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[2018] ZASCA 185
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The Law Society of the Northern Provinces v Morobadi (1151/2017) [2018] ZASCA 185 (11 December 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 1151/2017
In
the matter between:
THE LAW SOCIETY OF THE
NORTHERN PROVINCES APPELLANT
and
PULE
ABRAM
MOROBADI RESPONDENT
Neutral
citation:
The
Law Society of the Northern Provinces v Morobadi
(1151/2017)
[2018] ZASCA 185
(11 December 2018)
Coram:
Navsa
ADP, Mbha, Zondi, Molemela and Makgoka JJA
Heard:
21
November 2018
Delivered:
11
December 2018
Summary:
Attorney
– application for removal from roll of attorneys –
attorney administering deceased estate
allegedly
improperly charging a fee pursuant to a contingency fee agreement
–admitted unauthorised ‘loan’ from
estate bank
account –further allegations of fraudulent conduct -whether the
high court misconstrued its role under s 22(1)(d)
of the Attorneys
Act – whether interim suspension order appropriate to protect
interests of the public pending full investigation.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Molopa-Sethosa J and Nochumsohn
AJ sitting as court of first instance):
1 The appeal is upheld to
the extent reflected in the order set out below;
2 The order of the high
court is set aside and is replaced with the following:
‘
(a)
The respondent is, as an interim measure suspended from practising as
an attorney pending a disciplinary enquiry concerning
his
professional conduct;
(b)
The relief sought in prayers 2 up to 8.3, 9, 10.1, 10.2, 10.3, 10.4,
10.5, 11 and 12 of the notice of motion dated 12 January
2016 is
hereby incorporated in this order;
(c)
The enquiry referred to in (a) above must be instituted and finalised
within 3 (three) months from the date of this judgment;
(d)
The application for the removal of the respondent’s name from
the roll of attorneys pending the finalisation of the enquiry
referred to in (a) above, is postponed;
(e)
The parties may supplement their papers, if so advised, on the
matters emanating from the enquiry.
(f)
Costs are reserved.’
3 No order is made as to
costs.
JUDGMENT
Zondi
JA (Navsa ADP, Mbha, Molemela and Makgoka JJA concurring)
[1]
The appellant, the Law Society of the Northern Provinces (the Law
Society) launched an application in the Gauteng Division of
the High
Court, Pretoria (the high court) in terms of s 22(1)(d) of the
Attorneys Act, 53 of 1979 (the Act) seeking an order that
the
respondents’ name be removed from the roll of attorneys. The
high court (Nochumsohn AJ, Molopa-Sethosa J concurring)
dismissed the
application and ordered each party to pay its own costs.
[2]
The Law Society appeals against those orders contending that the
respondent should have been struck off the roll and that a
punitive
costs order should have been issued against him. The appeal is with
leave of this court.
[3]
Section 22(1)(d) of the Act provides that any person who is admitted
and enrolled as an attorney may, on application by the
Law Society,
be struck off the roll or suspended from practice by the court, if
that person, in the discretion of the court, is
not a fit and proper
person to continue to practise as an attorney. I consider it
necessary to begin by setting out the nature
of the proceedings under
s 22(1) of the Act and the manner in which they should be dealt with.
[4]
Applications for the striking off of an attorney’s name from
the roll of practitioners are not ordinary civil proceedings,
they
are proceedings of a disciplinary nature and are sui generis.
[1]
In
Solomon
v Law Society of the Cape of Good Hope
1934
AD 401
at 408-409 the following was said regarding the nature of
disciplinary proceedings:
‘
Now in these proceedings the
Law Society claims nothing for itself. . . It merely brings the
attorney before the Court by virtue
of a statutory right, informs the
Court what the attorney has done and asks the Court to exercise its
disciplinary powers over
him. . . The Law Society protects the
interests of the public in its dealings with attorneys. It does not
institute any action
or civil suit against the attorney. It merely
submits to the Court facts which it contends constitutes
unprofessional conduct and
then leaves the Court to determine how it
will deal with this officer.’
[5]
It is now settled that an application for the removal from the roll,
or suspension from practice, of an attorney involves a
three-stage
enquiry.
[2]
First, the court has
to determine whether the alleged offending conduct has been
established on a balance of probabilities. It
is a factual enquiry.
Second, consideration must be given to the question whether, in the
discretion of the court, the person concerned
is not ‘a fit and
proper person to continue to practice as an attorney’. This
involves a weighing up of the conduct
complained of against the
conduct expected of an attorney and is a value judgment. Third, the
court is required to consider whether,
in light of all the
circumstances, the name of the attorney concerned should be removed
from the roll of attorneys or whether an
order suspending him or her
from practice would suffice.
[3]
In S
ummerley
[4]
the following was said:
‘
the exercise of the discretion
at the second stage “involves, in reality, a weighing up of the
conduct complained of against
the conduct expected of an attorney
and, to this extent, a value judgment” . . . The third enquiry
again requires the Court
to exercise a discretion. At this stage the
Court must decide, in the exercise of its discretion, whether the
person who has been
found not to be a fit and proper person to
practise as an attorney deserves the ultimate penalty of being struck
from the roll
or whether an order of suspension from practice will
suffice.’
[6]
The application came to light as a result of the report that was
filed by Mr Reddy – a Chartered Accountant and Auditor
in the
employ of the Law Society’s Monitoring Unit - following an
inspection he conducted at the respondent’s firm.
During 2015
two complaints of unprofessional conduct were lodged against the
respondent with the Law Society. One was lodged by
Haasbroek &
Boezaart Attorneys on behalf of Dr Kgarume on 2 March 2015. This
complaint had three components. The complaint
was that the
respondent, on 14 May 2010, was instructed by Dr Kgarume to attend to
the administration of the estate of the late
France Ponky Kgarume
under a special power of attorney. Dr Kgarume alleged, firstly, that
the respondent purportedly concluded
a contingency fee agreement with
her for the purpose of winding-up the deceased estate. Pursuant to
the purported contingency fee
agreement, the respondent charged Dr
Kgarume 15 per cent on the gross asset value of R835 652.99 of the
estate
,
which she contended was in excess of 3.5 per cent of the gross value
of the estate which is the prescribed tariff in terms of s
51 (1)(b)
of the Administration of Estates Act 66 of 1965. I must point out
that the actual amount charged by the respondent was
R67 726.80 which
is 50 per cent of what he had stipulated in the contingency fee
agreement.
[7]
Secondly, the complainant alleged that contrary to s 51(4) of the
Administration of Estates Act the respondent transferred funds
from
the estate bank account to his business account, before the estate
was distributed and without the authority of the Master
of the High
Court. Thirdly, the complaint related to an amount of R48 000 the
respondent took as a ‘loan’ from the
estate bank account
without the authority of the executor.
[8]
Pursuant to Dr Kgarume’s complaint, Ms Jalo Herholdt of the Law
Society Disciplinary Department on 19 March 2015 requested
that an
inspection of the respondent’s financial records be authorised.
Authority for the inspection was given by Mr Van
Staden on 5 May 2015
and thereafter Mr Reddy was instructed to inspect the respondent’s
firm’s financial records, which
he did on 9 and 25 June 2015.
[9]
Mr Reddy on 30 July 2015 furnished the Law Society with a report in
which he recorded his findings. In his report Mr Reddy dealt
with the
allegations relating to mismanagement by the respondent of the estate
of the late France Ponky Kgarume.
[10]
Apart from conducting an investigation arising from Dr Kgarume’s
complaint, Mr Reddy also inspected, among others, the
trust ledger
account of
DK
Manganya, a client of the respondent, although it did not form the
subject matter of any complaint. Mr Reddy noted that the respondent
had received an amount of R1 352 780 on 5 June 2014 and a
further amount of R103 781.59 on 25 June 2014 from the
Road
Accident Fund on behalf of Mr Manganya. An amount of R591 976.59
was paid into the respondent’s business banking
account.
[11]
When approached for an explanation regarding these entries the
respondent informed Mr Reddy that he had entered into a contingency
fee agreement with Mr Manganya and that in terms of that agreement
the respondent was entitled to fees which equated to 25 per
cent of
the capital award. Mr Reddy inspected the statement of account
prepared by the respondent for Mr Manganya, from which it
appeared
that the respondent had charged Mr Manganya a fee amounting to R338
195, which amounts to 25 per cent of the capital awarded
by the Road
Accident Fund. In addition
,
the
respondent also retained the party and party costs recovered from the
Road Accident Fund which amounted to R103 781.59.
[12]
The statement of account also reflected an amount of R150 000
received by the respondent from Mr Manganya. When the basis for
the
payment was queried with the respondent, his response was that Mr
Manganya had thought it necessary to pay him extra as a gesture
of
gratitude and the respondent produced a letter from Mr Manganya,
which purported to give him permission to do so.
[13]
Mr Reddy’s conclusion was that the respondent had contravened
the provisions of the Act and / or the Rules of the Law
Society
relating to the keeping and maintaining of accounting records and the
obligation to ensure that at any given time the trust
balances do not
exceed trust monies and trust accounts do not have debit balances. He
recommended that his report be referred to
the Disciplinary
Department. He was, however, of the opinion that the firm did not
pose a significant risk to trust creditors or
the Attorneys Fidelity
Fund.
[14]
In the meantime and on 23 July 2015 the Law Society received a
complaint from the Gauteng Department of Human Settlements (the
department) about the respondent’s conduct that he had refused
to meet with the department. The gist of the complaint was
that Mr
Radebe, the Deputy-Director of its Anti-Fraud and Corruption Unit had
asked for a meeting with the respondent in order
to conduct a review
of the work done by him and the payments that were made by the
department to him for work that he had performed
on its behalf. The
department had paid him R1 865 969 as fees but it could not
find underlying documentation. He refused
to meet with Mr Radebe.
This formed the basis of the second complaint.
[15]
On 21 August 2015 the respondent sent an email to the Law Society to
which was attached his letter dated 12 August 2015 and
a letter dated
21 August 2015 from Ms Gomba, a senior legal adviser in the
department. The purpose of this correspondence was to
persuade the
Law Society to withdraw the complaint because the dispute giving rise
to it had allegedly been resolved between the
parties.
[16]
On 7 September 2015 Mr Radebe informed the Law Society that the
department had suspended Ms Gomba for, among others, her response
to
the Law Society and that it was still pursuing its complaint,
which at that stage was the respondent’s refusal to meet
with the department.
[17]
Pursuant to this notification, Mr Radebe and Ms Makhetha both from
the department’s Anti-Fraud and Corruption Unit met
with the
Law Society on 19 November 2015. At the meeting they furnished the
Law Society with the outcome of the investigation into
payments made
by the department to the respondent for services the respondent
allegedly rendered on behalf of the department. In
short, the
findings of the Anti-Fraud and Corruption Unit are that Ms Gomba
colluded with the respondent’s firm to defraud
the department
in an amount of R1 687 844 and submitted for payment, invoices
amounting to R1 226 194.40 for work the
respondent had not
done. The Anti-Fraud and Corruption Unit recommended that the State
Attorney be instructed to recover R1 687
844 from Ms Gomba and the
respondent. This report was not confirmed by a confirmatory
affidavit.
[18]
On 6 November 2015 and before the meeting between the Law Society and
Mr Radebe took place, Ms Herholdt recommended to the
Council of the
Law Society that an application be brought to have the respondent’s
name removed from the roll of attorneys
as a result of the complaint
by Dr Kgarume regarding the handling of the estate and arising out of
his handling of DK Manganya’s
matter. In other words, the
recommendation of Ms Herholdt to Council that the application be
brought for the removal of the respondent’s
name from the roll
was based on the findings made by Reddy in his report relating to Dr
Kgarume’s complaint and the Manganye
matter. This is what
served before Council and was considered by it on 27 November 2015.
[19]
In relation to the department’s complaint,
which
did not form the basis of Ms Herholdt’s recommendation, the
Disciplinary and / or Investigating Committee of the Law
Society on
24 November 2015 recommended that the respondent be summoned to
appear before the Disciplinary Committee to answer fraud
allegations
against him by the department. In other words, the department’s
complaint was going to be dealt with through
the disciplinary
committee process.
Understandably
so, because of the egregious nature of the alleged conduct
.
That
enquiry did not take place.
[20]
Following the Council resolution of 27 November 2015 the Law Society,
on 24 February 2016, instituted motion proceedings in
the high court
against the respondent
,
seeking an order that his name be removed from the roll of attorneys.
This was based on the allegations of the respondent’s
professional misconduct arising from Dr Kgarume’s complaint,
Gauteng Department of Human Settlements complaint and irregularities
which were discovered by Mr Reddy when he reviewed Mr Manganya’s
trust ledger account. It also included the complaint by
the
department concerning the fraud allegedly perpetrated against it by
the respondent.
[21]
The respondent opposed the application and also raised technical
defences. He contended that the Law Society had to be non-suited
because of its failure to follow its own procedures relating to
conducting disciplinary proceedings. He submitted that the Law
Society should have referred the complaints to the Disciplinary
Committee as recommended by the Investigating Committee. He argued
that the Law Society’s failure to comply with its own internal
processes rendered its application for his removal unlawful.
[22]
The rules which the respondent alleged the Law Society ignored are
those that were made under s 74(1) of the Act and promulgated
in
Government Gazette No 7164 of 1 August 1980 as amended by Government
Gazette No 33050 of 25 March 2010. The rules relating to
disciplinary
proceedings are contained in Part XIII of the Rules. In terms of rule
95(2), upon receipt of a complaint the council
may where it is of the
opinion that a prima facie case of unprofessional or dishonourable or
unworthy conduct on the part of the
practitioner has been made out,
furnish the practitioner with particulars of the complaint and call
upon him to furnish the council
in writing with his or her
explanation in response to the complaint. Alternatively, the council
may call upon the practitioner
to appear before an investigative
committee to discuss the matter. This committee may, after
considering the complaint and the
practitioner’s explanation
decide either to dismiss the complaint or issue a written warning to
the practitioner.
[23]
If the council is of the opinion that there is a prima facie case of
unprofessional conduct to answer, it may call upon the
practitioner
to appear before a formal disciplinary enquiry.
[24]
In circumstances where the practitioner is convicted of a charge and
it is sought to have him or her suspended from practice
or struck
from the roll, the provision of rule 101 is invoked. This rule
provides:
‘
101.1
Should an enquiry be held before a committee appointed by the council
in terms of Section 67 of the Act, and at the
conclusion of the
enquiry, the practitioner be found guilty of unprofessional, or
dishonourable or unworthy conduct, in terms of
Section 72 of the Act,
the committee may impose any punishment in respect thereof which is
permitted in terms of Section 72 of
the Act; provided that if at any
stage during the enquiry, the committee is of the opinion that the
conduct of the practitioner
is such as to warrant an application by
the society in terms of the Act for suspension from practice or the
striking from the roll
of the practitioner, it shall:
101.1.1 as soon as possible submit a
written report on its findings to the council, together with its
recommendations regarding
the suspension from practice or the
striking from the roll of the practitioner;
101.1.2 at the same time deliver a
copy of its report and recommendations to the practitioner and call
upon the practitioner to
furnish the council with representations in
writing, within such period as the committee considers reasonable,
but in an event
within not less than seven days, why application
should not be made for suspension from practice, or as the case may
be, for the
striking from the roll of the practitioner.
101.2 On receipt of the report and
written recommendations of the committee, in terms of rule 101.1.1,
and the written representations
of the practitioner, in terms of rule
101.1.2, the council shall consider the matter and shall:
101.2.1 if it shall decide to proceed
with an application for suspension from practice or for striking from
the roll, advise the
practitioner accordingly and take such further
steps as may be necessary in that regard; or
101.2.2 if it shall decide not to
proceed with an application for suspension from practice or for
striking from the roll, refer
back to the committee, together with a
copy of the written representations of the practitioner, for the
committee to dispose of
as it sees fit; or
101.2.3
if it considers it appropriate, call upon the practitioner, upon not
less than seven days’ notice, to appear before
the council may
determine to show cause why application should not be made for
suspension from practice or for striking from the
roll of the
practitioner; provided that if the practitioner does not furnish
written representations to the council as requested,
or fails to
appear before the council, as the case may be, the council shall be
entitled to consider the report and recommendations
of the committee,
in the absence of such representations, or in the absence of the
practitioner.’
[25]
The high court dismissed the procedural challenge
,
holding that the Law Society was not bound by the decision of the
committee as the committee was not a disciplinary committee,
but
rather an investigative committee. The high court’s reasoning
was that it was not peremptory for the Council to have
pursued a
formal charge before a disciplinary committee, if in its opinion, the
respondent was no longer considered to be a fit
and proper person to
remain in practice as an attorney. I agree with this conclusion. In
general it is correct that the Council
may proceed with the
application for the striking off of the practitioner or for his or
her suspension from practice without pursuing
a formal charge before
a disciplinary committee if in its opinion, having regard to the
nature of the charges, a practitioner is
no longer considered to be a
fit and proper person.
[26]
In relation to the allegations relating to Dr Kgarume’s
complaint, the respondent admitted to have taken and used for
his own
account an amount of R48 000 out of the estate bank account,
without the knowledge and authority of the executor and
to have taken
his fee prematurely. The respondent contended that he had concluded a
contingency fee agreement with the executor,
because in addition to
attending to the administration of the estate he also did extensive
work relating to a pension fund claim.
The respondent
,
however
,
expressed his apology for ‘borrowing’ client’s
money which he said was a mistake which he regretted and had learned
from it.
[27]
His evidence is that at that time his practice was experiencing cash
flow problems and he was unable to meet its operational
expenses. He
used R48 000 to pay some of the firm’s expenses.
[28]
In relation to the allegations of unprofessional conduct relating to
Mr Manganya’s matter, the respondent stated that
he provided
professional services to Mr Manganya for which he had charged fees in
terms of a contingency fee agreement. He further
stated that an
amount of R150 000 was given to him by Mr Manganya as a gesture of
thanks and that he had received taxed costs in
an amount of R103
781.59 from the Road Accident Fund on behalf of Mr Manganya.
[29]
As regards the allegations of unprofessional conduct arising from the
complaint of the Gauteng Department of Human Settlements
the
respondent contended that he had rendered certain legal services on
behalf of the department; that the department’s Deputy-Director
of the Anti-Fraud Unit requested a meeting with him to conduct a
review of the work done by him and the payments that he received
from
the department and that he refused to meet with him. The respondent
justified his refusal on the basis of the contention that
the
department had failed to identify the nature of the information it
was seeking from him. This was so, the respondent contended,
because
a laptop
on
which
he stored documentation relating to the department’s matters
had crashed.
[30]
The high court found in relation to the respondent’s conduct in
respect of the department’s complaint that the
evidence
presented by the Law Society did not establish the offending conduct.
The high court reasoned that it could not accept
evidence which was
not adduced under oath, ‘least of all without the benefit of
any oral evidence having been led under oath
before a disciplinary
committee; without the findings of a disciplinary committee, without
a report under Rule 101, without the
respondent having been given an
opportunity to respond to such report, without the Council having
considered any such report. .
. .’
[31]
In relation to the allegations of unprofessional conduct arising from
the complaint of Dr Kgarume and Mr Manganya’s matter,
the high
court found that an unprofessional and dishonourable conduct had been
established, but such misconduct, was not sufficiently
serious as to
warrant a suspension from practice or a striking from the roll having
regard to the mitigating factors.
[32]
According to the high court the following is what weighed heavily in
favour of the respondent: In relation to Dr Kgarume’s
complaint, before the complaint was lodged with the Law Society, the
respondent had approached his client and admitted to what
he had done
and undertook to repay the money which he did. The incident took
place six years before the application was brought,
and there had
been no further evidence of any misappropriation of trust funds. The
respondent was a young practitioner at the time
that he entered into
the contingency fee agreement and did not have the benefit of years
of experience to have known that it was
incompetent to enter into a
contingency fee agreement in relation to the administration of a
deceased estate and that the respondent
did not charge the full 15
per cent provided for in the agreement.
The
high court accordingly dismissed the application and relying on
Prokureursorde
van Transvaal v Kleynhans
1995
(1) SA 839
(T) it ordered each party to pay its own costs.
[33]
The analysis of the high court’
s
reasoning makes it clear that its finding that the Law Society had
failed to institute a formal disciplinary enquiry to establish
unprofessional conduct on the part of the respondent, was central to
its dismissal of the application. In para 25 of the judgment
the high
court states:
‘
All aspects considered, and
upon application of the applicable tests, enunciated above, upon the
facts, cumulatively assessed and
correctly contextualised as
presented, there is insufficient offending conduct established to
motivate a striking from the roll
or suspension from practice. This
may not have been so, had the allegations made by the Department of
Human Settlements been proven
facts. Given the mitigating factors in
relation to the other conduct, even though such conduct is
dishonourable, when imposing
a value judgement upon such conduct, we
do not consider same to be such so as to render the Respondent unfit
to remain in practice
as an attorney.’
[34]
The finding by the high court, at least in relation to Dr Kgarume’s
complaint and Mr Manganya’s matter that unprofessional
conduct
on the part of the respondent had been established, was on the face
of it, sufficient for the high court to proceed to
the second and
third legs of the enquiry. It was duty bound to consider whether the
respondent, in its discretion, was not a fit
and proper person to
continue to practise, and to enquire whether in all the circumstances
the respondent was to be removed from
the roll of attorneys or
whether he should be suspended from practice.
[35]
In
Malan
[5]
the
following was said in connection with the third leg of the enquiry at
para 6:
‘
As pointed out in
Jasat
,
the third leg is also a matter for the discretion of the court of
first instance, and whether a court will adopt the one course
or the
other depends upon such factors as the nature of the conduct
complained of, the extent to which it reflects upon the person’s
character or shows him to be unworthy to remain in the ranks of an
honourable profession, the likelihood or otherwise of a repetition
of
such conduct and the need to protect the public. Ultimately it is
question of degree.’
[36]
The high court in respect of the respondent’s admitted
misconduct misconstrued the nature of its role when it is approached
under s 22(1)(d) of the Act to exercise its disciplinary powers over
a practitioner. It did not consider the interest of the public.
Importantly, the high court did not pause to consider that
this
case
given the serious nature of the complaints other than the admitted
conduct called for a full enquiry. This was a case in which
the
charges levelled against the respondent
,
which he did not admit
,
were sufficiently serious to warrant a full enquiry so that all the
facts could be placed before a court for a final decision on
whether
the respondent should be permitted to practise as an attorney. After
all, the Law Society itself initially held the view,
in respect of
the department’s allegation of fraudulent conduct, that it had
to be referred for investigation. As stated
above, the Law Society is
not obliged to have a full disciplinary enquiry as envisaged in the
rules as referred to above before
it approaches the court for a
relief.
[37]
In the present case having regard to the serious allegations of
misconduct not only in relation to the department’s complaint,
but also involving the concerns in relation to Mr Manganya, the high
court below and the Law Society should equally have been alert
to
having those allegations fully investigated
.
Even on the limited facts presented they could not readily be
dismissed out of hand.
[38]
In light of what has been said in the preceding paragraphs the high
court as
custos
mores
ought,
on the admitted misconduct in order to protect the public, to have
postponed a final decision, but also at the same time
protect the
public with an interim order of suspension pending a final decision
on whether the respondent should be struck off
the roll or some other
sanction should follow. This it did not do.
[39]
It was conceded on behalf of the Law Society that the order
contemplated in the preceding paragraphs should ensue and that
it
would be fair that the respondent be given an opportunity to present
his side of the story at a full blown enquiry which he
had always
called for. Counsel on behalf of the respondent was constrained to
accept that this was a proper course to follow, notwithstanding
Mr
Reddy’s statements referred to in para 13. Counsel were
agreed that the Law Society should be directed to initiate
and
complete the envisaged enquiry within a period of three months from
the date of delivery of this judgment
,
which will be reflected in the substituted order of the court below
that follows. Counsel on behalf of the respondent undertook
on
his behalf to co-operate with the Law Society and not to be dilatory.
[40]
A question arose as to the effect of the
Legal Practice Act 28 of
2014
on the disciplinary enquiries that had hitherto been conducted
by the Law Society. This is not the question for this court to
resolve.
It is not for us to advise on the provisions of the Act and
on transitional provisions
,
particularly without the full views of the legal profession in regard
thereto. Suffice to say that the direction envisaged above
will apply
to the Law Society and / or its successor in title. It is necessary
to record that the postponed application when it
is re-enrolled
should be heard by the high court differently constituted.
[41]
A further factor dictating the desirability of a full blown enquiry
into the facts is the effect it may have in the future
in the event
of a finding that the respondent be struck off the roll. The full
breath of a practitioner’s prior conduct should
be before a
court considering an application for re-admission.
[42]
In my view, having regard to what is said above, no order as to costs
in the present appeal should be made.
[43]
In the circumstances the order in the following terms is issued:
1 The appeal is upheld to
the extent reflected in the order set out below;
2 The order of the high
court is set aside and is replaced with the following:
‘
(a)
The respondent is, as an interim measure suspended from practising as
an attorney pending a disciplinary enquiry concerning
his
professional conduct;
(b)
The relief sought in prayers 2 up to 8.3, 9, 10.1, 10.2, 10.3, 10.4,
10.5, 11 and 12 of the notice of motion dated 12 January
2016 is
hereby incorporated in this order;
(c)
The enquiry referred to in (a) above must be instituted and finalised
within 3 (three) months from the date of this judgment;
(d)
The application for the removal of the respondent’s name from
the roll of attorneys pending the finalisation of the enquiry
referred to in (a) above, is postponed;
(e)
The parties may supplement their papers, if so advised, on the
matters emanating from the enquiry.
(f)
Costs are reserved.’
3 No order is made as to
costs.
___________________
D
H Zondi
Judge
of Appeal
APPEARANCES
Counsel
for the appellant: C J Jooste
Instructed
by: Iqbal Mahomed Attorneys, Pretoria
Webbers,
Bloemfontein
Attorney
for the respondent: Mr S N Molele
Instructed
by: Victor Mabe Inc Attorneys, Pretoria
NW
Phalatsi & Partners, Bloemfontein
[1]
Law Society,
Transvaal v Matthews
1989
(4) SA 389
(T) at 393D-E.
[2]
Malan & another v Law Society
of the Northern Provinces
[2008]
ZASCA 90
;
2009 (1) SA 216
(SCA) para 4.
[3]
Summerley v Law Society, Northern
Provinces
[2006] ZASCA 59
;
2006 (5) SA 613
(SCA) para 2 and the cases there cited.
[4]
Ibid at 615E-F.
[5]
Ibid fn 2.