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[2018] ZAGPPHC 519
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Pretoria Society of Advocates v Van Zyl (13901/2013) [2018] ZAGPPHC 519 (25 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 13901/2013
In
the matter between:
PRETORIA
SOCIETY OF
ADVOCATES
APPLICANT
and
MARGARET
VAN
ZYL
RESPONDENT
JUDGMENT.LEAVE
TO APPEAL
TLHAPI
J
1.
The applicant seeks leave to appeal on grounds that the court
erred in the following manner:
1.1.
In not finding that there were no exceptional circumstances which
would warrant a suspension instead of a removaI from the roll
especially considering the fact that the respondent had made herself
If guilty of dishonesty in more than one respect on different
occasion Including the fact that she attempted to conceal her
conduct, mis
l
ed her
professional colleagues over a long period of time, and misled the
Court under oath:
1.2.
in finding that the respondent had shown remorse and in particular
failed to find that her confessions and admission were only
made
after he had no choice but to produce the full statement of the Blue
Bean credit card which then revealed a different state
of affairs
than what she had falsely maintained all the time from the year 2011
up to March 2014.
1.3.
In overemphasizing the personal circumstances of the respondent and
should have found that the conduct of respondent especially
the fact
that she committed perjury,demonstrated a serious inability to comply
with the high standards ad qualities of integrity
and honesty
expected from an advocate and that the Court could not have been
satisfied that the respondent would be fit and proper
person to
continue to practice as an advocate upon expiry of the period of
suspension and that the appropriate sanction was removal
from the
roll.
1.4.
the Court failed to apply the normal principles in application of
this nature because the unique position of the of the applicant
as
custos morem
of the profession and to award costs on the scale
between attorney and client to the applicant.”
2.
Counsel for the applicant argued that on the facts the court could
not have been satisfied that a suspension instead of a removal
from
the roll was justified. Furthermore,that the high benchmark for a
suspension was that there had to be exceptional circumstances
present
which called for a suspension
,Malan and Another v Law Society,
Northern Province ,2009 (1) 216 (SCA
) at para also
Law Society
of Cape of Good Hope v Peter
(2006) ZASCA,
37.There
were also no
facts present that the respondent would have been rehabilitated after
the period of suspension, especially where the
conduct complained
about was that of dishonesty ,He contended that the appropriate
sanction in the circumstances should have been
a striking from the
roll of advocates.
3.
Counsel for the respondent argued that the application for leave to
appeal was defective in that it had failed to deal with the
issue
whether the court had failed to exercise Its discretion In as far as
the sanction and costs order imposed was concerned,
or that the
discretion was excised capriciously, in applying wrong principles of
the law where bias played a role. In Malan
supra
at para 13
the following was said:
"The
discretion of the court of first Instance ....Is In the nature of a
value judgment. In principle ,a court of appeal is
entitled to
substitute Its value Judgment for that of the court of first instance
if it disagrees. However, this court has. held
consistently that the
discretion involved Is strict discretion, which means that a court of
appeal may only interfere if the discretion
was not judically
exercised.
In
General
Council of the Bar of SA v
Ge
ach
2013
(2) SA 62
(SCA)
Par
74; .the question that felI for
decision
was whether, upon an
evaluation of all the material cicumstances which lnclude the nature
of the conduct complained of, the extent
to which It reflect upon the
person's character or shows him to be unworthy to remain In the ranks
of the honourable profession
the likelihood or otherwise, of a
repetition of such conduct and the need to protect the public, the
advocate should b, barred
for continuing to practice. The manner In
which the court applied the various factors reflects that it
considered some to point
in one direction and others to point in the
other direction and it evaluated each case accordingly. That is
precisely what a proper
exercise of its discretion required.
Para
75: ".,..It was the prerogative of that court to determine what
factors should weigh with. It one way of the other ..
and even
whether no weight should be attached to any one of them at all.
This court is not entitled to interfere only because
it might have
seen things differently”
4.
In my view the main important issue is to determine whether another
court might find differently ,and whether there are grounds
for
interfering with the discretion excised by the court in its
consideration of the facts and by not striking the respondent off
the
roll of advocates. The judgment in my view took all the factors into
consideration and in particular the circumstances under
which the
misconduct took place with regard to the monies of the tea club and
in its consideration Of the sanction.The sanction
given was directed
more at her conduct thereafter and unless it is shown in the grounds
of appeal that such excise of discretion
was capriciously exercised.
I am of the view that another court shall not come to a different
conclusion. In as far as the order
of costs is concerned that the
court did no follow what is normally the practice In such
applications especially where attorneys
are involved, by not awarding
costs as prayed for by the applicant does not mean that such
discretion was not properly exercised.
It is for these reasons that
the application for leave to appeal should be refused,
5.
In the result the following order
is given.
1.The
application for leave to appeal is dismissed with costs.
TLHAPI
V,V, J
(JUDGE
OF THE HIGH COURT)
I,
agree
MAUMELA
T A,J
(JUDGE
OF THE HIGH COURT)