About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 28
|
|
Northern Cape Society of Advocates v Mziako (1637/17) [2018] ZANCHC 28 (1 June 2018)
Reportable:
YES
/
NO
Circulate
to Judges:
YES
/
NO
Circulate
to Magistrates:
YES
/
NO
Circulate
to Regional Magistrates:
YES
/
NO
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
CASE NO: 1637/17
In
the matter between:
NORTHERN
CAPE SOCIETY OF
ADVOCATES
Applicant
v
MOSES
SIPHO
MZIAKO
Respondent
Judgment:
Tlaletsi
JP
Heard
on:
19
April 2018
Decided
on:
01
June 2018
Coram:
Tlaletsi
JP, Williams ADJP
JUDGMENT
TLALETSI
JP (Williams ADJP concurring)
Introduction
[1]
This
is an application by the Northern Cape Society of Advocates to have
the name of the respondent, Mr Moses Sipho Mziako, struck
off the
roll of advocates held by the Director General of Justice in terms of
s 8 of the Admission of Advocates Act
[1]
(the Act) and that he be ordered to pay the costs of this application
on the scale of attorney and own client.
[2]
An
interim order interdicting and restraining the respondent from
practising as an advocate pending the finalisation of the application
was granted on 21 July 2017
[2]
.
The operation of the interim order has been extended several times
mainly at the instance of the respondent, the reason
being,
inter
alia
,
that his counsel was not available.
Factual
Background
[3]
The
factual background leading to the present application is largely
common cause. The respondent was admitted as an advocate
of
this Court on 30 August 2013 in terms of s 5 of the Act.
In his application for admission as an advocate, the
respondent
stated that he resides at number: 30 FG Mankhanyi Street, Valspan
Township: Jan Kempdorp. In addition he
inter
alia
made the following averments which are partly the basis of the
present application:
“
5.
I
am a law abiding citizen and have no record or pending criminal case
against me.
I
am not a practicing attorney and at no time was I struck off the Roll
of Advocates or Attorneys.
6.
I
am truthfully and faithfully unaware of any circumstances or any
reason thereof that could prevent the above Honourable Court
to grant
me such order to practice as an Advocate.
”
And
that:
“
10.1
My estate has never been sequestrated nor is there any proceedings
contemplated and/or pending for sequestrating
my estate.”
10.2
I
submit that I am a fit and proper person to be admitted as an
Advocate and I am unaware of any fact that may adversely affect
my
status of being fit and proper person.”
[Emphasis provided]
It is common cause that the
respondent’s application for admission as an advocate was not
opposed by the applicant.
The applicant through its secretary
issued a letter to the Registrar indicating that the society had no
information that indicate
that the respondent is not a fit and proper
person to be admitted as an advocate.
[4]
It
would appear that the respondent commenced practice as an advocate in
the Pretoria area and was not affiliated to any Bar or
an Association
affiliated to the General Council of the Bar of South Africa.
What triggered the process that led to the current
proceedings is a
complaint by Mr J R Jantjies, a Senior Magistrate in Ga-Rankuwa,
Gauteng Province. The Senior Magistrate
had some concerns
regarding the respondent’s admission as an advocate. He
wrote to the former Judge President of this
Division on 30 May 2017
stating,
inter
alia
,
that the respondent failed to disclose in his supporting affidavit
for admission as an advocate of this Court that he had been
convicted
of a number of counts of fraud, theft and corruption in the Regional
Court, Pretoria; that he was sentenced to 25 years
imprisonment which
was on appeal to the then Transvaal Provincial Division reduced to 18
years and that he served the reduced sentence.
My predecessor
referred the Senior Magistrate’s complaint to the applicant for
investigation and to take whatever steps they
deem necessary under
the circumstances.
[5]
The
applicant sought assistance of the North West Bar Association in its
investigations against the respondent. It happened
that on 21
June 2017 the respondent was at the North West Division of the High
Court, Mahikeng to handle a bail appeal matter.
He was
confronted by Mr JHR Pistor SC, the chairperson of that Bar.
The latter asked him if he is the person referred to
in the letter
from the Senior Magistrate and whether he has a record of previous
criminal convictions. The respondent answered
both questions in
the affirmative.
[6]
It
since came to light from the investigations conducted by the
applicant that during 2011 the respondent launched an application
in
the KwaZulu-Natal High Court to have him admitted as an
advocate and his application was allocated case number 4908/11.
During the screening period the Society of Advocates of KwaZulu-Natal
issued a letter dated 15 June 2011 to both the Registrar
and the
respondent requesting certain specified information about the
respondent as it was of the view that his application was
still
deficient after he filed a supplementary affidavit as requested.
[7]
The
information required was intended to assist in determining whether
the respondent was a fit and proper person to be admitted
as an
advocate especially that he had indicated in his supplementary
affidavit that he is “
unaware
of any fact that may adversely affect [his] status of being a fit and
proper person
”.
Further information required from the respondent was,
inter
alia
,
the following:
7.1
Full
disclosure of information relating to the Government Gazette record
that on 26 July 2007 judgment was obtained by ABSA bank
in the then
Bophuthatswana Provincial Division in which immovable property in the
Rustenburg District was attached.
7.2
Full
disclosure relating to a judgment in favour of Changing Tides 17
(Pty) Ltd N.O. against him and one ME Mziako and the
subsequent
dismissal of his application for leave to appeal.
7.3
To
disclose any further court actions against him.
7.4
To
confirm if he is the person who was convicted and ultimately
sentenced to 18 years imprisonment for fraud, theft and corruption;
that he must provide a copy of the entire record of his criminal
trial and any subsequent appeals; a record of all the Department
of
Correctional Services’ recommendations concerning his sentence;
copies of the reports and recommendations by his parole
officers and
superiors that led to his release from prison.
7.5
That
since it appeared that the respondent had never resided in
KwaZulu-Natal, he must confirm that he has never made an application
to be admitted as an advocate in any other province of South Africa
where such an application was either refused or not proceeded
with
for any reason, and to make a full disclosure of exactly what
transpired.
The letter
concluded that the Society would reconsider its position regarding
the applicant’s application for admission upon
him filing a
supplementary affidavit and providing the required information. The
only reasonable conclusion in these circumstances
is that the
KwaZulu-Natal Association of Advocates was not supporting the
respondent’s application unless the issues raised
in the letter
were satisfactorily sorted out.
[8]
On 23
June 2011 the Chairperson of the Society of Advocates of
KwaZulu-Natal wrote to the Pretoria Society of Advocates alerting
them of the respondent’s application for admission as an
advocate in KwaZulu-Natal High Court. The letter provided
background information and expressed a suspicion that the respondent
is unlikely to proceed with the application as he did with
his
application to the North Gauteng High Court, Pretoria under case no
57340/10 which was set down for hearing on 22 November
2010.
[9]
It is
common cause, and as suspected by the Society of Advocates of
KwaZulu-Natal, that the respondent did not pursue his application
for
admission to the KwaZulu-Natal High Court. He in fact withdrew
the application. The date of hearing of the application
was 27
June 2011.
[10]
On 24
June 2011 the General Council of the Bar of South Africa circulated
the letter from the Society of Advocates of KwaZulu-Natal
to the
Registrar and the respondent to its constituent Bars in the Republic
with a view to alert them about the respondent should
he bring his
application for admission as an advocate in any other Division of the
High Court in the Republic. I pause to
deal with the parties’
contentions.
Parties’
Contentions
[11]
The
applicant contends that the respondent intentionally failed to
divulge any particulars regarding his criminal record in his
founding
affidavit used in support of his application for admission as an
advocate by this Court; that he wilfully and intentionally
lied under
oath and thereby committed perjury by stating in the said application
that “
I
am a law abiding citizen and have no record or pending criminal case
against me”
;
that he wilfully and intentionally misled the Court and in fact
committed fraud upon the Court by stating that “
I
am truthfully and faithfully unaware of any circumstances or any
reason thereof (sic) that could prevent the above Honourable
Court to
grant me such order to practice as an Advocate”.
[12]
The
applicant contends further that in view of the above facts, the
respondent has shown such a degree of dishonesty that he could
never,
under these circumstances, have been considered to be a fit and
proper person to be admitted as an advocate of the
High Court of
South Africa; that when the applicant issued a letter indicating to
the Court on 28 August 2013 that it had no information
to the effect
that the respondent is not a fit and proper person to be admitted as
an advocate it was unaware of the facts that
have now come to the
fore; that had the applicant or any of its members been aware of
these facts it would have definitely opposed
the respondent’s
application for admission as an advocate by this Court; and that his
application undoubtedly would have
been unsuccessful.
The
Points
In Limine
[13]
At
the hearing of the application two points
in
limine
were
raised on behalf of the respondent. It was contended that this Court
lacks the necessary jurisdiction to entertain this application
in
that the respondent, though admitted by this Court to practice as an
advocate, conducts his practice in Pretoria, which is outside
the
jurisdiction of this Court. Secondly, it was contended, it had to be
the Society of Advocates in Pretoria where the complaint
came from
and not the applicant that should launch the application against the
respondent.
[14]
It is
apposite to dispose of the points
in
limine
at this stage as I find them to be without merit. Section 7 of
the Act provides that:
“
7.
Suspension of advocates from
practise and the removal of their names from the roll of advocates
(1)
Subject to the provisions of any
other law,
a court of any division may, upon application, suspend
any person from practice as an advocate or order that the name of any
person
be struck off the roll of advocates -
(a)
in the case of a person who was admitted to practise as an advocate
in terms of sub-section
(1) of section three or is deemed to have
been so admitted -
(i)
if he has ceased to be a
South African citizen; or
(ii)
in the case of a person who is
not a South African citizen as contemplated in subparagraph
(iii), ,
if he has failed to obtain a certificate of naturalization in terms
of the South African Citizenship Act, 1949 (Act No.
44 of 1949),
within a period of six years from the date upon which before or after
the commencement of this sub-paragraph he was
admitted to the
Republic for permanent residence therein or within such further
period as the court either before or after the
expiration of the said
period for good cause may allow; or
(b)
(Section
7(1)(b) substituted by section 2 of Act 73 of 1965 and deleted by
s. 2 of Act 33 of 1995))
(c)
in the case of a person who was admitted to practise as an advocate
in terms of section
five, if it appears to the court that he has
ceased to reside or to practise as an advocate in the designated
country or territory
in which he resided and practised at the time of
his admission to practise as an advocate of the Supreme Court or that
that country
or territory has ceased to be a designated country or
territory for the purposes of the said section; or
(d)
if the court is satisfied that
he is not a fit and proper person to continue to practise
as an
advocate; or
(e)
on his own application.
(2)
Subject to the provisions of any
other law, an application under paragraph (a), (b), (c)
or (d) of
subsection (1) for the suspension of any person from practice as an
advocate or for the striking off of the name of any
person from the
roll of advocates may be made by the
General Council of the Bar of
South Africa or by the Bar Council or the Society of Advocates for
the division which made the order
for his or her admission to
practise as an advocate
or where such person usually practises as
an advocate or is ordinarily resident, and, in the case of an
application made to a division
other than the South-West Africa
Division of the Supreme Court of South Africa under paragraph (c) of
sub-section (1), also by
the State Attorney referred to in the State
Attorney Act, 1957 (Act No. 56 of 1957),
(3)
Any person having chambers in
any place shall be deemed for the purposes of sub-section
(2) to be a
person usually practising in that place.
(4)
Any person who has been
suspended from practice as an advocate under this Act or any other
law, whether before or after the commencement of this Act, shall for
the duration of such suspension, and any person whose name
has been
ordered under this Act or any other law to be struck off the roll of
advocates, shall, while his name remains removed
from the said roll,
not be entitled to practise as an advocate.
(5)
Upon receipt of the order of a
court of any division whereby the name of any person has
been ordered
under this Act or any other law to be struck off the roll of
advocates, the Director-general : Justice shall
cause the name
of such person to be removed from the said roll.”
[Emphasis added]
[15]
The
Act empowers a court of any division to suspend from practice or
strike off the roll of advocates upon application by,
inter
alia
,
the General Council of the Bar of South Africa or by the Bar Council
of the Society of Advocates for the division which made the
order for
his or her admission to practice as an advocate or where such person
usually practices as an advocate or is ordinarily
resident. The
respondent was admitted to practice as an advocate by this division
and as such this Court has jurisdiction
to entertain this matter.
Similarly, the applicant is a Society of Advocates for this division
as defined in s 7(2)
of the Act and as such has the
locus
standi
to bring this application.
[3]
[16]
The
points
in
limine
regarding
the applicant’s
locus
standi
to
launch this application and further that this Court lacks
jurisdiction to entertain the application should therefore fail.
The
Merits
[17]
The
respondent is opposing the application to strike his name off the
roll of advocates on three grounds. Firstly, that an
advocate
can only be struck off the roll of advocates upon misconduct or
criminal offences committed post admission. He contends
that
since his admission as an advocate there has never been any
complaints of misconduct or criminal convictions against him and
as
such there is no basis for his name to be struck off the roll of
advocates. Secondly, he contends that a criminal record
is not
per
se a
bar to admission as an advocate. Thirdly, the respondent
contends that the applicant was negligent in not opposing his
application
for admission as an advocate and cannot now approach this
Court seeking an order that his name be struck off the roll of
advocates.
Is
the relief sought incompetent?
[18]
In
terms of the first defence, the respondent in essence contends that
the relief sought by the applicant, of having his name struck
off the
roll of advocates, is incompetent and that the applicant should
instead have applied for the rescission of the order admitting
him as
an advocate of this Court and not that his name be struck from the
roll of advocates.
[19]
Section
7(1)(d) empowers a court of any division upon application to suspend
any person from practice as an advocate or order that
the name of any
person be struck of the roll of advocates if the court is satisfied
that he is not a fit and proper person to continue
to practise as an
advocate.
[20]
It is
for the party seeking relief in terms of s 7(1) to place facts
that will satisfy the Court that the respondent party
is not a fit
and proper person to continue to practice as an advocate. The
issue is therefore not whether is it competent
for a Court to order
striking off the roll or suspension from practice as an advocate, but
whether a case for the suspension or
striking of the party’s
name from the roll on the basis that he is not a fit and proper
person to continue to practice as
an advocate has been made out. It
depends on the type of application and the facts placed before Court
for the relief sought.
A party may still apply for rescission
of the court order admitting a party as an advocate. For
the rescission of the
order to be granted certain essential
requirements provided by Rule 42(1)(a), must be satisfied before a
Court can grant the order
for rescission. It does not follow
that just because certain facts may prove that a party is not a fit
and proper person
to be admitted as an advocate they may not be used
if it is later discovered that they were withheld from the Court
hearing an
application for admission, in a subsequent application to
have such a party suspended or struck of the roll of advocates.
[21]
In
Kekana
v Society of Advocates of South Africa
[4]
it was held that:
“
In
terms of
sec 7(1)
of the
Admission of Advocates Act 74 of 1964
, as
amended, the Court may suspend any person from practice, or order
that the name of any person be struck off the roll, if it
is
satisfied that he is not a fit and proper person to continue to
practise as an advocate. The way in which the Court had to deal
with
an application for the removal of an attorney's name from the roll
under a similar provision in the Attorneys, Notaries and
Conveyancers
Admission Act 23 of 1934, as amended, (before that Act was repealed),
was considered in Nyembezi v Law Society, Natal
1981(2) SA 752 (A) at
756H-758C. It emerges from the judgment that the Court first has to
decide whether the alleged offending
conduct has been established on
a preponderance of probability and, if so, whether the person in
question is a fit and proper person
to practise as an attorney.
Although the last finding to some extent involves a value judgment,
it is in essence one of making
an objective finding of fact and
discretion does not enter the picture. But, once there is a finding
that he is not a fit and proper
person to practise, he may in the
Court's discretion either be suspended or struck off the roll.
This
is plainly how an application for the removal of a person's name from
the roll of advocates must also be handled.”
[5]
[22]
At
the time when the order admitting and directing the enrolment of the
respondent as an advocate the Court made an order based
on the
uncontested facts that were placed before it. There was nothing
before Court that would have indicated that the respondent
may not be
admitted as an advocate. The Court, as it is the practice,
relied on the fact that the respondent was expected
to be honest and
truthful to the Court. It is for that reason that the order
made on that day states “
It
APPEARING that MOSES SIPHO MZIAKO is duly qualified in terms of the
Admission of Advocates Act, 1964 (Act 74 of 1964) to be admitted
and
authorised to practise and to be enrolled as an advocate of the High
court of South Africa… ”
The circumstances that made it possible for the respondent to be
admitted as an advocate may change and it is for that reason
that the
legislature made room for a Court to determine whether he/she is a
fit and proper person to continue to practise as an
advocate.
[23]
The
respondent’s contention that the relief that the applicant
should have sought is rescission and not striking off the roll
loses
sight of the nature of the proceedings instituted in terms of s 7(1)
of the Act. The issue was succinctly described
by Kroon J in
the
General
Council of the Bar of South Africa v Matthys
[6]
as follows:
“
[4](1)
The proceedings are not ordinary civil proceedings, but are sui
generis in nature: they are proceedings, of a disciplinary
nature, of
the Court itself, not those of the parties; the Court exercises its
inherent right to control and discipline the practitioners
who
practice within its jurisdiction; the applicant, in bringing the
application, acts pursuant to its duty as custos morum of
the
profession; in the interests of the Court, the public at large and
the profession, its role is to bring evidence of a practitioner's
misconduct before the Court, for the latter to exercise its
disciplinary powers; the proceedings are not subject to all the
strict
rules of the ordinary adversarial process. Society of
Advocates of South Africa (Witwatersrand Division) v Edeling 1998 (2)
SA
852 (W) at 8591 et seq.
(2)
Evidence which would have been inadmissible in 'civil proceedings'
may be considered in disciplinary proceedings against a practitioner
in the High Court. Incorporated Law Society, Transvaal v Meyer and
Another
1981 (3) SA 962
(T) at 968F.”
[24]
The
further submission on behalf of the respondent that the applicant has
failed to make an averment to the effect that the Court
has
jurisdiction in its founding affidavit is therefore without merit.
This case is distinguishable from cases where a party
was admitted as
an advocate when he/she did not have the prescribed academic
qualifications. In
casu
the
respondent’s academic qualifications are not questioned.
It is his character that is in issue. I now proceed to
consider the
facts placed on record from which it has to be determined whether the
respondent is a fit and proper person to continue
to practise as an
advocate.
Is the respondent a fit and
proper person to continue to practise as an advocate?
[25]
The
circumstances relating to the respondent’s previous convictions
were aptly captured in the judgment on appeal by Hartzenberg
J in
Mziako
v S
[7]
as follows:
[1] The
appellant was charged with a number of counts of fraud, theft and
corruption in the Regional Court, Pretoria.
He was found guilty on 13
counts of fraud, 11 counts of theft of motor vehicles, one count of
theft of a motor vehicle engine and
five counts of corruption. On 30
August 1995 he was sentenced as follows: four years' imprisonment on
each of the 13 counts of
fraud, five years' imprisonment on each of
the 11 counts of theft of motor vehicles, three years' imprisonment
on the conviction
of theft of the motor vehicle engine and three
years' imprisonment on each of the five counts of corruption. The
total sentence
of imprisonment amounted to 125 years. The magistrate
took the cumulative effect into account and ordered that in terms of
section
280 (2) of Act 51 of 1977 "the serving of the periods of
imprisonment on the various counts must run concurrently to such an
extent that the accused will serve an effective period 25 years
imprisonment".
[2] The
appellant immediately noted an appeal. He encountered various
obstacles. He did not make it easy for himself
in that he brought
numerous applications in person. Some of them had to do with his
appeal but others related to other relief sought
by the appellant. To
put it mildly, the appellant was a regular litigant in the motion
court. One of the quaintest applications
with which I had to deal was
his unsuccessful application to be admitted as a conveyancer for the
registration of a single transfer.
He is not an attorney nor has he
written any conveyancing examinations, not to mention the question of
his previous convictions
as a negative factor in respect of the
question whether he is a fit and proper person to be admitted as a
conveyancer. I must say
though that on each occasion that he appeared
before me he was very polite and soft spoken.
[3] Swart
J dealt with some of the applications and as a result of his judgment
and order the appeal eventually became
ripe for hearing. See Mziako
v Director of Public Prosecutions, Transvaal and another, 2001 (2)
SACR 231 (T).
In this regard it is of interest to bear in
mind that the appellant was arrested on 21 April 1993 and remained in
prison as an
awaiting trial prisoner until he was sentenced on 30
August 1995 and has been in prison ever since, despite various
applications
to be let out on bail before and after conviction. The
record of the proceedings in the court a quo comprises
thousands
of pages and the judgment alone runs into 610 pages.
[4] Although
the appellant's appeal was initially both against conviction and
sentence it is clear that the appellant
and the state came to an
agreement to the effect that if he abandons his appeal against the
convictions the state will support
his appeal against sentence. He
withdrew his appeal against the convictions, in my view wisely so.
The state case against him was
overwhelming. The situation is that
between June 1990 and April 1993 the appellant conducted a nefarious
business consisting of
persuading financial institutions that
hire-purchase agreements with various individuals, mostly relatives
or acquaintances of
his, were bona fide agreements where in
fact the agreements were only utilized to get physical possession of
the vehicles.
The vehicles were resold both within and outside the
country. The identity of quite a number of the vehicles was changed
and false
clearances were obtained by bribing the relevant officials.
In a few instances he swindled owners of second hand vehicles out of
the possession of the vehicles and appropriated the vehicles. Except
in the case of count 28, which was withdrawn, the State led
the
evidence of all the relevant witnesses. The magistrate evaluated the
evidence carefully and gave the appellant the benefit
of the doubt
generously. The appellant was acquitted on a number of the charges.
The judgment is painstakingly thorough and in
my view unassailable.
[5] When
the magistrate imposed the sentence an equally through evaluation of
all the relevant factors was made. At that
stage the appellant was 44
years old, married and had three children. He had been found guilty
of fraud on four previous occasions
ie during 1981, 1984 and twice
during 1987. The period of suspension, of a sentence of imprisonment
imposed during 1988, had not
yet expired when the first of these
offences were committed. The magistrate refused to regard the ease
with which the appellant
defrauded the financial institutions as a
mitigating factor and in my view correctly so. He said that he took
the fact that the
accused had been in prison for more than two years,
awaiting trial, into account, as a mitigating factor.”
[26]
It is
therefore common cause that the respondent has a record of serious
criminal convictions involving dishonesty. The respondent
asserts in his affidavit opposing this application that a record of a
criminal conviction does not prohibit a person from being
admitted as
an advocate and that “
a
criminal record is not an insurmountable obstacle to a successful
application for admission
.”
This remark says a lot about the character of the respondent and his
ability to appreciate the requirement of honesty
for a person
practising as an advocate. The fact that the crimes of fraud,
theft of motor vehicles and corruption were carefully
planned and
manipulated is clear from the judgment of Hartzenberg J referred to
above. A diligent and honest advocate in
the position of the
respondent would have known that these are serious crimes involving
dishonesty of the highest order and that
taken together with his
other four previous convictions of fraud, it would take a miracle, if
possible, to satisfy a court that
he is a fit and proper person to
either be admitted or allowed to continue to practise as an
advocate. It is telling therefore
that the respondent can make
this assertion under oath.
[27]
In
General
Council of the Bar of South Africa v Matthys
[8]
it was emphasised that the respondent’s conduct is relevant in
determining whether he is a fit and proper person. The
court
went on to hold:
“
[34]
At the outset, it should be noted that it is permissible for the
Court, when assessing the effect that
the respondent’s conduct
has on the question whether he is a fit and proper person to practise
as an advocate, to have regard
to the explanations tendered by the
respondent for his conduct, either to the applicant when it called
for an explanation or in
the papers filed by the respondent in the
application. Thus, in Kekana at 655D-G and 656B it was held
that a practitioner’s
perjury in resisting an application for
his striking-off and the fact that he gave false information to a
committee of the Society
of Advocates of which he was a member bore
on the question whether the practitioner had the personal integrity
and scrupulous demanded
of an advocate. See, too, Joubert (ed)
The Law of South Africa Vol 14 (first re-issue) para 269, where the
following passage
occurs:
‘
The
decisions are not unanimous on the question whether, in an
application for the suspension or disbarment of an advocate, the
Court is limited to a consideration of the specific charges brought
against him or whether the conduct of the respondent in relation
to
the application made against him, and the facts emerging from his
explanation to the Court, may be taken into account in determining
whether he is a fit and proper person to continue to practise as an
advocate.
It is submitted that in
determining whether an advocate is a fit and proper person to
continue to practise, all relevant facts proved
should be taken into
account whether they form the subject of specific charges against the
respondent or are contained in the respondent’s
answer.
The fact that the Court finds that he has given false evidence is
part of the material facts.’”
[28]
In
Kekana
it was held that:
“
This
is why there is a serious objection to allowing an advocate to
continue practising once he has revealed himself as a person
who is
prepared to lie under oath. Legal practitioners occupy a unique
position. On the one hand they serve the interests of their
clients,
which require a case to be presented fearlessly and vigorously. On
the other hand, as officers of the court, they serve
the interests of
justice itself by acting as a bulwark against the admission of
fabricated evidence. Both professions have strict
ethical rules aimed
at preventing their members from becoming parties to the deception of
the Court. Unfortunately the observance
of the rules is not assured
because what happens between legal representatives and their clients
or witnesses is not a matter for
public scrutiny. The preservation of
a high standard of professional ethics having thus been left almost
entirely in the hands
of individual practitioners, it stands to
reason, firstly, that absolute personal integrity and scrupulous
honesty are demanded
of each of them and, secondly, that a
practitioner who lacks these qualities cannot be expected to play his
part.”
[9]
[29]
The
respondent cannot claim ignorance of the duty to disclose his
previous convictions to Court because Harzenberg J made it known
to
him in his judgment (para 2) when he applied to be admitted as a
conveyancer for the registration of a single transfer.
The
learned Judge remarked that “
He
is not an attorney nor has he written any conveyancing examinations,
not to mention the question of his previous convictions
as a negative
factor in respect of the question whether he is a fit and proper
person to be admitted as a conveyancer.”
[30]
It is
therefore startling to say the least, for the respondent to state in
his affidavit that “
The
admission of Advocates Act does not provide that any Applicant to be
admitted as an Advocate should divulge the criminal record,
if any.
I challenge the Applicant to prove me otherwise in this regard.”
Even though the Act does not make specific reference to a record of
criminal convictions, the respondent is expected to know
that a
record of criminal convictions plays an important role in determining
whether a person is a fit and proper person to be
admitted to
practise as an advocate.
[31]
In
Ex
Parte
Cassim
[10]
the Court had an opportunity to consider a failure to disclose
previous convictions of common assault and of defacing Post
Office
property and held that:
“
The
two offences which I have mentioned do not seem to us to indicate
that the applicant was guilty of dishonest conduct, disgraceful
conduct or dishonourable conduct. The main difficulty is his
failure to disclose these facts in the petition when it was
originally filed. In his supplementary papers he has stated
that he thought that these two previous convictions were not
material
and not relevant. The Court finds it difficult to accept that
he could have thought so. The profession of
barrister and
attorney requires the utmost good faith from practitioners and from
all aspirant practitioners and there can be no
doubt that the
convictions were relevant. Anyone entering upon these
professions must surely know that all material facts
must be placed
before the Court. I can hardly believe that any practitioner
would categorise these offences – especially
the second one –
as not material. ”
What makes the respondent’s
situation more serious is that even post admission, he still persists
that the Act does not make
the disclosure of criminal convictions
obligatory and has the confidence to challenge the applicant to prove
the contrary.
[32]
It is
significant that the respondent’s application for admission as
an advocate at the High Court was met with a huge hurdle
which he
found difficult to overcome. The Society of Advocates of
KwaZulu-Natal was aware that a person with names identical
to those
of the respondent had a history of difficulties with the law.
He was called upon to make a full disclosure if he
is that person and
provide the entire record of the criminal trial and any subsequent
appeals or other applications relating to
his convictions and his
curriculum
vitae
disclosing all his employment an occupational history. The
respondent was called upon to “
establish
inter alia that, despite his conviction, he has genuinely, completely
and permanently reformed himself of his criminal
character and that
he is in fact a fit and proper person to be admitted as an
advocate.”
The respondent was specifically required to explain why his criminal
conviction was not disclosed by him in his founding
affidavit.
[33]
It is
common cause that the respondent did not respond to the letter from
the Society of Advocates of KwaZulu-Natal nor provided
the
information requested from him. Instead, the respondent elected
to abandon his application for admission. Clearly
the
respondent knew or was made aware that he had to disclose the record
of his previous convictions. The respondent has
also conceded
that he brought a similar application at the Gauteng Division of the
High Court, Pretoria and withdrew his application
on the day of the
hearing when the Society of Advocates in Pretoria indicated their
opposition to the application. If he
indeed believed that he
could still be admitted as an advocate despite his serious previous
convictions, he would have proceeded
with his applications and raised
the spurious arguments he is now raising in opposition of this
application to those courts. He
failed to do so, because
he knew that it would be difficult to persuade the Court that he
deserves to be admitted as an advocate
despite a long list of
previous convictions involving dishonesty to his name.
[34]
It is
clear from the conduct of the respondent that he engaged in forum
shopping with the sole aim that he might find a court that
is not
made aware of his record of criminal convictions and be successfully
admitted as advocate. He did not voluntarily
disclose to the
courts where he made his aborted applications for admissions as an
advocate and that he had a record of previous
convictions. It
is only when the record of his previous convictions was discovered
that he withdrew his applications.
[35]
The
respondent contends that the Chairperson of the applicant who deposed
to the founding affidavit is the one who lied and/or misleads
this
Court when he states that respondent averred in his application for
admission that he has no “
criminal
record
.”
This is in reference to paragraph 5 where he stated: “
I
am a law abiding citizen and have no record or pending criminal case
against me.”
The respondent’s response under oath is that “
I
never said I have no criminal record but I have no record in which I
was referring to sequestration or under debt counselling.”
The respondent is not being honest to this Court because the
reference to the record is made in the context of reference to
criminal
cases or conduct. His denial once again says much
about the respondent’s character as an advocate whose integrity
and
honesty should not be questionable. He is deliberately
making a false statement under oath in order to protect his interests
and be allowed to practise as an advocate. This false statement
which is made post his admission is on its own sufficient
to have him
disbarred as an advocate. It shows that he is a person who is
prepared to mislead the Court for his personal
benefit. It
would be difficult for the Court to rely on what he says. In
Ex
Parte Swain
[11]
it held that:
“
Furthermore,
it is of vital importance that when the Court seeks an assurance from
an advocate that a certain set of facts exists
the Court will be able
to rely implicitly on any assurance that may be given. The same
standard is required in relations
between advocates and between
advocates and attorneys. The proper administration of justice
could not easily survive if the
professions were not scrupulous of
the truth in their dealings with each other and with the Court. The
applicant has demonstrated
that he is unable to measure up to the
required standard in this matter.”
[36]
The
respondent carefully crafted the statement by omitting the word
‘criminal’ before the word ‘record’
so that
to an unsuspecting reader he says he does not have a criminal
record. His knee-jerk reaction that he is referring
to a record
of civil cases is also false because he had civil judgments against
him. He failed to disclose them in his application
for
admission in these proceedings. It is also significant that the
respondent deliberately omitted the customary allegation
that he has
never applied to be admitted either as an advocate or attorney
anywhere in the Republic. He knew that doing so
would have
opened a can of worms and that he would have been expected to
explain.
[37]
The
respondent contends that the applicant received a circular from the
General Council of the Bar warning them about him and alerting
them
to the objections raised by the Society of Advocates of
KwaZulu-Natal. He says the applicant has itself to blame for
not objecting to his application for admission when it had an
opportunity to do so. He avers that the applicant should not
be
allowed to raise the issues relating to him being a fit and proper
person post his admission, and that he should be allowed
to practise
as an advocate.
[38]
The
respondent’s attitude to the issues raised about his failure to
disclose his criminal record puts to question him being
a fit and
proper person to continue to practise as an advocate. There is
an
onus
on the applicant for admission as an advocate or attorney to make a
full disclosure of both positive and negative information about
him/her that is necessary for a Court to make an objective finding
whether he/she is a fit and proper person to be admitted as
an
advocate or an attorney. The duty to disclose fully is more
obligatory where previous criminal convictions and pending
cases are
involved. It is expected of an applicant for admission to
disclose his/her full occupational history, where he
has been or
lived until his application for admission as such.
[39]
It
would be wrong to have the respondent benefit from an administrative
oversight by the applicant’s secretary by not remembering
or
connecting the respondent to the circular from the General Council of
the Bar particularly in circumstances where the respondent
deliberately failed to disclose his serious criminal record and the
fact that he served a lengthy prison term because of his criminal
conduct.
[40]
The
respondent’s failure to make a disclosure of his record to the
court that granted his application for admission as an
advocate,
taken together with his persistence that he is not obliged to
disclose his criminal record and that when he mentioned
that he has
“
no
record”
he was not referring to a criminal record, his forum shopping, and
his general conduct in opposing this application is, in my view,
sufficient proof that he is not a fit and proper person to continue
to practise as an advocate.
[41]
At
this stage it is not only the fact that the criminal convictions
exist, but that the respondent deliberately failed to disclose
them.
It matters not whether they might be 20 years old or have been
expunged. They remain relevant to an inquiry whether
an
applicant in his position is a fit and proper person to continue to
practise as an advocate. Although the respondent contends
that
there has never been a complaint against him since his admission as
an advocate and that he is also a lay preacher, I still
have doubts
about his reformation. The least that he could have done to
show that he is reformed would have been to disclose
his previous
convictions to the courts and not engage in a well calculated forum
shopping until he was admitted by this Court.
His applications to
Gauteng, KwaZulu-Natal and this Court also raise doubt as to whether
he indeed resided in these places within
such a short period.
[42]
The
respondent, even at this late stage, had an opportunity to
demonstrate that despite his convictions, he has genuinely,
completely
and permanently reformed himself of his criminal character
and that is he is a fit and proper person to continue to practise as
an advocate. He has failed to do so. I have doubts
whether the respondent’s conduct would ever change.
His
actions are so serious that they rule out any thought of having him
suspended from practise. Suspending him from practising
will
expose the public to serious risk. The integrity of the legal
profession which should be guarded will be dealt a serious
blow.
[43]
There
is no reason in law why the respondent should not be ordered to pay
the costs of this application on the scale of attorney
and own
client. Such an order should include the costs of the interim relief
that was granted against the respondent. Such
costs are
justified because the applicant has a public duty to approach the
Court in circumstances of a respondent who has been
admitted to
practise as an advocate through dishonesty and who persists that he
should be allowed to practise as an advocate despite
his unethical
conduct. The respondent’s conduct on the facts of this
case justifies such an order.
[44]
Had
it not been for the bravery of Mr J R Jantjies to conduct his
investigations and bring the respondent’s circumstances
to the
attention of the Judges President, the respondent’s
misdemeanour would have taken longer to detect. The learned
Senior Magistrate deserves to be commended for his wise initiative.
[45]
In
conclusion I am satisfied that a case has been made to demonstrate
that the respondent is not a fit and proper person to continue
to
practise as an advocate. His name should therefore be struck
off the roll of advocates kept by the Director General of
the
Department of Justice.
[46]
In
the result it is ordered as follows
-:
a)
The
rule
nisi
issued on 21 July 2017 is confirmed.
b)
The
name of the respondent,
Moses
Sipho Mziako
is struck off the roll of advocates which is kept by the Director
General: Department of Justice, in terms of
section 8
of the
Admission of Advocates Act 74 of 1964
.
c)
The
respondent is to pay the costs of this application including the
costs in respect of Part A of the application on a scale as
between
attorney and own client.
___________________
LP Tlaletsi
Judge
President.
Williams
ADJP concurs in the judgment of Tlaletsi JP.
APPEARANCES
:
For
the Applicant:
A G van Tonder
Instructed
by:
Haarhoffs Inc.
Kimberley
For
the Respondent:
C.M.T Molopyane
Instructed
by:
Mzuzu Attorneys
Kimberley.
[1]
Act
74 of 1964
[2]
The
interim order was granted in terms of Part “A” of the
application and the main application is part “B”
[3]
Algemene
Balieraad van Suid-Afrika v Burger en `n ander
1993 (4) SA 510
(T) at 516I – 517A.
[4]
[1998] ZASCA 54
;
1998 (4) SA 649
(SCA) at 654 B - F
[5]
See
also:
Fine
v Society of Advocates of South Africa
(Witwatersrand
Division)
1983 (4) SA 488
(A) at 494G-H.
[6]
2002
(5) SA 1
(E) at p5; Society
of
Advocates of South Africa (Witwatersrand Division) v Edeling
1998 (2) SA 852
(W) at p861; Ex
Parte
Ngwenya: In re Ngwenya v Society of Advocates, Pretoria and
Another
2006 (2) SA 88
(W) para 62
.
[7]
Mziako
v S
[2007]
JOL 19263 (T)
[8]
Supra
at p21 - 22
[9]
Supra: at 655H-656B.
[10]
1970
(4) SA 476
(T) p 477E-H.
[11]
1973
(2) SA 427
(N) at 434H.