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[2016] ZAGPPHC 190
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Lyell v Law Society of the Northern Provinces (24998/2012) [2016] ZAGPPHC 190 (22 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 24998/2012
DATE:
22 MARCH 2016
In
the matter between:
ERIC
HILLARY
LYELL
.........................................................................................................
Applicant
And
THE
LAW SO
CIETY OF THE NORTHERN
PROVINCES
............................................
Respondent
DATE
OF HEARING:
08 MARCH 2016
DATE
OF JUDGMENT:
MARCH 2016
JUDGMENT
IN RESPECT OF APPLICATION FOR LEAVE TO APPEAL
MANAMELA
AJ
[1]
On 08 March 2016 this judgment was
reserved after hearing counsel in respect of application for leave to
appeal. The applicant seeks
leave to appeal the judgment handed down
on 16 September 2015, in terms of which, among others, his name was
struck from the roll
of attorneys of this court. I authored the
judgment, to which my sister, Kubushi J agreed.
[2]
The
applicant contends in the application for leave to appeal that we
erred in our judgment, in not less than 25 grounds. However,
Mr EJ
Ferreira, appearing on behalf of the applicant at the hearing,
approached the application from what he termed a narrow angle,
comprising two grounds. The first ground is that we erred in finding
that the applicant’s name should be struck from the
roll of
attorneys (in terms of the order made in paragraph 32 a) of the
judgment). The second ground of the narrow-angle approach
by Mr
Ferreira is that, the effect of the applicant’s removal from
the office of trustee of any trust (in terms of the order
made in
paragraph 32 e)ii) of the judgment) is that, the applicant is also
precluded from being a trustee of his own family trust.
[1]
It is submitted that the full court of this division or the Supreme
Court of Appeal may come to a different conclusion of the aforesaid,
[3]
Considered in their totality, the
so-called two narrowed grounds, as submitted by Mr Ferreira, are
effectively still a challenge
of the whole judgment save in minor
respects. A majority of the other paragraphs or orders (like 32 b) to
d), and f)) are consequential
to the applicant’s removal from
the roll of attorneys in terms of paragraph 32 a). The remainder of
the orders are in 32
e) and in respect of costs. In terms of the
second narrowed angle, the applicant does not per se challenge his
removal from the
office of trustee of any trust, but the
effect
the order has on him in that he also can no longer serve as a trustee
of his family trust, which he had founded.
[2]
1
deal with these, after attending to some procedural issues, below.
[4]
It is common cause that the application
for leave to appeal was made out of time. The applicant therefore
required condonation and
the respondent opposed both applications for
condonation and leave to appeal.
[5]
In
support of his application for condonation, the applicant submitted
that, he was unaware of delivery of the judgment until around
the end
of September 2015.
[3]
Thereafter, there were delays in acquiring the transcribed record and
his interaction with counsel. The applicant submits that
the
respondent will suffer no prejudice due to the granting of
condonation.
[6]
The
respondent challenged the veracity of the applicant’s
submissions due to absence of confirmatory affidavits from the
applicant’s correspondent attorneys. It is further submitted in
this regard that, the acquisition of the transcribed record
bears no
relevance to the current application, as a written judgment was
handed down.
[4]
Ms S Magardie, appearing for the respondent, argued in both in
written and oral submissions that, the applicant did not make any
submissions regarding his prospects of success in the contemplated
appeal. Regarding prejudice, she submitted that there is indeed
prejudice due to the drawn-out proceedings and further costs
associated therewith. However, due to the nature of the order I will
propose be made in respect of the leave to appeal and consideration
of the interests of justice, I will propose that condonation
be
granted. This is not to say that no prejudice exists
due
to the delays. However, in my view, whatever prejudice there may be
is capable of being remedied by an appropriate order as
to costs. Mr
Ferreira had actually anticipated this when he submitted that his
client should be liable for the costs in the condonation
application
irrespective of the outcome thereof. I agree. With that I proceed to
deal with the substantive issues in the application
for leave to
appeal.
[7]
As already indicated above, the
applicant contends in the main that, the order for the removal of his
name from the roll of attorneys
was erroneous. It is submitted in
this regard that, through the removal the court visited upon the
applicant the ultimate sanction.
I understand this to mean that, we
should have considered other possible sanctions, which we did. When
we enquired from Mr Ferreira
for the applicant at the hearing of this
application as to other possible sanctions, he submitted that perhaps
a “permanent
suspension” with conditions, like never to
practice again would have been appropriate. This he submitted would
augur well
with the fact that, the applicant had already ceased to
practice of his own volition and harbours no intention to return to
the
profession in the future. This was labelled a “self-imposed
sanction” by the applicant. There was no clear response
to our
enquiry that, it appears that the applicant has no real problem with
the striking of his name from the roll but the potential
stigma
thereof. For, in my view, the so-called “permanent suspension”
has the same effect as an order for removal or
striking. In other
words, the mitigating factors advanced by the applicant or on his
behalf, do not necessarily appear to be aimed
at the reduction of the
sanction so that the applicant can continue practising as an
attorney, but for a sanction with a different
name to the current one
of striking. Mr Ferreira submitted as mitigating factors which should
have swayed us to impose another
sanction the fact that, due to the
applicant’s age he is unlikely to return to practice and
therefore, there is an added
guarantee against any fears which the
current order may have aimed to quell. Also that the fact that the
applicant had property
guarantees of more than the trust deficits or
that he had corrected the deficits before they were detected by the
respondent or
through an investigation at the behest of the
respondent, should have counted in favour of a lesser sanction.
[8]
On
the other hand, Ms Magardie submitted that there were no prospects of
success with the intended appeal. She argued that, property
guarantees can never be considered back up for misappropriation of
trust funds. I agree.
[5]
The applicant had admitted to misappropriation of trust funds or
clients’ monies and therefore the so-called “self-imposed
sanction” is no sanction at all, she added. There is no basis
for self-removal from the roll of attorneys. She pointed out
that the
applicant had 40 years’ worth of experience and therefore was
no novice in the impugned matters. He should have
known better to
avoid the removal of his name from the roll.
[9]
As
stated above, the second ground of appeal, as submitted by Mr
Ferreira, is in respect of the order in paragraph 32 e) ii) of
the
impugned judgment. It is submitted in this regard that the effect of
this order is that the applicant is prevented from being
“a
trustee of his personal family trust created and funded by him
personally”.
[6]
In other words, the applicant, has no real qualms about his removal
from the office of a trustee in respect of any other trust
but his
self-founded family trust. This submission is new and was never made
earlier despite the fact that the applicant has always
been aware (at
least not later than 2012) that an order for his removal from the
office of trustee is sought by the respondent.
Mr Ferreira agreed
that the submission constituted new material. Be that as it may, I am
not aware of any authority which places
family trust in a different
basket, so to speak, from other forms of trust. All trustees have to
perform their duties or exercise
their powers with the care,
diligence and skill which can be reasonably be expected of a person
who manages the affairs of another,
[7]
Mr Ferreira could also not furnish us with any authority for the
submission. Therefore, there is no merit in the submission,
[10]
When
making the orders in the judgment, including those specifically
targeted by the intended appeal, we approached the matter through
the
three-stage enquiry suggested in the decision of
Law
Society of the Northern Provinces
v
Mogami
and others
%
This was despite the applicant having already admitted the
transgressions levelled against him. The transgressions constituted
serious offences. There was no contradiction of the evidence put
forward on behalf of the respondent for the impugned judgment.
As
Bertelsmann J pointed out in the decision of
Law
Society of the Northern Provinces v Le Roux,
[8]
a
suspension allows the name of the attorney to remain on the roll and
has its own consequences, including the non-disclosure by
the
suspended attorney to whomsoever is concerned that he or she is no
longer allowed to practise as an attorney. There is no reason
why an
applicant should be allowed to practise when he had been found unfit
and improper person to do so.
[9]
1
agree. In this matter, this is so, notwithstanding that the applicant
had property guarantees to meet the trust shortages
[10]
or that by the time the offences were discovered they had already
been “rectified”.
[11]
Therefore, it is still my judgment that, the applicant’s name
ought not to be on the roll of attorneys and that he cannot
occupy
the office of a trustee.
[11]
Therefore,
in my view, there are no prospects of success in respect of the two
narrowed grounds or any of the other grounds in the
notice of
application for leave to appeal.
[12]
In my view, no other court would reach a different conclusion or
outcome to the judgment of 16 September 2015.
[12]
Under
paragraph 31 of the main judgment we dealt with the basis for
awarding costs on an attorney and client scale. There is no
reason to
deviate from imposing a costs order on a similar scale herein.
[13]
This will be in respect of both this application and the condonation
application. Consequently, the application for leave to appeal
fails.
[13]
Therefore, I propose that the following
order be made:
a)
application for condonation for the late
bringing of the application for leave to appeal is granted, but the
applicant is liable
to the respondent for costs hereof, on attorney
and client scale;
b)
application for leave to appeal is
refused, and the applicant is liable to the respondent for costs
hereof, on attorney and clier
K.LA
M. MANAMELA
Acting
Judge of the High Court
I
agree and it is so ordered
E.M.KUBUSHI
Judge of the High Court
APPEARANCES
For
the Applicant : Adv EJ Ferreira
Instructed
by : Van Zyl Le Roux Inc
Monument
Park, Pretoria
For
the Respondent : Mr S Magardie (Attorney)
Damons
Magardie Richardson Brooklyn, Pretoria
[1]
Paragraph 32e) ii) reads as follows: “that, the respondent
[i.e. the current applicant] be and is hereby
removed from the
office as: ... trustee of any trust in terms of section 20(1) of the
Trust Property Control Act 57 of 1988”.
[2]
Ibid.
[3]
See paragraphs 4 to 9 of the founding affidavit on indexed pages 14
to 16.
[4]
See paragraph 4 of the answering affidavit on indexed pages 77 to
79.
[5]
See
Rheeder
v
Ingelyfde
Wetsgenooiskap van die Oranje-Vrystaat
1972
(3) SA 502 (A).
[6]
See par 1.25 of Notice of Application for leave to appeal on indexed
page 7.
[7]
See section (9)(1) of the Trust Property Control Act and generally
Cameron E
et
al Ronore*s South African Law of Trusts
5
th
ed (Juta Cape Town 2002), including on page 262.
[8]
See
Law
Society of the Northern Provinces v Le Roux
,
2012 (4) SA 500
(GNP) at par [12]a),
[9]
Ibid.
[10]
See
Rheeder
v
Ingelyfde
Wetsgenootskap van die Oranje-Vrystaat
1972
(3) SA 502 (A).
[11]
See
Incorporated
Law Society
,
Transvaal
v
K
and another
1963
(4) SA 631 (T).
[12]
See indexed pages 2 to 7.
[13]
See
Law
Society of the Northern Provinces v Dube
[2012] 4 All SA 251
(SC A) at par [33].