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[2021] ZAGPPHC 75
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Nothnagel v South African Legal Practice Council (46574/19) [2021] ZAGPPHC 75 (8 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 46574/19
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED.
YES
In
the matter between:
DIRK
JACOBUS RIVE NOTHNAGEL
APPLICANT
and
SOUTH
AFRICAN LEGAL PRACTICE COUNCIL
RESPONDENT
NEUKIRCHER
J:
1]
This is an application brought by the applicant for his “
admission
end enrolment as a Legal Practitioner of the Honourable Court.”
[1]
2]
Prayer 1 of the Notice of Motion reads as follows
“
1)
The applicant is, in terms of
section 24
of the
Legal Practice Act 28
of 2014
, admitted as a Legal Practitioner and is authorised to be
enrolled to practice as such by the Legal Practice Council….”
[2]
3]
The South African Legal Practice Council (LPC) has opposed this
application and has appointed Messrs
Rooth and Wessels to act on
their behalf.
The
facts as set out in the application
4]
The applicant, who is in person, states inter alia that:
4.1
“
6. I make this Application with the intent to be admitted
and practice as a Legal Practitioner / Attorney of the High Court of
South
Africa, and my name to be enrolled on the Roll of Attorneys of
the North Gauteng High Court.”;
4.2
“
9. I respectfully submit that I have complied with all the
requirements for admission and enrolment as a Legal Practitioner, as
will be detailed below.”
5]
In the course of setting out how he has fulfilled the requirements of
the Legal Practice Act No.
28 of 2014 (the LPA) and its predecessor,
the Attorneys Act No. 53 of 1997, the applicant sets out (amongst
other important facts)
how, when and where he obtained his
matriculation, his Baccalaureus Procurationis (BProc) degree, the
successful completion of
his articles of clerkship and the completion
of the Sandton Law School Practical Legal training course. He has
also been to great
pains to explain his training and experience
gained during his articles of clerkship which were originally entered
into on 2 February
1997
[3]
.
6]
In fact, the applicant successfully wrote the attorneys admission
examinations in August 1997 and
February 1998
[4]
and as a result, he was admitted and enrolled as attorney on 25 March
1999.
7]
The applicant then states:
“
43.
I passed
as an Attorney of this Honourable Court in Pretoria Gauteng until 24
August 2010, on which date I was struck from the Roll
of Attorneys,
pursuant to an Application by the erstwhile Law Society of the
Northern Province. This mentioned Application was
granted in my
absence and on an unopposed basis.
44.
During 2015, I lodged an Application in this Honourable Court for
my re admission as an Attorney, under case number 74204/2015.
This mentioned Application was brought in terms of Sections 15 and 16
of the erstwhile Attorneys Act 53 of 1979 (as amended). This
Application for re-admission was still pending on 1 November 2018
(the date on which the Attorney Act was repealed), until I withdrew
the relevant Application on 20 February 2019... The reason for this
withdrawal of the re admission Application will be become
apparent herein later.
45.
During 2018 I also lodged an Application for rescission of the
initial orders suspending and striking my name from the Roll. This
Application.... was dismissed by this honourable Court during August
2018.”
8]
The applicant’s point is that the LPA makes no provision for
re-admission and re-enrolment
as an attorney - only for admission
which differentiates it from the Attorney’s Act
[5]
and thus he withdrew the previous application for re-admission to
launch the present application.
9]
He submits that he is a fit and proper person as the grounds
“
...on
which the erstwhile Law Society lodged an application for my
suspension is moot, as the relevant application was lodged more
than
10 (ten) years ago and all aspects and more were dealt with
completely. To this end…. The erstwhile Law Society, as
well
as the erstwhile Attorney’s Fidelity Fund, lodged criminal
complaints against me pursuant to the averments made in the
suspension application and averments arising thereunder. After an
exhaustive criminal trial, I was acquitted on the facts by the
Specialized Commercial Crimes Court, Pretoria of all the changes in
2015.”
10]
The charge sheet, which is attached to the affidavit, reveals that he
was charged with inter alia having a
shortfall in his trust account
and was accused of theft, failure to keep proper accounting records
and failure to keep sufficient
funds at hand in his trust account.
However, no information is provided in his Founding Affidavit as
regards any of the allegations
which founded these charges, or his
striking off, at all.
11]
The applicant was also sequestrated with a final order being granted
on 8 December 2010. He states that he
did not apply for his
rehabilitation but in terms of
s127A
of the
Insolvency Act 24 of 1936
he was automatically rehabilitated on 8 December 2019. He also
attaches an affidavit from his trustee Mr. Bothomley, which was
deposed in support of the (now) withdrawn re admission
application. In that affidavit the latter confirms that he drafted
and filed the second Amended First and Final liquidation and
distribution account with the Master of the High Court, that it is
correct and that:
“
35...
to the best of my knowledge the Applicant did not incur any further
debts after his Sequestration.
36.
I have no inherent objection to the Applicant being re-admitted as an
Attorney of this Court.”
12]
In my view, this affidavit is absolutely meaningless - it simply
confirms the accounting done in the winding
up of the applicant’s
estate and cannot be used to determine whether in fact the applicant
is fit and proper to be re-admitted.
In fact, what is most
interesting is that the affidavit was made to circumvent the
possibility that “
the Law Society might require my presence
at an appearance meeting to be held on 8 February 2016 at their
offices in Pretoria”
and the affidavit was made “
in
lieu of”
Mr. Bothomley’s appearance at that meeting.
Thus, any possible questions the (then) Law Society may have had
could not be
asked, which deprived them of any opportunity to make
enquiries about whether applicant had in fact made a full surrender
of his
estate and whether he had fully co-operated with Mr. Bothomley
as is required in terms of the
Insolvency Act.
13]
Even
though the applicant was struck off the roll, acquitted after
criminal proceedings and was sequestrated, he submits that he has
complied with all the requirements of the LPA and is “fit and
proper” to be admitted.
14]
It bears mentioning that, as part of their opposition, the LPC has
provided this court with, not only a comprehensive
answering
affidavit
[6]
which deals with
the reasons why applicant was previously struck off the roll, but the
full set of papers in the previous re-admission
application. The
applicant’s response is by way of a replying affidavit, and a
supplementary replying affidavit. The tone
and personal attacks on
the LPC and their attorneys contained in these documents is
unfortunate.
15]
He has also taken issue with not only the LPC’s authority to
oppose the present application, but Rooth
and Wessel’s
appointment as attorneys of record.
16]
Of course, the LPC is the
custos morum
of the profession. The
answering affidavit is deposed to by the Chairperson of the LPC who
indicates that she is authorised to
oppose the application and to
depose to the answering affidavit and that the affidavit provides the
views of the LPC. Confirmation
of Rooth and Wessels Attorneys mandate
is also provided. This court is satisfied that they are properly
mandated.
Fit
and Proper
17]
At the end of the day nothing really turned on this as it is for the
applicant to persuade the court that
he is fit and proper to be
admitted and this he must do in his founding papers. As a result of
several question posed by the court
during the hearing of this appeal
on that issue, the applicant conceded that his application was
severely deficient as it failed
to set out any facts as to why this
court should regard him as a fit and proper person - to this end the
specific enquiry went
to the complete lack of details regarding:
17.1
what charges and complaints were laid which prompted the erstwhile
Law Society instituting the striking off application;
17.2
why the applicant did not oppose it;
17.3
what his response to the complaints actually was;
17.4
whether he had demonstrated any remorse for his actions; and
17.5
how he has been professionally rehabilitated sufficient to found the
present application.
18]
In fact, the applicant conceded that irrespective of whether or not
one brings a re-admission application
[7]
,
or an application for admission
[8]
,
the requirement still was to fully disclose
any
and all material aspects
that
have a bearing on whether or not the particular applicant is, in
fact, fit and proper.
19]
The applicant’s position was that this court should grant him
an indulgence to file a supplementary
founding affidavit to remedy
the issues that have been raised by the court and to cure any
possible deficiencies.
20]
However, in my view, it is too late to do that now. All in all, the
factors that a court will consider in
allowing a further affidavit to
be filed are the following:
“
....(a)
The reason why the evidence was not produced timeously. (b) The
degree of materiality of the evidence; (c) The possibility
that the
“pinch of the shoe”; (d) The balance of prejudice to the
applicant if the application is refused and the prejudice
to the
respondent if it is granted; (e) The stage which the particular
litigation has reached; where judgement is delivered, an
applicant
applies for leave to place further evidence before the court, it may
well be that he or she will have a greater burden
because of factors
such as the increased possibility of prejudice to the respondent, the
need for finality, and the undesirability
of a reconsideration of the
whole case, and perhaps also the convenience of the court; (f) The
‘healing balm’ of an
appropriate order as to costs; (g)
The general need finality in judicial proceedings; (h) The
appropriateness, or otherwise, in
all the circumstances, of visiting
the fault of the attorney upon the head of his or her client...”
[9]
21]
In the present matter it is clear that the evidence the applicant
wishes to place before court has always
been available and it is
clear that he deliberately chose not to place it before us. This is
despite its evident materiality. It
is also clear that the only
reason he now seeks an opportunity to place it before us is to
“relieve the pinch of the shoe”.
22]
The present proceedings were launched on 30 June 2019. It is
desirable that they reach finality. There is
no prospect of success
on the papers that applicant chose to place before us that he can be
admitted - there are simply far too
many questions regarding whether
he is fit and proper left unanswered and whether, if admitted, he
will conduct himself as an honourable
member of the profession
[10]
.
23]
Furthermore, the words of Viljoen J in
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
[11]
ring true for this matter even though that case was in respect of
permitting new matter in a replying affidavit:
“
It
lies, of course, in the discretion of the Court in each particular
case to decide whether the applicant’s founding affidavit
contains sufficient allegations for the establishment of his case.
Courts do not normally countenance a mere skeleton of a case
in the
founding affidavit, which skeleton is then sought to be covered in
flesh in the replying affidavit ...”
24]
In the case at hand there is barely a skeleton of a case in the
founding affidavit and certainly not one sufficient
to establish a
true case for the applicant.
25]
It has been re-affirmed that where a person applies for his
re-admission who has previously been struck off
the roll on the
ground of not being fit and proper to continue to practice:
“
[17]
... [t]he onus is on him to
convince the court on a balance of probabilities that there
has been
a genuine, complete and permanent reformation on his part; that the
defect of character or attitude which led to his being
adjudged not
fit and proper no longer exists and that if, he is readmitted, he
will in future conduct himself as an honourable
member of the
profession and will be someone who can be trusted to carry out the
duties of an attorney in a satisfactory way as
far as members of the
public are concerned ...”
[12]
and
“
[18]
In considering whether the onus has been discharged the court must:
‘
...have
regard to the nature and degree of conduct which occasioned the
applicant’s removal from the roll, to the explanation,
if any,
afforded by him for such conduct which might, inter alia, mitigate or
even perhaps aggravate the heinousness of his offence,
to his actions
in regard to an enquiry into his conduct and proceedings consequent
thereon to secure his removal, to the lapse
of time between his
removal and his application for reinstatement, to his activities
subsequent to removal, to the expression of
contrition by him and its
genuineness, and to his efforts at repairing the harm which his
conduct may have occasioned to others.””
[13]
26]
Given the complete dearth of information in this founding affidavit
regarding any of the
aforementioned, the applicant has failed to
satisfy me that he is a fit and proper person to be admitted as a
Legal Practitioner
(attorney) and thus has failed make out a case for
his admission on these papers.
Costs
27]
It is trite that the LPC, as its predecessor did, acts as the
custos
morum
of
the profession. It does not participate in proceedings such as these
as an ordinary litigant but as a public duty. Mr. Groome
therefore
submits that it should be fully indemnified for its costs on an
attorney and client scale.
[14]
Given the lack of the case made out by the applicant, I agree.
Order
28]
The order I therefore make is the following:
28.1
the application is dismissed;
28.2
the applicant is ordered to pay the respondent's costs on the
attorney and client scale.
NEUKIRCHER
J
Judge
of the High Court
I
agree
KHWINANA
AJ
Acting
Judge of the High Court
Date
of hearing: 26 November 2020
Date
of Judgment: 8 January 2021
Hearing
conducted via videoconferencing
Delivered:
This judgement was prepared and authored by the Judges whose names
are reflected and is handed down electronically by
circulation to the
parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines.
The date for
hand-down is deemed to be 8 January 2021
Appearance
for the applicant: In person
Appearance
for the respondent; Mr Groome
Instructed
by Rooth & Wessels
[1]
This is how the headnote of this application reads
[2]
The LPC
[3]
And subsequently ceded - the cession of articles was registered with
the erstwhile Law Society of Northern Province
[4]
He passed papers 2,3 and 4 on 13 August 1997 and paper 1 on 17
February 1998
[5]
s15(3)
[6]
As well as supplementary answering affidavits
[7]
In terms of the Attorneys Act
[8]
In terms of the provisions of the
Legal Practice Act
>
[9]
Erasmus;
Superior
Court Practice
at
Rule 6
page B1-47
[10]
Law Society, Transvaal v Behrman 1981(4) SA538(A); Swartzberg v Law
Society of the Northern Provinces (2008] ZASCA 36; 2008(5)
SA322{SCA) at par[4]
[11]
1974(4) SA362(T) at 368H - 3698
[12]
Johannesburg Society of Advocates and Another v Nthai and Others
(879/2020 and 880/2019
[2020] ZASCA 171
(15 December 2020) quoting
Behrman (
supra
)
[13]
Nthai judgment
supra
quoting
Kudo v The Cape Law Society 1972(4) SA342(C) at 345H -346A as quoted
with approval in Behrman at 557D-E
[14]
Botha v Law Society of the Northern Provinces 2009(1) SA 227 (SCA)
at 236F; Law Society of the Northern Provinces v Mogami &
Others
2010 (1) SA 186
(SCA) at para [31]; Law Society of the Northern
Provinces v Sonntag 2012(1) SA 372 (SCA) at par [20]