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[2016] ZAGPPHC 238
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Wilkinson v Law Society of the Northern Provinces (45601/2014) [2016] ZAGPPHC 238 (8 April 2016)
REPUBLIC OF SOUTH
AFRICA
HIGH COURT OF SOUTH
AFRICA
(GAUTENG PROVINCIAL
DIVISION, PRETORIA)
CASE NO: 45601/2014
8/4/16
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter between:
JOSEPH JOSHUA
WILKINSON
Applicant
and
THE LAW SOCIETY OF THE
NORTHERN PROVINCES
Respondent
JUDGMENT- Leave to
appeal
MAKGOKA, J
[1] This is an
application for leave to appeal against the judgment of this court
delivered on 20 April 2015. In terms of the order
of that judgment,
the applicant's name was struck
off
the roll of attorneys. The
application is opposed by the Law Society.
[2] The common law test
in an application for leave to appeal has always been whether there
are reasonable prospects that another
court, given the same set of
facts, might arrive to a different conclusion. That test has been
codified by s 17 of the Superior
Court Act 10 of 2013, in terms of
which leave to appeal may only be given where a judge is of the
opinion that the appeal
would
come to a different conclusion.
(My underlining for
emphasis).
[3] l have had careful
and dispassionate regard to the applicants' grounds of appeal, which
amount to no more than a regurgitation
of the arguments advanced in
the main application. Each of the grounds has been dealt with fully
in the judgment, and it would
serve no purpose to repeat what is
stated there. In the notice of application for leave to appeal, a
point which was never raised
in the main application, is raised for
the first in this application. It is contended that my learned
brother Phatudi AJ, is, by
virtue of being an attorney, still a
member of the Law Society, and should not have sat in the matter.
[4] The argument is that,
the learned acting Judge himself being subject to the rules and
regulations of the Law Society, the applicant
could not be perceived
to have received a fair trial. Article 12(4) of the Code of Judicial
Conduct for South African Judges merely
prohibits an acting Judge who
is a practising attorney from sitting in a case in which his or her
firm is involved as attorney
of record or in any other capacity. It
does not include a situation where, as here, the acting Judge, his or
her firm, have not
been involved in the matter. There is therefore no
point in this contention, and it is merely stated to be rejected.
[5] Apart from the point
discussed above, the main complaint is that the applicant's name
should not have been struck off the roll,
but an alternative sanction
such as suspension should have been considered. In coming to the
conclusion to strike the applicant's
name from the roll, the court
exercised a discretion. It is trite that a court of appeal will only
interfere with a discretion
where such was not judiciously exercised,
or put differently, where such discretion was exercised capriciously.
[6] In the present case,
I am not persuaded that there has been any misdirection in the manner
in which the discretion to strike
off the applicant's name was
exercised. For all the above considerations, I am not persuaded that
any other court would
come to a different
conclusion. In the result the application falls to fail. The costs
should be on the same
scale as ordered in the main application, for similar reasons as
stated there.
[7] The following order
is therefore made:
1.
The application for leave to appeal is dismissed
with costs on a scale as between attorney and client.
___________________
T.M. Makgoka
Judge of the High Court
I agree
___________________
M.G. Phatudi
Acting Judge of the High
Court
Heard:
4 April 2016
Judgment
delivered:
8 April 2016
Appearances:
For the
Applicant:
Adv. J.A. Klapper
Instructed
by:
Joubert Attorneys
For the
Respondent:
Ms S Magardie
Instructed by:
Damons Magardie Richardson