committed
those crimes as
that would be a contradiction
[23]
.
Her reformation was not vested in her acknowledgment of crimes
committed and for which she is now sorry. Her reformation lay with
her responsibility to be more equipped to prevent actions that may
contribute to illegal activities. In her occupation of a position
of
trust, she must ensure that she has the requisite skills and
knowledge to perform the tasks of such a position properly and
to
ensure that her actions are taken with the necessary care so as to
prevent loss
[24]
.
[12]
This went beyond, not only illegally enriching herself from a
position of trust, but also to
ensure that her actions, in
themselves, did not result in third parties being illegally enriched
from her position of trust
[25]
.
She could not detail how the crimes were committed and how the
proceeds were shared by the persons involved due to her not having
had personal knowledge thereof
[26]
.
The aspects of the manner in which the crimes were committed and how
the proceeds were shared were later disclosed to her by Mr
Masoanganye as stated in his affidavit
[27]
.Her
version, she maintained, was consistent throughout her Founding,
Supplementary and the Replying Affidavits
[28]
.
The
law and its application
[13]
The enrolment and admission of legal practitioners are governed by
section 24 of the LPA which
provides that the High Court must admit
to practice and authorise to be enrolled as a legal practitioner,
conveyancer, or notary
any person who, upon application, satisfies
the court that he or she-
(a)
is
duly qualified as set out in section 26;
(b)
is
a-
(i) South
African citizen; or
(ii) permanent
resident in the Republic;
(c)
is
a fit and proper person to be so admitted; and
(d)
has
served a copy of the application on the Council, containing the
information as determined in the rules within the time period
determined in the rules.
[14]
The erstwhile Attorneys’ Act had similar provisions for the
admission of applicants as
attorneys who had to be fit and proper
persons to be so admitted
[29]
.
[15]
The Law Society was termed a professional
association of legal practitioners which is governed by the relevant
provisions of the Attorneys Act. Among the statutory objectives of
the Society, are the maintenance and enhancement of the prestige,
status and dignity of the profession, the encouragement and promotion
of efficiency in and responsibility in relation to the profession,
the upholding of the integrity of practitioners and of standards of
professional conduct, the provision of effective control of
the
professional conduct of practitioners and the promotion of uniform
practice and discipline among practitioners
[30]
.
[16]
The attitude adopted by the Law Society concerned
is an important factor in the application for admission
and
considerable weight must be given to the attitude adopted by the
Law Society
[31]
. The LPC, for
all intents and purposes, stepped into the shoes of the erstwhile Law
Society.
[17]
The LPC opined that the applicant suggested that
the affidavits of her convicted co-accused should have
served as “
new
facts
”
to throw doubts on the correctness of her conviction. This, it was
submitted, was certainly not the case as the “
new
evidence
”
could only assist her if she took it to the previous courts to be
heard afresh as was stated in
Ngwenya
v Society of Advocates, Pretoria
[32]
.
The conviction stood despite the applicant’s protestations of
her innocence. She could not claim to be permanently reformed
while
she continued with such protestations
[33]
.
[18]
In
Swartzberg
v Law Society, Northern Provinces
[34]
Ponnan JA stated the following:
“
The
fundamental question to be answered in an application of this kind is
whether there has been a genuine, complete and permanent
reformation
on the appellant's part. This involves an enquiry as to whether the
defect of character or attitude which led to him
being adjudged not
fit and proper no longer exists.
(Aarons at 294H.)
Allied
to that is an assessment of the appellant's character reformation and
the chances of his successful conformation in the future
to the
exacting demands of the profession that he seeks to re-enter. It is
thus crucial for a court confronted with an application
of this kind
to determine what the particular defect of character or attitude
was. More importantly, it is for the appellant
himself to first
properly and correctly identify the defect of character or attitude
involved and thereafter to act in accordance
with that appreciation.
For, until and unless there is such a cognitive appreciation on the
part of the appellant, it is difficult
to see how the defect can be
cured or corrected. It seems to me that any true and
lasting reformation of necessity depends
upon such
appreciation
.”
(The
underlining my own emphasis).
[19]
The present application is an application for
admission and not re-admission. It is clear from the above
paragraph
that it is paramount to establish whether the applicant has undergone
a genuine, complete and permanent reformation and
an enquiry whether
the defect of character or attitude no longer exists.
[20]
In her founding affidavit she stated that when she resumed her
sentence after the full bench
appeal was dismissed in December 2013,
she was bitter and resentful but attended anger management courses
that helped her to come
to terms with her situation
[35]
.
The entire ordeal enabled her to learn several invaluable life
lessons, one of the most important of which was to be more cautious
in accepting the say-so of others without first taking time to
consider and evaluate a situation herself.
[36]
She also developed a new appreciation of procedure and accountability
and understood more than ever that the consequences of her
conduct
could be far-reaching and very serious. She fully understood that
being an attorney involved a high degree of honesty,
reliability, and
integrity and that clients as well as the public in general should be
able to entrust her with their affairs and
money without concern
[37]
.
[21]
In retrospect, she stated, had she taken a more pro-active approach
to her position as an Assistant
Master; been more vigilant in the
performance of her duties; independently acquired the necessary
knowledge of the procedures;
policies; and inner workings applicable
to her position and scrutinised files and documents, she could have
ensured that her actions
did not in any way contribute to any crime
being committed. It is evident from the affidavits that the applicant
has identified
and determined her defect of character and attitude
and has acted accordingly. The
actus reus
in the crime the
applicant was convicted of, was the unlawful signing of a government
cheque. The LPC, as per its legal representative,
conceded that the
applicant did not benefit financially from the commission of the
offence.
[22]
Unlike the circumstances in
Swartzberg
[38]
,
she
fell from grace in consequence of an isolated act while she was in
her twenties. Hers was not deliberate and persistent dishonesty
for
personal financial gain over a protracted period. This is buttressed
by the following findings in Leeuw JP’s findings
on judgment
and sentence. On judgment, the learned JP stated:
“
It
is also strange considering the conduct of accused number 1 and
number 3 that according to accused number 1 at the time when
this
cheque was authorised for payment in favour of Mr A K Ahmed Trust,
accused number 3 was a trainee, or she was not actually
involved in
estates dealing with insolvencies. And he also testified that accused
number 5 was the one who would be responsible
for signing the cheques
in that regard. But he decided in this instance, despite the fact
that accused number 3 was not involved
in insolvency estates, to use
a trainee to countersign the cheque in order for him to process
payment of this amount.”
Of
course, the court rejected their version that there was a list of
creditors when the payment was authorised.
[23]
On sentence, she stated:
“
I
will, however, in respect of accused number 3 take into account that
when this offence was committed, she was not long in that
office and
that accused number 1 was the mastermind behind all these offences;
she was overcome by the influence from accused number
1.”
[24]
In
Kaplan
v Incorporated Law Society, Transvaal
[39]
,
a
case which was concerned with the re-admission of an attorney who was
struck off the roll for unprofessional conduct, it was stated
that
the phrase "
fit
and proper
"
person related to the personal qualities of the applicant and that,
in deciding whether or not the applicant meets this requirement,
the
court must consider whether he or she is a fit and proper person "
in
relation to such matters as the prestige, status and dignity of the
profession, and the integrity, standards of professional
conduct and
responsibility of practitioners"
[40]
.
[25]
The court, in investigating whether an applicant
has undergone a complete and permanent reformation, will
consider (a)
the nature and particulars of the conduct that gave rise to the
striking-off, (b) the behaviour of the applicant after
such conduct
became known and (c) the question whether it could with complete
confidence be accepted that the applicant is a fit
and proper person
to be re-admitted as an attorney
[41]
.
The nature and the applicant’s criminal conduct are known and
that she assisted with the criminal investigations after the
commission of the crime. The question is whether it can be said with
complete confidence that she is a proper and fit person to
be
admitted as an attorney.
[26]
In
KwaZulu-Natal
Law Society v Singh
[42]
,
the
respondent was a non-practising attorney who was convicted on eight
counts of fraud and was sentenced to a term of imprisonment,
which
was wholly suspended
[43]
. The
court stated that the mere fact of conviction for an offence, without
any regard to its nature and the degree of moral
obliquity in the
offender which its commission reflects, will not suffice to indicate,
even
prima
facie,
that
the offender is unfit to be an attorney. For a legal
practitioner to be said to be unfit to be on the roll, the misconduct
complaint must be of a serious nature to an extent that it manifests
a character defect and lack of integrity
[44]
.
[27]
The inquiry of whether the person concerned in the decision of the
court is not a fit and proper
person to continue to practise as an
attorney, involves a weighing up of the conduct complained of against
the conduct expected
of an attorney and, to this extent this entails
a value judgment
[45]
.
The question to be asked is if the particular character is so
inherently flawed that the person cannot practise. In that
case
,
the
court found that the respondent had genuinely, completely, and
permanently reformed her criminal character, as a considerable
period
had lapsed since her conviction, and over the years she had built up
a thriving and successful practice.
[28]
In
Kaplan
[46]
the applicant furnished affidavits from various prominent individuals
who testified that he was a reformed character and
was a fit
and proper person to be re-admitted. The court expressed the view
that the first important point to consider is whether
he has shown
that he is completely and permanently reformed. The only persons who
can competently and validly testify to such a
fact are persons who
know all about his misdeeds and the circumstances in which they were
committed; in other words, they must
first know about his character
or personality traits that gave rise to or caused him to commit his
misdeeds before they are able
to say that he is completely and
permanently reformed in respect of those character or personality
traits
[47]
.
[29]
On an evaluation of the affidavits furnished by
the applicant the court concluded as follows:
“
In
the instant case all the witnesses who made affidavits to testify to
the fitness and propriety of the applicant to be an attorney,
are
relatives, friends and personal acquaintances - some for a short
period - all laymen who have no knowledge of the demands of
the
office of attorney. They are in no way qualified to express an
opinion on the suitability of any person to be an attorney.
It does
not appear from their affidavits that they know, and it is in the
circumstances most unlikely that they know, the true
nature of the
crimes committed by the applicant and the circumstances in which he
committed them. Their affidavits for this reason
only speak about his
honesty in handling cash moneys, and then it is not clear whether he
handled the moneys unsupervised”
[48]
.
[30]
In the present case, the witnesses who made
affidavits to testify to the fitness and propriety of the applicant
to be an attorney, are admitted attorneys, two current and a former
Assistant-Master, a traditional leader, and a religious pastor.
The
Assistant-Masters knew the applicant for more than a decade since the
time she was the Deputy-Master and still refer, on occasion,
estate-related matters to her, some of which are of a complicated
nature. The former Assistant-Master is currently employed as
an
Assistant-Registrar of the High Court. All speak highly of her and
more especially her diligence, knowledge, honesty, trustworthiness,
reliability, willingness to help and passion for her work.
Is
the applicant a fit and proper person?
[31]
The onus is on the applicant to establish on a
balance of probabilities that she is a fit and proper person
to
practise as an attorney. In the instant case, the only enquiry is
whether the applicant has permanently reformed; or stated
otherwise,
whether she has negated the objections raised by the LPC in its
opposition. Before addressing this point, it is appropriate
to note
that the LPC did not dispute and, in fact, acknowledged that the
applicant was well qualified academically
[49]
,
has a good employment record, is experienced in legal matters, and is
legally competent
[50]
. It was
also uncontested that she received clean audits since her employment
at the Master’s Office in Bloemfontein from
2002 to 2013 and
maintained an unblemished history of integrity and honesty.
[32]
The LPC’s concerns were addressed in the
applicant’s affidavits. The LPC’s view of her
disrespect
for the court
a
quo,
was
based on the following sentence in her affidavit dated 21 February
2011 in mitigation of sentence: “
I
maintain my innocence although I respect the court, and I will take
the matter on appeal”
[51]
.
This aspect is traversed in her supplementary affidavit when she
stated that she acted in the belief that the appeal had good
prospects of success
[52]
. The
dismissal of her appeal marked the turning point in her life and made
her realise that her attitude and unwillingness to take
responsibility for her previous conduct was wrong
[53]
.
Her reformation vested in the identification of the defect of
character and attitude, and to act in accordance with that
appreciation
for curing and correcting the defect
[54]
.
[33]
I agree with the applicant’s counsel that
the applicant’s choice to follow her conscience,
notwithstanding the possible repercussions
[55]
,
is an appreciation by the applicant that dishonesty, simply to
facilitate her application for admission, is not something that
a fit
and proper person would do
[56]
.
In
Vassen v Law Society of the Cape of Good Hope
[57]
it was stated that the profession of an attorney demanded complete
honesty, reliability and integrity from its members.
[34]
Professor M Slabbert states in her article
[58]
that the reformation approach in
Swartzberg
[59]
appears to accept the premise of the character approach, namely that
a criminal record normally exposes a defect in character which
is
inconsistent with the character expected of members of the legal
profession, in particular where the crime involved dishonesty,
as
this is directly relevant to the requirement of the high standards of
integrity and honesty expected of practitioners. However,
it also
accepts that in certain cases an applicant may demonstrate that he or
she is a fit and proper person to be admitted to
the profession,
notwithstanding the existence of a criminal record, provided he or
she can prove that such a defect of character
no longer exists. Seen
from this perspective, it appears that the reformation approach also
contains elements of the duty approach,
since the applicant is
required to prove that he or she will no longer engage in conduct
that is inconsistent with the duty of
a legal practitioner to uphold
the law.
[35]
The question of whether a person is fit and proper
is a question of fact, although it involves a value judgment
[60]
.
T
he
sole question that the Court has to decide is whether the facts which
have been put before it and on which the person concerned
was
convicted, show him to be of such character that he is not worthy to
be in the ranks of an honourable profession
[61]
.
The applicant has made full disclosure of her particular defect of
character and attitude to establish whether she has reformed
in
respect thereof
[62]
. I am
satisfied that she has provided sufficient proof that since the
commission of the crime and the conviction, she has genuinely,
completely, and permanently reformed herself of the criminal
character, and that she has properly and correctly identified and
appreciated the defect of character and attitude involved
[63]
.
[36]
The following passage in
Kwazulu-Natal
v Singh
[64]
is apt:
“
Therefore,
I am not satisfied that the respondent is inherently a dishonest
person. She has clearly learnt a hard and painful lesson.
She now
fully understands the extent to which her conduct falls short of the
high standards that are expected of an attorney. The
repetition of
the conduct complained of is, in the circumstances, highly unlikely.
See Law Society Cape v Peter
2009
(2) SA 18
(SCA)
24, 24 I.”
[37]
These are our reasons for the order granted.
MHLAMBI,
J
I
concur
OPPERMAN,
J
On
behalf of appellant:
Adv. N Snellenburg SC, Adv JMC Johnson
Instructed
by: Vosloo
Attorneys
22
Brandwag Park
82
McHardy Avenues
Brandwag
Bloemfontein
On
behalf of respondent:
Adv. HJ Cilliers
Instructed
by:
Hill Mchardy & Herbst Inc.
7
Collins Road
Arboretum
Bloemfontein
[1]
Paragraphs
3.7 to 3.9 of the Answering Affidavit, page 465 of the Indexed
Papers.
[2]
Page
434 of the Indexed Papers.
[3]
Section
16 (a) (Act 53/1979); page 433 of the Indexed Papers and Paragraphs
3.9 of the Answering Affidavit on page 465 of the
Indexed Papers.
[4]
Page
519 of the Indexed Papers; Paragraph 3.12 of the Answering
Affidavit.
[5]
Paragraph
3.13 of the Answering Affidavit and page 520 of the Indexed Papers.
[6]
Indexed pages 527 to 529.
[7]
Pages
467 to 468 of the Indexed Papers.
[8]
Para 2 of his affidavit on page 535 of the Indexed Papers.
[9]
Para 3 of his affidavit.
[10]
Para 4 of his affidavit.
[11]
Para 6 of his affidavit.
[12]
Para 8 of his affidavit.
[13]
Page 459 of the Indexed Papers.
[14]
Pages
540 to 541 of the Indexed Papers.
[15]
Paragraph
3.20 of the Answering Affidavit.
[16]
Paragraphs
3.21 to 3.22 of the Answering Affidavit.
[17]
Paragraph
4.1 of the Answering Affidavit.
[18]
Paragraph 16.7 of the Founding Affidavit.
[19]
Paragraph 12.7 of the Answering Affidavit.
[20]
Paragraph 2.11 and 2.12 of the Replying Affidavit.
[21]
Paragraph 2.25 of the Replying Affidavit.
[22]
Paragraph 11.2 of the Replying Affidavit.
[23]
Paragraphs 11.3 of the Replying Affidavit.
[24]
Paragraph 11.4 of the Replying Affidavit.
[25]
Paragraph 11.5 of the Replying Affidavit
[26]
Paragraph 11.7 of the Replying Affidavit.
[27]
Paragraph 11.8 of the Replying Affidavit.
[28]
Paragraph 11.9 of the Answering Affidavit
[29]
Section 15 of Act 53/1979.
[30]
Law
Society, Transvaal v Behrman
1981(4) SA 538 (A) at 549 A-B.
[31]
Law
Society, Transvaal v Behrman
1981(4) SA 538 (A);
Kudo
v Cape Law Society
1977
(4) SA 659
(A)
.
[32]
2006 (2) SA 88(WLD)
; Heads of arguments (LPC) paras 18.4 and 18.6.
In this case the court stated that an applicant
may
bring new facts to its notice which would throw such doubt on the
correctness of his conviction as to justify the Court in
hearing the
whole matter afresh. Each case will depend on its own circumstances,
and no general rule can be laid down which the
courts must follow.
The whole enquiry is of a disciplinary nature, and how the Court
will conduct that enquiry will depend on
the circumstances of the
case.
”
[33]
Para 18.8: LPC’s Heads of Argument.
[34]
2008(5) SA 322 (SCA) para 22.
[35]
Paragraphs 8.4 and 8.5 of the Founding Affidavit.
[36]
Paragraph 18.11 of the Founding Affidavit.
[37]
Paragraphs 18.12 and 18.13 of the Founding Affidavit.
[38]
Supra
2008
(5) SA 322 (SCA).
[39]
1981 (2) SA 762 (TP).
[40]
Kaplan
supra
at 790
A-C
.
[41]
Kaplan
supra
at 790
C-D.
[42]
(1526/2010)
[2011] ZAKZPHC 12 (25 March 2011).
[43]
Para 1 of the judgment.
[44]
Para 30 of the judgment.
[45]
Para 31 of the judgment.
[46]
Supra
footnote 39.
[47]
Page 793 B-D of the judgment.
[48]
Page 794 E-G of the judgment.
[49]
Para 8.2: Answering Affidavit.
[50]
Para 8.1-8.16 of the Answering Affidavit.
[51]
Paras 10.9 and 10.10 of the Answering Affidavit.
[52]
Para 10 on page 446 of the Indexed Papers.
[53]
Para 13 on page 447 of the Indexed Papers.
[54]
Paras 11.4 1 and 11.5 of the Replying Affidavit on page 574 and 575.
[55]
Para 27.8 of the applicant’s heads of argument and oral
address.
[56]
Para 27.7 of the applicant’s heads of argument.
[57]
1998(4) SA 532 (SCA).
[58]
The
Requirement of Being a "Fit and Proper" Person for the
Legal Profession"
:
2011
PELJ
14(4)
209-231
[59]
Supra
paragraph
[15] in the text.
[60]
Thukwane
v Law Society, Northern Provinces
2014
(5) SA 513
(GP) and
Mphatswe
v Law Society of the Free State
2018
JDR 0791 (FB) at para 13.
[61]
Incorporated
Law Society, Transvaal v Mandela
1954
(3),
SA
102
(T) at 107 – 108;
Ex
parte Krause
1905
TS 221
at 223.
[62]
Ex
Parte Aarons
1985 (3) SA 286 (T).
[63]
Ex
parte
Aarons
,
supra.
[64]
Supra
at para 48.