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[2016] ZAFSHC 113
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Law Society of the Free State v Radebe (4770/2015) [2016] ZAFSHC 113 (30 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4770/2015
In
the matter between:
THE
LAW SOCIETY OF THE FREE
STATE
Applicant
and
SEBABATSO
JEREMIA RADEBE
Respondent
CORAM
:
LEKALE, J et
MOTIMELE, AJ
HEARD
ON:
17 JUNE 2016
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
30
JUNE 2016
BACKGROUND
AND INTRODUCTION
[1]
The applicant is the statutory custodian of attorneys’
profession and acts, in the instant matter, in furtherance of the
objectives of its constituting and enabling legislation
viz.
The Attorneys Act, 53 of 1979 (the Act) which include regulation of
the exercise of the profession and promotion of uniform practice
and
discipline among practitioners. (See
Section
58 of the Act
).
[2]
The respondent, on the other hand, has been a member of the applicant
since his admission as an attorney in 2004 although he
started
practising as such for his own account in 2007.
[3]
The disciplinary rule of the applicant authorises the applicant’s
disciplinary committee (disciplinary committee) to determine
complaints referred to it by the chief executive officer or executive
officer of the applicant and provides,
inter
alia
,
that:
“
When
upon the determination of a complaint, a disciplinary committee is of
the opinion that
prima
facie
the conduct of the practitioner constitutes misconduct and that a
finding of guilt would warrant an application for the striking
off of
such practitioner from the roll, or his or her suspension from
practicing, it shall not make a finding, but shall make a
recommendation to the council and
simultaneously
therewith
forward the record of the enquiry to the council for such action as
the council may deem proper;”
(See
Rule
19(3) (c) of the Rules of the Free State Law Society (the Rules)
[4]
The disciplinary committee is, further, obliged not to make a finding
at the conclusion of an enquiry if it is of the opinion
that the case
is one contemplated by rule 19(3) (c) but to refer the matter to the
applicant’s council (the council) for
such action as the
council may deem proper. (See
Rule
19(3) (g) of the Rules
).
[5]
From 2010 to and including July 2012 the applicant, through its
executive officer, received seven complaints against the respondent
which it referred to the latter for his reply in terms of the
disciplinary rule. In 5(five) of such complaints the respondent
practitioner was required to appear before the disciplinary committee
on the 1st October 2014 after he had failed on numerous occasions
to
appear but he once again failed to do so. As a result of
non-appearance on his part the disciplinary committee referred
the
matters to the council with recommendations that he either be struck
off the roll of attorneys or suspended from practice.
[6]
In 1(one) matter the respondent was directed to furnish documents to
the disciplinary committee by a specified date and, when
he
failed, a recommendation for either his striking off or suspension
from practice was made to the council.
[7]
The seventh complaint, which related to alleged failure to transfer
immovable property, was forwarded to the respondent on 27
August 2013
and he filed his responding affidavit on 13 September 2013, thus,
complying with the disciplinary rule which required
him to respond
under oath by way of an affidavit.
[8]
The applicant feels aggrieved by the respondent’s alleged lack
of co-operation and, on the 7th October 2015, launched
the instant
application moving for the respondent’s striking off and, in
the alternative, his suspension from practice relying
on the above
complaints to demonstrate the respondent’s attitude towards it,
as
custos
morum
of the profession, as well as the complaints levelled against him.
[9]
The respondent opposes the motion and appears in person before the
court while Ms Collins, a local counsel, appears for the
applicant.
ISSUES
IN DISPUTE
[10]
Parties are at variance on whether or not the respondent, through his
conduct, poses attitudinal challenges to the applicant
with the
latter effectively contending that, on numerous occasions, it bent
over backwards to accommodate the respondent by postponing
matters,
thus, delaying finalization of the same all in vain.
[11]
In the event of the preceding question being decided in the
affirmative, the dispute between the parties extends to the fitness
and propriety of respondent to remain in the profession as well as
appropriate sanction in the event of it being found
that he
does not match up to the conduct which can, reasonably, be expected
from a practitioner in his position.
DEPOSITIONS
AND CONTENTIONS FOR THE APPLICANT
[12]
The applicant’s then President,
VUYO
MOTSEKI MOROBANE
,
deposed to,
inter
alia
,
the effect that the respondent has complete disregard for the
complaints laid against him and blatantly refuses to co-operate
with
the disciplinary committee as well the council of the applicant.
In his view such conduct on the part of the respondent,
as the
officer of this court, renders him not fit and proper to remain in
the profession. The applicant’s current President,
DEIDRE
MILTON
,
deposes that the respondent even evaded service of the instant motion
and gave the sheriff a run around with clear knowledge that
an
attempt was being made to serve him. Such conduct on the part of the
respondent does not match up to the conduct expected of
an attorney
according to her.
[13]
Ms Collins for the applicant submits that the respondent’s
attitude towards the applicant is such that he should either
be
struck off the roll of attorneys or suspended from practice regard
further being had to the difficulties the sheriff encountered
in
serving the instant motion on the respondent who was evading
service.
DEPOSITIONS
AND CONTENTIONS BY THE RESPONDENT
[14]
The respondent deposed to,
inter
alia
,
the effect that he always co-operated with the disciplinary committee
and always subjected himself to applicable disciplinary
procedures. He, further, points out that he answered all the
complaints levelled against him and appeared before the disciplinary
committee whenever he was required to do so. It is, further,
his case that he furnished all the information required from
him by
the disciplinary committee whenever he received directives from the
applicant. He further denies ever receiving summons
requiring
him to appear before the disciplinary committee on 6 August 2014 and
3 September 2014.
[15]
The respondent, further, contends that he failed to appear before the
disciplinary committee or to furnish documents required
of him only
when he was not aware of the sittings and directives because he had
not received relevant notifications and correspondence.
He did
not evade service of summons nor did he deliberately fail to appear
before the disciplinary committee on all the dates referred
to in the
applicant’s founding papers.
APPLICABLE
LEGAL PRINCIPLES
[16]
The question in the instant matter is whether or not the offending
conduct on the part of the respondent has been established
on a
balance of probabilities and, if so, whether or not the respondent
is, on the basis of such conduct and in the discretion
of the court,
a fit and proper person to remain in the profession. In the
event of the latter question being decided in the
negative, the next
enquiry is whether, in the circumstances of the matter, the
respondent should be removed from the roll or suspended
from
practice. (See
Jasat
v Natal Law Society
2000 (3) SA 44
(SCA) and
Law
Society of the Northern Provinces v Mabaso
[2015]
ZASCA 109
para
[2]).
[17]
Failure on the part of an attorney, as an officer of the court, to
co-operate and deal with complaints of professional
misconduct
is viewed in a serious light by the courts and may, in appropriate
cases, constitute a material consideration justifying
removal of his
name from the roll of attorneys. (See
Law
Society of the Northern Provinces v Mabaso
(
supra
).
[18]
In applications for striking off or suspension from practice on the
grounds of misconduct what matters are the conduct complained
of on
the part of the respondent attorney, his responses and attitude
towards such a complaint and whether it may be concluded
therefrom
that he should remain in practice. (See
Summerley
v Law Society of Northern Provinces
2006 (5) SA 613
(SCA) and
Law
Society of Northern Provinces v Mabaso
op
cit
para
[17]).
APPLICATION
OF LEGAL PRINCIPLES AND FINDINGS
[19]
It is patent
ex
facie
the papers that the complaints against the respondent were serious in
nature in that they included failure to finalise deceased
estates
within reasonable times, failure to keep clients informed of
progress, alleged overreaching of a client and
failure to hand over contents of a file to a newly appointed
executor after he was removed from office by the Master. The
parties
are effectively in agreement that such complaints
cried out for the attention of the disciplinary committee.
[20]
It is, further, clear from the founding affidavit that the respondent
failed to appear before the disciplinary committee on
numerous
occasions until it was resolved to recommend his striking off or
suspension to the council in line with the disciplinary
rule.
[21]
It is equally apparent from the papers that the allegations against
the respondent were not tested to establish their veracity
by way of
calling witnesses and hearing evidence in the light of the fact that
the respondent had responded to the same and placed
them in dispute.
In this regard it should be noted that what was referred to council
by the disciplinary committee were the complaints
(untested and
disputed allegations) and not the respondent’s attitude. In my
view it was, as such, imperative on the part
of the disciplinary
committee to establish the veracity of the relevant allegations
before it could refer the complaints for the
attention of the
council.
[22]
It is, however, true, as Ms Collins effectively contends, that the
applicant does not rely on the veracity of the complaints
laid
against the respondent by third parties in its case before us. It
simply uses such complaints to demonstrate his attitude
which,
according to it, reflects negatively on his fitness and propriety to
remain in the profession. To the aforegoing extent
the present
motion is, therefore, not based on the recommendations of the
disciplinary committee for it referred the
actual untested and
disputed allegations to council and recommended the ultimate sanction
thereon.
[23]
The respondent contends that he co-operated with the disciplinary
committee and denies receipt of the relevant notices calling
upon him
to appear before it. His version that whenever he received
communication from the applicant he responded finds credence
in the
fact that he responded to all the complaints against him. His case
that where he received notices he appeared or kept the
applicant’s
executive officer aware of his unavailability to attend sittings is
supported, to a large extent, by the fact
that on numerous occasions
the sittings of the disciplinary committee were postponed and he was
granted further opportunities to
appear. In my view where the
committee was satisfied that the respondent was properly notified of
a sitting, it would have
simply proceeded with the enquiry in his
absence for, without any apology from his side, there would have
existed no cause whatsoever
to postpone the sitting. In my
judgment his version is, thus, probable.
[24]
There exist disputes of facts on material allegations against the
respondent which cannot be resolved on papers as far as the
respondent’s attitude and responses to the complaints against
him are concerned. It was for the applicant, through the disciplinary
committee, to resolve such disputes by hearing evidence before it
could refer the drawing of an inference as to the fitness and
propriety or otherwise of the respondent to remain in the profession
to the court and not to defer to the court on the same. It
is,
however, not impossible that the respondent did receive the relevant
notices but elected not to attend the hearings.
The possibility
in question is, however, a matter of speculation and conjecture as
there is no proof whatsoever, on the papers,
of such allegations.
A perusal of the papers, further, reveals that all the matters on
which recommendations for striking
off or suspension were made were
scheduled to be heard on the 1st October 2014. It is, as such, not as
if the respondent failed
to appear on numerous occasions in that
regard.
[25]
Respondent’s response to the contention that he evaded service
of the present motion is also probable and acceptable
insofar as he
gave a logical explanation of failure by the sheriff to effect
service on him. Once again it is not impossible
that he evaded
service but there is simply no reliable evidence on which to make a
conclusion in so far as the applicant relies
on inadmissible hearsay,
which is, in any event, disputed, in support of its case in this
regard.
[26]
The alleged offending conduct on the part of the respondent, in the
form of negative attitude towards the profession, and justifying
the
conclusion that he is not fit and proper to remain in the profession
has, therefore, not been established.
COSTS
[27]
The role of the applicant in matters of the present nature is
limited to blowing the whistle on offending conduct,
which warrants the attention of the court, on the part of the
respondent, as an officer of this court, by drawing the attention
of
the court to such conduct.
[28]
For purposes of costs in the instant matter the question is whether
or not there existed cause, on the part of the applicant,
to launch
the present application. I am satisfied that such cause
existed regard being had to the fact that notices
were sent out to
notify the respondent of the sittings of the disciplinary committee.
It is, further, not in dispute that
on numerous occasions the
respondent did not turn up at scheduled meetings of the disciplinary
committee. Although his explanations
as to why he could not
show up are acceptable, they do not render the actions of the
applicant in referring the matter to the court
unreasonable
or malicious.
[29]
There, therefore, exists reason on the part of the court to deviate
from the general principle with regard to costs by not
allowing costs
to follow the event. In my view, fairness demands that each
party pay its own costs in the instant matter.
[30]
As a parting shot I feel obliged to point out that we have, as the
court, a strong suspicion that the respondent displays contemptuous
attitude towards the applicant regard being had to the fact that, as
at 1 October 2014, a complaint lodged in 2010 had not yet
been
determined although it regularly served before the applicant’s
disciplinary committee. It is, further, cause for concern
that the
sheriff was sent from pillar to post in an attempt to effect service
of a court process on an officer of this court although
such an
officer has given his business address to the applicant as the
custodian of attorneys’ profession. The respondent
should
always bear in mind that, as an officer of this court, he is
accountable to it for his conduct and he represents the profession
as
and when he interacts with the world socially and professionally. The
public judges the profession and the legal fraternity
at large by the
way he conducts himself. If he persists with his games he will, no
doubt, soon find himself in the cold outside
the profession.
ORDER
[31]
The application is dismissed.
[32]
There is no order as to costs.
____________
LJ
LEKALE, J
I concur
__________________
AMM
MOTIMELE, AJ
On behalf of
applicant: Adv. L Collins
Instructed
by:
Symington
& De Kok Attorneys
Bloemfontein
On behalf of respondent:
In person
Instructed
by:
S.J.
Radebe Attorneys c/o Ponoane
Attorneys
Bloemfontein
/PK