About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2022
>>
[2022] ZAKZPHC 3
|
|
Jelal v South African Legal Practice Council (2367/2019P) [2022] ZAKZPHC 3 (19 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
No:
2367/2019P
In
the matter between:
SHIREEN
JELAL APPLICANT
and
THE
SOUTH AFRICAN LEGAL
PRACTICE
COUNCIL RESPONDENT
ORDER
1. The
application for readmission as a legal practitioner (attorney) is
dismissed
2. No
order as to costs.
JUDGMENT
Mngadi
J: (Olsen J concurring)
[1]
The applicant seeks an order readmitting her to practice as a legal
practitioner and
having her name re-enrolled on the Roll of legal
practitioners (attorneys). The application is not opposed.
[2]
The applicant is a former attorney. The respondent is the South
African Legal
Practice Council a body constituted in terms of the
provisions of the Legal Practice Act No. 28 of 2014. (the LPA). The
LPA is
the successor to the KwaZulu-Natal Law Society established in
terms of the repealed Attorneys Act 53 of 1979.(the repealed Act)
[3]
The applicant, having been admitted as an attorney in terms of
s15 of the repealed Act in 1998, was struck off the
roll of attorneys
on 20 November 2007. She seeks re-admission contending that she
is now rehabilitated and she is a fit and
proper person to be
re-admitted to practice as an attorney.
[4]
The LPA has no provisions regulating the re-admission of
persons previously removed or struck off the roll.
Section 24
of the LPA provides that the High Court must admit to practice and
authorise to be enrolled any person who upon application
satisfies
the court that he or she is a fit and proper person to be so
admitted. These provisions are construed as also setting
criteria for
an application for re-admission. The provisions of ss15(3)
and 16 of the repealed Act provided that a
court may, on application
in accordance with the provisions of the Act, re-admit and re-enrol
any person who was previously admitted
and enrolled and has
been removed from or struck off the roll as an attorney , if such a
person in the discretion of the
court is a fit and proper person to
be re-admitted and re-enrolled and the court is satisfied that he has
complied with the provisions
stipulated for first admission.
It follows that whenever a person is seeking admission
whether for the first
time or not, she must satisfy the court that,
apart from satisfying other requirements, she is a fit and proper
person to be admitted
or re-admitted.
[5]
The South African Legal Practice Council is a statutorily created
body. It stands in a position of authority of
its members. It
is bound by the law to oversee issues that affect the regulation of
the profession of legal practitioners.
At the core of it, is its
disciplinary power over its members to ensure that proper standards
of the practice of the profession
for the benefit of the public, its
members and the administration of justice are maintained.
[6]
For both re-admission and first admission the primary
requirement is the same, however, the enquiry relating thereto
differs. On application for the first admission, conduct which
could disqualify the applicant, was notionally the conduct
of a
person before he realised or fully realised the demands and the
requirements of being a legal practitioner, and whether such
conduct
or propensity towards a particular conduct, is likely to affect him
in a role, which he has never played. Whereas
on re-admission
the Court is dealing with a person who, despite having served
articles, taken an oath and practised, has behaved
in such a manner
as to have rendered him or her not fit and proper to remain on the
Roll (
Law
Society , Transvaal v
Behrman
1981
(4) SA 538
(A) at 540E-G).
[7]
The court in deciding whether the person is a fit and proper
person to be admitted as a legal practitioner, in the
exercise of its
inherent jurisdiction, conducts a factual enquiry. The onus is
on the applicant to be discharged on a balance
of probabilities that
a person is a fit and proper person to be readmitted. The
inherent jurisdiction entails regulating
the conduct of the
practitioners and prescribing the general lines within which
they are to be permitted to exercise the
privilege conferred upon
them as legal practitioners. (See
Behrman
at
556/7). The profession is an honourable profession that demands
high ethical standards. See
Swartzberg
v Law Society of Northern Provinces
[2008]
ZASCA 36
;
[2008] 3 All SA 438(SCA)
; 2008(5) SA 322 (SCA) at para [18]
[8]
The person seeking re-admission must show that there has been a
genuine, complete and permanent reformation
on his/her part.
He/she must demonstrate that the defect of character or attitude
which led to his/her being adjudged not
fit and proper no longer
exists and that if he/she is re-admitted he/she will in future
conduct himself/herself as an honourable
member of the profession.
He/she must show that he/she will be someone who can be trusted to
carry out the duties of an attorney
in a satisfactory manner.
The idea is to protect the members of the public and the
administration of justice by ensuring
as far as possible that persons
occupying offices of legal practitioners are fit and proper persons.
(See
Behrman
at
557B-D)
[9]
In
Kudo v Cape Law Society
1972 (4) SA 342
(C) Van
Winsen J stated (at 345H-346A):
‘
In
considering whether this onus has been discharged the Court will have
regard to the nature and degree of the conduct which occasioned
applicant’s removal from the Roll, to the explanation, if any,
afforded by him for such conduct which might ,
inter
alia
,
mitigate or even perhaps aggravate the heinousness of his offence, to
his actions in regard to an enquiry into his conduct and
proceedings
consequent thereon to secure his removal, the lapse of time between
his removal and his application for re-instatement,
to his activities
subsequent to removal, to the expression of contrition by him and its
genuineness, and to his effort at repairing
harm which his conduct
may have occasioned to others.
’
This
approach was endorsed in
Behrman
at 557. In other words, the enquiry is whether the applicant
has shown that he/she is now a person who can safely be trusted
faithfully to discharge all the duties and obligations appertaining
to the profession of an attorney. The conduct of the
applicant
pre striking off from the Roll up to the launching of the application
for re-admission is subject to scrutiny.
See
Johannesburg
Society of Advocates and Another v Nthai
and
Others
(879/2019; 880/2019)
[2020] ZASCA 171
;
2021 (2) SA 343
(SCA);
[2021]
2 All SA 37
(SCA) (15 December 2020) at [18].
[10]
The LPA refers also to the applicant satisfying the respondent
whether he/she is a fit and proper person to be
admitted. In
Behrman
at 557 it was held that it is not a condition precedent to
re-admitting a person to practice that the Law Society should first
be satisfied as to his/her fitness to be re-admitted but the Court
gives considerable weight to the views of the Law Society.
In
my view, the weight to be given to the attitude of the Law Society
will be determined by the soundness of the reasons for its
attitude.
[11]
The applicant for re-admission, although citing the Law Society
as an interested party, is seeking the relief from
the court.
He/she has a duty to act in good faith and to make disclosure of all
material facts. If any material facts
are not disclosed,
whether they be wilfully suppressed or negligently omitted, the court
may refuse to grant the relief.
The test for re-admission is
stricter than that for first admission. (See
Kudo
v
Cape
Law Society
1977(4) SA 659(A) at 676D)
[12]
The facts in this matter are the following. The applicant was
born in 1971. She completed matric in 1988.
She obtained the
degree of
Baccalaureus
Procurationis
(B.
Proc.) in 1996. She served articles of clerkship for a period
of two years. In 1998, she was admitted as an attorney
and she
commenced practising as such for her own account.
[13]
The applicant states that in her practice she was
extremely successful. She assisted the South African
Human
Rights Commission in their investigations. She was appointed as
and acted as the Chairperson of the Rates Appeal
Board for the
Richmond Municipality. She was retained by the Richmond
Municipality as its attorney. One of her clients
until his
death was the known Sifiso Nkabinde. She involved herself in
the affairs of the Richmond area community.
She also worked for
the Truth and Reconciliation Commission as evidence leader.
[14]
The applicant states that her mother who was 49 years old died on 10
May 2002 when she suffered a sudden heart
attack. She had an
extremely close relationship with her. The death of her mother
devastated her. She crumbled emotionally.
She neglected
her duties as an attorney. She suffered from depression.
She attempted committing suicide on ten (10)
occasions. In
2004, she happened to see her medical file. It surprised her
that it was so thick. It contained
details of her treatment for
depression. It dawned on her that she was on a road to
self-destruction. She resolved to change
her situation.
She decided to seek professional help and she resolved to change.
She consulted a psychiatrist,
Dr Miseer. She was admitted as an
in-patient for period of two (2) weeks. She remained under
treatment until February
2005 when Dr Miseer advised her that she had
fully recovered. The treatment helped her to be
more rational, emotionally
stable and to be focused. It
assisted her to find herself religiously and spiritually. She
has never again thought
of committing suicide. She has regain
her zest for life and the ability to interact with both successes and
challenges in
life. The applicant attached a psychologist’s
report by Junica Ramsoorooj dated 28 July 2021. It indicated
that
the applicant was assessed in terms of her depression and levels
of concentration. The report records that the psychologist
first saw the applicant in October 2019. The reason to see the
applicant (states the report), was to assess her degree of
depression
(if any) to understand if her previous trauma were affecting her
ability to make effective decisions and to evaluate
whether she was
eligible to be re-instated as a practising attorney. The report
concludes that the assessment in 2019 and
in July 2021 found that the
applicant was not depressed and she had no other psychological issues
that could affect her duties
as an attorney. Junica’s
report is not of any value regarding what caused the applicant to
carry out the offending
conduct because she first saw the applicant
on 3 December 2019. When she saw the applicant there was
nothing wrong with the
applicant. Concisely, there is no report
by any expert attributing the conduct of the applicant to any
extraneous factors
at any point in time. It is
significant that Junica in her report does not mention the applicant
receiving any psychiatric
or psychological treatment for depression
in 2002 or 2003.
[15]
The applicant states that her neglect of her duties as an
attorney resulted in complaints lodged against her with
the
KwaZulu-Natal Law Society. She failed to respond to
correspondence relating to the complaints. In addition, she
failed to properly attend to her practice as required.
The Law Society instituted an investigation against her.
On 10
May 2005, the Law Society applied for her name to be struck off the
Roll of attorneys and that she be suspended from practice
pending the
striking off from the Roll. She communicated with the Law Society.
She acknowledged her negligent conduct and
she sincerely apologised.
The Law Society accepted her explanation and it allowed her to
practice only as a professional
assistant with a firm of attorneys
with its permission for a period of three (3) years. The strike
off application was suspended.
[16]
The applicant states that attorney Zane Haneef agreed to
employ her as a professional assistant. On 28 March
2006, the
Law Society granted permission to the applicant to be employed by Mr.
Hannef. She commenced employment with Mr.
Haneef. She
dedicated herself to her duties and there were no complaints against
her. However the problem was that
in 2002 she had been involved
in an incident that had not been resolved when she commenced her
duties with Mr. Haneef.
The
2002 Incident
[17]
The applicant states that in June 2003 she was arrested and
criminally charged. She was charged with corruption,
theft of a
police docket and defeating the ends of justice. The charge of
theft of a docket and that of defeating the ends
of justice were
withdrawn against her. On 30 January 2007, she pleaded guilty
to the remaining charge of corruption.
The court sentenced her
to four (4) years imprisonment wholly suspended for a period of five
(5) years on certain conditions.
Some of the conditions were to
pay fifteen thousand rand (R15 000) to SAPS Account Criminal
Asset Recovery Account, and she
was placed under house arrest and was
ordered to do community service.
[18]
The applicant states that she immediately informed the Law Society of
her conviction and sentence. She
had initially informed
the Law Society in 2003 when she was arrested but the Law Society
decided to take no action against her
because the criminal case was
still pending against her. On 16 February 2007, Mr.
Haneef too reported the applicant’s
conviction and sentence to
the Law Society. Mr. Haneef having received no response
from the Law Society terminated
the employment of the applicant on 31
May 2007. The applicant then applied for her name to be
removed from the roll
of attorneys. The Law Society opposed her
application and in turn, it applied that her name be struck-off the
Roll.
On 30 November 2007, the court struck-off her name from
the Roll.
[19]
The applicant explains the background to the
criminal charge against her as follows. Her old close
friend
Vishan Prakash Harrichand was employed as a State prosecutor at
Pinetown Magistrate’s Court. Harrichand referred
five (5)
accused charged with robbery to her. She accepted the
instructions to represent the accused. She formed the
view that
the charges against the accused were not sustainable and she did not
ask the accused for funds to cover for the trial.
She made
representations on behalf of the accused to the Senior Public
Prosecutor for the charges to be withdrawn. The Senior
Public
Prosecutor refused to have the charges against the accused
withdrawn. She informed the accused and she requested
them to provide funds to cover legal fees for the trial. The
accused told her that they needed to speak to Harrichand about
the
money.
[20]
The applicant explains that since Harrichand was away abroad she
waited for him to return. Harrichand returned
from abroad.
Harrichand told her that he had advised the accused’s family to
pay twenty one thousand rand (R21 000)
for him to arrange for
the stealing of the police docket so that the charges would be
withdrawn against the accused. He told
her that the docket was
stolen but the charges were not withdrawn because a duplicate docket
was reconstructed. Harrichand
told her that he was in trouble.
The accused were demanding a refund and he did not have the money.
Harrichand told her that
the accused’s family were making
threats against his life. He asked her to lend him the money.
[21]
The applicant explains that she saw the accused’s family making
threats against Harrichand. She felt
sorry for him and she
agreed to assist him. She intervened between Harrichand and the
accuseds’ relatives.
The accuseds’ family
agreed to accept a refund in weekly instalments of five thousand rand
(R5 000). She drew an acknowledgement
of debt for the parties
and she was paid R2 000. Subsequently, the police
raided her offices. She was arrested
and charged together with
Harrichand. Harrichand has since been admitted as an attorney.
With her founding affidavit
the applicant put up affidavits from two
relatives of the five accused who were involved in the dealings with
Harrichand. They
are Khayelihle Michael Shoba and Innocent Sibusiso
Khumalo.
[22]
Shoba in his affidavit explains that he began to
know Harrichand in 2000 whilst Harrichand was a prosecutor
at
Hammarsdale. He paid Harrichand R500 and a case against him for
unlawful possession of a firearm disappeared. In 2002,
Harrichand
requested him to liaise with the family of the five accused along the
lines that payment of a sum of money would see
the case against the
accused disappear. He attended to that. Harrichand wanted
R22 000 but the family of the accused
raised and paid R15 000.
When the matter was being remanded the applicant as an attorney for
the accused was paid R500.
He then received
complaints that the case was not withdrawn. He told Harrichand
to refund the money.
[23]
Khumalo in his affidavit explains that one of the
arrested persons was his neighbour and he was keen
to assist him.
He learnt of the prosecutor in Pinetown who could arrange that the
case disappear. He met the relatives
of the other accused.
The prosecutor told them to raise R25 000. He raised
R7 000 and the others raised
R8 000. They met with
Harrichand and they gave him R15 000. After a week he and two
others went to Harrichand at
his office in Pinetwon and they gave him
R5 000. After about a week he gave R1 000 to
Harrichand and he told him
that they would not give him more money
since the accused were still in custody.
[24]
Khumalo explains that at the beginning of 2003 Harrichand
told them to get an attorney to apply for bail
for the accused.
The applicant was pointed out to them as the attorney to attend to
the bail application for the accused.
On three occasions
when the accused were appearing in court, R500 was paid to the
applicant. The court refused to release
the accused on bail.
The case was set down for hearing. They then decided to
demand the refund of the money
from Harrichand. Harrichand refunded
R5 000. Thereafter the police arrested them.
Period
after Struck Off from the Roll
[25]
The applicant states that after she was struck-off the Roll she
relied on her relatives for financial support.
In 2008, she
started a business consultancy with Goodman Goqo. She wrote a
letter to the Law Society advising that she was
starting a
business. They had agreed with Goqo relating to the
sharing of fees. She realised after a period that
Goqo was
avoiding paying her share of the fees. She terminated the
relationship with Goqo. She then depended
again on her
relatives for financial support. This situation, which was
embarrassing to her continued until 21 May 2015 when
her father
passed away.
Bethlehem
Conviction
[26]
The applicant states that on 16 February 2012 she was
convicted in the Bethlehem Magistrate’s Court
for impersonating
an attorney in contravention of s83(1) of the Attorneys Act No. 53 of
1979. She pleaded not guilty to the
charge. The Court
after hearing evidence convicted her. She was sentenced to pay
a fine of R2 000. On 6 November
2017, the Bloemfontein High
Court dismissed her appeal against both conviction and sentence.
On 17 May 2018, the Supreme
Court of Appeal refused her application
for special leave to appeal.
[27]
The applicant explains the circumstances leading to her
conviction and sentence by the Bethlehem Magistrate’s
Court as
follows. She received a call from Adv. Dheoduth (her friend)
that their friend, an attorney Naveen Govender, had
briefed Dheoduth
bail application for a relative of Naveen, one Morgan. Morgan
was arrested at O.R. Tambo International
Airport on a warrant issued
by the Bethlehem Magistrate’s Court. Dheoduth told her
that Naveen was not available as
he was in India. She
agreed to assist. She phoned around and she could not find an
attorney prepared to act as
an instructing attorney because of the
stipulation that Naveen would pay such attorney his fees only when
Naveen returned from
India. She told Dheoduth that she could
not find any person.
[28]
She explains that after about three days Dheoduth told her that the
application for bail for Morgan was done and
it was refused. He
had instructions from Naveen to bring a new bail application on new
facts. Dheoduth requested her
to research the merits of the
matter. She agreed to assist Dheoduth as well as Naveen. She
received the necessary documents
from Naveen’s office and she
assisted Dheoduth. Dheoduth requested her to assist him with
transport to Bethlehem.
She drove with Dheoduth to Bethlehem in
her father’s vehicle. They arrived at court and Dheoduth
introduced himself
to the prosecutor. He introduced her as
Jelal. Dheoduth went with the prosecutor to the
magistrate’s chambers.
She stood in the passage.
[29]
She explains that in Court Dheoduth discussed the matter with the
investigating officer. The investigating
officer persisted that
he was opposing bail. She told Dheoduth in the presence of the
investigating officer that if bail
is refused the matter should be
taken on appeal. The investigating officer did not take kindly
to that.
The proceedings started in court.
The applicant sat in the public gallery behind the accused’s
box. During the
proceedings, Dheoduth called her to come in
front to assist him to find a section in the Criminal Procedure Act.
She did
so. The applicant during the break met the
magistrate at the entrance of the building. She asked the
magistrate
for directions to the nearest pharmacy. She wanted
to buy tablets for a headache.
[30]
The applicant states that the bail application on new facts was
refused. Dheoduth discussed the matter with
Morgan advising him
of the options available to him. The applicant stood and
chatted with the prosecutor about general matters
and exchanged phone
numbers. Morgan gave Dheoduth his bankcard stating that there
was a sum of R10 000 that can be used
for legal expenses.
The applicant wrote the Pin code given by Morgan down.
Dheoduth, using Morgan’s card, withdrew
a sum of R10 000.
He gave the applicant a sum of R6 500 which was R3 000 for
herself and R3 500 to refund
the people who lent her money for
the trip to Bethlehem.
[31]
The applicant states that she told Dheoduth to tell Naveen to pay her
as agreed for the time and services
she rendered. She tried to
phone Naveen but he did not take her calls and he did not return her
calls too. Thereafter
she was told that the police were looking
for her. The police told her that Morgan opened a case against
her for theft of
R10 000. It was claimed that she
presented herself as an attorney for Morgan. Morgan with
Naveen made the
claim when he lodged another bail application.
He claimed that his initial bail application without his knowledge
was done
by an attorney who had been struck off the roll, which meant
that those proceedings were null and void. The court granted him bail
of R10 000.
The
Bux matter
[32]
The applicant states that in 2015 Bradley Naidu of Bradley Attorneys
asked her to assist him with typing
and research. Mr. Naidu was
her friend from their school days. He approached her because
his eyesight was deteriorating
due to his diabetic condition.
She used to refer many of her business consultancy clients who had
legal matters to him.
She states that her cousin Osman referred
to her a business client Mr Younis Bux. Osman informed her that
he had lent Mr.
Bux a substantial sum of money, and that Mr Bux was
not repaying the loan because his debtors were not paying him.
Osman
requested her to meet with Mr. Bux. She met with Mr. Bux
and she realised that it was a legal matter. She referred them
to Mr. Naidu. She spoke to Mr. Naidu and he agreed to meet with
them. She accompanied Mr. Naidu to Mr. Bux’s
home. Mr.
Bux agreed to retain Mr. Naudu’s services.
[33]
The applicant explains that the issue of Mr. Bux resulted in High
Court litigation. She assisted with
communication between the
parties due to Mr. Naidu’s poor eyesight and Mr. Bux not having
transport to Mr. Naidu’s
office. The trial did not
proceed on the dates the matter was set down for hearing. The
Bux’s family became furious
with Mr. Naidu, herself and the
advocate briefed in the matter. They demanded a refund of the
money they had paid.
She explained that no money was paid to
her. The Bux’s family reported the matter in the
media. They also
opened a case with the police and they
reported the matter to various institutions. They alleged that
fraud was perpetrated
against them. The prosecution declined to
prosecute the matter.
[34]
The applicant attached seven (7) character referral letters.
Two character letters are from business associates,
one from a friend
who is an attorney, one from an attorney who employed the applicant
for six months and another from an advocate
the applicant used to
brief. One letter is from the Deputy Mayor of EThekwini Municipality.
The last letter is from the Chief Operations
Officer of the South
African Human Rights Commission. (SAHRC). The letter from the
SAHRC confirms that the applicant worked
for the Commission from June
2012 to December 2012 and that she did very good work. The
letter from the Deputy Mayor unfortunately
talks about the work the
applicant did with a certain businessperson for the community without
specifying whether the writer actually
worked with the applicant and,
if so, for how long.
Analysis
[35]
The applicant had as at 9 June 2020 attended and completed the
Practice Management Training Course offered by the
Law Society of
South Africa. She has explained her interaction with the
respondent in preparation for the application for
readmission
application, and her seeking permission to be employed by an
attorney, but such interaction is not relevant for purposes
of this
application. In addition, after it was insisted that costs
incurred be repaid in full, the applicant says she has
fully
reimbursed the respondent for all the costs relating to her
strike-off application and the Legal Practitioners Fidelity Fund
claims. The Law Society claimed payment of R265 000 from
the applicant before it could take a decision relating to her
application for readmission. The applicant consistently
requested a breakdown of the amount claimed from her but the
respondent
did not furnish the requested breakdown. The
applicant paid part of the money claimed from her and the LPC took a
decision
not to oppose her application for readmission.
[36]
The respondent explained the process followed in considering an
application for readmission in a letter to the
applicant dated 14
August 2020 as follows. Once all application papers have been
filed, the matter is referred to an Interviewing
Committee. The
Interviewing Committee, which may interview the applicant, prepares a
report, which is placed before the Professional
Affairs Committee.
The latter makes a recommendation to the Disciplinary Oversight
Committee, which in turn makes a recommendation
to the Council.
The applicant states that after she was interviewed she was requested
to furnish an updated psychologist’s
report, which she did,
namely,the report by Junica Ramsooroj dated 28 July 2021.
Therefore, it may be accepted for
purposes of the
application that the applicant has complied with all the formal
requirements set by the LPA for readmission as
an attorney. The
central issue is whether she has proved that she is a fit and proper
person to be readmitted as a legal
practitioner. The applicant
initially opposed her strike- off application but eventually the
order was taken by consent.
[37]
The Law Society sought the suspension of the applicant
from practice on the following averments, namely:
1.
Breach of the Rules of the Law Society relating to unprofessional and
unworthy conduct. 2. Contravening Rule 20(5) in that
she
submitted a Rule 21A certificate not in compliance with requirements.
3. Having received money from a client, she failed to
distribute the
money in terms of the administration order. 4. Fined for failure to
respond to a complaint and failure to pay a
fine. 5. Failure to
respond to correspondence and telephone calls by a fellow attorney.
6. Failure to settle counsel’s account.
7. Failure to provide
client with progress accounts. 8. Failure to pay over trust interest.
9.
Submitting a qualified audit report.
In
my view, although each complaint alone might arguably not be regarded
as a serious transgression, they cumulatively entitled
the Law
Society to seek the suspension of the applicant from practice.
[38]
The Law Society sought to strike the name of the applicant off the
roll of attorneys solely on the basis
of her criminal conviction in
the Harrichand matter. The Law Society contended that it had
agreed to the suspension of the
applicant in order to give her an
opportunity to redeem herself but she had not used that opportunity.
In my view this was
not correct because the crime for which the
applicant was convicted was committed before the suspension from
practice of the applicant.
However, the crime for which the
applicant was convicted and sentenced was serious. The Law
Society pointed out that the
applicant had brought an application for
the removal of her name from the Roll to avoid being struck off the
Roll. The Court
granted an order in the following terms:
‘
That
the Respondent’s name be struck-off the Roll of Attorneys of
this Honourable Court and that the Respondent is hereby
interdicted
and restrained from practising and/or holding herself out as an
attorney of this Honourable Court
.’
It seems clear that in connection with the Bethlehem matter the
applicant also acted in contempt of court.
Similarly, in the
Bux matter she held herself out as an attorney and from her version
touted for Mr Naidu over a period.
[39]
It may be difficult to judge a person from the manner she reacted to
a particular event. However, in 2002
the applicant had been
practising on her own account for about four years, running a
successful practice. She was 31 years
old. Her mother
passed away suddenly due to a heart attack. It must be accepted
that her mother was very close to her,
providing emotional support.
However, in my view, what caused the applicant to crumble and be
unable to recover for an extended
period has not been properly
explained. She has not furnished any reports relating to any
treatment that she received at
the time. She also in her
previous court application did not attach any report by medical
experts. She explains that since
it was fourteen (14) years ago when
she was treated by Dr Miseer her medical file could not be traced for
Dr. Miseer to prepare
a medical report for her. In my view, her
reasons for her failure to attend to her practice during those years
are not fully
disclosed.
[40]
The Harrichand matter is very disturbing. Harrichand was a
close friend of the applicant. His misconduct
covered a long
period. The applicant held onto to the matter with no cover for
trial. The inference is almost inescapable
that she was giving
an opportunity to Harrichand to carry out what he was involved in.
The The applicant knew what Harrichand
was engaged in. The
stealing of police dockets is a very serious matter. It
undermines a foundation of the justice
system. The involvement
of prosecutors and attorneys in such a practice must be visited with
strict censure.
[41]
The Bethlehem matter and the Bux matter are blatant acts flouting not
only the provisions of s 83(1) of the
Attorneys Act but also a court
order of this court. On 30 November 2007 when the applicant’s
name was struck-off the
Roll, the court interdicted her from
practising and or holding herself out as an attorney. In
about a year from that
date, she was already holding herself out as
an attorney. She was assisting counsel as if she was an
instructing attorney.
She even demanded to be paid for the
services she rendered which were services to be rendered by an
instructing attorney.
She dabbled in the practice of an
attorney creating confusion for the authorities and for clients or
members of the public. In
Bethlehem, the entire bail process, due to
her fault, had to be rerun. It created an additional expense to
the fiscus and
brought disrepute upon the administration of justice.
[42]
It took years for the applicant to qualify as an attorney. She
appears to have the technical aptitude to
practice as an attorney.
She has no other profession and she is entitled, all other things
being equal, to practise her profession
in her country. She is
a woman and she comes from a previously disadvantaged group.
The Constitution acknowledges the
oppression suffered by women and
implores state institutions to empower women. On the
other hand, the administration
of justice for the benefit of all of
us must jealously safeguarded. The issue is not whether the
applicant has suffered enough
by being kept out of the profession,
but whether the applicant is a person who can safely be trusted to
faithfully discharge all
the duties and obligations relating to the
profession of an attorney. The court must ensure as far as
possible that the readmission
of an attorney does not pose a risk to
the public’s trust and confidence in the profession. The
standard to be met
where the offending conduct has an element of
dishonesty is onerous. The applicant must show that she has
worked to expiate
the character associated with the offending conduct
and that she has completely changed. (See
Visser
v Cape Law Society
1930 CPD 159
at 160.) In
Nthai
para
[17] it was said the onus is on the applicant to convince the court
on a balance of probabilities that there has been a genuine,
complete
and permanent reformation of character, and that if readmitted the
applicant will in future conduct herself as an honourable
member of
the profession. She must show that her readmission poses no
risk.
[43]
Changing completely starts with an appreciation of the need for
change. There must be a genuine appreciation
of the character
defects to be discarded. The applicant attempts to explain and
find an excuse for the offending conduct.
This points to a lack
of appreciation of the damage caused by the offending conduct. It
shows that the applicant does not properly
understand the high
ethical standards of the profession. It shows her to be a
person who is likely to reoffend. (See
ExParte
Aarons
1985 (3) SA 286(T)
at 294G-H.) In
Nthai
at [36], the court held that it is crucial for a court to determine
what the particular defect of character or attitude was.
More
importantly, it is for the applicant 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 cognitive appreciation it
is difficult
to see how the defect can be cured or corrected since any true and
lasting reformation depends on such appreciation.
[44]
The applicant did not succumb to a sudden temptation resulting in an
isolated incident of offending conduct.
She is close to
falling into a category of a serial offender; there is evidence of a
propensity for offending conduct. Her
transgression goes to the
core of a conduct that cannot be tolerated from a member of the
attorneys’ profession, which demands
high ethical standards for
the integrity of the profession. She portrays herself as
a person too eager to help, which
finds some support in the character
reference letters. This may be part of her character defect, but what
we are looking for is
that she has discarded the character defect
which contributes or leads to her offending. Up to May 2018 she
was challenging
her Bethlehem conviction. When that ultimately
failed, within a year, in April 2019, she launched her application
for readmission.
There is no evidence that she has reflected
upon her conduct in Bethlehem, and genuinely repented. She
immediately embarked
on collecting evidence to support the
readmission application. The referral letters have no
substance and they are
of very little weight. They do not
address the issue of defect of character followed by genuine,
complete and permanent reformation.
[45]
The state evidence in the applicant’s trial at Bethlehem was
that of the magistrate, prosecutor
and investigating officer
concerned in the bail application. Each of them testified to the
effect that the applicant introduced
herself to each of them,
individually, as the attorney representing Mr Govender, the applicant
for bail. The magistrate rejected
as false the applicant’s
denial of that evidence. The applicant was found to have lied
in circumstances where, if she
was telling the truth, the conclusion
must be that the magistrate, prosecutor and the investigating officer
lied. The appeal
court held that the trial court was “correct
in its assessment of evidence and credibility findings.” In the
judgment
on sentence the trial magistrate had this to say. “I
have observed you throughout the proceedings. You branded everybody
or every person who testified against you as a liar by denying some
obvious facts that you in fact introduced yourself as an attorney
and
you knew that that is what you did, but be it as it may you held that
you did not utter those words. That in itself shows that
you don’t
show any remorse for what you have done on that particular day, 9
January 2009.” Nothing has changed.
The applicant comes
before us persisting in her contention that a magistrate, prosecutor
and investigating officer gave false evidence.
All she says is that,
“on subsequent reflection”, this was “ perhaps not
a case of whether or not I held myself
out to be a practising
attorney but rather the effort I could have made to ensure that there
was absolute[ly] no confusion regarding
the capacity in which I
assisted Mr Govender’s instructing attorney and counsel.”
In fact the Bethlehem case did concern
whether the applicant held
herself out as an attorney. The fact that she shows no
appreciation of the enormity of her accusation
that two officers of
the court gave false evidence against her perhaps goes some way to
explaining why the applicant comes under
the impression that this
court can sweep the credibility findings in the Bethlehem case
under the carpet and place its trust
in her assertion that she will
take what she calls “more care” not to create false
impressions in future. That approach
on her part shows no remorse,
and little if any understanding of the absolute importance, and
foundational nature, of the obligation
of every officer of the court
to behave with integrity at all times with regard to court
proceedings; and when the officer is a
practitioner, not knowingly
(nor negligently, for that matter) to mislead the court.
[46]
In my view, the applicant has not demonstrated that she is a fit and
proper person to be readmitted
to legal practice. She has not
shown that if readmitted she is not likely to err again. I find,
regrettably, that her application
for re-admission fails.
[47]
The LPC is accountable to the court. It is incumbent on
it to report to the court on a disciplinary matter
before court
involving its members. It must report on how it dealt with the matter
and indicate its view on the relief sought from
the court. In
this matter, we initially only had a letter from the LPC, which was
addressed to the Registrar of the court.
It stated that the LPC
has considered the application of the applicant for re-admission and
that it will not oppose the application
for re-admission. This is not
enough, in particular, in an application for re-admission where the
applicant’s proven past
dishonesty looms over the enquiry as to
whether the applicant is a fit and proper person to be re-admitted.
The LPC has a
duty to assist the court to arrive at a correct
decision. The LPC has amongst its statutory objects the enhancement
and maintenance
of the integrity and status of the legal profession.
Professional bodies are the
custodes
morum
of the profession. They act in the interest of the legal
profession, the court and the public, protecting and promoting the
status and dignity of their profession. See
Nthai
at [35].
[48]
The LPC in this matter was content to simply write a letter
addressed to the Registrar recording that it
had taken a decision not
to oppose the applicant’s application for readmission. It
furnished no reasons for its decision.
It made no comment on
the main issue of whether in its view the applicant has permanently
reformed. This is despite the fact
that the LPC is required to
certify compliance with the provisions of the LPA in applications for
readmission and that it is incumbent
of the LPC to make an assertion
to the Court, if it is so satisfied, that the applicant is a fit and
proper person to be re-admitted
to the profession. See
Ex
Parte: Van Schalkwyk
(422/2017)
[2021] ZANWHC 23
(19 August 2021) at [3-8]
[49]
In this matter, we insisted that we needed to hear the
views of the LPC and we postponed the matter for that purpose.
Subsequently, an affidavit and heads of argument were furnished by
the LPC, which we appreciate. We are not satisfied that
the
affidavit delivered on behalf of the LPC reveals a clear rational
basis for the decision not to oppose the application.
However,
the conduct of the LPC not being the central issue in the case, our
concerns were not dealt with fully enough in argument,
and we should
say no more about it.
[50]
I propose the following order:
1. The
application for readmission as a legal practitioner (attorney) is
dimissed
2. There
is no order as to costs.
___________
Mngadi,
J
I
agree, it is so ordered.
_________________
Olsen
, J
APPEARANCES
Case
Number :
2376/2019P
For
the Applicant :
Mr.
Naidu
Instructed
by :
Kushen Sahadaw Attorneys
DURBAN
For
the respondent :
N. Jooste
Instructed
by :
Venns Attorneys
PIETERMARITZBURG
Heard
on :
1 December 2021
Judgment
delivered on : 19
January 2022