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[2022] ZAECMKHC 48
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Legal Practice Council v Craddock (1967/2020) [2022] ZAECMKHC 48 (10 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION: MAKHANDA]
CASE
NO. 1967/2020
In
the matter between:
LEGAL
PRACTICE
COUNCIL
Applicant
and
SAMANTHA
ANNE
CRADDOCK
Respondent
JUDGMENT
JOLWANA
J:
[1]
The applicant herein seeks an order for the respondent’s name
to be struck off the roll of attorneys. The other orders
sought are
ancillary to and are entirely dependent upon the applicant succeeding
in getting the main order for the striking off
of the respondent’s
name.
[2]
The respondent’s entry into the attorneys’ profession can
be summarised as having all been achieved in a single
year in 2005
when she passed all the admission examinations. That paved the way
for her admission as an attorney as well as the
work that entitled
her to do all the other work that is exclusively reserved for
attorneys which is an admission as a conveyancer
and a notary public.
Until just almost a decade later when the unusual events which led to
this complainant occurred in 2014, it
does not appear that any
complaints against her were ever received by the applicant either
from members of the public or from within
the legal profession. If
any complaints might have been received there is no record of any
adverse findings against her to date.
Ironically, this complaint is
itself entangled in a web of intriguing relations that are on their
own not without significance.
When the crime of forgery takes centre
stage in the complaint, one is moved from being intrigued to being
perplexed as all the
other main players seem to be the complainant’s
very own family members.
[3]
This application has its genesis in a complaint received by the
applicant from Mr Labuschagne, a member of the public. In essence
his
complaint was that the respondent initialled and signed a deed of
suretyship document as a witness who was present when Mr
Labuschagne
signed the said deed of suretyship and therefore witnessed Mr
Labuschagne appending his signature on that document.
It is common
cause that Mr Labuschagne never signed the said deed of suretyship.
Therefore, the respondent could not have witnessed
him appending his
signature thereto as he never did. In fact what appeared to be his
signature on that document was a forgery.
[4]
Exercising its statutory and regulatory powers, the applicant, whose
objects are
inter alia
, to regulate all legal practitioners
and candidate legal practitioners and to enhance and maintain the
integrity and status of
the legal profession, forwarded Mr
Labuschagne’s complaint to the respondent for a response. That
complaint annexed to the
applicant’s founding affidavit as
“JM1” is dated 26 April 2016. She responded thereto
within a day on 11 May
2016 having received it under cover of the
applicant’s letter dated 10 May 2016.
[5]
In responding to the said complaint the respondent forwarded to the
applicant an affidavit she made to the police on 18 April
2016 in
which she had said:
“
3. I have been
asked to comment on a document signed in the form of a suretyship by
Mr Neels Labuschagne and relates to a mortgage
bond registered over
Erf 2460 North End.
4. The bond was
registered as a consequence of an agreement of sale being concluded
between ALC Property Trust and Lauren Nash Business
Trust, which
transaction registered in the Deeds Office in 2014.
5. I practice as an
attorney where my business relates, in the most part to conveyancing
transactions. I deal with hundreds of transactions
and sign documents
either as a witness or otherwise in all of them. I am not able to
confirm or deny whether Mr Labuschagne signed
the surety in my
presence as I have no independent recollection of this document being
signed.
6. What I do know is that
the suretyship would have been required by the bondholder. I also
know that Mr Labuschagne had a close
relationship with both the
seller and the purchaser particularly as he manages the rental
portfolio for both parties. He was involved
in their property related
transactions.
7. When initially I was
asked about the signature of the document, I thought that it related
to a different property transaction,
namely one in du Preez Street
where the Lauren Nash Trust purchased the property but here there was
no mortgage bond registered.
I now realize that the document relates
to a property purchased in Middle Street, North End which was
registered in 2014 as referred
to above.”
[6]
That affidavit was forwarded together with her response in which she
said the following:
“
I Samantha Anne
Craddock, the sole director of Craddock Attorneys who was a party
to
a document whereby it is alleged that Mr Neels Labuschagne signed
surety for the mortgage loan registered over ERF 2460 NORTH
END, for
a property transfer between TRANSFER ALC PROPERTY TRUST // LAUREN
NASH BUSINESS TRUST which had registered in 2014.
I with regret cannot
confer (sic) or deny whether Mr Neels Labuschagne had or had not
signed in my presence, as I have no recollection
of the said
signature. I am aware that the said form would have been required by
the bond holder at the time and I have knowledge
that Mr Neels
Labuschagne was closely involved with both the seller and the buyer
as he managed the rental portfolio for the said
parties and had close
dealings with their related property transactions.
I am very disappointed
that Mr Labuschagne has involved me in his personal vendetta against
Mrs Labuschegne as I am aware of the
unresolved divorce proceedings
he has underway with Mrs Labuschagne and unfortunately Mr Labuschagne
is utilising an unrelated
issue I had with Mrs Labuschagne to
aggravate his claims against Mrs Labuschagne.
Mr Labuschagne had
knowledge and direct dealings with the transaction in question as he
personally benefitted from the rental referral/commission
he earned
from both the ALC Property Trust as well as the Lauren Nash Business
Trust. As stated above I am unable to advise if
the said signature
alleged to be Mr Labuschagne’s signature on the surety form is
or is not his signature.”
[7]
In her answering affidavit the respondent avers that at the time she
gave the above explanation it had not yet been confirmed
that the
signature which purported to be Mr Labuschagne’s was in fact
not his. Mrs Labuschagne, who was Mr Labuschagne’s
wife was the
principal applicant of the bond and her firm was attending to the
simultaneous transfer. The applicant forwarded the
above respondent’s
response to Mr Labuschagne who responded thereto indicating that the
matter was being investigated by
the SAPS and Standard Bank Fraud
Division.
[8]
Mr Labuschagne sent an email to the applicant on 25 July 2016 in
which he advised that the SAPS, through their hand writing
expert,
had confirmed that his signature on the deed of suretyship was forged
and that the matter was referred to a Public Prosecutor
for a
decision. It is however, not clear from the papers whether or not the
respondent was criminally charged with forgery by the
SAPS.
[9]
In October 2016 the applicant addressed correspondence to the
respondent asking her to advise whether or not it was her signature
on the deed of suretyship. The respondent gave the same response,
that she could neither confirm nor deny that she did in fact
append
her signature on that document as she could not recall that far back.
[10]
The applicant was not satisfied with this response. It was then
decided to charge the respondent with unprofessional conduct
for
bringing the attorneys’ profession into disrepute by signing a
deed of suretyship as a witness to a forged signature.
Thereby, so
went the charge, she either signed knowingly or in the absence of the
signatory. Her response to the charge was, once
more, that she could
not confirm or deny that the signature of the witness to the document
was hers as she was unable to remember
that far back.
[11]
The applicant’s disciplinary committee was again dissatisfied
with her explanation. It found her guilty of the alleged
unprofessional conduct. On 3 March 2017 she was invited to make
submissions on an appropriate sanction to be imposed for the said
infraction. On 12 April 2017 and in the absence of her submissions on
sanction, the disciplinary committee of the applicant requested
the
respondent to advise why it should not ask its council for a
resolution for a court imposed sanction.
[12]
It later transpired that the respondent had in fact responded to the
applicant’s correspondence dated 3 March 2017 in
respect of
submissions on sanction on 7 March 2017. However, for some reason,
her response did not come to the attention of the
applicant’s
disciplinary committee. In her response the respondent advised the
applicant that she had very limited knowledge,
if any, regarding
whether the signature on the deed of suretyship was hers or not. She
added that bond documents were signed with
the bond attorneys and
that she was not at that stage, on the bank’s panel of
attorneys. Furthermore, the complainant had
on several occasions,
brought documents to her office for commissioning as his wife worked
for her in her practice at the time.
She maintained that she was
unable to recall the signature and/or whether Mr Labuschagne did or
did not append his signature on
the deed of suretyship in her
presence. Some of her other responses do not take the matter any
further.
[13]
In the end the applicant decided to institute this application for
the respondent’s name to be struck off the roll of
attorneys in
January 2018. However, the papers were only issued in September 2020,
more than four years after the complaint was
received and more than
two years after the resolution for a court imposed sanction was
taken. This tardiness in coming to court
in which the case being made
is that the respondent is unfit to practice as an attorney is
concerning. It is concerning because
it means that for about four
years from the time the complaint was received, the respondent
practiced in circumstances in which,
if the applicant’s version
is to be accepted, she was unfit to practice as an attorney. I am
mindful of the transitional
phase from the erstwhile Cape Law Society
to the applicant’s current composition. While that might have
slowed down processes
I do not think that it was not possible to take
action sooner. It would be very surprising if the applicant’s
operations
ground to a halt for that long.
[14]
The applicant’s case arises from what it calls the respondent’s
failure to give a satisfactory explanation based
on respondent’s
constant refrain that she could neither confirm nor deny that it was
her signature that appeared as a witness’
signature on that
deed of suretyship as she could not recall that far back.
[15]
The respondent has given what she calls contextual facts in her
answering affidavit. Therein she indicates that from May 2005
until
about 2010 she worked at Greyvensteins Incorporated as a conveyancer.
One of the directors of Greyvensteins Incorporated
was Mr Chris
Nortier who, in 2009 opened his own practice, Chris Nortier
Incorporated specialising in conveyancing. The respondent
was
approached by Mr Nortier in 2010 asking her to join his practice as a
conveyancer which she did later that year.
[16]
However in 2011 Mr Nortier decided to return to Greyvensteins
Incorporated. She then decided to buy Chris Nortier Incorporated
and
through it, practice for her own account. The purchase agreement in
respect of that practice entailed her taking over the infrastructure
and the staff. One of the staff members that she took over was a
bookkeeper, Mrs Labuschagne whom she already knew from her time
at
Greyvensteins Incorporated. Mrs Labuschagne was the mother of Liesl
Greyvenstein and Cor van Deventer. Liesl and Cor were siblings.
When
the respondent bought Chris Nortier Incorporated Liesl was one of the
directors at Greyvensteins Incorporated. She had been
a co-director
even at the time of her employ there. Cor also worked at
Greyvensteins Incorporated, either as an attorney or a director
as
well.
[17]
Mrs Labuschagne was not only her bookkeeper and her most trusted
employee, but she also regarded her as a close friend. It
was through
this close relationship with Mrs Labuschagne that the respondent got
to know Mr Labuschagne. In her practise she attended
to several
property transactions involving Mr Labuschagne who frequented her
office coming almost daily. Her practice was about
a kilometre or so
away from Greyvensteins Incorporated and Cor would visit his mother,
Mrs Labuschagne virtually on a daily basis.
[18]
At the time that the property transaction relevant to the complaint
lodged by Mr Labuschagne was being attended to she was
not yet aware
that Mrs Labuschagne had broken her trust as a friend and bookkeeper.
She was not aware that she was defrauding or
had been defrauding her
practice over a long time costing the practice losses amounting to
hundreds of thousands of rands. Her
understanding was that she had a
good relationship with Mr & Mrs Labuschagne and their son Cor.
[19]
In January 2015 while Mrs Labuschagne was on leave, the respondent
discovered certain anomalies in the financial records of
her
practice. Through investigations she discovered that Mrs Labuschagne
had been defrauding her practice for some time. Ultimately
she
dismissed Mrs Labuschagne from her practice and laid criminal charges
against her with the police. When Mr Labuschagne lodged
his complaint
against her with the applicant she had already laid a criminal
complaint against Mrs Labuschagne for her alleged
fraudulent conduct
in her practice. She learned that the relationship between Mr &
Mrs Labuschagne had seriously broken down
so much that they were
engaged in acrimonious divorce proceedings.
[20]
I consider the above background to be useful to give context to the
intricate personal and professional relations that were
at play. This
background includes family dynamics of some of the members of the
Labuschagne family involving their adult children
and their parents
most of whom not only interacted as family but also interacted in the
work environment with each other and with
the respondent. It is in
the professional work environment that the respondent would have been
required to witness a document of
some significance in the commercial
world, the deed of suretyship.
[21]
The applicant explains the reasons why this court has been approached
for a court imposed sanction and in doing so, it has
given a very
concise summary of what in essence its case is, regard being had to
its statutory role in regulating not only the
entry into the
attorneys’ profession but also the conduct of all attorneys
during their professional life.
[22]
The applicant summarises its case against the respondent as follows:
“
26.
The attorneys’ profession places a high premium on the values
of honesty, integrity, reliability and accountability. Attorneys
can
only be described as fit and proper persons to practice law when they
do more than pay mere lip service to those values and
bind and
conduct themselves accordingly. Clients and potential clients should
reasonably trust and believe that attorneys are trustworthy
and of
high moral character.
27. It is clear from the
aforesaid that the respondent failed to give a satisfactory response
but maintained that she could not
recall. One would have expected, as
a servant of this Honourable Court that she would be able to, without
hesitation, state that
it was in fact her signature (or not) and that
she would not have signed without the person being present. Her
explanation for
this is, with respect, insufficient in these
circumstances. Furthermore, it is clear that where she has signed as
witness her stamp
has been affixed below her signature and she has
failed to give any indication why, if it is not her signature, anyone
would have
access to her stamp.
28. The respondent has
abused her position as an attorney rendering her not to be a fit and
proper person to practice as an attorney
(or notary and conveyancer)
of this Honuorable Court.”
[23]
It is not difficult to appreciate the applicant’s submissions
above in paragraphs 26-27 of its founding affidavit and
it is so that
the respondent could have done better to give a more insightful
explanation. I deal with this issue later in this
judgment. The
difficulty is with paragraph 28 in which the applicant is rather
unclear on how it alleges that the respondent abused
her position. It
is clear that the signature of the surety in that deed of suretyship
is not that of Mr Labuschagne. Therefore,
that signature could only
have been affixed there through forgery. In other words, another
person other than Mr Labuschagne affixed
a signature on that document
pretending to be Mr Labuschagne or misrepresenting that it was Mr
Labuschagne’s signature. The
presence of what appears to be the
respondent’s signature and her office stamp represent to the
world that the signature
of Mr Labuschagne was affixed there in her
presence as an attorney of this Court. One way this could be possible
is if the respondent
was part of the forgery as Mr Labuschagne was
already well known to her at the time.
[24]
The other possibility is that the deed of suretyship, which was blank
was brought to the respondent for her to sign as a witness
and she
did sign as a witness in a blank deed of suretyship. In so doing she
would have misrepresented to the world that the document
was signed
by the surety in her presence.
[25]
There is yet another possibility, a third one, which is that the
document was brought to the respondent for her to sign as
a witness
in circumstances where the document was already signed by somebody
who would have pretended to be Mr Labuschagne when
in fact his
signature was forged. The respondent would not have known that Mr
Labuschagne’s signature was forged precisely
because she was
not there when the signature was affixed. The applicant is rather
unclear on what it alleges or suspects possibly
happened. How the
applicant submits that the respondent abused her position as an
attorney is shrouded in vagueness. In any of
the possibilities, and
these may not be the only ones, it would have been a dishonourable
conduct if the respondent acted in that
manner. The abuse of the
office suggests a deliberate act or a grossly negligent action on the
part of the respondent. The applicant
is rather unclear about the
basis for the alleged abuse on the part of the respondent.
[26]
It surely could not be expected of the applicant to know with any
degree of certainty which of the many possibilities is the
likely
scenario. The nature of the applicant whose role is regulatory and
therefore not a witness to what happens in attorneys’
practices
simply does not allow it to know how specific matters evolve and what
actually happens. I find it quite surprising however,
that the
applicant did not do the least it could have done as part of its
investigations. The applicant could have sought to establish
where
that document, the deed of suretyship emanated from and how it got to
be presented to the respondent for witnessing. The
applicant
surprisingly dismisses the source of the deed of suretyship as
irrelevant in its replying affidavit.
[27]
I do not agree. I fail to understand how it could be that the source
of a document with a forged signature would be irrelevant.
One would
have thought that the source of any forged document is part of the
factual matrix that would need to be disentangled
in getting to the
bottom of the forgery. To simply focus on the witness’
signature in circumstances where forgery was clearly
committed is an
over simplification and an unfortunate lack of appetite to get to the
bottom of how the fraud or forgery was committed.
An investigation
might possibly have helped to unmask the role played by the witness
or witnesses thereto including the respondent
if she had anything to
do with it and their degree of participation. Most importantly, it
would have helped to establish whether
they were active participants
in that crime through directly facilitating it or perhaps unwittingly
facilitating it through for
instance signing as witnesses when they
did not witness the signing of that document.
[28]
The respondent explains that the transactions which were relevant to
the deed of suretyship were the transfer of erf 2460,
North End which
she handled. It also appears from the relevant power of attorney to
pass transfer that the transfer was from the
ALC Property Trust and
the trustee who signed for the trust is Cor van Deventer, Mrs
Labuschagne’s son. The conveyancer who
was attending to the
transfer was the respondent. The respondent has explained that the
simultaneous bond registration process
was attended to by a
conveyancer at Greyvensteins Incorporated. That firm is where Cor and
Liesl, his sister worked as attorneys
or co-directors both of whom,
according to the respondent are Mrs Labuschagne’s children. It
is not clear if Cor was the
conveyancer for that bond but his firm
attended to the simultaneous bond registration. As bond registration
conveyancers that firm
would have created and printed the bond
documents which might have included the deed of suretyship on the
instructions of Standard
Bank.
[29]
The applicant had and still does have jurisdiction over whoever was a
conveyancer for that transaction and that person would
have been a
custodian of the bond documents including the deed of suretyship.
That is the person who was entrusted by the bank
to ensure that the
bond registration documents were correctly signed by the correct
person as they were very important documents
in respect of those
transactions. This is the person who could have easily explained how
that document created and printed at his
or her instance, would have
needed to be witnessed outside their office by the respondent who had
nothing to do with bond documents.
How was it taken there and by
whom? An affidavit in that regard would have been extremely useful in
my view. Unfortunately, the
applicant saw no value in investigating
those aspects of the case and drawing a much clearer picture of the
circumstances in which
that deed of suretyship was signed and
witnessed. To expect this of the applicant is not too much to ask as
that conveyancer is
equally accountable to the applicant which has
regulatory powers over him or her.
[30]
According to the respondent the person who has direct knowledge of
the bond documents and how they were signed and witnessed
including
the deed of suretyship is Cor van Deventer, a conveyancer at
Greyvensteins Incorporated. Had the applicant investigated
the
circumstances in which the bond documents and the deed of suretyship
were signed and witnessed, it would have presented a much
clearer
picture to the court. The respondent raises some of the facts alluded
to above in her answering affidavit. However, the
applicant does not
deal with these allegations beyond either dismissing them or
proffering a bare denial. This can hardly be said
to be sufficient
response on the facts of this case even for the applicant which acts
on information provided to it by other people
such as Mr Labuschagne.
[31]
There is no explanation in the replying affidavit why Cor van
Deventer’s explanation has not been made available to court.
That information would have been useful to disprove the respondent’s
allegations about the linked transactions especially
the deed of
suretyship and its witnessing through Cor van Deventer or whoever
else was responsible for the bond documents. It must
be accepted,
absent an explanation in that regard, that this information was
readily available to the applicant as it has jurisdiction
over the
attorney or conveyancer who attended to the bond whether it was Cor
van Deventer or not.
[32]
While the respondent has neither confirmed nor denied that one of the
witnesses’ signature to the deed of suretyship
is hers, the
possibility that it is hers is not easy to exclude. Unfortunately,
the report of the handwriting expect was inconclusive
on her
signature. Similarly, the possibility that it is not cannot be
entirely excluded which would mean that, just like Mr Labuschagne’s,
hers might also be a forgery. Had the signatures been conclusively
found to be hers, the picture could be different. A positive
affirmation that the signature is hers would have provided other
independent evidence of her possible involvement, quite apart
from
her alleged inability to confirm or deny the authenticity of her
signature. That would have been a much better basis for finding,
on
probabilities, that she did in fact sign as a witness to a forged
signature. I have serious reservations about the acceptance
of the
hand writing expert’s report that Mr Labuschgne’s
signature was forged and at the same time not give the respondent
the
benefit of doubt to the extent that the hand writing expert’s
report is inconclusive on her signature.
[33]
Ms Watt who appeared for the applicant was asked during the hearing
of this matter why the original deed of suretyship was
not obtained
from the bank and made available to the handwriting expert so that
possibly a more conclusive analysis could be done.
She could not
explain this beyond indicating that it may not be fair to expect the
applicant to go to those lengths. I do not agree.
The applicant must
do what it needs to do to get to the bottom of any unprofessional
conduct especially a serious crime like forgery
which could bring the
attorneys’ profession into disrepute. The facilitation of
forgery through false witnessing is not less
reprehensible. The
reason for this is that in appropriate cases such attorneys must be
investigated to protect the integrity of
the attorneys’
profession from being tarnished by a few rotten apples. They must be
weeded out and the image of this honourable
profession protected from
fraudulent behaviour involving some of the legal practitioners under
its jurisdiction.
[34]
Should the respondent be found not to be a fit and proper person to
practice as an attorney for not being able to confirm or
deny if that
was her signature or not that appears as a witness’ signature?
In the midst of the rather intermingled relationships
and relations
from blood relationships to friendships and professional relations
and forgery being also part of the mosaic that
forms the backdrop to
this matter, that conclusion should not be made lightly. Objectively,
there are just too many possibilities.
I do not know if it can, with
any degree of confidence, be expected of the respondent to say with
certainty that a particular signature
is hers on all the documents
she has ever signed. This is particularly the case because she says
she signs hundreds of documents
mostly relating to conveyancing
transactions in her line of work quite regularly as a witness or
otherwise.
[35]
In those circumstances one cannot easily conclude that it is
farfetched for her to say that she cannot even remember the
circumstances
in which such a document could have been signed as even
the complainant, Mr Labuschagne came to her office almost on a daily
basis.
It is even more difficult to conclude again with some
certainty that she should have been able to look at those signatures
and
conclude that her alleged signatures were or were not a forgery.
I do not know that it is always possible for everyone to be able
to
tell one’s authentic signature from a forged one under all
circumstances. Speculative hypotheses in this regard are simply
insufficient to conclude on a balance of probabilities. Even aversion
to unprofessional conduct by attorneys should not lead to
unsubstantiated conclusions of errant behaviour or dishonesty by
attorneys.
[36]
This application is about whether or not the respondent is guilty of
the alleged misconduct and thereafter, whether she is
a fit and
proper person to continue to practice as an attorney. Put
differently, the question is whether or not on the facts of
this case
it can be said that the applicant has brought before this Court,
facts on the basis of which, on a preponderance of probabilities,
it
must be concluded that the respondent has committed the alleged
misconduct. I do not think that the applicant has discharged
the
evidentiary burden as can fairly be required of it. What becomes
apparent is that the basis on which this Court was urged to
find the
respondent guilty of the misconduct complained of stands on two
postulations. The first is that Mr Labuschagne’s
signature was
forged. The second one is that the respondent avers that she is
unable to say whether or not one of the witnesses’
signatures
is hers.
[37]
The applicable test on whether a person is fit and proper to continue
to practice as an attorney was recently restated by Nicholls
JA in
Hewetson
[1]
as follows:
“
The test to
determine whether a person is fit and proper is well established and
needs no further elaboration. The first enquiry
is to determine
whether the offending conduct has been proven on a balance of
probabilities. Once this is shown, the second enquiry
is to determine
whether the person is fit and proper taking into account the proven
misconduct. The final enquiry is to determine
whether the person
concerned should be suspended from practice for a fixed period or
should be struck off the roll. The last two
enquiries are matters for
the discretion of the court, which involve a value judgment.”
[38]
The first question that must be answered is, what is the offending
conduct in this case? The best place to go to in order to
answer this
question is the applicant’s founding affidavit. The answer is
more clearly articulated therein where the applicant
avers that:
“
16. On 10 October
2016 the CLS directed the respondent to advise whether it was her
signature that appeared on the Deed of Surety
and on 19 October 2016
the respondent advised that:
16.1 she was unable to
accurately deny or confirm that her signature was that of the witness
as she was unable to recall so far
back,
16.2 she regretted that
she was unable to offer much assistance.
17. On 14 November 2016
the CLS directed that the respondent be required to respond to the
charge that she was guilty of unprofessional
conduct for contravening
Rule 14.3.14 in that she brought the attorneys’ profession into
disrepute by signing a suretyship
document as a witness to a forged
signature and thereby either signed knowingly or in the absence of
the signatory.”
[39]
In short, the question is whether on a balance of probabilities, it
has been established that the signature of the witness
in that deed
of suretyship is that of the respondent. Or, whether there is any
factual basis for the conclusion that on a balance
of probabilities
the second witness’ signatures on that document are those of
the respondent. The facts that the applicant
should be expected to
bring before court must be understood in the context of its
regulatory function. The applicant, in its very
nature, acts on the
information provided to it by others. However, I do think that some
criticism to the applicant is not unwarranted
in so far as basic
enquiries could have been done and were not done. First, the
handwriting expert could have been assisted with
being provided with
the original deed of suretyship which must be with the relevant bank
that had issued the bond instructions.
This does not appear to have
been done and no explanation was proffered on the papers why this was
not done.
[40]
Second, it would not have been very difficult to get information from
the conveyancer who received the bond instructions and
printed the
bond documents including the impugned deed of suretyship. That
document would ordinarily have been part of many documents
that were
required to be signed and witnessed by all the relevant people some
of which would be sent to the deeds office for bond
registration. The
question is, who signed the other documents and who were the
witnesses thereto? When and where were the other
documents signed and
witnessed in relation to the deed of suretyship?
[41]
In
Berrange
[2]
the court said:
“
This Court must
decide upon the papers filed by the parties whether the respondent
has conducted himself unprofessionally and, if
so, what sanction to
impose. The Court is not bound by the views of the applicant. On the
other hand, it is not an ordinary litigant.
It brings this
application in its capacity as the custodian of the status and
dignity of the profession and seeks to protect the
interests of the
public in their dealings with attorneys. The applicant’s views
should accordingly be given proper weight
(see
Law Society, Cape v
Koch
1985 (4) SA 379
(C) at 386G).”
[42]
It seems to me that the conduct that must be established on a
preponderance of probabilities, being whether or not the respondent
did sign as a witness to a forged signature constitutes the first leg
of the enquiry. If she did sign there can be no doubt that
whatever
the circumstances, the complainant, Mr Labuschagne was not there.
Therefore, that conduct, the witnessing of the deed
of suretyship in
the absence of the surety or the person whose signing was being
witnessed would have been a form of unprofessional
conduct. But, has
it been established that the deed of suretyship was witnessed by the
respondent? The answer to this question
cannot be in the affirmative
on the papers that have been filed. It is not sufficient to try to
answer this question with reference
to the failure or inability of
the respondent to confirm or deny that it was her signature that was
appended to that document.
This is more so that whatever was going
on, the whole forgery seems to have been carefully planned and
executed principally to
defraud the bank. It could be that how the
document got to be signed by her, if that is her signature, was part
of a well-orchestrated
uttering that may have started from the office
that first received and/or printed and/or drew the deed of suretyship
in preparation
for its signature.
[43]
Even Mr Labuschagne himself is very conspicuous by his absence in so
far as him coming up with the little information that
he might have,
if any, about how the transaction evolved. Mrs Labuschagne, Cor and
Liesl are all his close family members. His
silence is worrisome. I
do not think that it would have been difficult to establish from the
firm where Cor and Liesl worked and
which was attending to the bond
registration process, more information including the source of that
document and how it was taken
to the respondent for witnessing. That
is, if what appears to be the respondent’s signatures are in
fact her genuine signatures
and were not themselves forgeries. It is
unclear who approached the bank for the loan and whether he even knew
that the bank was
to be approached for a loan. He has simply done no
more than complete the standard complaint form of the applicant. Even
he could
have assisted the applicant a lot more than simply lodging a
complaint against the respondent and then be cagey with what he knows
or does not know about the transaction that led to the impugned deed
of suretyship. It is not clear why he was not asked some probing
questions about what he knew or did not know.
[44]
I take the view that there are simply not enough facts presented to
this Court on the papers filed on the basis of which the
offending
conduct can be said to have been established on a preponderance of
probabilities. Establishing the existence of the offending
conduct is
a factual enquiry. This means that facts must be presented before
court and regardless of the views of the applicant,
the court itself
must be satisfied as to the sufficiency of the facts that establish
the offending conduct beyond sheer conjecture
and suspicion. In this
regard the applicant has unfortunately fallen short of the required
minimum treshhold.
[45]
There is nothing to suggest that the applicant did any real
investigations beyond the pro forma standard procedure of asking
an
attorney to respond to the allegations and the exchange of
correspondence in that regard. There is nothing to suggest that the
complainant was asked any detailed questions about what his theory
was about what might have taken place. There is not a single
letter
to Standard Bank and a response thereto about who drew the deed of
suretyship, where was it signed and whose responsibility
was it to
ensure that it was correctly signed and how or who sent it to them as
an authentic document. It is not even clear if
Standard Bank
investigated what appears to be a compromised security environment in
which the deed of suretyship was signed. Surely
this must be a very
significant exposure issue for them especially the integrity of the
documents on which they rely for the security
of their lending policy
or loans they issue. One would assume that they would want to close
any gaps in that environment that could
potentially make their
security documents not worth the paper they are written on. The
silence of Standard Bank is too loud to
ignore. There is no
indication that any attempt was made to get any information from them
and they refused to co-operate with the
applicant.
[46]
There is no evidence whatsoever from the applicant about who was
instructed by the bank to draw up its bond registration documents.
Nothing is said about who was instructed to register the bond and
whether or not the deed of suretyship was to be signed and witnessed
as part of the responsibility of the conveyancer who registered the
bond. It is not clear whether or not it was to be signed together
with the other bond documents as is normally the case in conveyancing
practice or whether it was signed and witnessed at the bank.
There is
nothing preventing this document from being signed at the instance of
the bank before its officials or anywhere else as
it is not one of
those that are required to be prepared, signed before and witnessed
by a conveyancer. It would not have been difficult
for the applicant
to get this information. The applicant had all the time to enquire
about such details which I consider to be
relevant considering the
time they took before launching these proceedings. For this Court to
be now called upon to make a finding
of fact that the respondent did
initial and sign as a witness on nothing more than her insistence
that she can neither confirm
nor deny that those were her initials
and signatures is quite a stretch. This, without any basis relied
upon in the founding affidavit
for contending that she should be able
to say that those were or were not her signatures. One might ask even
if rhetorically so
to speak, what would the applicant have done if
the respondent had said that those were not her signatures which it
is unable to
do to prove its case when she says she cannot say either
way?
[47]
All that having been said, I must express my disquiet at the lack of
candour on the part of the respondent. On reading the
answering
affidavit it is not difficult to see that the respondent is almost
holding her chest about how, as a matter of practice,
she attends to
the witnessing of documents generally. It is not clear if she keeps
her office stamp at the reception in her office
so that once she is
done witnessing, her staff whom she would have trained, affixes the
stamp. Who, at the time, would have ushered
in a person who brought
documents for witnessing? Would it have been Mrs Labuschagne or
somebody else? Did she allow her staff
to assist the person whose
signature is to be witnessed by her, to observe the person appending
her or his signature on a document
after which a document is brought
to her for her signatures as a witness? If that is the case, how
could she be certain that the
document she would be witnessing was
signed by the correct person? Would it ordinarily have been necessary
that a document such
as a deed of suretyship should be witnessed by
her or her employees could have done so? All these questions and
scenarios and they
may not be the only ones, are matters that would
have assisted the court in understanding the administrative processes
and policies
at the respondent’s offices.
[48]
While in this case there is no basis for making a finding of fact
that the respondent did sign as a witness to the deed of
suretyship,
attorneys must be mindful of the importance attached to their title
as attorneys. The weight of an attorney’s
signature as a
witness to a document is obvious and is inseparable from the fact
that she or he is an officer of the court. It
is not sufficient for
an attorney to simply proffer a bare denial or say that they are
unable to tell one way or the other as the
respondent has done here.
There is a professional and ethical responsibility for attorneys to
play open cards with the regulator,
the LPC. Candour with the Court
and a demonstration of a clear appreciation of one’s
responsibilities as an attorney and
an officer of the court are
indispensable attributes of the attorneys’ profession. All of
that must appear from the explanations
given to the LPC and if the
matter makes its way to the court, the affidavits must reflect that
deep appreciation of those responsibilities.
Unfortunately, in her
answering affidavit, the respondent in this case has behaved more
like an ordinary litigant who is not an
officer of the court. This is
unacceptable and may itself result in negative inferences being drawn
or even the relevant attorney
being mulcted with costs as a mark of
displeasure by the court in an appropriate case.
[49]
That attorneys must refrain from the old adage of “he who
alleges must prove” was made clear in
Hewetson
[3]
in which the Supreme Court of Appeal which, after considering a
number of authorities all the way back to
Solomon
v Law Society of the Cape of Good Hope
1934 AD 401
, stated the legal position as follows:
“
It must throughout
be remembered that an application for the striking off of an attorney
is not an ordinary proceeding but one
sui generis
of a
disciplinary nature, in which the court has the inherent jurisdiction
to penalise errant attorneys found unfit to practice
by either
striking them from the roll or suspending them from practice for a
period. There is no room for an attorney to adopt
an adversarial
position in regard to the enquiry. Instead, as was stressed,
inter
alia,
in
Kleynhans
an attorney is expected to co-operate
and to provide all necessary information so that the full facts are
placed before the court
to enable it to make a correct and just
decision.”
[50]
This is the same approach that attorneys must adopt even at the
investigative stage of the complaint to enable the LPC to make
an
informed decision on whether, in light of the explanation given by
the attorney concerned, it should exercise its own penal
jurisdiction
or whether it should refer the matter to court for a court imposed
sanction.
[51]
After this matter was heard and the judgment was reserved, it became
necessary for the Judge President to reconstitute the
court in terms
of
section 14(3)
of the
Superior Courts Act 10 of 2013
[4]
by the addition of a third Judge. Before the hearing of this matter
before the full court, a directive was issued calling upon
the
parties to file supplementary heads of argument on “whether or
not it is appropriate to refer this matter for the hearing
of oral
evidence.”
[52]
While
section 14(3)
of the
Superior Courts Act refers
to appeals,
there is nothing in logic or principle why the handling of an appeal
referred to in that subsection should not obtain
even in respect of a
court of first instance constituted of two Judges. As far as I
understand the practice in all Divisions in
this country, a third
Judge is added to the two Judges who previously heard the matter
where the two judges are unable to agree
on the reasoning for the
judgment or the order. The matter is then heard de novo as the two
initial Judges are not
functus officio
as they did not
conclude the matter by making an order or delivering a judgment.
[53]
Parties did file their supplementary heads of argument and both are
in agreement that this is not an appropriate case for referral
for
the hearing of oral evidence. While it is so that their agreement in
that regard is not binding to the court, I am in agreement
with the
views expressed by counsel for both parties in that regard for the
reasons stated hereunder.
[54]
I am emboldened in the view that I hold on this issue by how the
Supreme Court of Appeal dealt with the issue of referral for
the
hearing of oral evidence in
Hewetson
[5]
.
The Supreme Court of Appeal dealt with the referral for the hearing
of oral evidence in that matter as follows:
“
Nonetheless, as
set out above there are gaps in the appellant’s evidence that
are cause for concern. If one has regard to
the apparent
contradictions between her own affidavits and the affidavit of Mr
Knoetze there is a discrepancy which requires an
explanation from the
appellant. Likewise, the SMS and WhatsApp exchanges between Mr
Hewetson and the appellant require an explanation
insofar as they are
indicative of prior knowledge of her husband’s misuse of trust
funds. Ms Petze’s allegations, although
not wholly convincing
also require a response. There may well be satisfactory explanations
for all the apparent contradiction but,
given the nature of the
application, it is in the public interest that a hearing be conducted
on these narrow issues. In addition,
the appellant is required to
explain her delay, if any, in reporting the matter to the Law
Society.
A court is loath to
impute dishonesty on the basis of untested allegations in motion
court proceedings in the absence of clear proof
and where these
allegations were denied on grounds that cannot be described as
far-fetched. But because of the sui generis nature
of these
proceedings it is in the interest of the public and the appellant
herself that these issues be referred to oral evidence
in the high
court. Only then can a court properly exercise its inherent
jurisdiction to penalise the appellant by either striking
her from
the roll of practising attorneys or suspending her from practising
for a period.”
[55]
From these facts it seems that there were narrow and delineated
issues that needed the hearing of oral evidence to enable the
court
to exercise its penal jurisdiction. This is over and above the fact
that the question relating to the first leg of the enquiry,
the
establishment of the offending conduct was not in issue, it being
common cause. In this case the offending conduct is not only
not
common cause but also the applicant has simply failed to canvass
sufficient facts to establish it. The question of an unconvincing
explanation or even contradictions in the respondent’s
explanation do not arise. There cannot be an unconvincing explanation
in a case such as this in which, after the respondent did not own up
to the signatures, there was no investigation to establish
if in fact
her denial was well founded. There is therefore nothing to refer for
the hearing of oral evidence. The fact that these
proceedings are of
a sui generis nature is no basis for the referral for the hearing of
oral evidence, absent an issue to be resolved
thereat. The applicant
must first establish, on probabilities, the offending conduct on the
basis of which it is or can be concluded
that there has been an
infraction of the disciplinary code of ethics. Alternatively, it must
be that the respondent’s explanation,
assessed objectively, is
less than satisfactory or contains contradictions that, in the
interests of justice, necessitate a referral
for the hearing of oral
evidence on issues that are material. I emphasize that the issues
referred for the hearing of oral evidence
must be material to the
resolution of the lis between the parties and must not be peripheral.
The referral for oral evidence, should
not be for an impermissible
purpose of looking for “self-incriminatory” evidence from
the respondent even unwittingly.
It would offend our civil procedure
jurisprudence in what are essentially adversarial proceedings to put
the respondent in a situation
where she might crumble under the
pressure of cross-examination for no legitimate reason. Even in
proceedings of a sui generis
nature, doing so is impermissible,
absent an issue or issues that need the agency and efficacy of oral
evidence hearing.
[56]
It was argued quite strenuously on behalf of the respondent that in
the event of the applicant not succeeding in this application,
the
applicant should be ordered to pay the costs of this application on
an attorney and client scale. I do not think that a case
has been
made for the award of any costs, let alone a punitive costs order
against the applicant. This is because whatever criticism
one may
level against the applicant in the paucity of the information brought
before this Court, the situation is not so egregious
as to require
the court to make such a ruling. This is over and above the
applicant’s role of not being an ordinary litigant
in these
kinds of applications. It comes to court bringing such
“application[s] in its capacity as the custodian of the status
and dignity of the profession and seeks to protect the interests of
the public in their dealings with attorneys.”
[6]
The shortcomings in its failure to thoroughly investigate the
complaint and place itself in a better position to bring sufficient
evidence of the alleged misconduct is not such as to warrant it being
mulcted in costs. The respondent has also not covered herself
in
glory in terms of making a clean breast to the extent possible as
earlier indicated. Therefore, even though the application
fails, I am
of the view that no costs should be borne by the applicant. I
consider it appropriate that each party must pay its
own costs.
[57]
In the result I would make the following order:
1.
The application is dismissed with each party to pay its own costs.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered:
F.
DAWOOD
JUDGE
OF THE HIGH COURT
GOVINDJEE
J
Background
[58]
I have considered the detailed exposition of the facts and legal
analysis offered by my brother, Jolwana J (‘the main
judgment’). The main judgment concludes that the application
stands to be dismissed, with each party to pay its own costs.
[59]
I understand the ratio of the main judgment, as expressed in
paragraph 32, to be premised on the absence of conclusive proof
that
the disputed signature was that of the respondent. The main judgment
concludes that the applicant could have performed more
detailed
investigations before approaching the court. It finds that many
aspects of the matter have been treated unsatisfactorily,
also on the
part of the respondent. The interpersonal relationships at play are
emphasised as relevant background material. The
main judgment
expresses uncertainty whether it may be expected of the respondent to
consider the disputed signature and conclude
whether it is a forgery.
Emphasis is placed on the large number of documents typically signed
by the respondent. Little is made
about the wording of the
respondent’s initial response to the allegations or the
affixation of her stamp together with the
signature in question,
although the respondent is criticised for a lack of candour.
Ultimately, the main judgment takes the view
that there are simply
not enough facts presented to warrant a finding of misconduct, and
that the applicant has fallen short of
the required minimum threshold
(at para 44).
General
observations
[60]
These proceedings are disciplinary in nature and
sui
generis
.
The LPC is required to place facts before the court explaining its
contention that the respondent has acted unprofessionally.
It is then
for the court to determine how to deal with the legal
practitioner.
[7]
The inquiry
depends on the circumstances of the case.
[8]
The court has inherent jurisdiction to penalise attorneys found unfit
to practice by either striking them from the roll or suspending
them
from practice for a period.
[9]
While a court is not bound by the views of the LPC in exercising
disciplinary jurisdiction over legal practitioners, those views
carry
a distinct weight given the role of the LPC in safeguarding the legal
profession and protecting the public in its dealings
with
attorneys.
[10]
[61]
The first enquiry is to determine whether offending conduct on the
part of the respondent has been proved on a balance of probabilities.
As the main judgment has noted, this is a factual enquiry.
[11]
In evaluating the evidence, however, the court is not constrained by
conventional rules of evidence and the ordinary
Plascon-Evans
approach is inappropriate.
[12]
Importantly, attorneys in the position of the respondent are expected
to co-operate and provide all necessary information so that
the full
facts are placed before the court to enable it to make a correct and
just decision:
[13]
‘
By reason of the
sui
generis
nature of the proceedings, this would require a full and frank
disclosure of all material information so as to allow the court
to
make a proper and informed decision. There is no room for an attorney
who wishes to remain on the roll to be coy about material
facts in a
matter of this nature. As officers of the court, attorneys are at all
times expected to be scrupulously honest and observe
the utmost good
faith in their dealings with the court, even if it means disclosing
information which may be adverse to their own
interests, and this
rule applies equally in applications to strike them off.’
[14]
[62]
Similar sentiments have been expressed by Ranchod J in
Melato
,
quoting
Malan
:
[15]
‘
An attorney is
therefore not entitled to approach the matter as if it were a
criminal case and rely on denial upon denial and, instead
of dealing
with the allegations, to deflect them and, as part of the culture of
blame, blame others … If allegations are
made by the LPC and
underlying documents are provided which form the basis of the
allegations, they cannot simply be brushed aside;
the attorney is
expected to respond meaningfully to them and to furnish a proper
explanation … as their failure to do so
may count against
them.’
Analysis
[63]
Unfortunately, the approach of the respondent is precisely of the
kind that has been deprecated. As the applicant suggests,
one would
have expected the respondent, as an officer of this Court, to state
without hesitation that she would not have signed
the document as a
witness in the absence of the main signatory. If she seriously
suggested that the signature purporting to be
hers was forged, this
could have been expressed, together with some explanation for the
presence of her stamp underneath her signature.
The main judgment
highlights a plethora of shortcomings in her approach and does so in
piquant terms (at paras 23 and 47 of the
judgment). The respondent
is, correctly in my view, criticised for a lack of candour and the
main judgment expresses its disquiet
at her approach, adding a
reminder to attorneys of the standard of accountability to which they
are held (at para 48 of the judgment).
Even leaving aside the
consequence of the respondent’s evasive approach for purposes
of evaluating the factual matrix, there
is a clearer and more direct
basis for finding that the respondent is guilty of the alleged
misconduct on a balance of probabilities.
[64]
The charge levelled against the respondent centres on unprofessional
conduct for contravening a rule and brining the attorneys’
profession into disrepute ‘by signing a suretyship document as
a witness to a forged signature and thereby either signed
knowingly
or in the absence of the signatory’. Her initial responses to
the complaint, (quoted comprehensively at paras 5
and 6 of the
judgment) are telling. The respondent’s answer to a police
enquiry included an affidavit and additional remarks
contained in a
letter. The relevant extract of the affidavit, dated April 2016,
reads as follows:
‘
I am not able to
confirm or deny whether Mr Labuschagne signed the surety in my
presence as I have no independent recollection of
this document being
signed.’
[65]
The accompanying letter included one notable addition.
‘
I …
was
a party to a document
whereby it is alleged that Mr Neels
Labuschagne signed surety … I with regret cannot confer (sic)
or deny whether Mr Neels
Labuschagne had or had not signed in my
presence, as I have no recollection of the said signature …’
(Own emphasis).
[66]
Both documents go on to provide other background information about Mr
Labuschagne and the circumstances in which a suretyship
document
would be required. There is no hint that there is any real dispute
that the respondent’s signature and stamp appear
on the
document. When the Cape Law Society investigated the matter, the
respondent reiterated those responses on 11 May 2016,
[67]
Read together, the respondent unequivocally acknowledges that she was
a party to the document in her letter. There is no suggestion
that
the appearance of her own signature was in dispute, possibly a
forgery or otherwise appearing due to some form of skulduggery.
Nothing is said about the appearance of the stamp. Instead, the focus
of the correspondence is on the lack of recollection
whether Mr
Labuschagne had or had not signed in my presence
. The only viable
conclusion on the probabilities, on my analysis, is that the
respondent immediately accepted that she had signed
the document. It
is now common cause that Mr Labuschagne’s signature has been
forged. The consequence is that the respondent
must be guilty of the
misconduct for which she has been charged. At the very least, it has
been established on the probabilities
that she is guilty of signing
the document as a witness in the absence of the main signatory.
[68]
The respondent’s subsequent prevarication as to the signature
does nothing to shift the probabilities in her favour.
That the Cape
Law Society afforded her an opportunity to provide a clear
explanation for the appearance of her signature, rather
than merely
rely on the wording of her earlier responses, does not change the
position. The failure of the professional body to
conduct a more
exacting enquiry also cannot alter the outcome in circumstances where
the misconduct has been demonstrated on the
probabilities. The
outcome of the handwriting analysis, unfortunately based on documents
of poor quality, is similarly of no further
assistance. The test is
not whether the applicant has demonstrated
conclusively
that
the disputed signature was that of the respondent. Finally, the
respondent’s attempt to backtrack from the clear wording
of her
initial responses in her answering affidavit, by suggesting that, ‘…
in retrospect I appreciate that the wording
of my response could have
been better’, and much of her subsequent attempt at
rationalising what has transpired, also does
not tilt the
probabilities back in her favour.
[69]
In my view the probabilities favour the explanation offered by the
respondent at para 30 of her answering affidavit. Crucially,
the
respondent acknowledges the following:
‘…
whilst I
would never in the normal course of events bear witness to the
signature of a document in circumstances where I had not
in fact
witnessed the actual signature of the document I must acknowledge [if
it is demonstrated that it is my signature which
appears on the
suretyship document] that I may have been persuaded to do so in this
particular instance …’
[70]
The respondent adds various reasons explaining why she may have
conducted herself in this manner on this particular occasion.
Jacky
was her ‘most trusted employee’ and ‘someone whom I
regarded as a friend’; she would never have contemplated
that
people who were relatives would have falsified one another’s
signatures; and she would have placed some reliance on
the appearance
of Cor’s signature as first witness and ‘not have
anticipated that the signatures of either Neels or
his mother Jacky
may have been inauthentic’. This is, on the probabilities, what
occurred. Unfortunately, it is reflective
of a legal practitioner
willing to bend the rules and operate unethically in certain
circumstances, based on the identity of the
parties to transactions
before her and courtesy of her own personal relationship with the
role-players. This is unacceptable and
worthy of censure.
[71]
In all the circumstances, I am of the view that the applicant has
succeeded in proving, on a balance of probabilities, that
the
respondent is guilty of having initialled and signed a document as a
witness in the absence of the main signatory. This is
conduct
unbecoming of a legal practitioner operating in a profession that is
expected to uphold values such as honesty and integrity.
I would
exercise a discretion to hold that the respondent’s conduct
demonstrates that she is not a fit and proper person
to continue to
practise, but find that an order of suspension from practice would
suffice. The usual ancillary orders involving
surrender of the
certificate of enrolment and appointment of a curator would follow
and the respondent would be directed to pay
the costs of the
application on an attorney and client scale. As this is a minority
judgment, it is unnecessary to consider the
appropriate period of
suspension.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Appearance:
Counsel
for the applicant: K.L. WATT
Instructed
by: WHEELDON RUSHMERE & COLE INC.
MAKHANDA
Counsel
for the respondent: D.H. DE LA HARPE SC
Instructed
by: HUXTABLE ATTORNEYS
MAKHANDA
Date
heard
: 18
July 2022
Date
delivered
: 10 August 202
[1]
Hewetson
v Law Society of the Free State
2020 (5) SA 86
(SCA) at para 4.
[2]
Law
Society, Cape of Good Hope v Berrange
2005 (5) SA 160
(CPD) at 164 D-E
[3]
Note 2 supra at para 44.
[4]
Section 14
(3) reads:
Except
where it is in terms of any law required or permitted to be
otherwise constituted, a court of a Division must be constituted
before two judges for the hearing of any civil or criminal appeal:
Provided that the Judge President or, in the absence of both
the
Judge President and the Deputy Judge President, the senior available
judge, may in the event of the judges hearing such appeal
not being
in agreement, at any time before a judgment is handed down in such
appeal, direct that a third judge be added to hear
that appeal.
[5]
Note
1 supra at paras 37 and 38
[6]
N
ote
2 supra
[7]
Solomon
v Law Society of the Cape of Good Hope
1934
AD 401
at 408-409.
[8]
See
Malan
and Another v The Law Society of the Northern Provinces
[2008]
ZASCA 90
(‘
Malan
’)
para 9;
The
South African Legal Practice Council v Melato
[2021]
ZAFSHC 305
(‘
Melato
’)
para 15.
[9]
Malan
supra
para 23.
[10]
Melato
supra
para 23. On the protection of the public being the main
consideration, see
Malan
supra
para 7.
[11]
Melato
supra para 11.
[12]
Van
den Berg v General Council of the Bar of SA
[2007]
2 All SA 499
(SCA) para 2. Also see
South
African Legal Practice Council v Bobotyana
[2020] ZAECGHC 114 (‘
Bobotyana
’)
para 62.
[13]
Prokureursorde
van Transvaal v Kleynhans
1995
(1) SA 839
(T) at 853, as cited in the judgment of Leach JA in
Hewetson
supra para 44.
[14]
Hewetson
supra
para 49 (footnote omitted).
[15]
Melato
supra
para 18 quoting
Malan
supra para 12. Also see
Bobotyana
supra para 76.