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[2011] ZASCA 200
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Law Society of the Cape of Good Hope v Nel (054/2011) [2011] ZASCA 200; 2012 (4) SA 274 (SCA) (23 November 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 054/2011
In the matter between
THE LAW SOCIETY OF THE CAPE OF
GOOD HOPE
….....................................................................................
APPELLANT
and
HEINRICH NEL
…...............................................................................
RESPONDENT
Neutral citation:
Law Society of the Cape of
Good Hope v Nel
(054/11)
[2011] ZASCA 200
(23 November 2011)
Coram: NAVSA, HEHER, SHONGWE, MAJIEDT and WALLIS JJA
Heard: 2 NOVEMBER 2011
Delivered: 23 NOVEMBER 2011
Summary: Attorney – misconduct – alleged
contravention of Rule 14.3.14, promulgated under the Attorneys’
Act 53
of 1979 – bringing attorneys’ profession into
disrepute – formulation of charge sheet crucial –
evidence
not sustaining the charge as formulated – disciplinary
proceedings not civil proceedings but sui generis.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Eastern Cape High Court,
Grahamstown (Chetty and Revelas JJ sitting as court of appeal):
The appeal is dismissed with costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
MAJIEDT JA (NAVSA, HEHER, SHONGWE and WALLIS JJA
concurring):
[1] The appellant appeals against the judgment of the
Eastern Cape High Court, Grahamstown (Chetty and Revelas JJ, sitting
as court
of appeal in terms of s 73(1) of the Attorneys Act 53 of
1979 [the Act]), in which it set aside both the finding by a
disciplinary
committee of the appellant, that the respondent, a
practising attorney and one of the appellant’s members, had
contravened
rule 14.3.14 of the appellant’s rules
1
and the concomitant sanction. The appeal is with leave
of the court below.
[2] The respondent was called upon to answer two
charges, only the first of which is relevant for present purposes. It
arose from
a complaint by Mr Dirk Swanepoel, who was at the time of
the complaint serving a sentence of 22 years’ imprisonment for
murder,
and was based on a conversation between him and the
respondent on the day of his arrest, in which he sought certain
advice concerning
bail. As will become apparent, this charge, as
formulated in an annexure to the summons issued by the disciplinary
committee, is
central to this appeal and I reproduce it in full:
‘
CHARGE
OF UNPROFESSIONAL OR DISHONOURABLE OR UNWORTHY CONDUCT ON THE PART OF
HEINRICH NEL (HEREINAFTER CALLED “THE MEMBER”)
FIRST CHARGE –
CONTRAVENTION OF RULE 14.3.14
The member is charged with
unprofessional conduct in that on or about 23 January 2002 he advised
one Dirk Hermanus Swanepoel, who
was apprehended by the South African
Police in a murder investigation and who had sought the advice of the
member in this regard,
that “it could never be said that it
would be harmful in a bail application if a policeman could stand up
in Court and confirm
that he obtained the co-operation from the
accused right from the outset”. This advice did, alternatively
had, the potential
to cause Swanepoel to act in ignorance of his
right to remain silent to his prejudice or to his potential
prejudice.
In so doing the member brought
the attorneys’ profession into disrepute.’
[3] The disciplinary committee reached its guilty
verdict solely on the basis of the Respondent’s written
response to Swanepoel’s
written complaint. It was also referred
to the judgment of Mthiyane JA in Swanepoel’s appeal against
his conviction. I shall
revert to this aspect in due course. Having
found the respondent guilty of bringing the attorneys’
profession into disrepute,
the disciplinary committee imposed what it
considered to be a moderate fine upon the respondent.
2
An appeal in terms of s 73 of the Act against this
finding and sanction was upheld by the high court, which found that
the admissible
evidence before the disciplinary committee was
insufficient to sustain the guilty verdict.
[4] The factual backdrop to the disciplinary proceedings
is briefly as follows:
(a) The respondent had been instructed by a client, Mrs
Groenewald, to investigate the disappearance of her husband.
Investigations
into Mr Groenewald’s cellular telephone records
led the respondent to Swanepoel, not as a possible suspect, but as a
potential
witness against two men who the respondent regarded as
suspects.
(b) In the light of information gleaned from the phone
records, the respondent set up a meeting with Swanepoel at the
respondent’s
office. Upon being confronted with the fact that
the phone records reflected certain phone calls between him and
Groenewald before
the latter’s disappearance, Swanepoel denied
all knowledge of Groenewald’s disappearance. During the meeting
the police
arrived and arrested Swanepoel in connection with
Groenewald’s disappearance. Up until this stage there was no
attorney-client
relationship between Swanepoel and the respondent. It
is not necessary to decide whether such arrest occurred
coincidentally at
that time, at the respondent’s office (as he
averred), or had been arranged by the respondent (as Swanepoel
appeared to suggest
in his complaint).
(c) Later that afternoon a policeman, Inspector
Pietersen, telephoned the respondent from the detectives’
offices at the police
station and informed him that Swanepoel, who
was in police custody, wanted to speak to him. During their
conversation Swanepoel
asked the respondent whether it would assist
him (Swanepoel) in a bail application if he co-operated fully with
the police. The
respondent replied that Swanepoel could say what he
wanted to the police, since, on his version, he had nothing to do
with Groenewald’s
disappearance. To his surprise, Swanepoel
then admitted to some involvement in the disappearance and, after the
respondent had
requested Inspector Pietersen to leave the office so
that Swanepoel could be alone to speak freely, Swanepoel confessed to
the
respondent that he and his brother had shot and killed
Groenewald. Swanepoel again asked the respondent whether he would
assist
him in a bail application if he were to co-operate fully with
the police as he was determined to reveal all and to make a clean
breast of things. The respondent then furnished the advice set out in
the charge above.
(d) On the following day Swanepoel made a pointing out
of the deceased’s body to the police and made a full confession
before
a magistrate.
[5] As is evident from the charge, in essence, the
respondent was alleged to have acted unprofessionally in failing to
advise Swanepoel
of his right to remain silent when he furnished the
advice as set out above. The charge was formulated on the basis of
the respondent’s
written response to Swanepoel’s
complaint and, as stated, the disciplinary committee’s finding
was also premised on
that document. In his written response, the
respondent set out in full the background to and the context in which
the advice was
furnished to Swanepoel. That background and context
was correctly accepted by the disciplinary committee and the high
court as
the basis upon which the matter fell to be decided. Before
dealing with the merits, it is useful to consider briefly the
legislative
framework that bears upon disciplinary proceedings.
[6] Section 71(1) of the Act authorises the council of a
Law Society to inquire into cases of alleged unprofessional or
dishonourable
or unworthy conduct on the part of an admitted
attorney, notary or conveyancer. Sections 71(2), (3) and (4) set out
the procedure
to be followed at an enquiry. It bears the hallmarks of
civil proceedings but, for the reasons that follow later, contrary to
the
high court’s finding disciplinary proceedings under the Act
are not ordinary civil proceedings, but are rather sui generis
in
nature. Section 72 deals with a council’s disciplinary powers,
while s 73 details the steps to be taken by a practitioner
who wishes
to appeal against a finding of guilty.
[7] Significantly, neither the Act nor the appellant’s
rules list acts or omissions which would constitute unprofessional,
dishonourable or unworthy conduct. The now repealed Law Society (Cape
of Good Hope) Private Act 20 of 1916 contained such a list
of
offences in clause 42 of its rules and Regulations. Notwithstanding
its repeal, s24(2)(
a
)
of Act 41 of 1975 has preserved all rules, by-laws and regulations
made under Act 20 of 1916. Thus all rules and regulations made
under
Act 20 of 1916 have been subsumed into the second schedule of Act 41
of 1975. Clause 42 states that ‘unprofessional
or dishonourable
or unworthy conduct on the part of an attorney, notary or conveyancer
shall include,
inter alia
.
. .’ and it proceeds to list numerous instances. Included in
the list are amongst others touting, withholding the payment
of trust
money without lawful excuse, assisting, allowing or enabling an
unqualified person to perform the work of an attorney,
notary of
conveyancer for remuneration, opening an office without continuous
personal supervision of a practitioner and so forth.
3
It is not decisive but nevertheless noteworthy that
conduct of the kind under discussion is not contained in the list’.
[8] It is self-evident that a charge against a legal
practitioner in a disciplinary enquiry must be formulated with
adequate particularity
to enable that legal practitioner to answer
the charge and the enquiry must be restricted thereto.
4
It also follows that a council which initiates a
disciplinary enquiry is bound by the charge/s which it prefers
against a legal
practitioner.
5
In the present matter the appellant elected to frame the
charge in the manner set out above. The following facts are germane
to
an enquiry as to whether the advice furnished by the respondent,
in the terms set out in the charge, constitutes an offence as
charged:
(a) Swanepoel was under police arrest as a suspect in
Goenewald’s disappearance;
(b) Despite having first professed to the respondent his
innocence in respect of that disappearance, he subsequently expressed
his
intention to tell all and to make a clean breast of things at the
stage before he sought the respondent’s advice;
(c) Swanepoel sought the respondent’s advice in
respect of the possible advantage or otherwise of full co-operation
with the
police in an envisaged bail application.
[9] Against the background of these salient facts and
circumstances the question which arises is whether it was
unprofessional,
dishonourable or unworthy conduct on the respondent’s
part to have neglected to inform Swanepoel of his right to remain
silent
in the circumstances of this case. I think not. Swanepoel was
firmly of the intent to tell all – he had intimated as much
to
the respondent. The idea to co-operate fully and to reveal all came
not from the respondent but from Swanepoel. In these circumstances
it
is not our task to judge whether the advice was inadequate or
incomplete. What falls to be determined is whether any shortcoming
can be categorized as unprofessional, or dishonourable or unworthy
conduct. The question whether the rendering of inadequate advice
can
generally amount to professional misconduct is not an issue before
us.
[10] I have alluded in paragraph 6 above to the fact
that neither the Act nor the rules list acts or omissions that
constitute unprofessional,
dishonourable or unworthy conduct. But the
appellant’s rules do set out general principles of professional
conduct in rule
14.3, non-compliance with which renders a member
guilty of unprofessional and/or dishonourable and/or unworthy conduct
(rule 14.2).
In order to avoid prolixity, I do not propose burdening
this judgment with an exposition of these general principles. It is
sufficient
to state that they are of the kind to be expected of an
attorney as an officer of the court. The principle which seems to me
to
be most suited to the present case is rule 14.3.8 which requires
attorneys to ‘retain the independence necessary to enable
them
to give their clients unbiased advice’. But it bears emphasis
that this is not what the respondent had been charged
with. He was
charged with a contravention of rule 14.3.14 which requires
attorneys’ to ‘refrain from doing anything
which could or
might bring the attorneys profession into disrepute’. This
charge, substantiated in the charge as set out
above, does not bear
scrutiny in the light of common cause facts and contextual
background. In summary – the respondent’s
failure to
advise Swanepoel of his right to remain silent cannot be said to have
brought the attorneys’ profession into disrepute,
given the
fact that Swanepoel was fully committed to telling all and to
co-operating fully with the police.
[11] The high court approached the matter along
different lines. It is not necessary to deal with its wide ranging
findings save
for two important aspects, namely its finding that the
disciplinary proceedings constitute civil proceedings and its
statements
concerning the admissibility of evidence. Counsel for the
appellant expressed his client’s concern with regard to the
possible
future impact of those particular findings. It is only
proper that this court deals with these aspects. After finding that
the
proceedings before the disciplinary committee constituted civil
proceedings, the high court applied the so-called rule in
Hollington
v Hewthorn
6
in ruling that the disciplinary committee had erred in
placing reliance on this Court’s earlier judgment in the
criminal appeal
in its reasons for finding the respondent guilty. The
high court erred in several respects in this regard. First,
disciplinary
proceedings under the Act are not civil proceedings, but
sui generis in nature.
7
They may bear features of civil proceedings, but that
does not qualify them as civil proceedings. So, for example, some of
the provisions
in the Act relating to the procedure in a disciplinary
enquiry contain references apposite to civil court proceedings (a
fact which
the high court relied heavily on), such as s 71(2)(b), (c)
and (d) and s 73 (4).
[12] In
Middelberg v
Prokureursorde, Transvaal
8
Smalberger ADCJ undertook a full analysis of the nature
of an application to strike an attorney off the Roll, with a view to
determining
whether leave to appeal is necessary for the matter to
serve before this court. The learned Judge of Appeal concluded that
such
proceedings are sui generis, but for purposes of s 20(1) and (4)
of the Supreme Court Act 59 of 1959 (which concerns appeals to
this
court and when leave to appeal to it is required) they constitute
civil proceedings:
‘
Na my
mening is die aansoek om die skrapping van ‘n persoon van die
rol van prokureurs, indien nie in alle opsigte ‘n
gewone
siviele verrigting. . . nie vanweë die
sui
generis
aard
daarvan, nogtans ‘n siviele verrigting vir die doeleindes van
art 20(1) en (4) van die Wet [op Hooggeregshowe]’.
9
[13] The second misdirection, which flows from the
first, is that the so-called rule in
Hollington
v Hewthorn
applied. It did not. And the third
misdirection is linked to the previous two. The high court
misconstrued the disciplinary committee’s
reasoning. The
committee did not rely on this Court’s findings in the criminal
appeal, it merely associated itself with this
Court’s views on
the common cause facts. A brief explanation is necessary. Swanepoel
and his brother appealed against their
convictions to this Court.
They were unsuccessful. In his judgment,
10
Mthiyane JA (Combrinck and Malan AJJA concurring) found
that a conflict of interest existed on the respondent’s part
when
he furnished the advice in question to Swanepoel and that his
failure to advise Swanepoel of his right to remain silent effectively
left Swanepoel without representation. This court also found,
however, that the respondent had acted bona fide. In its written
reasons the disciplinary committee quoted an extract from the
judgment relating to the findings set out above and proceeded to
state that:
‘
Having
regard to the [above], the Committee is of the view that it was
correctly conceded by the member that in fact he had not
advised the
accused of his right to remain silent and had also placed himself in
a position of a conflict of interest. The last
mentioned issue was
not before the Committee and it was therefore unnecessary to deal
with it.’
T
here can
hardly be any quarrel with this approach. It does not signify
reliance on this court’s judgment at all. The only
other
instance where the disciplinary committee makes reference to this
court’s judgment is in respect of the sanction, something
obviously not relevant to the merits. The high court found this
court’s judgment to have been inadmissible as evidence against
the respondent based on the rule in
Hollington
v Hewthorn
. As pointed out above, this is a
complete
non sequitur
.
[14] In the premises the appeal must fail and the high
court’s order must be upheld, albeit for different reasons.
The appeal is dismissed with costs.
___________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES:
Counsel for appellants : R W N BROOKS
Instructed by : Bisset Boehmke Mcblain, Cape Town
Webbers, Bloemfontein
Counsel for respondents : B PRETORIUS
Instructed by : Nel Mentz, Humansdorp
Christo Dippenaar Attorneys, Bloemfontein
1
The
rules have been framed in terms of s 21(1) of the Law Societies Act
41 of 1975 as substituted by s 74(1) of the Attorneys
Act 53 of 1979
and promulgated in Government Gazette 5255, dated 20 August 1976.
They have over time undergone various amendments,
the last of which
was by way of Government Gazette 34683 of 21 October 2011.
2
No
particulars of the fine imposed appear from the record.
3
The
list is not exhaustive.
4
Reyneke
v Wetsgenootskap van die Kaap Die Goeie Hoop
[1993] ZASCA 161
;
1994
(1) SA 359
(A) at 368C-H.
5
Ibid,
see also
Incorporated Law Society of the OFS v
H
1953 (2) SA 263
(O) at 264H-265A.
6
Hollington
v F Hewthorn & Company Ltd
[1943]
1 K.B. 587
(CA);
1943 ALL ER 35.
7
Malan
& another v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009
(1) SA 216
(SCA) at par 12, the latest in a long line of judgments
from this court, commencing with
Solomon
v Law Society of the Cape of Good Hope
1934
AD 401
at 408, to this effect.
8
Middelberg
v Prokureursorde, Transvaal,
2001 (2) SA 865
(SCA)
9
At
par 15.
10
D
H Swanepoel v The State
(42/06)
[2006] ZASCA
143
; [2006] SCA 171 (RSA) (1 December 2006).