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[2019] ZAGPPHC 310
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Ex Parte: Gawula (31371/2019) [2019] ZAGPPHC 310 (4 July 2019)
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Certain
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
Case No: 31371/2019
4/7/2019
In the
ex parte
application
of:
GAWULA,
NEVILLE
(Identity
No:
[….])
Applicant
(For
his admission and enrolment as a Legal Practitioner in terms of the
Legal Practice Act 28 of 2014
)
JUDGMENT
HF JACOBS, AJ:
INTRODUCTION
AND STATUTORY SETTING:
[1]
The applicant applies for his admission
as a legal practitioner in terms of section 24 of the Legal Practice
Act, 28 of 2014 ("the
LPA")
[1]
and for enrolment as an attorney. When the matter was called and
after considering submissions made on his behalf, the application
was
postponed at the instance of the applicant to enable him to consider
supplementing his founding papers. At the time of the
postponement we
indicated that we would supply reasons and the order later. The
reasons herewith.
[2]
The applicant is a 50-year-old male. On
8 May 2017 the applicant registered a contract of articles of
clerkship in terms of the
provisions of section 5(3) of the Attorneys
Act, 1979 ("the Attorneys Act"). At that time section 4(b)
of the Attorneys
Act, 1979 required from a person intending to serve
under articles of clerkship to submit to the Secretary of the Law
Society concerned,
in addition to other requirements,
"proof
to the satisfaction of the Society that he or she is
a
fit and proper person".
The
rules promulgated in terms of the LPA contain a similar provision.
Such proof is required at two stages of registration.
First,
a prospective practitioner must
satisfy the statutory body concerned (the Law Society before the
advent of the LPA and thereafter
the Legal Practice Council) that, at
the time of registration of his or her contract for articles of
clerkship or contract for
vocational training, he or she is a fit and
proper person. The
second
occasion
on which an applicant has to prove so, is at his or her admission as
an attorney or legal practitioner.
[3]
Rule 17 of the rules promulgated in
terms of the LPA lists,
inter alia,
the documents that must accompany an
affidavit presented by an applicant in support of an application to
Court for admission as
a legal practitioner. Sub-rule 17.2.14 reads
as follows:
"17.2
An application for admission and enrolment in terms of rule 17.1 must
be in writing
and must be accompanied by an affidavit by the
applicant setting out the following information supported, where
applicable, by
documentary evidence:
17.2.1
…
…
17.2.14
confirmation
that the applicant
is
a
fit and proper person to be admitted, including a statement
as
to whether
-
17.2.14.1
the
applicant
has
any
previous criminal convictions or
has
any criminal investigations pending.
If there have been any proceedings
as
contemplated in this sub-rule, or if
any such proceedings are pending, the applicant shall set out full
details thereof·,
17.2.14.2
the
applicant
has
been
subject to previous disciplinary proceedings by the Council or any
Law Society, university or employer, or whether any such
disciplinary
proceedings are pending. If there have been any proceedings
as
contemplated in this sub-rule, or if
any such proceedings are pending, the applicant
shall
set out full details thereof;"
[4]
Section 24 reads as follows:
"24
Admission and enrolment
(1)
A
person may only practise
as
a
legal practitioner if he or she
is
admitted and enrolled to practise
as
such in terms of this Act.
(2)
The
High Court must admit to practise and authorise to be enrolled
as
a legal practitioner, conveyancer or
notary or any person who, upon application, satisfies the court that
he or
she -
(a)
is
duly
qualified
as set
out
in section 26;
(b)
is a-
(i)
South African citizen; or
(ii)
permanent resident in the
Republic;
(c)
is
a
fit and proper person to be
so
admitted; and
(d)
has
served
a copy of the application on the Council, containing the information
as
determined
in the rules within the time period determined in the rules.
(3)
Subject to subsection (1), the
Minister may, in consultation with the Minister of Trade and Industry
and after consultation with
the Council, and having regard to any
relevant international commitments of the Government of the Republic,
make regulations in
respect of admission and enrolment to
-
(a)
determine the right of
foreign legal practitioners to appear in courts in the Republic and
to practise
as
legal
practitioners in the Republic; or
(b)
give effect to any mutual
recognition agreement to which the Republic
is
a party, regulating
-
(i)
the provision of legal
services by foreign legal practitioners; or
(ii)
the admission and
enrolment of foreign legal practitioners.
"
[5]
The enquiry into whether an applicant is
a fit and proper person is a factual one. Factual evidence presented
to a Court does not
have to be accepted by the Court even if the
evidence is unchallenged. Our Courts do not accept evidence at face
value.
[2]
Evidence is accepted if the quality of the evidence allows it to be
accepted.
[3]
[6]
In the assessment of evidence our Courts
distinguish between primary facts and secondary facts. Secondary
facts do not constitute
evidence.
[4]
Inference and conclusions can only be drawn from primary facts in the
context of legal principles.
[5]
Along these principles a Court considering an application for the
admission of a legal practitioner is obliged to make a value
judgment
on the primary evidence placed before it when asked to conclude that
an applicant is a fit and proper person to practise
as an officer of
the Court.
[7]
The sole question a Court has to
consider when it considers an application for admission of a legal
practitioner is whether the
facts placed before the Court show the
applicant to be of such a character that he or she is worthy to be in
the ranks of an honourable
profession. An applicant or his principal
should inform the Court of previous criminal convictions and the
Court should be guided
by the view of the law society concerned.
[6]
The question of a person's fitness to practise as a legal
practitioner is one of discretion. The discretion of the Court in
this
regard is unfettered under common law and in terms of the
LPA.
[7]
If an applicant has exhibited improper or criminal conduct our Courts
distinguish between character defects inherent in an applicant
and
conduct that resulted from a moral lapse brought about by external
pressure.
[8]
A criminal conviction does not
ipso
facto
disqualify a person from
admission. It is against these general principles that the facts of
the present application should be considered.
THE FACTS:
[8]
In his founding papers the applicant
discloses his previous convictions. The relevant passage reads as
follows:
"14.1 During
February 2006, I applied for a position of a Director and November
2007 I applied for a position of
a Chief Director. I unlawfully,
falsely and with intent to defraud the Department of Justice by
submitting two false degrees (ie
Baccalaureus Juris (B.Juris) and
Baccalaureus Legum (LL.B) thereby misrepresenting the Department that
I am the holder of such
degrees.
14.2
I
was immediately suspended from work and disciplinary proceedings were
instituted against me.
14.3
I
never attended the disciplinary hearings as I was a highly
embarrassed and depressed and consequently the disciplinary hearing
proceeded in my absence. I
was
then
found guilty on two counts of fraud and eventually dismissed.
14.4
The
Department then laid criminal charges of fraud against me under
case
number: CAS 146/08/2011.
14.5 I
pleaded guilty to both counts of fraud in terms of
section 112(2)
of
the
Criminal Procedure Act No. 51 of 1977
as
amended and
entered into a plea agreement in terms of
section 105A(1)(b)(i)
of
the
Criminal Procedure Act No. 51 of 1977
as
amended. Attached
hereto and marked
as
annexure 'NG1'
is a copy
of my Plea and Sentence Agreement.
14.6
Following my guilty plea, I
was
consequently
sentenced to 3 (Three) years or 36 (Thirty-Six) months correctional
supervision; 5 (Five) years term of imprisonment
which
was
wholly suspended
for 3 (Three) years
as
well
as
16 (Sixteen)
hours per month of community
services.
I attach hereto a
copy of my sentence marked
as
annexure
'NG2'."
[9]
In his plea and sentence agreement in
terms of
section 105A(1)
of the
Criminal Procedure Act 51 of 1977
the
following summary of the relevant facts appear:
"3.1
In February 2006 and November 2007 the Accused applied to the
Department of Justice and Constitutional
Development for the
posts
of Director:
Policy Research and Co-ordination and Chief: Director Research,
respectively.
3.2
The
Accused unlawfully, falsely, with the intent to defraud and to
prejudice or potential prejudice of the Department of Justice
and
Constitutional Development, gave out and pretended that he
is
the holder of degress of Baccalaureus
Juris and Baccalaureus Legum.
3.3
By
means of the aforementioned misrepresentations he induced the
Department of Justice and Constitutional Development to employ
him as
Director: Policy Research and Co-ordination and Chief- Director
Research."
[10]
The balance of the evidence shows that the applicant was employed by
the Department of Justice
as Chief Director from 2006 until 2012 when
he was dismissed . For years he lived with his fraud and did not
bother to appear at
his disciplinary hearing when held accountable.
The applicant does not
"set out full details"
of his
fraud. Not a shred of evidence is presented of when and how he misled
his erstwhile employer. Did he mislead his employer
twice? Once in
February 2006 and once in November 2007? In his 29 page founding
affidavit the applicant quotes legislation and
refers to other
matters but deals with his previous convictions in less than two
pages. The applicant annexes psychologists' report
and testimonials
of university staff but no detail is supplied of the charges he faced
during his disciplinary hearing which took
place at the end of his
fraudulent conduct. No detail is given whether the applicant was
caught or whether he confessed of own
accord to his crimes. No facts
are supplied how and on what income the applicant and his family
lived since his dismissal or whether
or not he obtained other
employment.
[11]
The plea and sentence agreement show
that to have been finalised during September 2012. In paragraph 16.2
of his founding affidavit
the applicant states that:
"In
January 2013 I registered for
a
4
(Four) LL.B. degree at University of Witwatersrand (Wits University).
In December 2016 I completed the LL.B. degree within 4 (Four)
years
and the said LL.B. degree was awarded to me by Wits University, after
I complied with all the requirements thereof."
The
applicant, therefore, earned an income determined by his
misrepresentations to his erstwhile employer for more than half a
decade. After his dismissal he went to university to complete his
LL.B. degree after a three month break.
[12]
In paragraph 17.3 of the same affidavit
the applicant states that he made
"full
disclosure and presentation regarding the circumstance surrounding
[his] previous convictions."
The
disclosure the applicant allegedly made to the Law Society is not
attached to the founding papers. It is not clear what the
disclosure
comprised. That evidence is, in my view, crucial in the application
for admission to place the Court in a position to
consider whether
the applicant is a fit and proper person to be admitted. No
information whatsoever is supplied by the applicant
in his founding
affidavit who the members of the committee or council of the Law
Society were at the time who considered him to
be a fit and proper
person. No record of those proceedings, no decision or any other
evidence in that regard is supplied by the
applicant. The applicant's
papers seem to have been formulated to present evidence that
registration of his contract of articles
of clerkship by the law
society lends his application for admission to Court a modicum of
merit.
[13]
The applicant finds himself in a
position similar to that of a practitioner who had been struck from
the roll of attorneys and who
has to convince a Court that he has
expressed contrition and repentance and furthermore to convince that
his expression of contrition
and repentance are genuine. The
following dictum of the Supreme Court of Appeal in
Swartzberg
[9]
is in our view apposite:
“
[28]
The appellant had a heavy onus to discharge. He had to prove to the
satisfaction of the court that, by reason of his complete
and
permanent reformation, he
is
in
no way likely to fail in the future to discharge all of the
obligations appertaining to his profession. In the
case
of
a serious defect of character, reformation
is
known
to be
difficult
and, therefore, to establish reformation
as
sufficiently
probable, might require more cogent evidence than in respect of a
less
serious
fault. (Kudo v Cape Law Society
1977
(4) SA 659 (A)
at
6760
-
E.)
Little, if anything,
is
put
forward by the appellant that might mitigate the heinousness of his
conduct. Moreover, it must count against the appellant that
his
misdeeds were committed when he
was
no
longer a young man. For, even at that mature age, the appellant
was
lacking
in the
most
basic
standards of his profession. He displayed a contempt for the law, the
courts and for honest dealings with his clients, at
least one of whom
occupied a position of particular vulnerability in relation to him.
Simply put, the appellant
was
everything
that an attorney ought not to be.
[29]
To the extent that the appellant
suggests
that
he
has
atoned
for his wrongdoing, the atonement, in my view, was neither
spontaneous nor voluntary, but rather contrived and induced by
a
desire for self preservation. Thus, for example, the appellant
has never, in the many years that have since passed, contacted
either
Mr Bambise or any of the other victims of his misdeeds to ascertain
whether the fidelity fund of the Law Society
has
made good the financial loss suffered at
his hands.
[30]
Where the professional misconduct
consists, as
here,
of theft, one would imagine that it would be relatively
easy
to establish that the person has
undergone complete and permanent reformation. That could be done by
placing evidence before a court
that the individual concerned
has
for
some
length of time handled money without
supervision and
has
proved
his honesty. Obviously in the light of his somewhat chequered work
history since the striking-off, no such evidence could
have been
adduced.
[31]
It
would be no exaggeration to say that, on such evidence as there is,
the appellant has demonstrated a propensity toward inherent
dishonesty. It may, in those circumstances, perhaps be postulated
that the nature of the appellant's original lapse speaks of a
defect
of character incapable of reformation. But, to go so far as accepting
such immutability of character may well be unnecessary.
For in a case
such as this, where proof of complete and permanent reformation is
difficult because of the moral turpitude of the
misdeeds committed by
the appellant, the evidence tendered by the appellant falls far short
of that proof.
[32]
Where
a person is struck off the roll for the kind of conduct encountered
here, he must realise that his prospects of being readmitted
to what
after all is an honourable profession, will be very slim indeed. Only
in the most exceptional of circumstances, where he
has worked to
expiate the results of his conduct and to satisfy the court that he
has changed completely, will a court consider
readmission at all
(Visser v Cape Law Society
1930 CPD 159
at 160).”
[10]
[14]
The same onus has to be discharged by an
applicant for admission as a legal practitioner if he or she had been
convicted of fraud.
A conviction of fraud has several consequences in
law. It may lead to a disqualification to become a director of a
company,
[11]
register as a public accountant,
[12]
practice as an architect,
[13]
practise as an engineer,
[14]
obtain a Fidelity Fund Certificate in terms of the Estate Agency
Affairs Act
[15]
to mention a few. The following dictum in
Geach
[16]
illustrates the underlying
principle:
"Lawyers, because of the
adversarial nature of litigation in this country, will never be
universally loved by the public. That
is
not to suggest
that
as
members
of a distinguished and venerable profession they do not occupy a very
important position in our society. After all they
are the
beneficiaries of a rich heritage and the mantle of responsibility
that they bear
as
protectors of our
hard-won freedoms
is
without parallel.
As
officers
of our Courts lawyers play a vital role in upholding the Constitution
and ensuring that our
system
of justice
is
both efficient
and effective. It therefore stands to reason that absolute personal
integrity and scrupulous honesty are demanded
from each of them. It
follows that generally
a
practitioner who
is
found
to be dishonest should in the absence of exceptional circumstances
expect to have his name struck from the roll."
[15]
In the same judgment
[17]
Wallis and Leach JJA stated the following:
“
A
person
can only be admitted to practise
as
an
advocate if they satisfy the Court that they are
a
fit and proper person to be admitted
as
such. Central to the determination of that
question, which
is
the
same
question that
has
to be answered in respect of attorneys,
is
whether the applicant for admission
is
a person of 'complete honesty, reliability and
integrity'. The Court's duty
is
to
satisfy itself that the applicant
is
a
proper person to be allowed to practise and that admitting the
applicant to the profession involves 'no danger to the public and
no
danger to the good name of the profession.
...
The
need for absolute
honesty and integrity applies both in relation to advocates' duties
to their clients and their duties to the Courts.
In the past,
applicants for admission as an advocate, who were unable to
demonstrate those qualities of honesty and integrity,
had their
applications refused.”
In
our view those requirements apply to all legal practitioners.
[16]
The evidence relied on by the applicant
includes testimonials or statements by a clinical psychologist and a
mentor. The opinions
therein expressed constitute, in our view,
secondary evidence in an application for admission. Such evidence can
only be considered
in proper context of the primary facts relevant to
the conduct of the applicant that led to his conviction and
dismissal. Those
primary facts are not set out by the applicant. The
applicant has not
"set out full
details"
of his misconduct.
[17]
On his or her admission a legal
practitioner takes the following oath or affirmation:
“
I
swear/affirm that I will truly and
honestly
demean myself in the practice
of
LEGAL PRACTITIONER
According to the best of my
knowledge and ability;
And further that I will be
faithful to the Republic of South Africa.
Will uphold and protect the
Constitution and the human rights entrenched in it,
And will administer justice to
all person without fear, favour or prejudice,
In accordance with the
Constitution and the Law."
[18]
By making the oath a legal practitioner
undertakes to do and to act in the manner our law expects of him or
her. A legal practitioner
is a guardian of the law. Our Courts rely
on the honesty and integrity of its officers. Our Courts should never
have to doubt the
honesty and integrity of those whose names appear
on the roll of legal practitioners. The LPA imposes a duty on the
Legal Practice
Council and records the objects of the Legal Practice
Council in Chapter 2 of the LPA. The objects of the Legal Practice
Council
include the obligation to promote and protect the public
interest, regulate all legal practitioners and all candidate legal
practitioners,
enhance and maintain the integrity and status of the
legal profession, determine, enhance and maintain appropriate
standards of
professional practice and ethical conduct of all legal
practitioners and all candidate legal practitioners and to uphold and
advance
the rule of law, the administration of justice, and the
Constitution of the Republic.
[18]
[19]
The Legal Practice Council, like its
predecessors, the Law Societies, features as
censor
morum
of the profession. It guards
the guardians and should in applications such as the present one
insist that an applicant places all
available evidence before Court
to enable the Court to exercise its statutory function to determine
whether an applicant before
it is a fit and proper person to be
admitted and enrolled as a legal practitioner. The Legal Practice
Council failed to do so in
the present application and should assist
in the administration of the LPA. We make an order that will, in our
view, guide the
Legal Practice Council in that regard.
[20]
Had senior counsel who appeared for the
applicant not requested the postponement we would have dismissed the
application for admission.
Under
the circumstances we make the following order
:
1.
The
applicant's application for admission shall not be enrolled before
the applicant has served on the Legal Practice Council and
placed on
the court file the following documents:
1.1.
all
documents presented by the applicant or on his behalf to the Law
Society of the Northern Provinces prior to and during his application
to the said law society to register his articles of clerkship
attached to the founding papers as annexure "NG10";
1.2.
the
full record of the proceedings before the Law Society of the Northern
Provinces and the reasons for its decision when it registered
the
applicant's contract of articles of clerkship attached to the
applicant's founding affidavit as annexure "NG10";
and
1.3.
an
affidavit of the Director-General of the Department of Justice and
Constitutional Development, or a person designated by the
said
Director-General, supplying full details of the applicant's
employment by the said Department and to supply a copy of all
documents presented by that department to the Prosecuting Authority
which led to the applicant's conviction of fraud as set out
in his
founding affidavit.
H
F JACOBS
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
I
agree.
T
A N MAKHUBELE
JUDGE
OF THE HIGH COURT
PRETORIA
[1]
The LPA came into operation on 31 October 2018.
[2]
ABSA
v Bernert
2011 (3) SA 74 (SCA).
[3]
Siffman v Kriel
1909 TS 538;
Katz v Bloomfield
&
Keith
1914
TPD 379;
MacDonald v Young
2012 (3) SA 1
(SCA) at [6].
[4]
Die Oros (Edms) Bpk
&
Another v Telefont Beverages
&
Others
2003 (4) SA 207 (C).
[5]
Moraitis Investments (Pty) Ltd
&
Others v Mantic Dairy
Ltd
2017 (5) SA 508
(SCA) at [34].
[6]
Ex parte Mpondo
1962 (4) SA 324 (E).
[7]
Ex parte Aarons (Law Society, Tvl,
Intervening)
1985 (3) SA 286 (T); Section 44 of the
LPA.
[8]
Law Society, Cape v Peter
2009 (2) SA 18 (SCA).
[9]
Swartzberg v Law Society, Northern Provinces
[2008] ZASCA 36
;
2008 (5) SA 322
(SCA) at
[28]
- [32].
[10]
See also
Law Society, Transvaal v
Behrman
1981 (4) SA 538 (A) at 5578-C;
Kudu v Cape Law Society
1972 (4) SA 342
(C) at 345H-346A;
Ex
parte Aarons (Law Society, Transvaal, Intervening)
1985 (3) SA
286
(TPD) at 300G;
Aarons v Law Society of Transvaal
(Society of Advocates of Witwatersrand Intervening)
1997 (3) SA
750
(TPD) at 7568.
[11]
Section 69
of the
Companies Act, 71 of 2008
.
[12]
Section 37(2)(d) and (3) of the Auditing Professions Act 26 of 2005.
[13]
Architectural Professions Act, 44 of 2000.
[14]
Section 19(3)(a) of the Engineering Professions Act 46 of 2000.
[15]
Section 27(a)(ii) of Act 112 of 1976;
Estate Agency Affairs Board
v Mclaggan
&
Another
2005 (4) SA 531 (SCA).
[16]
General Council of the Bar of SA v Geach
&
Others
2013
(2) SA 52
(SCA) at par 87.
[17]
See paragraph 126.
[18]
See section 5 of the LPA.