Brief Summary

Admission — Fit and proper person — Application for admission as an attorney opposed by Law Society due to applicant's prior conviction for rape — Applicant contended that he had served his sentence, was rehabilitated, and had been registered as a candidate attorney — Legal issue of whether a person on parole can be considered a fit and proper person for admission as an attorney — Court held that the applicant demonstrated permanent reformation and was a fit and proper person for admission as an attorney, thus granting the application.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an application in the High Court of South Africa, Free State Division, Bloemfontein, for the admission and enrolment of the applicant as an attorney in terms of the Attorneys Act 53 of 1979. The application was brought by Itumeleng Innocent Mphatswe (applicant) against the Law Society of the Free State (respondent), which opposed the application.

The court had previously dismissed the application with costs, and reasons for that order were subsequently requested. This judgment records the court’s reasons for the dismissal.

The general subject-matter of the dispute was whether the applicant had discharged the onus of proving that he was a “fit and proper person” to be admitted as an attorney, in circumstances where he had a serious prior criminal conviction and was still on parole at the time of the application.

2. Material Facts

It was common cause that on 23 June 2011 the applicant entered into a written contract of articles for a two-year period to serve under Jacqueline de Vries as principal. The contract of articles was registered by the respondent’s Chief Executive Officer on 1 August 2011.

Attached to the contract of articles was an affidavit by the principal disclosing that the applicant had been convicted of rape on 9 September 2002 in the Mafikeng Regional Court and was sentenced to 16 years’ imprisonment by the Mafikeng High Court on 9 December 2002. It was further recorded that the applicant served eight years’ imprisonment and was released on parole on 8 December 2010 due to good behaviour. The principal expressed the opinion that the applicant had served his sentence, was “fully rehabilitated”, and was fit and proper for purposes of registration as a candidate attorney.

After completing articles, the applicant was employed by Mphafi Khang Attorneys as an administrative officer and passed the Board Exam in August 2014.

The applicant had previously attempted to pursue admission as an attorney via an application dated 3 November 2014; that application was served on the respondent but was not issued at court. In a letter dated 29 January 2015, the respondent indicated that the application had been denied and stated that, if the applicant proceeded, the Law Society would oppose the admission because its council had resolved that a person serving parole was not fit and proper for admission, particularly because parole can be cancelled and the person is still serving a sentence.

In the present application, the applicant contended that the respondent’s stance effectively amounted to further punishment for an offence already punished by a court, and that his release on parole demonstrated rehabilitation. He also contended that the respondent’s earlier conduct in registering his articles, issuing a certificate of right of appearance, and allowing him to write Board Exams created a legitimate expectation that he would be admitted if he complied with the “rules”.

The respondent maintained that it was obliged, having regard to its statutory objectives and its duty to the public and the profession, to place its view before the court on whether the applicant met the statutory requirements, particularly the requirement that an applicant be a fit and proper person. It contended, among other things, that a person on parole is still effectively serving a sentence, that parole may be revoked, and that public policy considerations weighed against admission while the applicant was still on parole. The respondent also drew attention to the fact that the applicant had initially not disclosed his parole conditions, and contended that the papers contained an insufficient factual basis for the applicant’s claimed remorse.

In reply, the applicant appended his parole conditions and a letter from Correctional Services stating that his parole would end on 8 June 2018.

3. Legal Issues

The central legal question was whether the applicant had shown, on the facts placed before the court, that he was a fit and proper person to be admitted and enrolled as an attorney in terms of section 15(1)(a) of the Attorneys Act 53 of 1979, notwithstanding his rape conviction and the fact that he was still on parole.

The dispute involved a combination of fact and evaluative assessment: the court treated the inquiry into fitness and propriety as a question of fact involving a value judgment, requiring the court to exercise its discretion on the basis of the evidence presented. A related issue was whether the respondent’s prior registration of the applicant’s contract of articles supported a claim of inconsistency or legitimate expectation regarding admission.

A further issue was whether the applicant should be granted a postponement with leave to supplement his papers if the court was not satisfied on the merits.

4. Court’s Reasoning

The court began from the statutory position that, under section 15(1)(a) of the Attorneys Act 53 of 1979, admission requires the applicant to satisfy the court, in its discretion, that he is a fit and proper person. The judgment noted that the Act does not define the phrase, and relied on authority holding that fitness and propriety is a factual enquiry that includes a value judgment.

The court accepted that criminal conviction does not automatically disqualify a person, but emphasised the established principle that where an applicant has a criminal conviction, the core enquiry becomes whether there has been a genuine, complete and permanent reformation, and that the onus rests on the applicant to establish this on a balance of probabilities. The judgment treated principles developed in readmission and striking-off contexts as applicable mutatis mutandis to an admission application where a serious criminal conviction is relevant.

On the applicant’s contention that the respondent acted inconsistently by opposing admission after registering his articles, the court agreed with authority indicating that similar principles apply at both stages (articles registration and admission), but held that the respondent’s registration decision had occurred in circumstances where the applicant had provided an affidavit from his principal—an officer of the court—stating that, in her opinion, he was fit and proper for purposes of registration as a candidate attorney. The court held that the respondent’s council was entitled to rely on that affidavit when registering the contract of articles. It further held that this did not resolve the admission question, because the respondent could not have known whether, at the later admission stage, the applicant would be able to demonstrate the required fitness and propriety; in any event, the onus remained on the applicant to establish fitness and propriety at admission.

The court considered the content of the founding affidavit and concluded that the applicant had not made out a proper case in accordance with the applicable principles. It accepted the respondent’s critique that the applicant adopted an unduly blase and indifferent approach to the seriousness of the crime, the conviction, and the reformation inquiry. The applicant’s assertions—namely that the sentence “satisfied” the complainant and public, that release on parole reflected rehabilitation, and that he had not breached parole conditions—were found insufficient to establish genuine and permanent reformation in the sense required for admission to an honourable profession.

A central deficiency identified by the court was that the applicant did not take the court into his confidence regarding the nature and extent of his remorse and contrition, nor did he explain how he had shown remorse. The court noted that this aspect had been raised in the answering affidavit, yet the applicant still did not meaningfully elaborate in reply. The papers also did not, in the court’s assessment, contain sufficient facts addressing efforts to repair the harm caused by the conduct, or allowing the court to evaluate the genuineness of contrition and the existence of permanent reformation.

The judgment also addressed the significance of parole. It endorsed the position that the fact of parole must be seen in its correct perspective: parole is granted on criteria distinct from the criteria applied in assessing fitness and propriety for entry to the legal profession, and parole is not an indication that the person is fit and proper as envisaged by the Attorneys Act. In addition, the court referred to authority expressing strong views against admission or readmission to legal practice while the applicant is still serving parole, and it aligned itself with the view that parole signifies continued service of a sentence.

When counsel for the applicant requested a postponement with leave to supplement the papers if the court was not satisfied, the court refused. It reasoned that there was no basis for such relief, particularly because this was effectively the applicant’s “second bite at the cherry” given the earlier failed attempt, and because the applicant had approached court despite being aware of the respondent’s stance yet still failed to address the key fitness-and-propriety issues.

On costs, the court accepted that the respondent was duty-bound to oppose in the circumstances and found no reason to depart from the general approach that costs should follow the result.

5. Outcome and Relief

The court dismissed the application for admission and enrolment as an attorney.

The court ordered the applicant to pay the respondent’s costs of the application.

The court also refused the applicant’s request for a postponement with leave to supplement the papers.

Cases Cited

Ex parte Krause 1905 TS 221

Incorporated Law Society, Transvaal v Mandela 1954 (3) SA 102 (T)

Incorporated Law Society of Natal v Hassim 1978 (2) SA 285 (N)

Hassim (also known as Essack) v Incorporated Law Society, Natal 1979 (3) SA 298 (A)

Ex parte Moseneki 1979 (4) SA 884 (TPD)

Law Society, Transvaal v Behrman 1981 (4) SA 538 (A)

Vassen v Law Society of the Cape of Good Hope [1998] ZASCA 47; 1998 (4) SA 532 (SCA)

Swartzberg v Law Society, Northern Provinces [2008] ZASCA 36; 2008 (5) SA 322 (SCA)

Thukwane v Law Society, Northern Provinces 2014 (5) SA 513 (GP)

Mtshabe v Law Society of the Cape of Good Hope 2014 (5) SA 376 (ECM)

Northwest Bar Association v Padi; in re: Ex parte Pardi (ADM 30/2014) [2015] ZANWHC 65 (10 September 2015)

Kudo v Cape Law Society 1977 (4) SA 659 (A)

Kudo v Cape Law Society 1972 (4) SA 342 (C)

Legislation Cited

Attorneys Act 53 of 1979 (sections 4(b), 15(1)(a), 16(a), 58)

Admission of Advocates Act 74 of 1964

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the applicant failed to discharge the onus of proving that he was a fit and proper person to be admitted and enrolled as an attorney, given his serious criminal conviction and the deficiencies in the evidence addressing remorse, contrition, and genuine, complete and permanent reformation.

The court held further that the respondent’s prior registration of the applicant’s contract of articles did not establish that the applicant was fit and proper for admission, nor did it bind the court’s admission enquiry, particularly where the registration decision had been influenced by the principal’s affidavit and where admission required a distinct demonstration of present fitness and propriety.

The court declined to grant a postponement to allow supplementation of the papers and dismissed the application with an order that the applicant pay the respondent’s costs.

LEGAL PRINCIPLES

Fitness and propriety for admission as an attorney under section 15(1)(a) of the Attorneys Act 53 of 1979 is a factual enquiry involving a value judgment, and it falls within the discretion of the court.

A prior criminal conviction does not automatically disqualify an applicant; however, where such a conviction exists, the applicant bears the onus to prove, on a balance of probabilities, a genuine, complete and permanent reformation, such that the defect of character or attitude underlying the unfitness no longer exists and the applicant can be trusted to meet the profession’s exacting standards.

An applicant must place sufficient facts before the court addressing matters such as the seriousness of the misconduct, insight into the defect of character, contrition and remorse and their genuineness, and conduct demonstrating lasting reformation; a superficial reliance on the fact of sentence served or release on parole is insufficient.

The granting of parole is determined on criteria different from those relevant to professional admission and is not in itself an indication that a person is fit and proper for entry into the legal profession; parole may be treated as indicating continued service of sentence for purposes of evaluating fitness and propriety.

A professional body’s earlier administrative decision (such as registering articles) does not relieve an applicant of the obligation to satisfy the court at the admission stage that the applicant is currently fit and proper; the onus at admission remains with the applicant, and alleged inconsistency does not substitute for the required evidentiary showing.

Mphatswe v Law Society of the Free State (4835/2015) [2017] ZAFSHC 208 (20 September 2017)