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[2015] ZAGPPHC 448
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Ndleve v Pretoria Society of Advocates, In re: Pretoria Society of Advocates v Ndleve (36147/2009) [2015] ZAGPPHC 448 (8 July 2015)
IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NO.: 36147/2009
DATE: 08 JULY 2015
In the matter between:
NDLEVE, RALPH
PATRICK
...........................................................................................
APPLICANT
And
PRETORIA SOCIETY OF
ADVOCATES
...................................................................
RESPONDENT
In re
PRETORIA SOCIETY OF
ADVOCATES
.......................................................................
APPLICANT
And
NDLEVE, RALPH
PATRICK
.......................................................................................
RESPONDENT
CORAM: DE VOS J et EBERSOHN AJ
DATE HEARD: 19™ JUNE 2015
DATE JUDGMENT HANDED DOWN: 8th July
2015
JUDGMENT
EBERSOHN AJ:
[1] This Court struck the name of the
applicant from the Roll ol Advocates at the behest of the Pretoria
Society of Advocates with
costs on the 12th June 2013.
[2] The application for leave to appeal
was served on the 7th February 2014 and way out of time. There is no
application for condonation
but this Court in view of the facts of
the matter and in order to finalise the matter condoned it and dealt
with the merits of
the application for leave to appeal.
[3] The Pretoria Society based the
application against the applicant for his removal from the Roll of
advocates on various grounds:
3.1 that the applicant, acting and
pretending as if he was an attorney, even before he was admitted as
an advocate in 2002, from
2000 until 2008, at least, took
instructions from several lay people without the intervention of an
attorney, to pursue claims
on their behalves, took deposits of money
from them, and in instances he was handed money to pay over to
creditors of the client;
he was dishonest in the worst degree in that
he in fact did not deal with these funds in terms of his instructions
but stole most
of the money. There is a worrying aspect regarding the
applicant and that is that even before he was admitted as an advocate
in
2002 he already in 2000 commenced his dishonest practice of
misleading lay clients and stole R72 857,10 from the estate of the
late M.J. Ndabezitha. The applicant was to utilise these funds
chiefly to maintain the minor children of the deceased but he did
not
do so. In his application for admission as an advocate he alleged
that he “was a fit and proper” person to be admitted
as
an advocate whilst he knew that he was not and that he was a thief
and stole the substantial amount from the said estate. This
fact was
not disclosed to the High Court who admitted him as an advocate and
he therefore committed perjury too. (See par 3.22.2
on page 29 of the
papers).
[4] In answer to a direct question from
my Brother De Vos J at the hearing of the application by this Court,
whether he stole the
money the applicant answered ”Yes”.
[5] Besides this confession the
Pretoria Society of Advocates in any case proved the transgressions
of the applicant beyond all
doubt.
[6] The law is quite clear regarding
the removal of an advocate from the Roll of Advocates on the grounds
set out in paragraph [3]
supra. (See General Council of the Bar of
South Africa v. Van der Spuy
1999 (1) SA 577(T)
and Van der Spuy v.
General Council of the Bar of South Africa (Minister of Justice and
Constitutional Development, Advocates for
Transformation and Law
Society of South Africa intervening)
[2002] ZACC 17
;
2002 (5) SA 392
(CC) ).
[7] The applicant before the hearing of
the application together with his practice notice and heads of
argument filed an affidavit
of only three pages wherein he applied
that a fourth set of affdavits be allowed as it might show that the
position has changed
and to enable him to get verifying affidavits
from the people from whom he stole the money wherein they might
confirm that he liased
with them and was trying to fully reimburse
them. This was not a proper substantive application. The contents of
the affidavit
was rather speculative and there was not a full and
proper description of the facts to be set out in the further
affidavits. The
reason why these alleged facts were not dealt with in
the answering affidavit of the applicant he blames on the failure of
the
Pretoria Society of Advocates “for not supplying him with
answers and information”. This ground is totally false and
he
knew that. He detailed further that he was negotiating with the
various complainants and could possibly solve the matters and
get
them to withdraw the complaints against him whereupon the application
of the Pretoria Society of Advocets against him should
be abandoned,
according to him. This ground is ludicrous in that, even if the
complainants settled all the matters with the applicant,
the Pretoria
Society of Advocates were dominus litis and not the complainants.To
put it in simple language even when the thief
of money repaid all the
money he stole, he still gets charged
and goes to prison for the theft.
[9] This affidavit being “a pie
in the sky” had no evidential value and was treated as such by
the Court and there is
no chance of such a ground of appeal
succeeding in any other Court.
[10] In his heads of argument in his
application the applicant refers to this Court in a derogatory manner
and blames the Court
for not coming to his assistance to meet the
complaints against him. The complaint is so ludicrous that it does
not merit further
dealing with it.
[11] THE PROPOSED GROUNDS OF APPEAL:
11.1 The applicant stated that there
was an alleged failure on the part of this Court to allow him to file
further affidavits which
prejudiced him to such an extent that a
failure of justice occurred. He also stated that there was a failure
of justice in that
the Pretoria Society of Advocates did not afford
him an opportunity to call witnesses and to cross-examine them. The
Society, in
view of the clear case before the Society , as they were
entitled to do, decided to approach this Court directly without
further
delay. There is no hope of success on this ground.
11.2 As a second ground the applicant
alleges that he didn’t have a fair hearing by this Court
regarding whether he was “a
fit and proper person to continue
to practice”. The Court could not close its eyes to the fact
that the applicant was, on
his own admission a thief and stole money
from various people and abused the trust of the public and that the
public was entitled
to be protected against him. In so far as it can
be construed as a ground of appeal the appellant seem to suggest that
he should
only have been suspended for a while and that he then be
allowed to practise further. No reasonable court would only suspend
him
from practice. He stated that he is seeking leave from the
Appellate Division to lead further evidence. The question remains as
to why there was a failure on the part of the applicant to put this
evidence before this Court in his answering affidavit as is
required
by the Court Rules. There is no chance of success on this ground.
11.3 A further ground of appeal is that
this Court should have referred the matter for the hearing of
evidenc. There is no prospect
of success with this ground as there is
no dispute of fact as to the applicant’s dishonesty and that he
was not a fit and
proper person to remain of the Roll of Advocates.
11.4 The applicant also complains that
he did not have a fair hearing in view of my learned Brother De Vos
“shutting him down”
every time he insisted on a fair
hearing. All Justice De Vos did was to explain to him that it was not
necessary for the Society
of Advocates to first hold its own hearing
where witnesses could be called and cross-examined, where the
evidence before the Society
warranted an approach directly to the
High Court, as in this instance. This the applicant kept harping on.
There is no prospect
of success with this ground.
[12] The applicant then submitted that
there were excellent prospects of another Court coming to a different
conclusion than this
Court did and that such other Court would not
remove his name from the Roll of Advocates.
[14] There are clearly no prospects of
another court coming to a different conclusion and there are no
prospects of success with
such an appeal
[14] The following order is proposed:
1. That the application for leave to
appeal be refused.
2. The applicant is to pay the costs of
the application on the scale of attorney and client.
P.Z EBERSOHN
ACTING JUDGE OF THE HIGH COURT
I agree and the order proposed by my
Brother is made an order of Court.
H.J. DEVOS
JUDGE OF THE HIGH COURT
Applicants’ counsel Attorney
Victor Mabe
Applicants’ attorneys Victor
Mabe Inc.
Tel No. not stated on documents Ref.
VPM/CIV/NDLEVE/10
Respondents counsel Adv. Salme M.
Maritz
Respondent‘s Attorneys Bernard
van der Hoven
Tel. 0123464243 Verw. Mnr. Van Hoven