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[2018] ZANCHC 64
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Mziako v Northern Cape Society of Advocates (1637/17) [2018] ZANCHC 64 (7 September 2018)
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE DIVISION, KIMBERLEY]
CASE NO: 1637/17
In
the matter between:
MOSES
SIPHO
MZIAKO
Applicant
v
THE
NORTHERN CAPE SOCIETY OF
ADVOCATES
Respondent
Judgment:
Tlaletsi
JP
Heard
on:
27
August 2018
Decided
on:
07
September 2018
Coram:
Tlaletsi
JP
et
Williams J
RULING
ON APPLICATION FOR LEAVE TO APPEAL
Tlaletsi
JP
[1]
The
applicant is seeking leave to appeal against the whole judgment and
order of this Court handed down on 01 June 2018. In
terms of
the said order the name of the applicant was struck off the roll of
advocates which is kept by the Director General of
the Department of
Justice. He was further ordered to pay the costs of the
application on a scale as between attorney and
own client.
[2]
Section
17(1) of the Superior Courts Act,
[1]
(“the Act”) provides that:
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 need consideration;
(b)
The
decision sought on appeal does not fall within the ambit of section
16(2)(a); and
(c)
Where
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.
[3]
In
S
v Mabena and Another
[2]
Nugent JA stated:
“
[22]
It is the right of every litigant against whom an appealable order
has been made to seek leave to appeal against the order.
Such an
application should not be approached as if it is an impertinent
challenge to the judge concerned to justify his or her
decision. A
court from which leave to appeal is sought is called upon merely to
reflect dispassionately upon its decision, after
hearing argument,
and decide whether there is a reasonable prospect that a higher court
may disagree…….”
[4]
The
wording of the section in itself suggests that an applicant for leave
to appeal faces a higher and stringent threshold than
it was the
case.
[3]
The Judge or Judges must come to a conclusion that there is a
reasonable prospect of success for leave to appeal to be granted.
[5]
The
applicant has raised several grounds of appeal upon which the
judgment is challenged. These may be summarised thus:
The
Court erred:
5.1
by
finding that this Court had the jurisdiction to entertain the matter
despite the fact that the applicant’s “
domicilium
citandi et executandi
”
address and work was within the jurisdiction of the Gauteng High
Court which was the correct forum to entertain the matter.
The Court
misinterpreted s7 of the Act, the “Supreme Court Act and the
Uniform Rules which provide that the application should
be brought at
the court where the respondent is domiciled and/or conducts business.
5.2
“
by
ignoring the fact that the Admission of Advocates Act just like any
other Act, cannot be read in isolation and that any application
before court should comply with the procedural requirements such as
that an applicant must establish locus standi, make express
averments establishing the Court’s jurisdiction and the cause
of action
”
.
5.3
By
not dismissing the respondent’s application on the basis that
the respondent has failed to make an averment in the founding
affidavit that it has
locus
standi
and to further aver that the Court has jurisdiction.
5.4
By
approaching the application as if the applicant was applying for
admission as an advocate and determining whether he is fit and
proper
to be admitted as such.
5.5
By
over-emphasizing the applicant’s character and previous
convictions as if the applicant was applying for admission as an
advocate.
5.6
By
finding that a previous conviction is a bar to the applicant’s
admission as an advocate when the Admission of Advocates
Act does not
prohibit an applicant who has a criminal record for admission. The
presiding Judges, being vested with no power or
authority to create
law, misdirected themselves when they found that the applicant
“
cannot
be admitted as an advocate with a criminal record even if the record
is more than 20 years or is expunged which attitude
is considered as
if the Honourable Judges were creating law with this regard
.”
5.7
By
misconstruing the facts of the application and misinterpreted both
the Kwa-Zulu Natal Society of Advocates’ letter and
the
comments by Judge Hartzenberg.
5.8
By
concluding that the applicant is not a fit and proper person by
relying on untested facts and without affording the applicant
an
opportunity to lead evidence that he is a fit and proper person to
continue to practice as an advocate.
[6]
It
bears mentioning that the application to have the applicant’s
name struck off the roll of advocates was
inter
alia
,
predicated on the following common cause or undisputed facts:
6.1
That
in his application for admission he stated that “
I
am a law abiding citizen and have no record or pending criminal case
against me”.
6.2
He
failed to disclose the fact that he was convicted of 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 by the Regional
Court, Pretoria. On 30 August 1995 he was sentenced
to four
years imprisonment on each of the 13 counts of fraud, five years
imprisonment on the theft of motor vehicles conviction,
three years
imprisonment on theft of a motor vehicle engine and three years
imprisonment on each of the five counts of corruption.
The
total term of imprisonment amounted to 125 years. The sentences were
ordered to run concurrently with the result that he was
to serve an
effective period of 25 years imprisonment. The effective
sentence of 25 years was on appeal reduced to 18 years
imprisonment.
[4]
6.3
He
failed to disclose that at the time of his sentencing he had been
found guilty of fraud on four previous occasions and the period
of
suspension of the last conviction had not yet expired when the first
of the latter offences was committed.
6.4
He
failed to disclose that prior his application for admission as an
advocate to this court, he applied for admission as an advocate
at
the Kwa-Zulu Natal and Gauteng divisions of the High Court and that
he withdrew his applications when they were opposed by the
respective
Societies of Advocates. The full facts surrounding his applications
and the circumstances under which he discontinued
his applications
are set out in the judgment which is the subject of this application.
6.5
That
he wilfully and intentionally misled the Court that admitted him as
an advocate 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.”
[7]
The
applicant’s case in response to the above contentions was based
on two points
in
limine
and the defence to the merits of the application. The points
in
limine
were to the effect that this Court lacks jurisdiction to entertain
this application because the respondent conducts his practice
in
Pretoria and not in the Northern Cape and also that this Court has no
jurisdiction to strike an advocate from the roll unless
his/her
misconduct transpired post admission.
[8]
The
applicant’s defence on the merits of the application was simply
that there was no obligation on him to disclose the record
of his
previous convictions as it is not a requirement in terms of the
Admission of Advocate Act; that since he has not been convicted
of
any offence or misconduct post his admission, he is a fit and proper
person to continue to practice as an advocate. According
to the
applicant the misrepresentations, non-disclosures and his previous
convictions are irrelevant as he has ultimately been
admitted as an
advocate irrespective of the circumstances in which he was admitted
as such.
[9]
I
have dealt in great detail with all the issues raised by the
applicant in the judgment sought to be appealed against. I
deem
it not necessary to burden this ruling with a repetition of my
reasons for rejecting the applicant’s contentions.
The
said judgment should be regarded as incorporated as part of this
ruling on the application for leave to appeal. The judgment
will also
show that some of the grounds of appeal are indicative of the fact
that the applicant has in fact misconstrued some of
the findings made
in the judgment.
[10]
I am
not satisfied that another court will come to a conclusion different
from the one we reached in this matter. There is
no compelling
reason(s) why the appeal should be allowed. All that the
applicant is seeking is a re-hearing of his case by
an appellate
court. This cannot be a basis for granting leave to appeal. He
has not satisfied any of the requirements set
in s17 of the Act or
any law that would entitle him to leave to appeal. Leave to
appeal is not merely there for the taking;
a proper case for leave to
appeal to be granted must be made out.
[11]
There
is no reason why costs should not follow the result.
[12]
In
the result, the application for leave to appeal is dismissed with
costs.
____________________________
LP
Tlaletsi
Judge President
Williams J concurs in the Ruling made
by Tlaletsi JP.
APPEARANCES
:
For the Applicant:
C.M.T.
Molopyane
Instructed by: Mzuzu Attorneys
Kimberley
For the Respondent:
A.G. van
Tonder
Instructed by: Haarhoffs Inc.
Kimberley
[1]
10 of 2013
[2]
2007(1) SACR 482
(SCA)
[3]
Notshokovu v S
(unreported, SCA case no 157/15 dated 07 September 2016).
[4]
Mziako
v S
[2007]
JOL 19263
(T)