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[2022] ZALMPPHC 70
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South African Legal Practice Council v Mphanama (9875/2022) [2022] ZALMPPHC 70 (13 December 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE
NO: 9875/2022
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED.
In the matter between:
THE SOUTH AFRICAN
LEGAL PRACTICE
APPLICANT
COUNCIL
and
AZWIFANELI GEORGE
MPHANAMA
RESPONDENT
JUDGMENT
MAKGOBA JP
[1]
This is an application for the removal of the Respondent from the
roll of practicing
advocates and for an order to prohibit him from
practising as such.
The application is
brought in terms of the Legal Practice Act 28 of 2014 (“LPA”)
the Code of Conduct developed in terms
of section 36 of the LPA and
the Regulations made in terms of section 109 (1)(a) of the LPA.
The application is
opposed by the Respondent.
[2]
The Applicant is the South African Legal Practice Council, a national
statutory body established
in terms of section 4 of the LPA.
The Legal Practice
Council and its Provincial Councils regulate the affairs of and
exercise jurisdiction over all legal practitioners
(attorneys and
advocates) and candidate legal practitioners.
[3]
The Respondent is a legal practitioner, duly admitted as an advocate
on 17 September 1998
and therefore falls under the jurisdiction of
the Applicant in terms of regulation 5(1) of the Regulations issued
under section
109 (1)(a) of the LPA.
[4]
Prior to instituting the present proceedings the Applicant did not
subject the Respondent
to any disciplinary proceedings but it
approached this Court on the basis that the Respondent has been
convicted of fraud, hence
he is not a fit and proper person to
continue practising as an advocate.
[5]
The right of the Legal Practice Council (“the LPC”) to
approach the Court
for relief as sought in the present application
before us does not depend on its prior holding of a disciplinary
enquiry against
the legal practitioner concerned.
The
Court has inherent powers to hear the application for suspension or
striking off a legal practitioner’s name from the
roll of legal
practitioners irrespective of whether or not disciplinary steps have
been taken against a legal practitioner by the
LPC.
[1]
[6]
The respondent legal practitioner has no right to insist upon a
disciplinary enquiry
being held prior to steps being taken for his
removal from the Roll of legal practitioners. In fact, the Court can
mero
motu
initiate
steps to strike a legal practitioner’s name off the Roll of
legal practitioners.
[2]
[7]
The factual matrix giving rise to the present application is common
cause or not seriously
disputed.
[8]
The Respondent was admitted as a non-practising advocate on 17
September 1998 while
employed by the Department of Justice as a
Magistrate.
On 30 May 2017, the
Respondent was convicted in this Court (Muller J) of four counts of
fraud and sentenced to 18 (Eighteen) months
imprisonment, the whole
of which was suspended on conditions that:
8.1. he
repays the amount of R 3638.95 to the Registrar; and
8.2. he is
not convicted of an offence involving an element of dishonesty, which
conviction he would be sentenced to
imprisonment without an option of
a fine.
[9]
Furthermore, the Respondent was convicted of defeating or obstructing
the course of
justice and sentenced to 6 (six) months imprisonment or
a fine of R 12 000.00.
He appealed to the
Supreme Court of Appeal (“SCA”) against his conviction
and sentences.
The SCA dismissed his
appeal against the conviction and sentence on the fraud charges and
upheld his conviction and sentence on
the charge of defeating or
obstructing the course of justice.
[10]
The Respondent’s conviction for fraud, giving rise to the
complaint in the present proceedings,
arose from the time he was
employed as a Magistrate by the Department of Justice and was still a
non-practising advocate.
The nature of the fraud
was that the Respondent made a fraudulent misrepresentation in
respect of a motor vehicle he used for official
trips. He
misrepresented to his Sub Regional Head that he was using a RAV 4
motor vehicle with a larger engine capacity whereas
he no longer had
such motor vehicle.
The motor vehicle he was
using was a 2.0-liter sedan which would entitle him to claim a
smaller amount of reimbursement or compensation
for his official
trips.
An amount of R 3638.95
was paid to him, which amount was not due and payable to him.
Hence he was ordered to
repay the said amount upon conviction on the charge of fraud.
[11]
Counsel for the Applicant, Mr. Moolman submitted that the conduct of
the Respondent can at best
be described as fraudulent and that he is
not fit and proper to act as an advocate. That, due to the high
ethical standard set
by the legal profession, it cannot be allowed
that any person who is convicted of a fraudulent act just be allowed
to continue
practising without any sanction.
Counsel argued that a
striking from the roll is clearly the right remedy, but in the
alternative, Counsel suggested that a suspension
might also be
considered by the Court.
[12]
Counsel for the Respondent, Mr. Monene argued that the conduct
complained of took place between
December 2008 and March 2009, about
13 to 14 years ago and it has not been repetitive. That, 13 years was
sufficient time for the
Respondent’s rehabilitation and
re-enrolment as a legal practitioner had these proceedings been
brought at the time of the
misconduct.
Counsel argued further
that even if it could be established that the Respondent remains a
person who is not fit and proper, an order
for a struck off, would be
disproportionate and not a judiciously exercised discretion of this
Court.
[13]
It is now settled law that an application for the removal from the
roll or suspension from practice,
of a legal practitioner involves a
three stage enquiry.
[3]
First, the Court has to
determine whether the alleged offending conduct has been established
on a balance of probabilities. This
is a factual enquiry.
Second, consideration
must be given to the question whether, in the discretion of the
Court, the person concerned is not “a
fit and proper person to
continue practice as an attorney/advocate”.
This involves a weighing
up of the conduct complained of against the conduct expected of an
attorney or advocate and is a value
judgment.
Third,
the Court is required to consider whether, in the light of all the
circumstances, the name of the attorney or advocate concerned
should
be removed from the roll of legal practitioners, or whether an order
suspending him or her from practice would suffice.
[4]
[14]
The question whether a legal practitioner is no longer a fit and
proper person to practice as
such lies in the discretion of the
Court. The appropriate sanction, namely a suspension from practice or
striking from the roll,
also lies within the discretion of the
Court.
[5]
[15]
Usually when the Court imposes a sanction of striking from the roll
or suspension from legal
practice, the aim is to protect the public
against the possible repetitive misconduct of a legal practitioner.
Bearing this in mind, the
following two issues need to be kept in mind when an appropriate
sanction is to be imposed in the present
case:
15.1. Whether the
Respondent’s conduct as outlined in paragraphs 8, 9 and 10
above, will cause immeasurable damage to the
reputation of the legal
profession and the Courts; and
15.2. Whether there is a
real possibility that other members of the public or even clients of
the Respondent will be severely prejudiced
by the Respondent’s
conduct.
[16]
In his answering affidavit the Respondent does not seek to justify
his conduct and/or deny the
seriousness thereof. To the contrary he
acknowledges his conduct and indicates that he has a rehabilitation
programme to give back
to the community and whilst grabbing the
opportunity to grow and promote ethical behavior.
[6]
He has taken the liberty to volunteer as the Chairperson of the South
African Football Association (“SAFA”) Vhembe
Region,
where he presides over disciplinary hearings of its members.
[17]
For reasons that follow hereunder, we are of the view that even if it
is established that the
Respondent is considered a person who is not
fit and proper, an order for a struck off or an outright suspension
from practice
would be disproportionate.
The following reasons are
taken into consideration:
17.1. It is now 13 to 14
years after the commission of the misconduct;
17.2. The amount he was
convicted for, being R 3638.95 is relatively negligible and he has
repaid it as ordered by the Criminal
Court;
17.3. Instead of
sentencing him to direct imprisonment, that Court suspended the
sentence on condition that he repays the money.
Logically, this Court
is at liberty to consider suspension of the sanction to be imposed on
the Respondent;
17.4. The Respondent
currently volunteers as a Chairperson of a disciplinary committee of
SAFA as a mode of rehabilitation and growth;
17.5. The Respondent is
currently employed as a part-time lecturer at the University of Venda
Law Faculty. An order for a struck
off may have adverse consequences
on his appointment as such;
17.6. The Respondent is
not actively involved in legal practice in the sense that he does not
operate a trust account that would
expose him to misconduct to the
prejudice of members of the public. The chances of him repeating a
fraudulent conduct is quite
remote; and
17.7. Counsel for the
Applicant conceded during argument and in his heads of argument that
an order of suspension would still be
adequate in the circumstances.
[18]
In the result the following order is granted:
1.
The Respondent is suspended from legal practice for a period of 6
(Six) months;
2.
The order of suspension in 1 above, is wholly suspended for a period
of 12 (Twelve) months
on condition the Respondent is not found guilty
of an offence or misconduct involving an element of dishonesty; and
3.
The Respondent is to pay the costs of the application on party and
party scale.
E M MAKGOBA
JUDGE PRESIDENT OF THE
HIGH
COURT, LIMPOPO
DIVISION
I agree,
M G PHATUDI
JUDGE OF THE HIGH
COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 09 December 2022
Judgment delivered
on : 13 December 2022
For the
Applicant
: JF Moolman
: Pratt Luyt & De
Lange Attorneys
For the
Respondent
: Adv M S Monene
Adv
C T Malatji
Instructed
by
: Sigwavhulimu Inc. Attorneys
[1]
The
Law Society of the Northern Provinces v Morobadi
(1151/2017)
[2018] ZASCA 185
(11 December 2018) at para [25].
[2]
The
Law Society of the Northern Provinces v Bothma and Another
(33739/2016)
[2019] ZAGPPHC 383 (5 September 2019) at paragraph [8].
[3]
Malan
& Another v Law Society of the Northern Provinces
[2008]
ZASCA 90
;
2009 (1) SA 216
(SCA) at paragraphs 4 to 8.
[4]
See
Summerly
v Law Society of the Northern Provinces
[2006]
ZASCA 59
;
2006 (5) SA 613
(SCA) paragraph 2 and the cases there
cited.
[5]
Jasat
v Natal Law Society
2000
(3) SA 44
(SCA) at 51 B – I.
[6]
Answering
Affidavit
,
page 4 paragraph 11, on page 72 of the paginated papers.