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[2016] ZAKZPHC 35
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KwaZulu-Natal Law Society v Debba and Another (5112/15) [2016] ZAKZPHC 35 (25 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. 5112/15
DATE:
25 APRIL 2016
In
the matter between:
KWAZULU-NATAL
LAW
SOCIETY
...............................................................................
APPLICANT
And
AJAY
BRIJLALL
DEBBA
................................................................................
FIRST
RESPONDENT
FIRSTRAND
BANK
LIMITED
..................................................................
SECOND
RESPONDENT
J
U D G M E N T
STEYN
J
[1]
Two applications served before us, a condonation application and the
main application. We have considered it necessary to hear
both of the
applications at the same time since no useful purpose could be served
by hearing them separately. The main application
is an
application to suspend the first respondent from practice in terms of
s 22(1)(d) of the Attorneys Act 53 of 1979 (hereinafter
referred to
as ‘the Act’). The ancillary relief is set out in the
notice of motion.
[2]
The first respondent, Ajay Brijlall Debba, an admitted attorney of
this court practiced for his own account under the name and
style A
Debba and Associates. For ease of reference he shall be
referred to as the respondent. There is a history to this
application. He was provisionally suspended on 16 November 2011 and
on 3 December 2013, both times the suspensions were uplifted.
[3]
The applicant based its application on three grounds. The first
ground relates to a conveyancing transaction and the respondent’s
handling of same. The second ground was a complaint lodged by a
client that was involved in a road accident, the complaint relates
to
the respondent’s lack of professional conduct. The third ground
is that the respondent has failed to present to the inspection
committee all his books of accounts to show that the withdrawals from
his trust account were justified as trust transactions.
[4]
The jurisprudence as it has developed shows that applications for the
suspension or removal from the roll of an attorney require
a
three-stage enquiry. Firstly, the court has to conduct a factual
enquiry and determine whether the alleged offending conduct
has been
established. Secondly, it must consider whether the person concerned
is in the discretion of the court a person not fit
and proper to
continue to practice. Thirdly, the court must enquire whether in all
the circumstances the person concerned is to
be removed from the roll
of attorneys or whether an order of suspension from practice would
suffice.
[1]
Since this
application concerns the suspension of the respondent, it is useful
to be reminded of the general rule that finds application
in matters
of suspension:
‘
[S]triking-off
is reserved for attorneys who have acted dishonestly, while
transgressions not involving dishonesty are usually visited
with the
lesser penalty of suspension from practice. Although this can
obviously not be regarded as a rule of the Medes and
the Persians,
since every case must ultimately be decided on its own facts, the
general approach contended for by the appellant
does appear to be
supported by authority (see eg
A
v Law Society of the Cape of Good Hope
1989 (1) SA 849
(A);
Reyneke
v Wetsgenootskap van die Kaap die Goeie Hoop
[1993] ZASCA 161
;
1994 (1) SA 359
(A);
Law
Society of the Cape of Good Hope v King
1995 (2) SA 887
(C) at 892G-894C;
Vassen
v Law Society of the Cape of Good Hope
[1998] ZASCA 47
;
1998 (4) SA 532
(SCA) at 538I-539A;
Law
Society, Cape of Good Hope v Peter
[2006] SCA 37 (RSA) in para [19]). This distinction is not difficult
to understand. The attorney’s profession is an honourable
profession, which demands complete honesty and integrity from its
members. In consequence dishonesty is generally regarded as excluding
the lesser stricture of suspension from practice, while the same can
usually not be said of contraventions of a different kind.’
[2]
[5]
What follows is a short summary of the various complaints:
(a)
Pregalathan complaint:
Mr
Pregalathan lodged a complaint with the KwaZulu-Natal Law Society,
the applicant, pursuant to him signing an agreement of purchase
and
sale of a property and paying the sum of R120 000 therefor.
Having inspected the property he agreed to pay a deposit of
R10 000
to the seller on 10 August 2013. On 20 August 2013 Mr Pregalathan
conducted a deed’s search and discovered that
the purchased
property did not belong to the seller but was registered in the name
of the Municipality. He ascertained from the
seller that she only
received R10 000 and not the balance of R110 000. It was
established that the monies paid to the
respondent in his trust
account was released prior to registration of transfer. Once Mr
Pragalathan discovered that the property
was not registered in the
name of the seller he lodged a complaint of fraud with the South
African Police Service.
(b)
Sampath complaint
Mr
R Sampath is a client of the respondent and was involved in an
accident thirteen years ago. His complaint is contained in an
affidavit attached to the founding affidavit marked “PDAM25”.
In the main he is complaining of the delay in finalising
his case and
that he did not receive any progress reports from the respondent.
(c)
Inspection Report
The
applicant has elected to file a report compiled by Messrs O’Connell
and Badal issued in terms of s 70 of the Act. The
purpose of the
inspection was to hold an enquiry into the respondent’s conduct
in terms of s 71 and it related to the first
complainant’s
transaction. The report very clearly stipulates that the inspection
was adjourned to the offices of the respondent.
The report is
incomplete and does not show that the respondent was asked for his
trust account documents or that he had failed
to co-operate. An
attempt was made to submit an affidavit of one of the inspectors in
the reply. I shall deal with the reply
later in this judgment.
[6]
The respondent in his opposing affidavit states that he was made
aware of the complaint of Mr Pragalathan only when the papers
of this
application were served on him. According to him the cause of
complaint no longer exists. Twenty months had lapsed
since the
complaint and long before he was aware of the Pragalathan complaint
it was amicably resolved. He denied that the report
that was attached
to the founding affidavit was factually correct. As for the complaint
of Mr Sampath, he disclosed that the complainant
is a client of his
and he instituted an action against the Road Accident Fund. The
pleadings have closed and the Road Accident
Fund has shown a
willingness to settle the matter provided that it is furnished with
expert reports which includes a report from
the orthopaedic surgeon,
neurosurgeon, occupational therapist and an actuary report. Mr
Sampath insisted that he should pay for
the medical-legal reports and
failed to understand that as much as he was willing to carry the
fees, he was not prepared to finance
the disbursement. The respondent
denied that Sampath was not given progress reports. He accordingly
denied any unprofessional conduct.
[7]
I consider it necessary for reasons that will follow later in this
judgment to quote from Annexure “AD1” attached
to the
answering affidavit filed by the first respondent:
‘
This
matter was set down for hearing on the 28
th
day of May 2015. Counsel has looked very carefully at the matter and
has prepared our opposing affidavits which we intend to file
tomorrow. We bring to your attention that the affidavit upon which
your clients rely is entirely hearsay and that no case has been
made
out for the relief which the Applicant seeks in paragraphs 1(a), (b),
(c) and (d) of the Notice of Motion.
We
respectfully hold the view that the most appropriate course of action
is for the Applicant to withdraw the application and to
pay our
clients costs. For a variety of reasons the launch of the current
application was not appropriate inasmuch as:
(a)
the affidavit of Samlan Pragalathan is
dated the 11
th
of October 2013 nearly twenty months ago. The cause of the
complaint no longer exists
;
(b)
our client was never called upon to
respond to Mr Pragalathan’s complaint
and
had sight of the complaint for the first
time when the papers in this application was served upon him
;
(c)
our client wrote to your client raising
certain enquiries in relation to the complaint of Vickash Ramchander
Sampath which were
never responded to. How
could
your client in these circumstances proceed to court to claim the
relief set out in paragraph 1.1(b) of the Notice of Motion
?’
(My emphasis.)
[8]
After the opposing affidavit was filed the matter was adjourned on 11
June 2015 to 30 July 2015 and the applicant was put on
terms to file
its replying affidavit by 16 July 2015. On 28 July 2015 the applicant
served its replying affidavit. This replying
affidavit created a
procedural conundrum for the applicant. Firstly, it failed to adhere
to the terms of the order dated 11 June
2015 and secondly, it was
irregular.
[9]
The general rule which is well established is that the applicant
ought to make his case in the founding affidavit and not in
the
reply. It is a basic requirement that the relief sought has to be
supported by the facts as set out in the founding affidavit.
[10]
In
Hano
Trading CC v JR 209 Investments (Pty) Ltd & another,
[3]
the court held that the filing of supplementary affidavits must be
with the leave of the court and will be admitted at its discretion.
I
am mindful of the view of Slomowitz AJ, as he then was, in
Khunou
& others v M Fihrer & Son (Pty) Ltd & others
[4]
at 355G to 356C:
‘
The
proper function of a Court is to try disputes between litigants who
have real grievances and so see to it that justice is done.
The rules
of civil procedure exist in order to enable Courts to perform this
duty with which, in turn, the orderly functioning,
and indeed the
very existence, of society is inextricably interwoven. The Rules of
Court are in a sense merely a refinement of
the general rules of
civil procedure. They are designed not only to allow litigants
to come to grips as expeditiously and
as inexpensively as possible
with the real issues between them, but also to ensure that the Courts
dispense justice uniformly and
fairly, and that the true issues which
I have mentioned are clarified and tried in a just manner.
Of
course the Rules of Court, like any set of rules, cannot in their
very nature provide for every procedural situation that arises.
They
are not exhaustive and moreover are sometimes not appropriate to
specific cases. Accordingly the Superior Courts retain an
inherent
power exercisable within certain limits to regulate their own
procedure and adapt it, and, if needs be, the Rules of Court,
according to the circumstances. This power is enshrined in s 43
of the Supreme Court Act 59 of 1959.
It
follows that the principles of adjectival law, whether expressed in
the Rules of Court or otherwise, are necessarily flexible.
Unfortunately this concomitant brings in its train the opportunity
for unscrupulous litigants and those who would wish to delay
or deny
justice to so manipulate the Courts’ procedures that their true
purpose is frustrated. Courts must be ever
vigilant against
this and other types of abuse. What is more important is that the
Court’s officers, and especially its attorneys,
have an equally
sacred duty. Whatever the temptation or provocation, they must not
lend themselves to the propagation of this evil,
and so allow the
administration of justice to fall into disrepute. Nothing less is
expected of them, and if they do not measure
up a Court will mark its
disapproval either by an appropriate order as to costs against the
defaulting practitioner or, in a proper
case, by referring the matter
to the Law Society for disciplinary action.’
[11]
Mr Chetty, for the applicant, in his oral submissions conceded that
the applicant ought to have sought the court’s permission
to
file a further set of affidavits attached to the replying affidavit.
He also conceded that it was irregular to try and make
out a case in
the replying affidavit. He further conceded that the applicant was
made aware of the procedural irregularities in
the process followed
but nevertheless persisted with the suspension application. In fact,
the odds were entirely against the applicant
and the concession was
rightly made that the applicant had failed to make out a
prima
facie
case in its founding affidavit.
[12]
It was evident that the applicant is empowered by the Act to do a
proper investigation into the conduct of the respondent.
In fact, s
71 of the Act gives the counsel of the applicant the power to enquire
into cases of alleged misconduct on the part of
the attorney, notary
or conveyancer whose name has been placed on the roll of any court
within its province. Section 72(6) of the
Act provides:
‘
The
provisions of this section shall not affect the power of –
(a)
a society to apply in terms of the
provisions of this Act for the suspension from practice or the
striking from the roll of any
practitioner against whom an enquiry is
being or has been conducted in terms of this Act in respect of the
conduct which forms
or formed the subject matter of such enquiry;
(b)
a competent court, at the instance of the
society concerned, to suspend any practitioner from practice or to
strike him or her from
the roll.’
Had
the applicant followed the route of an enquiry, the respondent would
have responded to the complaints and the applicant would
have been in
a position to make out a case in its founding affidavit.
[13]
The founding affidavit is defective in that it fails to make out a
case against the respondent and it is riddled with hearsay
evidence.
I align myself with the view of Broome J in
Poseidon
Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban)
(Pty) Ltd & another
[5]
and consider it good law:
‘
But
none of these cases go the length of permitting an applicant to make
a case in reply when
no
case at all was made out in the original application
.
None is authority for the proposition that a totally defective
application can be rectified in reply. In my view it
is
essential for applicant to make out a
prima
facie
case in its founding affidavit.’
[6]
(My emphasis.)
[14]
In my view the founding affidavit filed by the applicant is
hopelessly flawed in the respect that it fails to disclose the
cause
of action that entitles the applicant to the relief sought. The
affidavit does not show that the respondent was furnished
with the
complaints lodged against him and that he was called upon to respond
to the complaints and that he had failed to do so.
In addition, the
founding affidavit does not allege that the books of account were
demanded for inspection by the inspection committee
and that the
respondent had failed to comply with the request of the inspection
committee. In fact the report demonstrates that
those tasked with the
inspection had failed to finalise the inspection.
[15]
Mr Chetty has conceded that the replying affidavit was filed out of
time due to the fact that the applicant encountered problems
in
obtaining the further affidavits from the relevant complainants. In
light of his earlier concession that none of those affidavits
should
have been filed without the permission of the court leads to the
irresistible conclusion that no good cause has been shown
by the
applicant for not adhering to the order of 11 June 2015. I am not
persuaded on the papers that condonation should be granted
and
accordingly, the matter is decided without consideration of those
affidavits that were filed without permission of this court.
[7]
To condone such late filing would mean that this court is condoning
an irregular step without a justifiable reason.
[16]
What is disconcerting is that the applicant as the upper guardian of
the ethics of the law profession would demonstrate such
disregard for
the Uniform Rules of Court. Moreover, the applicant as the
custos
morum
[8]
of the legal profession practicing at the side Bar should at all
times set an example, especially in instances where it acts as
the
regulatory body of the law profession.
[9]
This court is very much aware of its duty to the public at large to
protect them from professionals who do not act with the utmost
integrity and respect for their strict ethical code. It is necessary
with the aforesaid in mind that it is expected of the applicant
to
have acted with due process and fairness in regulating the conduct of
the respondent. There has been an inordinate delay in
investigating
the conduct of the respondent and conducting an enquiry in terms of
the Act. Had the applicant followed an internal
enquiry then
sufficient information could have been collected to bring an
application for the respondent’s suspension.
[17]
The application is procedurally flawed. The founding affidavit fails
to make out a case for the relief sought. The applicant
has not
succeeded in its burden of proof and accordingly the application
fails.
[18]
This brings me to the issue of costs. Mr Chetty has asked that the
applicant not be penalised for fulfilling its obligation
as a
regulatory body. Mr Aboobaker SC has asked that this court impose a
punative costs order for the following reasons:
(i)
The applicant has brought a wholly
deficient case before court;
(ii)
It has acted precipitately without having
regard to its own rules and the provision of ss 70 and 71 of the Act;
(iii)
The applicant was forewarned of the
difficulties associated with the application and persisted
nonetheless;
(iv)
There has been gross incompetence on the
part of the Law Society.
[19]
I have carefully considered the reasons listed by Mr Aboobaker and am
of the view that the applicant has been penalised in
that the court
has disallowed those affidavits, filed without the necessary
permission of the court. To order a punative costs
order in these
circumstances would result in the applicant being penalised twice for
the same mistake. For this very reason I consider
it unnecessary to
make a separate costs order regarding the condonation application.
Both applications are so intertwined that
it cannot be separated from
each other.
[20]
In my view the costs order should follow the result.
[21]
Order
(a)
The application for condonation is refused.
(b)
The application for the suspension of the
first respondent is dismissed with costs, such costs to include the
costs of two counsel
where so employed.
STEYN
J.
MNGOMEZULU
AJ
Application
heard on : 30 March 2016
Counsel
for the applicant : Mr S Chetty
Instructed
by : Siva Chetty & Company
Counsel
for the respondent : Mr TN Aboobaker SC/Mr EH Tugh
Instructed
by : June Debba & Associates
Judgment
handed down on : 25 April 2016
[1]
See
Law
Society, Northern Provinces v Mogami & others
2010
(1) SA 186
(SCA) para 4. Cf.
Prokureursorde
van Transvaal v Kleynhans
1995
(1) SA 839
(T);
Cirota
& another v Law Society, Transvaal
1979
(1) SA 172 (A).
[2]
See
Summerley
v Law Society, Northern Provinces
2006 (5) SA 613
(SCA) para 21.
[3]
2013
(1) SA 161 (SCA).
[4]
1982
(3) SA 353 (W).
[5]
1980
(1) SA 313
(D). Also see
Kleynhans
v van der Westhuizen NO
1970
(1) SA 565 (O).
[6]
Ibid
at 315 to 316A.
[7]
The
affidavits attached to the replying affidavit are struck from the
record.
[8]
See
Law
Society of the Cape of Good Hope v King
1995 (2) SA 887
(C) at 898E-G.
[9]
See
generally
Hassim
(Also known as Essack) v Incorporated Law Society of Natal
1977 (2) SA 757
(A),
Cirota
& another v Law Society, Transvaal
1979
(1) SA 172
(A) at 187H.