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[2019] ZALMPPHC 32
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Pretoria Society of Advocates and Others v Nthai (6271/18) [2019] ZALMPPHC 32; 2020 (1) SA 267 (LP) (18 July 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE
NUMBER: 6271/18
18/7/2019
PRETORIA
SOCIETY OF ADVOCATES
First Applicant
JOHANNESBURG
SOCIETY OF ADVOCATES
Second Applicant
POLOKWANE
SOCIETY OF ADVOCATES
Third Applicant
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
Fourth Applicant
V
SETH AZWIHANGWISI
NTHAI
Respondent
JUDGMENT
THE COURT:
MAKGOBA JP et MABUSE J:
[1]
These
are two applications for leave to appeal against the judgment and
order that the Court handed down on 24 May 2019. One application
was
brought by the Johannesburg Society of Advocates ("the JSA")
while the other application was brought by the Legal
Practice Council
("the LPC").
[2]
On
24 May 2019 the Court handed down the judgment in which the order
read as follows:
"The Applicant is hereby
readmitted as a legal practitioner of the High Court of South Africa
to be enrolled as an advocate."
[3]
Section 17 of the Superior Courts Act
No. 10 of 2013 ("the
Superior Courts Act"
;) governs the
applications for leave to appeal. It provides as follows:
"
17(1) Leave to appeal may only
be given where the judge or judges concerned are of the opinion that
-
(a)
(i) the appeal would have a
reasonable prospect of success;
or
(ii) there is some
other compelling reason why the appeal should be heard, including
conflicting judgments on the matter
under consideration;
(b)
the decision sought on appeal
does not fall within the ambit of
s 16(2)(a)
; and
(c)
the decision sought to be
appealed does not dispose of all the issues in the case, the appeal
would lead to
a
just
and prompt resolution of the real issues between the parties."
[4]
The
enquiry as to whether leave should be granted is twofold. The first
step that a Court seized with such an application should
do is to
investigate whether there are any reasonable prospects that another
Court seized with the same set of facts would reach
a different
conclusion. If the answer is in the positive, the Court should grant
leave to appeal. But if the answer is in the negative
the next step
of the enquiry is to determine the existence of any compelling reason
why the appeal should be heard.
[5]
It
was submitted by Adv Shakwane SC, counsel for Nthai, that
s 17(1)
sets out an inflexible threshold to grant leave to appeal. Therefore
both the JSA and LPC must of necessity meet this stringent
threshold
set out in
s 17
of the
Superior Courts Act in
order to succeed with
their respective applications for leave to appeal. That the threshold
under
s 17(1)
of the
Superior Courts Act is
now stringent, now even
more stringent than when the now repealed Supreme Court Act 59 of
1959, was still applicable, is aptly
demonstrated by
S
v Notshokovu and Another
[2016] ZA SCA 112
paragraph 2 [7 September
2016],
where Shongwe JA, writing for
the Court, had the following to say:
"An Applicant, on the
other hand,
faces
a higher and
stringent threshold, in terms of the Act compared to the provisions
of the repealed Supreme Court Act 59 of 1959."
Section 17(1) uses the word
"only". It provides that:
"(17.1) Leave to appeal
may "only" be given
...."
and then proceeds to set out the
circumstances under which leave to appeal may be given. See
South
African Breweries (Pty) Ltd v The Commissioner of the South African
Revenue Services (SARS) [2017) 2 AGPPHC 340 (28 March
2017) par 5,
in
which the Court cited with approval the following passage from the
Mont Chevaux Trust v Tim Goosen and 18 Others 2014 JDR 2325 (LCC)
par 6:
"It
is
clear that the
threshold for granting leave to appeal against
a
judgment of the
High Court
has
been raised in
the new Act. The former test whether leave to appeal should be
granted
was
reasonable
prospect that another court might come to a different conclusion. See
Van Heerden v Cornwright and Others
1985 (2) SA 342
(T) at 343 H. The
use of the word "would" in the new statutes indicates
a
measure of
certainty that another Court will differ from the court whose
judgment is sought to be appealed against."
Finally, on the rigidity of the
threshold, Plaskett AJA, as he then was, wrote the following in the
judgment in which Cloete JA
and Maya JA, as she then was, concurred
in
S v Smith
2012 (1) SACR 567
, 570 par (7):
"What the test of
reasonable prospects of success postulates is
a
dispassionate
decision, based on the facts and the law that the Court of Appeal
could reasonably arrive at
a
conclusion
different to that of the trial court. In order to succeed, therefore,
the appellant must convince this Court on proper
grounds that he has
prospects of success on appeal and that those prospects are not
remote, but have
a
realistic chance
of succeeding. More is required to be established than that there is
a
mere
possibility of success. That the case is arguable on appeal or that
the case cannot be categorised as hopeless. There must,
in other
words, be
a
sound, rational
basis for the conclusion that there are prospects of success on
appeal."
[6]
One
small vexing question of the
locus
standi
of the JSA has again raised
its ugly head. Nthai maintains in opposing the JSA's application for
leave to appeal, that the JSA has
no
locus
standi
to apply for leave to appeal.
It is an issue that the JSA intends taking up on appeal. The JSA
intends appealing the following finding
in the main judgment that it
has no
locus standi
in
the matter and furthermore that there was no reason for it to be
involved in the application. The JSA contends,
inter
alia,
that in terms of s 12(2) of
the Interpretation Act 33 of 1957 ("the Interpretation Act"),
it is presumed that where a
law repeals any other law, unless the
contrary intention appears, the repeal shall not affect the previous
operation of any law
so repealed or anything duly done or suffered
under the law so repealed. Mr Shakoane SC , relying on the
Constitution of the JSA,
contended that the JSA do not have
jurisdiction in the main application and that it still has no
jurisdiction in the application
for leave to appeal.
[7]
We
fully agree with the law as set out in the said section of the
Interpretation Act. This means that Nthai's application had to
be
dealt with in terms of the Admission of Advocates Act No. 74 of 1964
("the AAA"). This is the Act that was in force
before 1
November 2018. After all Nthai's application was launched on 18
October 2018 in terms of the AAA and while the AAA was
still in
operation. Secondly, Nthai himself stated expressly that he brought
this application in terms of the AAA. The main judgment
dealt with
the law before 1 November 2018 and after 1 November 2018. The finding
that the JSA had no
locus standi
was
based on the law that applied before 1 November 2018 which is Rule
3A(1)(c) of the Uniform Rules of Court and the Practice Directive
dated 4 July 2018. The decision to readmit Nthai as an advocate was
not based on the law but on the evidence of the witnesses and
therefore the facts of the case. In the judgment we referred to the
AAA in paragraphs 1, 63, 64, 67 and 68, we also dealt with
the
provisions of the
Legal Practice Act 28 of 2014
.
[8]
For
four reasons the law as it existed at the time Nthai launched his
application shows that even at that stage the JSA had no
locus
standi
in Nthai's application. Those
four reasons are as follows:
8.1
firstly,
the JSA is a voluntary association of advocates practising
predominantly in the Gauteng Division and Gauteng Local Division.
It
has its offices located in the province of Gauteng, in particular in
Johannesburg. The JSA does not predominantly practise in
the Free
State or the Western Cape or North-West or Limpopo Provinces. In
terms of the AAA, it was a
custos
morum
of the profession of advocates
in the Gauteng Province only. The Polokwane Society of Advocates
("POLSA") is a voluntary
association of advocates who
practise predominantly in the Limpopo Province. We pointed out in the
main judgment that at the time
Nthai launched his application, this
POLSA was already in existence. Its jurisdiction extended over all
the advocates who practise
in the Limpopo Province. POLSA was the
custos morum
of
all such advocates who practise in Limpopo. It never had any
jurisdiction over advocates who practise in Gauteng or North-West
or
Free State provinces. Its jurisdiction did not extend over its
territorial borders. Like the JSA its
locus
standi
was territorial limited only
by the borders of the province in which its members predominantly
practise;
8.2
secondly,
so Mr Shakoane's argument continued, its own constitution restricts
its powers to its own members and not members of other
societies of
advocates.
Section 2
of its constitution defines
"advocates
who normally practise in the division"
as
those advocates who are recognised for the time being by, the Bar
Council as normally practising in the Division provided that
no
person shall be recognised who:
"(a) does not
occupy chambers within the Division"
(Nthai
did not occupy any chambers within the Division of Gauteng and
Gauteng Local Division while he had been struck from the roll);
(b)
does not hold himself available
to undertake work pertaining to an advocate on behalf of the public.
(Nthai did not undertake work
pertaining to an advocate on behalf of the public while his striking
off
endured),
and
(c)
is
not
willing and available to accept the normal duties of the profession
including
pro deo
work
at the request of the Court."
8.2.1
The
JSA constitution further describes "a
member"
or
"members"
as meaning a member or members as
the case may be, for the time being of the society.
8.2.2
Society
according to the said constitution means the Johannesburg Society of
Advocates.
8.2.3
According
to paragraph 3 of the said quotation the objects of the JSA are:
“
(a)
the protection of the interests of the Bar of the Division, of the
members and pupil members in their professional
capacity;
(b)
the supervision of the conduct of
the members and of pupil members.”
These
are some of the objects of society.
8.2.4
The jurisdiction of the JSA does not
extend over advocates who are not its members and who do not practise
predominantly within
its area of jurisdiction or within the Gauteng
and the Gauteng Local Divisions' area of jurisdiction.
8.2.5
"Division" in the JSA's
Constitution is defined as 'the area for the time being under the
jurisdiction of South Gauteng
High Court Johannesburg, or of any
other court which may replace such Local Division for such area.
We could find nothing in the
constitution of the JSA that gave it any powers to act outside its
territory of operations.
[9]
Thirdly,
the
locus standi
of
the JSA is excluded by the provisions of s 3(A)(1)(c) of the Uniform
Rules of Court. We have referred to this rule in paragraph
67.1 of
the main judgment. At the pain of repetition this rule provides:
"Subject to the provisions
of rule 6 insofar as they are not inconsistent with the provisions of
this Rule, a person applying
for admission to practise and for
authority to be enrolled as an advocate shall, at least 6 weeks
before the date on which this
application is heard by the Court
-
(a)
…
.
(b) …
(c)
serve a copy of the documents and
affidavit referred to in paragraphs (a), (b) and (A) on the secretary
of the
Bar Council or Society
of Advocates of the division concerned."
The Bar Council or Society of
Advocates referred to in this Rule is Bar Council or Society of
Advocates that operates within the
jurisdictional area of the
division before which the application will be heard. The JSA does not
predominantly operate in Limpopo
Province. The terms of Rule
3(a)(1)(c) by implication exclude the JSA from operating in the
Limpopo Province. There is a reason
for excluding the foreign Society
of Advocates. The most important consideration excluding foreign
Society of Advocates is that
by their distance the foreign Society of
Advocates will not be in a position to monitor the conduct of the
advocates practising
within that province in which they do not
predominantly practise. The Provincial Society of Advocates, in this
case POLSA in that
particular province, is the
custos morum
of
the advocates' profession in Limpopo Province. This Court was never
referred to a case in which the JSA was a party to any application
of
an advocate or any application to strike an advocate in other
provinces in which the JSA did not predominantly practise. In
our
view, the Rule is a
prima facie
indicator of the intention to
exclude the JSA from matters which are not in its division or
territory.
[10]
Fourthly, the Judge President's Practice Directive dated 24 July 2018
may be construed as excluding
the JSA. We have referred to this
Practice Directive by the Judge President of this division in
paragraph 68 of the main judgment.
It states expressly that an
application for admission as an advocate must only be served on the
Polokwane Society of Advocates.
Properly interpreted, we now deal
here with the principle that the inclusion of one is the exclusion of
the other or others ...
[11]
We could find nothing in one of the
above mentioned factors to satisfy this Court that the JSA could flex
its muscles beyond the
territory of Gauteng Local Divisions. Nothing
in law gave the JSA any powers to take up fights within the area of
its sister Society
of Advocates. The purpose of the said Rule
3(A)(1)(c) is to prevent such situations where Society of Advocates
do not speak in
one voice on the same issue. In our view the conduct
of the JSA undermines POLSA; it is designed to emasculate POLSA in
its area
and to render it a worthless Society of Advocates. JSA's
involvement in this matter interferes with the elementary rights and
powers
of POLSA and should be avoided at all costs. We are satisfied
that the JSA's appeal against the finding that it has no jurisdiction
or
locus standi
in
this matter has no reasonable prospects of success on appeal.
[12]
It goes without saying that if it is
established that the JSA has no
locus
standi
to prosecute the appeal then
the resolution by its members that it should apply for leave to
appeal is null and void
ab origine.
Its members may not give it more
powers than they themselves have. The members of the JSA cannot have
any power to authorise it
to perform acts which are outside its
territory or to give it an authority to infringe upon the territory
of another Society of
Advocates' area of jurisdiction. In our view,
the General Bar Council, and not the JSA, would have been the
appropriate party to
take up the matter on behalf of the advocates'
profession because in terms of its Constitution, the GBC.'s objects
are,
inter alia
-
(b)
deal with all matters affecting the
profession and to take action thereon;
(c)
upheld the interests of advocates in
South Africa.
[13]
Now the JSA gave several other grounds
on the basis of which it seeks to appeal. It was argued by Adv Paul
Kennedy SC (Mr Kennedy)
counsel for the JSA, firstly that:
"5.
1 there is a
reasonable prospect that a Court of appeal will differ from the
approach taken by this Court to the readmission
application;
5.
2 there
is
a
compelling reason why the appeal should be heard and the
conflicting judgment."
[14]
Based on what is stated in paragraph 13
supra
Mr
Kennedy argued that this related in particular to the question
whether the Bar Councils in the position of the JSA and PSA Pretoria
have any standing to participate in readmission applications after
the commencement of the Legal Practice Act 28 of 2014 (the LPA).
Mr
Kennedy argued that there are conflicting judgments on the question
whether the Bar Councils in the position of the JSA and
PSA have any
standing to participate in any readmissions after the commencement of
the LPA.
[15]
We have dealt with these issues fully in
paragraphs 71.3 to 71.8 and paragraph 72 of the main judgment.
Furthermore we have dealt
with the role that the JSA, PSA and GCB can
play after 1 November 2018 in paragraph 76.1 and 76.2 of the main
judgment.
[16]
Mr Kennedy's argument that there are
conflicting judgments is, in our view, misplaced. In the first place
it is clear as crystal
that in dealing with the matter of
Johannesburg Society of Advocates v Edeling (326/2018) [2019] ZASCA
the Supreme Court of Appeal
applied the provisions of the AAA. This
is the piece of legislation that made the JSA and other Society of
Advocates the
custos morum
of
the profession before 1 November 2018. Section 5 of the LPA has now
vested the
custos morum
on
the LPC. We have stated in the main judgment that the JSA should not
go into extinction, now that the LPA is in place. No, the
JSA must
use the LPC for any submission that they wish to make. The JSA may
not be allowed to usurp the powers of a properly constituted
statutory body like the LPC. Their conduct in taking up the powers of
a properly registered body will result in the negation of
the LPC.
This was not the intention of the legislature which intention was to:
"Regulate the legal
profession, in the public interest, by means of
a
single statute."
The fact that the legislature
intended regulating the legal profession by a single statute and the
fact furthermore that the AAA
was repealed in its entirety mean that
there is no residual power which gives the JSA any power to act in
such matters. Finally,
in terms of Schedule 6 Section 2(1) of the
Constitution of the Republic of South Africa Act No. 108 of 1996:
"All law that was in force
when the new Constitution took effect, continued in force subject to
any amendment or repeal."
The AAA has been repealed.
Thirdly, in the Edeling matter no-one questioned the application of
the provisions of the AAA. It is
for that reason that the Court
applied its provisions. In Nthai's application Nthai questioned the
locus standi
of the PSA and the JSA. Fourthly, the court in
Edeling's case relied on s 12(2) of the Interpretation Act.
[17]
Accordingly the argument that there are
conflicting judgments carries no weight. We find therefore that there
is no compelling reason
why the appeal should be heard as there are
not conflicting judgments.
[18]
The JSA's reliance on paragraph 17 of
the Edeling's case to prove its
locus
standi
in matters that arose after 1
November 2018 is, in our view, misplaced. In the said paragraph the
SCA stated that:
"An advocate is required
to be completely honest, truthful and reliable.
In applications
such as this the Society acts as custos morum of the
profession. In doing so it acts in the interest of the profession,
the Court
and the public."
We
have already pointed out somewhere
supra
where the SCA
dealt with the Edeling's case that it did so in terms of the AAA.
This quotation itself does not bestow the JSA with
any
locus
standi,
which is
a question of law. The said paragraph should be looked at within the
context of the AAA as it appeared then.
[19]
Secondly, Mr Kennedy argued that Nthai
did not make a full and frank disclosure to any disciplinary body or
to any Court or of the
extent of his misconduct in relation to the
allegations of his overreaching and acting with conflict of interest
in the Anglo Platinum
matter. Mr Kennedy contended that Mr Nthai
refused to disclose the documents and evidence that would be
necessary to allow the
issue of overreaching and conflicting of
interest to be fully investigated; that Mr Nthai persisted in
refusing to provide the
documents previously requested by the
Pretoria Bar Council (PBC) and the JSA's attorneys. In conclusion on
this point he contended
that Mr Nthai accordingly refused to disclose
the relevant documents to give a full account concerning the
allegations against
him. According to him this conduct by Nthai is
inconsistent with the conduct of a man who has reformed fully. For
the following
reasons there is no merit in this argument by Mr
Kennedy.
19.1
Mr Nthai has fully dealt with the origin
and circumstances of his overreaching in his founding affidavit. The
Court was satisfied
with the manner in which he had done so. The
issue of overreaching was dealt with in paragraphs 39, 40 and 47 of
the main judgment.
19.2
We pointed out in paragraph 39 of the
main judgment that having considered certain documents referred to in
the affidavit by Adv
Motimele SC, the PBC concluded that Nthai was,
guilty of overreaching. The Court that ultimately removed Nthai's
name from the
roll of advocates was asked to take into account the
charge of overreaching and conflict of interests.
19.3
We pointed out furthermore in paragraph
40 of the main judgment that during the investigations of the issue
of overreaching, the
PBC wrote Nthai a letter in which it requested
Nthai to disclose his books relating to the allegations of
overreaching. His legal
representative responded to the letter. The
disciplinary committee did not pursue the matter any further, but in
the application
to remove Nthai's name from the roll of advocates the
PSA raised and pursued the allegations of overreaching against him.
Accordingly,
overreaching was one of the grounds put forward and
considered by the Court in removing Nthai's name from the roll. This
allegation
by Nthai was never challenged by the JSA.
19.4
At the hearing of the main application
Adv N Cassim SC for the JSA conceded that the issue of overreaching
was one of the grounds
upon which Nthai's name was removed from the
roll.
19.5
In paragraphs 41 to 42 pages 72 to 83 at
his founding affidavit Nthai dealt extensively with the aspect of
overreaching. The JSA
did not dispute Nthai's version. It did not ask
for chance to investigate his allegations.
19.6
Finally Nthai's financial statements
were made available at the hearing of the main application. No-one of
the parties involved
in the main application referred to such
financial statements. The JSA simply adopted an insouciant attitude
towards Nthai's financial
statements.
19.7
In the main application the Court was
satisfied that Nthai had made a full and frank disclosure on the
aspects of overreaching and
conflict of interests. We are therefore
satisfied that this ground of appeal would have no reasonable
prospect of success on appeal.
[20]
The JSA complained and raised it as a
ground of appeal the fact that in its main judgment the Court held
that voluntary legal work
done as part of community service during
Nthai's period of striking off was "invaluable" and was a
relevant factor in
favour of Nthai's application for readmission. It
contended that the Court ought to have found that:
20.1
it was not proper for Nthai to conduct
legal work in any capacity during his period of striking off,
regardless of whether the work
was done on a probono basis;
20.2
that the legal effect of the striking
off application is to prevent an advocate from conducting any work in
that capacity, regardless
or not whether that work is remunerated
and;
20.3
the fact that Nthai conducted legal work
in the circumstances he described in his evidence during the times he
had been struck off
cast doubt on his judgment and his understanding
of the seriousness and effect of his striking off.
[21]
21.1
In the first place it is not the JSA's
case that the Court in making the finding referred to above in the
said ground erred.
21.2
This ground of appeal lacks merit. We
agree with Mr Shakoane SC that striking off does not necessarily mean
that an advocate whose
name has been removed from the roll of
advocates is prevented by the striking off from rendering voluntary
legal work or community
service. Community service is in fact part of
rehabilitation of an advocate who has been struck from the roll. The
finding that
we made was supported by paragraphs [25] and [26] of the
Ex Parte Pillay matter. The community services Mr Pillay, Mr de Klerk
and Mr Leopeng rendered have been fully set out and highly regarded
by the Court in the Pillay judgment. The Court regarded them
as
invaluable.
21.3
The JSA has not challenged the fact that
the Court in Ex Parte Pillay recognised community service as an
integral part of an advocate's
rehabilitation.
21.4
Finally the JSA has contended that Nthai
had rendered legal services unsupervised. It abandoned this point in
its answering affidavit.
This ground was therefore not pleaded by the
JSA in its affidavit.
21.5
We are therefore of the view that the
JSA has no reasonable prospects of success in an appeal on this
ground.
[22]
One of the grounds of appeal raised by
the JSA was stated as follows:
"8.
The question of determination was whether Mr Nthai should be given a
second chance (judgment 3.2).
This Court erred in this finding in
that:
8.1 the question
for determination is not whether Mr Nthai should be given a second
chance but whether he
has
genuinely
completely and permanently reformed."
In our view the JSA is
disingenuous. In the first place the Court never stated anywhere in
paragraph 3.2 of the main judgment that:
"the question to be
determined
was
whether Mr Nthai should be given a second
chance."
This is a serious misstatement. We will assume for
the benefit of the JSA that it did read the whole of paragraph 3.2 of
the main
judgment. If the JSA had read the whole of paragraph 3.2 it
would have come across the following statement in the same paragraph:
"considering the
circumstances under which Nthai's name was removed from the roll,
the
fundamental question to be answered in this application is whether
there has been
a
genuine.
complete and permanent reformation on Nthai's part."
After this statement there is also
reference to
Law Society, Transvaal v Behrman
1981 (4) 538 at 553 8-C
and also
Swartsberg
v Law Society of the Northern Provinces
[2008] ZASCA 36
;
2008 (5) SA 322
(SCA)
paragraph 222.
The contention that this Court
held that the question for determination was whether Mr Nthai should
be given a second chance is
a fallacy. The contention that the Court
failed to apply the proper legal test for readmission in the main
judgment is lacking
in merit. It is for this reason that Mr Kennedy
did not even advance argument on this ground. There is therefore no
reasonable
prospect of success on appeal based on these baseless
ground.
[23]
23.1
Another ground of appeal on the basis of
which the JSA whishes to challenge the judgment and order of the
Court was the following:
"5.
The Court erred in this finding from the following reasons:
5.1
Mr
Nthai deliberately refrained from delivering any answering affidavit
in the striking off application [Judgment paragraph 43].
5.2
Mr
Nthai did not participate in his disciplinary hearing before the PSA.
[Judgment paragraph 40]."
23.2
These findings were justified. They were
based on the uncontested evidence of Mr Nthai. He testified that he
deliberately refrained
from delivering any answering affidavit. He
furnished a valid reason therefor. It was never disputed that he
deliberately chose
not to challenge the application to remove his
name from the roll. There is no other version either by the PSA or
JSA available
to contradict this evidence by Mr Nthai.
23.3
Finally, paragraph 40 of the main
judgment has very little to do with Mr Nthai's participation in his
disciplinary hearing. Therefore
the complaint set out in the
application for leave to appeal referring to paragraph 40 is
misguided and lacks any merits.
[24]
The application of the provisions of s
12(2) of the Interpretation Act leaves the LPC in a precarious and
unenviable position. This
is so simply because it was not in
existence when on 18 October 2019 Nthai launched his application.
Accordingly it is unfair to
expect it to play any significant role in
both the main application and the application for leave to appeal.
The LPC's participation
in the proceedings should end up here.
[25]
One of the reasons why the appeal should
be heard and conflicting judgment is the finding that we made in the
main judgment that
sections 4 and 5 of the LPA have the effect that
the GCB, the PSA and the JSA (in effect all the constituent bars of
the GCB) no
longer have any role to play as
custos
morus
of the legal profession in
terms of the LPA and that this rule as a matter of law has been taken
over by LPC. See paragraph 71 of
the judgment. If this view is upheld
or is left as a precedence, it will have the consequence that the
effect of the LPC is to
deprive the JSA, the PSA and the GCB of their
formal standing to participate in readmission by their members who
have been struck
off the roll on their application.
[26] We
fully dealt with the effect of sections 4 and 5 of the LPA on the GCB
and its constituent bars in
paragraphs 71 to 76 of the main judgment.
We have not been persuaded that we erred in our interpretation of the
provisions of the
said sections. Accordingly our unanimous view is
that there is no reasonable prospect of success if leave to appeal
against this
finding is granted.
THE GROUNDS OF APPEAL BY THE
LPC
[27]
In the first place we have remarked in
paragraph [24]
supra
that
seeing that the application by Nthai was launched on 18 October 2018
in terms of the AAA; seeing further that Nthai's application
had to
be dealt with in terms of the provisions of the AAA according to the
provisions of s 12(2) of the Interpretation Act; and
seeing
furthermore that the LPC had not yet come into being as at 18 October
2018 it should not take part in the proceedings.
[28]
Secondly, it was not invited by the
court order of 30 November 2018 to take part in the main application.
The Court had merely ordered
copies of these proceedings, in
particular the main application, to be served on the LPC simply to
enable it to prepare a report
that the Court desired; and not to take
part in these proceedings. If the LPC had properly read and
understood the court order
of 30 November 2018 they would have
understood that they were
[31]
Finally, in paragraph 6.2.1 of the LPC's
application for leave to appeal it is stated that:
"In terms of section 12(2)
of the Interpretation Act 33 of 1957, Mr Nthai's admission ought to
have been finalised as though
the Administration of Advocates Act 74
of 1964 had not been repealed".
This ground alone excludes the LPC
from further participation in these proceedings.
[32]
In response to a Rule [7.1] notice
issued by Mr Nthai and disputing the authority of the LPC to launch
an application for leave
to appeal the LPC delivered and filed the
following extract from the minutes of the Executive Committee of the
Legal Practice Council:
"EXTRACT FROM THE MINUTES
OF A MEETING OF THE EXECUTIVE COMMITTEE OF THE LEGAL PRACTICE CONCIL
HELD ON 8 JUNE 2019
Application for Leave to
Appeal: Re-admission as an Advocate: SETH AZWIHANGWISI NTHAI
IT WAS RESOLVED BY THE COUNCIL
THAT:
1.
the attorneys of the Legal
Practice Council, be instructed to file an Application for Leave to
Appeal against the judgment handed
down by the High Court (Limpopo
Division) for the re-admission of
Mr
Seth Azwihanqwisi Nthai
as an
advocate on 24 May 2019 AND THAT;
2.
the Chairperson and/or any member
of the Legal Practice Council be and they are hereby authorised to
sign all documents necessary
to give effect to this resolution on
behalf of the Legal Practice Council.
CERTIFIED TO BE A TRUE COPY
Signed
at PRETORIA on this 21th day of June 2019."
[33]
Quite clearly this Resolution was not
issued by the LPC, as required by s 6(1)(5) of the LPA, but by the
Executive Committee of
the LPC which is not authorised by the LPA.
The Executive Committee may only issue such a Resolution if it has
been so delegated
by the LPC in terms of s 6(1
)(x)
of the LPA. It is not the LPC's case
that it has delegated its powers to make resolutions to the Executive
Committee. We agree with
Mr Shakoane SC that the power to authorise
the LPC's application for leave to appeal does not lie with the
Executive Committee
of the LPC. It is only the LPC sitting as a full
council that has the power to decide to institute the present
proceedings. Section
6(1)(a)(5) of the LPA provides that:
"POWERSOF
THE COUNCIL
In order to achieve its objects
referred to in section
5,
and having due
regard to the Constitution, applicable legislation and the inputs of
the ombud and parliament, the Council may institute
or defend legal
proceedings on behalf of the Council. These provisions confirm the
LPG
as
the
only body with the power in terms of the LPA to take resolution in
question."
We were referred to
Schierhout
v Union Government (the Minister of Justice)
1919 AD 30
at page 44
in
this regard where the Court stated that:
"When
several persons are appointed to exercise judicial powers, then in
the absence of provisions to the contrary, they must
all act
together; there can only be one adjudication, and that must be the
adjudication of the entire body
.. ..
And
the
same
rule
would apply whenever a number of individuals were empowered by
Statutes to deal with any matter
as
one body; the
action taken would have to be the joint action of all of them
....
For otherwise
they would not be acting in accordance with the provisions of the
Statutes."
[34]
It was argued by Mr
Shakwane furthermore that the principles set out in Schierhout has
been mirrored in
sections 6(2)(a)(i)
and
6
(2)(a)(ii) of the
Promotion
of Administrative Justice Act 3 of 2000
which provide that:
"A court tribunal has the
power to judicially review an administrative action if
-
the
administrator who took it
-
(i)
was not authorised to do
so by the empowering provision;
(ii)
acted on
a
delegation or power which was not
authorised by the empowering provision."
[35]
A multi-member statutory body which acts
without one or more of its members is either not the administrator
created by the empowering
provision, and hence is not authorised to
act by the empowering provision or it is a differently constituted
body acting under
a delegation which was not authorised by the
empowering provision. Either way the acts and decisions of the
partially constituted
body are liable to be set aside on review. The
decision in the Schierhout case
supra
has been followed in the following
cases.
Schoultz v Voorsitter,
Personeel Advieskommittee van die Munisipale Raad van George en
Andere
1983 (4) SA 689
(C) 707H; Judicial Service Commission v Cape
Bar Council
2013 (1) SA 170
(SCA) paragraphs 24 to 30.
Accordingly
the LPC is not properly before the Court. Accordingly this Court is
unable, on that ground alone, to properly consider
its application
for leave to appeal. In the result it is hereby refused with costs.
THE
LPC'S LEAVE TO APPEAL ON THE MERITS
[36]
In paragraph 13 of its application for
leave to appeal the LPC states that the Court erred in finding that:
"2.
1
Mr Nthai made full disclosures of all material aspects of the history
and background of his transgressions
[HC Judgment page 13, paragraph
8 to 10, page 14 paragraph 11]."
These issues have been
dealt with in paragraph 19 supra. At any rate it is of crucial
importance to point out that the LPC:
(i)
did not dispute Nthai's version;
(ii)
placed no other version of the events
set out by Nthai before the Court;
(iii)
did not argue that Nthai's version did
not tally with the transcripts;
(iv)
in fact admitted Nthai's version.
[37]
"The Court erred in finding
that:
14.1.3.1
Mr Nthai's disclosure of his health condition covered
a
material time
when his conduct occurred [HC Judgment page 48 paragraph 59.1]."
The Court is no expert on the
matters raised by the medical experts and in the absence of any
expert reports contradicting Nthai's
medical expert reports the Court
had no other report available to it from which to make any informed
decision.
The LPC submitted no expert
reports of its own and relied simply on the argument by its counsel
who is a layman on such aspects.
[38]
"The Court erred in finding:
5.
1.1 the
allegations of overreaching by Mr Nthai constituted parl and parcel
of Nthai's removal from the roll."
This has already been
dealt with in paragraph 19**
supra.
"5.2.
4 The
disciplinary proceedings in the Gauteng Division Pretoria have not
been finalised."
This allegation is
unsubstantiated. The LPC, despite having being given an opportunity
to do so, failed to place before this Court
any proof of any
outstanding disciplinary proceedings against Mr Nthai. These
allegations by the LPC were not echoed by the PSA
and the JSA.
Neither of the two complained that there was any outstanding
disciplinary proceedings against Nthai.
[39]
(6)
In relation to the applicable law at Nthai's admission:
6.1
The Court erred in finding that:
6.1.1
it was unnecessary for Nthai to serve copies of his application on
the PSA and the JSA. [HG Judgment,
page 63 paragraph 69.1]"
(i)
Firstly,
the LPC has no mandate to ask questions involving the PSA and the
JSA.
(ii)
Secondly,
this is a question of law or fact. The LPC has neither disputed the
provisions of Rule 3A(1)(c) of the Uniform Rules of
Court nor the
Judge President's Practice Directive dated 24 July 2018.
(iii)
This
issue has been dealt with under paragraph [9]
supra.
(iv)
Fourthly,
the LPC has not attempted to explain its role in this application;
why it defied a court order and why it chose to oppose
the
application that was launched on 18 October 2018 when it was not yet
in existence in terms of the LPA.
[40]
We are satisfied therefore that all the
grounds of appeal raised by both the JSA and LPC in their respective
applications for leave
to appeal lack merit. In our view there are no
reasonable prospects of success on appeal and secondly, there are no
valid reasons
why this appeal should be heard. Accordingly we make
the following order:
Both applications for leave to
appeal are refused with costs.
EM MAKGOBA
JUDGE PRESIDENT OF THE
HIGH COURT, LIMPOPO
DIVISION, POLOKWANE
PM MABUSE
JUDGE OF THE HIGH COURT
APPEARANCES
Counsel
for the Applicant
: Adv G Shakoane
SC Adv F Khunou
Adv B Makuya
Instructed
by
: Werksmans Attorneys
c/o
Kgatla Incorporated
Counsel
for the Second Respondent (JSA):
Adv
P Kennedy SC
Adv Y Ntloko
Instructed by:
Edward Nathan
Sonnenbergs Inc.
c/o Pratt, Luyt & Delange
Counsel
for the Fourth Respondent:
Adv T Matau SC
Adv R Tshetlo
Instructed
by:
DMR Attorneys c/o
PMK Tladi & Assciates
Dates
heard:
05 July 2019
Date
of Judgment:
18
July 2019