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[2014] ZAGPPHC 207
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Graham and Others v Law Society of the Northern Provinces and Others (61790/2012) [2014] ZAGPPHC 207; 2014 (4) SA 229 (GP) (15 April 2014)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION PRETORIA
CASE NO: 61790/2012
DATE: 15/4/2014
In the matter between:
JENNIFER
GRAHAM
........................................................
First
Applicant
MATTHEW
GRAHAM
.................................................
Second
Applicant
ROAD ACCIDENT
FUND
...........................
Third
Applicant( Intervening)
And
THE LAW SOCIETY OF THE
NORTHERN
PROVINCES
................................................................
First
Respondent
RONALD BOBROFFF AND
PARTNERS INC
…
...............................................................................
Second
Respondent
RONALD
BOBROFFF
.................................................
Third
Respondent
DARREN
BOBROFF
.................................................
Fourth
Respondent
Date of Hearing: 27 and 28
January 2014.
Date of Judgment: 15
April 2012.
JUDGMENT
MOTHLE
J
INTRODUCTION
[1]
In June 2011, Jennifer Graham and Matthew Graham, wife and husband
(“
the Grahams
”), lodged a complaint of
overcharging with the Law Society of the Northern Provinces (“
the
Law Society”)
against their erstwhile attorneys, Ronald
Bobroff and Partners Inc, Ronald Bobroff and Darren Bobroff (“
the
Bobroffs
”).
[2]
The Grahams, dissatisfied with the manner in which they allege the
Law Society dealt
with their complaint against the Bobroffs, brought
this application to Court seeking relief, amongst others that this
Court should
take over the Law Society’s Disciplinary Enquiry
or allow it to continue under the Court’s supervision. This
Disciplinary
Enquiry instituted by the Law Society into the conduct
of the Bobroffs, has been postponed indefinitely, pending the outcome
of
this application.
THE
APPLICATIONS AND RELIEF SOUGHT
[3]
In these Court proceedings there are three applications, namely, the
main application,
a counter application and leave to intervene in the
proceedings.
[4]
In essence the relief sought in the main application is two-fold.
First as against
the Law Society, the Grahams pray for a declaratory
order, compelling the Law Society to perform its duties in terms of
the law,
in dealing with the Grahams’ complaint against the
Bobroffs. In the alternative, and the Court finding that the
Law
Society is unable to perform such duties, relief is sought for
issuing of directives and placing the Disciplinary Enquiry concerning
the Bobroffs under supervision or further in the alternative,
directing that the Disciplinary Enquiry be conducted by this Court.
[5]
The Grahams also seek relief directing the Bobroffs to make available
certain outstanding
information. In the alternative, and in the
event the Court placing the Disciplinary Enquiry under its
supervision
alternatively
conducting the Disciplinary Enquiry
in this Court, that the Grahams be suspended pending the conclusion
of such proceedings.
[6]
In the counter application, the Bobroffs seek relief that the Grahams
be interdicted
from interfering with the Disciplinary Enquiry of the
Law Society and that the adjourned Enquiry be allowed to resume.
[7]
At the commencement of these proceedings, the Road Accident Fund
(“the RAF”),
brought an application for leave to
intervene in the proceedings. The Court ruled that the RAF be granted
leave to enter the proceedings.
The reasons for the ruling were
reserved to be dealt with in this judgment.
BACKGROUND
[8]
The following are the background facts to this application:
8.1 On 4
September 2006 Matthew Graham, a plumber and member of the Discovery
Health Medical Scheme
(“Discovery Health”),
was
involved in a motor vehicle accident in which he sustained serious
bodily injuries. Following the accident, Jennifer Graham,
lodged a
claim with the RAF, assisted by Darren Bobroff of the attorney’s
firm Ronald Bobroff and Partners Inc.
8.2
Darren on behalf of the Grahams, lodged the claim against the RAF in
the amount of R2 000 000,
00. The Grahams and the RAF agreed to
settle the claim in the amount of R1 979 952, 69 all-inclusive plus
costs. Darren
deducted R858 689, 05 for fees and party/party
litigation costs and paid out R1 187 971, 61 to the Grahams;
8.3 The
Discovery Health which had paid for Matthew Graham’s medical
expenses, claimed payment
for these expenses from the Grahams. The
Grahams are represented by the Discovery Health attorneys;
8.4 On 3
June 2011 the Grahams, filed a complaint of overreaching with the Law
Society against the
law firm of the Bobroffs and against Darren
Bobroff.
8.5 On 7
October 2011 the Grahams demanded from the Bobroffs’ former
attorneys Brügmanns
Inc., that the Bobroffs make available
certain information and items related to the complaint. These
items are copies of
the law firm’s billing system and account
transactions relating to the RAF payment on the Graham’s trust
ledger account.
The Grahams later requested the Law Society to assist
them to obtain the information and the items to enable them to reply
to the
Bobroffs’ answer concerning the complaint.
8.6 On 9
November 2011 the Grahams filed a supplementary complaint to include
Ronald Bobroff as a
Third Respondent in the complaint.
8.7 On
28 February 2012 the Law Society’s Investigating Committee
comprising senior attorneys,
convened and held a hearing. The
Bobroffs walked out of the hearing which then proceeded in their
absence. The Investigating
Committee recommended to the Council
of the Law Society its finding that there is a
prima facie
case of unprofessional or dishonourable or unworthy conduct that has
been made against the Bobroffs and that the Law Society’s
monitoring unit should conduct an inspection at Bobroffs’
offices;
8.8 On 7
June 2012 the Law Society issued charges to the Bobroffs and formally
notified them of the
hearing of the Law Society’s Disciplinary
Enquiry scheduled for the 25 and 26 July 2012.
On
25 July 2012 at the commencement of the Disciplinary Enquiry, the
Bobroffs requested the recusal of all members of the Disciplinary
Committee of the Enquiry because they had prior sight of the evidence
before the scheduled hearing. The Bobroffs applied for and
obtained a
High Court order that evening, interdicting the Law Society from
proceeding with the hearing pending the finalisation
of a review of
the refusal by the members of the Disciplinary Enquiry to recuse
themselves. As a result of the interdict,
the
Disciplinary Enquiry was postponed indefinitely;
8.9 The
Law Society and the Bobroffs settled their dispute concerning the
composition of the Disciplinary
Committee. The Law
Society agreed to appoint a new Disciplinary Committee and the
Bobroffs abandoned the review;
8.10 On 27 August
2012, the Grahams sent the Law Society a draft report by Mr Vincent
Faris
(“Faris”),
an accountant, which report is
based on an extract from the Bobroffs’ accounting records.
In the report Faris recommended
that further inspection of the
Bobroffs’ trust accounts be conducted.
8.11 The Law Society
convened a Disciplinary Enquiry for 28 and 29 November 2012. Before
the sitting of the Disciplinary
Enquiry scheduled for 28 and 29
November 2012, the Grahams launched this application in this Court on
25 October 2012.
8.12 On 30 October
2012 the Law Society formally notified the Bobroffs of the hearing of
the Disciplinary Enquiry
on 28 and 29 November 2012 .
8.13 On 19 November
2012 the Grahams’ attorney asked that the Disciplinary
Committee meeting of 28 November
2012 be postponed on a number of
grounds including that he will not be available as he has already
committed to be in Washington
DC, United States of America on the
dates of 28 and 29 November 2012.
8.14 On 28 November
2012 the disciplinary hearing was postponed. On
30 November 2012 the Council of the Law Society
(“the
Council”)
resolved to refer the Faris report and the
Bobroffs’ answer thereto to its Disciplinary Department to be
dealt with in the
normal course of the pending Disciplinary Enquiry;
8.15 On 26 March 2013 the
Law Society convened the Disciplinary Enquiry for 13 June 2013. On 13
June 2013, the Grahams
again sought and obtained a postponement of
the hearing pending the determination of this application.
[9]
This then brings us to the present application before Court.
[10]
As already stated, the hearing of the main application and that of
the counter application were
preceded by the RAF’s application
to intervene in the proceedings. Only the Bobroffs opposed the
intervening application.
[11]
After hearing arguments on that application this Court made an order
that the RAF be granted
leave to participate in the main
application. The following are the reasons for the order.
APPLICATION
TO INTERVENE IN THE PROCEEDINGS:
[12]
The RAF, in its application to intervene, contended that it has a
direct and substantial interest
in the proceedings before this Court
in regard to, firstly the issue of the common law contingency fee
agreements and secondly
the Law Society’s exercise of
disciplinary powers over errant attorneys, whose fee agreements are
non-compliant with the
law in the payment of RAF’s compensation
to victims of motor vehicle accidents.
[13]
The application for leave to intervene was opposed by the Bobroffs
who argued that they saw no
justification for the participation of
the RAF in these proceedings.
[14]
The test in an application to intervene in pending proceedings is
whether the party seeking the
intervention has a direct and
substantial interest in the subject–matter of the pending
proceedings.
[1]
The Constitutional Court in
Minister
for Justice & Constitutional Development v Nyathi
[2]
at paragraph 6 of the judgment stated the principle thus:
“
The
decisive criterion in determining whether or not to grant leave to
intervene under rule 8 of this court’s rules is whether
it is
in the interests of justice to do so. One aspect of this
consideration is whether the applicant has a direct and substantial
interest in the Litigation.”
[15]
RAF is an organ of state established by statute
[3]
with the primary objective of providing compensation to persons who
sustained bodily and other injuries from motor vehicle accidents
[4]
If the RAF accepts liability for payment of compensation in relation
to such injuries or death
alternatively
is ordered by the Court to compensate such victims, it has to do so
from funds allocated to it by Parliament.
[16]
It appears that at the heart of the dispute between the Grahams and
the Bobroffs is the manner
in which the amount received from the RAF
was dealt with concerning legal fees payable by the Grahams to the
Bobroffs. The
RAF submits that it has a direct interest in the
role the Law Society has to play in prosecuting the Grahams’
complaint,
having regard to the position the Law Society took in the
debate concerning the common law contingency fee agreements.
[17]
It is a matter of record that both Ronald Bobroff and the Council of
the Law Society held the
view that notwithstanding the promulgation
of the Contingency Fees Act,
[5]
attorneys have the right to conclude the so-called common law
contingency fee agreements with their clients. This is
evidenced by the position the Law Society took when the debate
concerning this issue came to a head in the De La Guerre-matter
before the Full Court of this Division
[6]
.
The issue dealt with in that case related to the lawfulness or
otherwise of the so-called common law contingency fee agreements.
It is now a matter of record that the Full Court of this
Division and also the Constitutional Court
[7]
on appeal, have found that the common law contingency fee agreement
is illegal and invalid.
[18]
The issue of the lawfulness or otherwise of the common law
contingency agreements is now settled.
This contingency fee issue is
therefore not before this Court either for debate or for
adjudication. This Court is mainly concerned
with the allegations
concerning the conduct of the Law Society in dealing with the
Grahams’ complaint as well as the alleged
evasive conduct of
the Bobroffs in the Disciplinary Enquiry against them.
[19]
I agree with the Bobroffs’ contention that this issue of the
common law contingency fee
agreements cannot be a ground for
intervention in this application, at least not at this stage. It will
no doubt feature in the
Disciplinary Enquiry conducted either by the
Law Society or if this application is successful, by this Court. The
question there
will be whether the Bobroffs have complied with the
provisions of the Contingency Fees Act. This contingency fee issue as
it relates
to the complaint against the Bobroff is premature for the
purposes this application and cannot thus be a proper ground to
intervene.
[20]
The second ground pleaded in support of the intervention application
is that RAF has an interest
in the disciplinary processes of the Law
Society in so far as they affect errant attorneys who overreached
clients on RAF payments.
The reason to intervene in this instance is
within the context of the Law Society allegedly failing in its duties
to mete out disciplinary
processes as required by law. The RAF
submits, with reference to various cases heard by the High Court
[8]
,
that even after the promulgation of the Contingency Fees Act, some
individual attorneys still maintained that they are entitled
to enter
into the common law contingency fee agreements with their clients. In
some instances this led to a departure from and
non-compliance with
the provisions of the Contingency Fees Act, resulting in the
attorneys overreaching their clients. The complaint
lodged with the
Law Society by the Grahams against the Bobroffs is based on these
allegations.
[21]
Counsel for the Bobroffs argued that the RAF does not have an
interest in the proceedings in
that these proceedings have to do with
the investigation of a complaint laid by the Grahams with the Law
Society. It is further
argued for the Bobroffs that the origin
of the complaint relates to the issues of contract between itself and
its clients, the
Grahams and consequently the RAF has no part to play
in this regard. I disagree.
[22]
The RAF has a legitimate interest in the discipline of errant
attorneys who overreach their clients
from the RAF payments. This
interest flows directly from the RAF’s statutory objects and
obligations. Consequently, where
there is an application before a
court, in which relief is sought against the Law Society for failing
to discharge its disciplinary
duties in regard to errant attorneys
overreaching clients from RAF payments, it should be a matter of
concern and interest to the
RAF.
[23]
In this application, the Grahams seek as relief an intervention by
the Court to take over or
supervise the Disciplinary Enquiry of the
Law Society in relation to their complaint of overreaching against
the Bobroffs in a
RAF payment. The allegation being that the Law
Society has displayed a supine attitude in discharging its duties in
relation to
the disciplinary processes against the Bobroffs. Since
the RAF has an interest in the discipline of errant attorneys
overreaching
their clients from RAF payments, this interest extends
to the adjudication and outcome of this application.
[24]
In an application by RAF to intervene in pending litigation, A Full
Court of this Division
[9]
held that RAF has a “
clear
interest in ensuring that road accident victims receive payment of
fair and reasonable compensation as contemplated by the
RAF Act
“…… and the RAF has a “
clear
and substantial interest in the outcome of (the) application.”
[25]
I am thus of the opinion that the RAF has a legitimate and
justifiable reason to enter these
proceedings. The conduct and
outcome of the Disciplinary Enquiry by the Law Society over attorneys
dealing with RAF payments is
and should be a matter of interest to
the RAF. It is therefore my ruling that this application
to intervene has merit
in that it is in the interest of justice that
the RAF should participate in this application. The RAF is now joined
as the Third
Applicant in these proceedings.
RELIEF
SOUGHT IN THE MAIN APPLICATION:
[26]
In the main application, the Grahams seek relief against the Law
Society on the one hand and
against the Bobroffs on the other. As
against the Law Society, the relief sought is stated in prayers 3, 5,
8, 11 and 13
of the notice of motion. Orders sought against the
Bobroffs are in prayers 1, 2, 4, 6, 7, 9, 10, 11 and 13.
I
will first deal with the relief sought against the Law Society and
thereafter that against the Bobroffs.
The
Grahams’ case against the Law Society
:
[27]
The Grahams contend that the Law Society has “
demonstrated
an unwillingness, unbefitting its statutory position, to
expeditiously and diligently comply with its duty to investigate
”
[10]
the complaint against the Bobroffs. In this regard the
following allegations are made:
27.1
That in its decision of 26 September 2012, the Law Society did not
“
immediately
institute an investigation in accordance with the recommendations by
Mr Vincent Faris in his report, including but not
limited to an
inspection in terms of Section 70 of the Attorneys Act, 53 of
1979.
”;
[11]
27.2 That the Law
Society has failed to demand from the Bobroffs production of material
information referred to
in the complaint documents (including their
electronic billing sheet records);
27.3 The Law Society
has to date not taken steps of its own either to procure the
originals of apparent forged
documents or otherwise separately
investigate the issue;
27.4 The Grahams’
attorneys on various occasions wrote to the Law Society requesting
the Law Society to
take action in respect of the Bobroffs’
failure to comply with its duty. The duty relates to failure to
make available
documents as requested by the Grahams. The
Grahams were then compelled to file their reply to the Bobroffs’
answer
without those documents;
27.5 That the Law
Society failed to compel the Bobroffs to put their version under oath
notwithstanding the provisions
of Rule 95.2.1 which states,
inter
alia
that the Council of the Law Society may call for an
explanation in answer to a complaint and “
may require such
explanation to be verified by affidavit”;
27.6 That the Law
Society failed to implement the recommendations of its Investigating
Committee that the Monitoring
Unit of the Law Society be instructed
to conduct certain further investigations at the offices of the
Bobroffs; and
27.7
That “
to
compound (and/or explain) the supine attitude of the LSNP
(‘Law
Society’).
The
LSNP far from being an impassive and neutral arbiter of the complaint
lodged by the Grahams against the Bobroffs, has
demonstrated a
commitment to siding with the Bobroffs in their attempt to uphold the
lawfulness of contingency fee agreements –
the very agreements,
it will be recalled, which the Grahams complained they were led to
enter by the Bobroffs.
”
[12]
[28]
The Grahams contend that the Law Society is conflicted on this
question of the common law contingency
fee agreements. They submit
that the Law Society entered the debate in the De La
Guerre-matter
[13]
in defence of the common law contingency fee agreements, in support
of the Bobroffs as its prime mover. This according to
the
Grahams casts a shadow on the role of the Law Society as a neutral
arbiter, in the conduct of the Disciplinary Enquiry concerning
the
Bobroffs.
[29]
In defence to these charges, the Law Society contends that:
29.1
The Grahams’ application is premature;
29.2
The exercise of the Law Society’s disciplinary powers are only
subject to review on the grounds listed
in Section 6 of the
Promotion of Administrative Justice Act,
[14]
(“PAJA”)
and the Grahams have not sought to establish any of those grounds;
29.3 That the Court
as a matter of policy would not entertain an application by an
aggrieved complainant for an
attorney to be suspended or struck from
the roll before the Law Society’s investigation and prosecution
of the complaint
has run to its finality; and
29.4 There are
various flaws on which the application of the Grahams is based.
[30]
In order to put the matter in context it is necessary to make
reference to the law that governs
the duties of the Law Society in
the disciplinary enquiries and procedures against attorneys.
Disciplinary
procedures of attorneys
[31]
The Law Society is established in terms of the Attorneys Act,
[15]
(“
the
Act
”).
Its members are practising attorneys and candidate attorneys. It
functions through an elected Council
(“the
Council”)
and Committees comprising members of the attorney’s profession.
The objects of the Law Society are outlined in Section 58
of the Act.
[32]
Section 67 of the Act empowers the Council to appoint one or more
committees to assist it in
the carrying out of its duties or
performance of its functions or exercise of its powers.
Such committee shall consist
of members of the Council and/or of
members of such Society. A committee may be assigned such
powers as the Council may deem
fit, provided that the Council shall
not divest itself of any power which it may have assigned to such
committee and may amend
or withdraw any decision of such committee.
However, there is a
proviso
that in the case of a committee assigned the power to enquire into
any case of alleged unprofessional or dishonourable or unworthy
conduct and to impose any punishment in respect thereof in accordance
with Section 72, the Council shall not amend or withdraw
any decision
arrived at or anything done by such committee in terms of the powers
assigned.
[16]
[33]
Section 69 of the Act provides that a Council of a Law Society may
prescribe the procedure to
be followed in connection with any enquiry
referred to in Section 71 of the Act. In terms of Section 71,
the Council may
in the prescribed manner, inquire into cases of
alleged unprofessional or dishonourable or unworthy conduct on the
part of any
attorney, notary public, Conveyancer or candidate
attorneys serving articles of clerkship. In doing so, the
Council is empowered
to summons any person who in the opinion of the
Council may be able to give material information concerning the
subject matter
of the enquiry or who has in his possession and under
his control any book, document, record or thing which has a bearing
on the
subject matter of enquiry, to appear before it at the time and
place specified in the summons.
[34]
Section 70 empowers the Council to direct any practitioner to produce
for inspection any book,
document, record or thing which is in the
possession or custody or under the control of such practitioner, in
order for the Council
to decide whether or not the Inquiry under
Section 71 should be held.
[35]
The Law Society has also promulgated its rules which every member is
expected to familiarise
himself with. In particular Part XIII
thereof deals with the Disciplinary Enquiry. Rule 93 up to and
including Rule
103.2 deals with the procedures regarding the
discipline of attorneys. For the purposes of this judgment it becomes
necessary to
refer to the salient features thereof, being:
35.1 That the Law
Society can appoint a committee to conduct such disciplinary
enquiry. The decision of
the committee conducting the enquiry
shall be binding on the Council of the Law Society but not on a
Court;
35.2 Such
Disciplinary Committee may be assigned such powers of the Council as
the Council may deem fit.
This includes the powers to summon
witnesses or request material including books, documents or records
which may be in the possession
or custody of such person;
35.3
May administer such oath or affirmation as is necessary;
35.4 The law
relating to privilege as applicable to a witness summoned to give
evidence or produce a book, document
or record of things in a civil
trial before a Court of law shall apply;
35.5 Such
Disciplinary Committee may require an explanation in writing in
answer to the complaint to be verified
by affidavit;
35.6 The
Disciplinary Committee may prescribe a procedure to be followed in
connection with any enquiry referred
to in Section 71; and
35.7 Such
Disciplinary Committee shall consist of members of the Council or of
the Society concerned as stated
in Section 67 of the Act.
Has
the Law Society failed to perform its duties in accordance with the
Act and its Rules?
[36]
The essence of the Grahams’ case against the Law Society is
documented in numerous letters
that were exchanged between the
Grahams and the Law Society. This correspondence was initiated by the
Grahams, in the main, raising
a litany of objections in regard to how
the complaint lodged against the Bobroffs was being handled. The
objections include a demand
by the Grahams that the Law Society
should appoint a retired Judge to conduct the enquiry and appoint an
advocate to prosecute,
so as to ensure equality of arms since the
Bobroffs had the benefit of Senior Counsel defending them.
[37]
There were further complaints that the Law Society is failing to act
expeditiously and shows
unwillingness to act on information supplied
and/or to assist the Grahams to secure certain specified information
from the Bobroffs
in order to deal with the complaint effectively.
The Grahams contend that all these matters to which they objected
were not satisfactorily dealt with and consequently an application
had to be brought to Court for the relief as stated in the Notice
of
Motion.
[38]
The correspondence between the Grahams, represented by their
attorney, Mr G M Van Niekerk
(“Van Niekerk”)
and
the Law Society represented by Messrs Grobler
(“Grobler”)
and Fourie
(“Fourie”),
is too voluminous for the
content thereof to be repeated or dealt with in detail in this
judgment. However I will refer to some
of the letters pertinent to
the issues raised in this application.
[39]
In a letter dated 9 June 2011, six days after lodging the complaint,
Van Niekerk sought information
from the Law Society as to what
procedure it proposed to follow. After failing to get an immediate
response, he followed up with
a letter dated 29 June 2011 wherein he
pointed out that if there was any unreasonable delay in the Bobroffs’
response to
the complaint, “
Our client’s rights in
respect of any further action are reserved.
”. The following
is some of the correspondence which ensued:
39.1 On 1 July 2011
the Law Society responded to Van Niekerk’s letter and pointed
out to him the prescribed
procedure in the rules and the fact that
the complaint will be referred to the Bobroffs for their answer;
39.2 On 10 August
2011 Van Niekerk wrote again to the Law Society pointing out, amongst
others, that the Law Society
is not serious in dealing with their
complaint, more so that Ronald Bobroff is a member of the Council
39.3 Van Niekerk
then wrote to the Law Society again on 2 December 2011 wherein he
demanded that the Law Society
confirm by no later than close of
business on Friday, 9 December 2011 that the Law Society shall
appoint neutral senior attorneys
or advocates to hear the complaint,
failing which the Grahams will approach the court;
39.4 On 15 December
2011 the Director of the Law Society, Grobler responded to Van
Niekerk’s letter and
assured Van Niekerk that the complaint is
being dealt with properly in terms of the disciplinary procedures of
the Law Society.
He further, in the letter, pointed out that
the complaint was voluminous, of substance and that it has raised new
matters in the
supplementary complaint which has to be referred to
the Bobroffs for an opportunity to answer, before being considered by
any disciplinary
hearing. He further stated that arrangements
have been made to bring the matter before a Disciplinary Committee in
February
2012.
39.5 On 16 January
2012 Van Niekerk wrote again to the Law Society pointing out that the
latter had not addressed
the Grahams’ specific concerns raised
in the letter of 2 December 2011. In the same letter he
demanded that the undertaking
sought from the Law Society be provided
as a matter of urgency failing which the perception that the
complaint was not being properly
attended to will remain and the
Grahams will be justified in approaching the North Gauteng High Court
directly;
39.6 On 24 January
2012 the pro forma prosecutor, Fourie wrote to Van Niekerk informing
him that the Investigating
Committee, comprising senior attorneys
would hold a hearing on 28 February 2012. Van Niekerk was
assured in the same letter
that he and his clients would have ample
opportunity to convey their views to the Committee. This
letter was responded
to on 21 January 2012. In his response,
Van Niekerk raised a number of complaints against the Law Society.
This then
caused the Director, Grobler to address a detailed response
to Van Niekerk on 8 February 2012. In that letter Grobler dealt
with a detailed explanation of the Law Society’s investigation
and disciplinary procedures and further that they take issue
with the
Grahams’ attorney attempting to dictate his own process to the
Law Society.
39.7 On 7 June 2012
Fourie issued the charges to the Bobroffs and formally notified them
of the hearing of the
Disciplinary Committee on 25 and 26 June 2012.
The very following day on 8 June 2012 Van Niekerk made extensive
comments
on the draft charges in a letter to the Law Society.
In that letter he asked that the Bobroffs be called upon by the Law
Society to file affidavits including those of Ms Karuso, Ms Tognocchi
and Mr Joubert and also to reply to the Grahams’ request
for
further information as raised with the Investigating Committee
during the hearing on 28 February 2012;
39.8 On 3 July 2012
Fourie amended the charges against the Bobroffs to incorporate all
Van Niekerk’s proposals.
On the same day he responded to Van
Niekerk’s demands. He pointed out that the Grahams were
at liberty to apply to
the Disciplinary Committee to compel the
Bobroffs to give the information requested. He further
declined to summons
Ms Karuso, Ms Tognocchi and Mr Joubert to give
evidence because in his opinion they would not give evidence
incriminating the Bobroffs;
39.9 On 21 August
2012 and after the disciplinary hearing was postponed, Van Niekerk
enquired about further conduct
of the matter and requested that a
panel of retired Judges be convened to hear and determine the charges
against the Bobroffs;
39.10 On 27 August 2012 Van
Niekerk sent the Law Society the Faris report. Van Niekerk
requested the Law Society to
launch an investigation as recommended
by Faris and inspect the Bobroffs’ records in terms of Section
70 of the Attorneys
Act “
failing which our instructions are
to approach the High Court for appropriate relief including an order
to compel the Council to
open an investigation.”;
39.11 On 11 September 2012 Van
Niekerk complained to the Law Society that they had not responded to
the Faris report.
That was two weeks after the report was made
available to the Law Society. The Law Society responded to Van
Niekerk through
two letters, the one from Grobler dated 13 September
2012 and the other by Fourie on 17 September 2012. Grobler
informed
Van Niekerk that the Law Society’s Disciplinary
Department had resolved to deal with the Faris report in the normal
course
of the disciplinary process of the Law Society and further to
recommend to the Law Society’s monitoring unit to do an
inspection
of the Bobroffs’ accounting records. He
further mentioned that the Council would consider the request in the
next meeting
of 26 September 2012. Fourie on the other hand
informed Bobroff of the appointment of a new Disciplinary Committee
and the
fact that the Disciplinary Committee would now hold a hearing
on 28 and 29 November 2012. In the same letter he further dealt
with the reasons why Van Niekerk’s demands that the panel of
retired Judges be convened to deal with the complaint cannot
be
acceded to;
Evaluation
of the Relief Sought Against the Law Society:
[40]
It is against the background of what transpired from the time the
complaint was lodged, that
the question whether the Law Society has
performed its duties, should be considered.
[41]
The supine attitude of which the Grahams accuse the Law Society of
seems to be based mainly on
four grounds of dissatisfaction which
are; failure to deal with the Faris report; the Law Society’s
position on common law
contingency fee agreements; the electronic
billing system and allowing the Bobroffs to play possum and delays in
dealing with the
complaint.
The Faris Report
[42]
On 27 August 2012, Van Niekerk submitted the draft Faris Report to
the Law Society. A final
version of the report was submitted at
a later stage. The report recommends an inspection of the
Bobroffs’ trust accounts.
The request for inspection of
the Bobroffs’ trust accounts was first raised with the
Investigating Committee on 28 February
2012. However on 5 April
2012 Van Niekerk informed the Law Society that “
We are no
longer of the view that such an inspection is required.
”
[43]
When this request was renewed on the basis of the Faris Report on 27
August 2012, the Law Society referred
it to the Bobroffs for their
response. According to the Law Society, when this application was
launched on the 25 October 2012,
it had not yet received the
Bobroffs’ response to the Faris Report. This response was
received on the 19 November 2012.
The Council then considered
the Bobroffs’ response to the Faris report at their meeting of
30 November 2012 and resolved
not to initiate a new investigation but
to refer the Faris report and the Bobroffs’ response to the Law
Society Disciplinary
Department to be dealt with in the normal course
of the pending Disciplinary Enquiry. As far as the Law Society
is concerned,
the Faris report remains under consideration by the Law
Society’s Disciplinary Department.
[44]
The Grahams have raised this matter in this application, wherein they
seek an order that the
Law Society undertake an inspection of the
Bobroffs’ trust accounts “
in
terms of Section 70(1) of the Attorneys Act.”
[17]
The Law Society opposes this relief on the grounds that it is
unfounded. The following are the reasons advanced is opposing
this form of relief:
44.1
An attorney’s trust account is kept in accordance with the
requirements of Section 78 (1) to (4) of
the Act. Any
inspection based on non-compliance with these requirements would be
conducted in terms of Section 78 (5) and
not Section 70 (1) as
contended by the Grahams. The latter section only permits an
inspection for the purposes of an enquiry
under Section 71 or in
order to enable the Council to decide whether or not such an enquiry
should be held;
44.2
There is no evidence which suggests that the Law Society has refused
to investigate Bobroffs’ accounts
as recommended in the Faris
report.
[45] The
Faris report came more than a year after the complaint was lodged
with the Law Society. The submission
of this report found the
investigation on the complaint already a year under-way and the
Council referred it to that investigation.
[46] Part
XIII, item 95.2 of the Rules of the Law Society on Disciplinary
Enquiry prescribes that after a complaint
is received, it has to be
referred to the attorney concerned for an explanation in answer to
that complaint. On receipt of the
Faris report, the Council referred
it to the Bobroffs for their comment, in compliance with the
procedure.
[47]
It seems to me that the Grahams were rather impatient with the
procedures followed by the Council.
This impatience on the part of
the Grahams is demonstrated by the fact that by the time the Council
received the Bobroffs’
comments on the Faris report on 19
November 2012, the Grahams had already lodged this application in
Court in October 2012, seeking
relief that the Bobroffs’ Trust
accounts be inspected.
[48]
According to the Law Society, the present status of the report is
that it has been referred to
the Disciplinary Department to be dealt
with “
in
the normal course of the pending Disciplinary Enquiry.
”
[18]
I am thus unable to find that the Law Society has failed to discharge
their duties in regard to the Faris report
[49]
The Faris report raises serious allegations concerning the management
of the trust accounts of the
Bobroffs. The report recommends further
inspection of these accounts. The Council has had the opportunity to
refer the report to
the Bobroffs and an answer has been provided. The
Council did not reject the report but sent it to the Disciplinary
Department
to be dealt with in the normal course of the pending
Enquiry. Considering the seriousness of the findings in the Faris
report,
I am of the view that the Disciplinary Department must
inspect the Bobroffs’ books of account as recommended by Faris,
in
terms of Section 78 (5) of the Act, before the next sitting of the
Disciplinary Enquiry.
The
common law contingency fee agreement:
[50]
It is a matter of record that the Bobroffs, in particular Ronald
Bobroff, supported the view
that the common law contingency fee
agreement was valid notwithstanding the provisions of the Contingency
Fee Act.
This matter came to a head in the De Laguerre
case
[19]
.
The Grahams accuse the Law Society of taking the side of Ronald
Bobroff in those proceedings by supporting the validity
of the common
law contingency fee agreements. The submission is further that by
taking that position, the Law Society is conflicted
in dealing with
this issue in the context of the Disciplinary Enquiry concerning the
Bobroffs.
[51]
In defence of this allegation, the Law Society alleges that in 2004
and 2005 they requested three opinions
on the matter and accepted the
opinion which indicated that the common law contingency fee
agreements were valid
[20]
.
In participating in the De Laguerre case, the Law Society avers that
it expressly disavowed any allegiance with Ronald Bobroff
and stated
that his views, whatever they may be, are not those of the Law
Society. It is further submitted that the Council
also resolved
that Ronald Bobroff should not participate in deliberations or
decisions to be made by the Council in relation to
the contingency
fee issue.
[52]
However, Ronald Bobroff had already written an email
[21]
to the Council advocating support for the validity of the common law
contingency fee agreements. It remains to be seen to what
extent
Ronald Bobroff’s communication with the Councillors succeeded
in exerting influence on the Council, such that it would
be
conflicted in discharging its disciplinary duties in relation to the
Bobroffs.
[53]
It is now a matter of record that the Full Court of this
Division
[22]
ruled that the common law contingency fee arrangements were unlawful.
This ruling has since been confirmed by the Constitutional
Court
[23]
in a judgment delivered after this matter was argued before me.
[54]
What remains therefore is to determine on the evidence whether
the Law Society is now conflicted
in handling the current
Disciplinary Enquiry as a result of the position it took in the De La
Guerre matter.
[55]
It is not disputed that Fourie, as
pro
forma
prosecutor
has charged the Bobroffs with contravention of the Contingency Fee
Act,
[24]
These charges were brought as early as 7 June 2012, after the ruling
by the Full Court on the De Laguerre matter. It seems
to me
that the Law Society has accepted the Court’s ruling and there
is no evidence to the contrary.
[56]
The suspicion held by the Grahams and supported by the RAF that
the Law Society will be conflicted
is not supported by other
evidence, apart from the position of the Law Society in the De La
Guerre matter and Ronald Bobroff’s
communication with the
Council members. I am unable to find any evidence that suggests that
the Law Society is or would be conflicted
in charging the Bobroffs
with the contravention of the Contingency Fee Act.
[57]
It seems to me that it is premature to elevate that suspicion to a
fact and make an adverse finding
that the Law Society is or would be
conflicted, before the conclusion of the Disciplinary Enquiry. I am
of the view that should
there be any evidence of impartiality, bias
or reluctance on the part of the Law Society to proceed against the
Bobroffs for whatever
reason in the Disciplinary Enquiry, then the
Grahams would be entitled to take the Disciplinary Enquiry and the
outcome thereof
on review. I therefore agree with
the Law Society’s contention that there is no evidence, at
least at this
stage that the Law Society is or would be conflicted in
the Disciplinary Enquiry against the Bobroffs.
Failure to secure
documents:
[58]
The Grahams allege that the complaint they lodged with the Law
Society arises out of overcharging
that was effected on an electronic
billing system. They attempted to obtain documents and items of
this billing system from
the Bobroffs, without success. They
then turned to the Law Society to assist with the securing of these
documents. The complaint
against the Law Society in this context
relate to what the Grahams describe as their failure to assist in
compelling the Bobroffs
to make available such information.
[59]
The Law Society is empowered by statute
[25]
to demand production of books, documents, record or thing, which is
in possession or custody or under the control of the practitioner
and
which relates to his or her practice.
[26]
The Grahams requested these documents right at the beginning of the
investigation after lodging the complaint. They
needed these
documents to reply to the Bobroffs’ answer to the complaint.
[60] These
documents and an inspection of electronic items are listed in the
formal Request for Outstanding Information
notice that was directed
by the Grahams to the Bobroffs. I will revert in detail at a
later stage in this judgment on these
documents. For now,
I agree that the Grahams were correct in expecting and demanding from
the Law Society to assist
them to secure the information.
[61]
Counsel for the Law Society submits that the request for documents is
a power in terms of Section 70
which the Council may exercise “
for
the purposes of an enquiry under Section 71 or in order to enable it
to decide whether or not such an enquiry should be held.
”
[27]
He goes on to submit that the Council may not exercise this power
before it reaches the stage when it has to decide whether
or not to
hold an enquiry in terms of Section 71. In terms of Rules
95.2.1 and 95.5 it may only decide whether to hold an
enquiry after
affording the attorney an opportunity to file an answer to the
complaint against him and if he does, after it has
considered his/her
answer.
[62]
It is not in dispute that the Law Society has already taken a
decision to hold a Disciplinary Enquiry.
By 2012 the Council had
received the answer from the Bobroffs on the complaint and had
forwarded the answer to the Grahams for
reply. As early as 7 June
2012 the charges against the Bobroffs had been drawn. Ordinarily, the
Law Society should then have assisted
the Grahams to obtain the
required information. However, Van Niekerk indicated on 5 April 2012,
in relation to the information
requested that the Grahams were “
no
longer of the view that such inspection is required.”
[28]
[63]
In this letter of 5 April 2012 the Grahams effectively withdrew their
request for assistance
by the Law Society to obtain the information
from the Bobroffs. I cannot therefore find any basis to hold that the
Law Society
failed it its duties on this ground.
Statements made
under oath
[64]
In reply to the request by the Grahams that the Bobroffs should state
their case under oath,
the Law Society refers to a standing practice
where members are not required to confirm their responses to the
charges against
them on oath. Rule 95.2.1 provides that the Law
Society
may
require the practitioner’s explanation to be
verified by affidavit. It is contended for the Law Society that
at the
beginning stages of the investigation, explanations provided
by members need not be under oath as they do not constitute evidence
before the disciplinary tribunal.
[65] Rule
97A.4 permits evidence by way of affidavit or other document.
Such evidence will be evaluated
together with the rest of the
evidence. It is therefore up to the attorney concerned whether
he/she choses to place its defence
under oath. Failure to do so
during the Disciplinary Enquiry, would clearly have an effect on the
value of the attorney’s
evidence. I thus do not consider
it a dereliction of duty on the part of the Law Society for allowing
the Bobroffs to submit
unsworn statements in response to the
complaint against them.
Possum
[66]
The Grahams accuse the Law Society of allowing the Bobroffs to play
possum or feign ignorance
to the issues raised in the complaint. The
implication of this attack is that when providing their explanation
in answers to the
complaint, the Bobroffs do not respond specifically
to every charge that has been raised but rather chose to plead
parsimoniously.
Relying on the De La Guerre
[29]
judgment and other authorities
[30]
,
the Grahams contend that the Full Court found that Ronald Bobroff, by
filing no answering affidavit was applying evasive and delaying
tactics.
[67]
I am however of the view that the position of the Bobroffs in this
application is distinguishable
from the authorities referred to. The
Bobroffs have filed an answering affidavit in this application. In
the affidavit, they do
not plead as yet to the charges formulated by
the Law Society. These charges are not as yet the subject to
adjudication by this
Court in this application.
[68]
This application is thus not the Disciplinary Enquiry. The Court has
to consider the question
whether it is appropriate to intervene and
either take over the Disciplinary Enquiry involving the Bobroffs from
the Law Society
or allow such inquiry to continue under the Court’s
supervision. It is therefore not expected of the Bobroffs at
this
stage to plead to the charges formulated by the Law Society. In
the event this Court concludes that the conduct of the Law Society
warrants a complete take-over of the Enquiry as prayed, then all
parties involved, including the Bobroffs, will be granted leave
to
prepare and file whatever documents necessary to support their case.
This is also evident from prayer 6 of the Notice of Motion
in the
main application. It is therefore premature to conclude under
these circumstances that by refraining from disclosing
their defence
to the charge in this application as it now stands, the Bobroffs are
playing possum.
[69] The
Bobroffs have also made it clear in the papers before this Court that
in the event the Court decides
to take over the disciplinary
processes from the Law Society, they must then be given an
opportunity to file their defence properly
to the complaint against
them.
[70]
The allegation that the Law Society allows the Bobroffs to play
possum has no merit. There is
no provision in the Act which empowers
or obligates the Law Society to prescribe to an attorney facing a
Disciplinary Enquiry as
to how he/she must plead his/her case. As
with the other complaints, this attack is premature. The Bobroffs
have pleaded not guilty
to the charges in the Enquiry
[31]
and they have indicated their preparedness to state their case should
the proceedings be conducted in this Court. Such Enquiry
could not
proceed mainly because the Grahams themselves twice requested that
the Disciplinary Enquiry be postponed.
Alleged undue delay
in the consideration of the complaint
[71]
One of the grounds of dissatisfaction on the part of the Grahams
which is apparent in its correspondence
with the Law Society is that
the Law Society was delaying in considering their complaint.
In response to the charge,
the Law Society listed statistics of the
burden which rests on it in terms of executing the disciplinary
functions. The Law
Society states, amongst others, that it
receives about 8 000 complaints per year and there are on average 230
disciplinary committee
enquiries held per annum. As at 30 June 2012,
the Law Society had 167 pending applications for attorneys to be
struck off the roll
or suspended from practice.
[72]
The Law Society further submits that under the Act and rules,
some of the key decisions relating to
the investigation and
prosecution of disciplinary charges are taken by the Council which
meets only once per month. All these
factors, it is submitted,
contribute to the delay in the normal course of executing its
disciplinary functions.
[73]
It is evident from Van Niekerk’s letters that he has been
subjecting the Law Society to
numerous requests for progress and
explanations for what he perceives as delays. Van Niekerk was
exerting a lot of pressure
on the Law Society to a point of elevating
the Graham’s complaint for consideration above others.
The suggestion for
example that the complaint must be adjudicated by
a Judge and an advocate be appointed to prosecute was clearly
inconsistent with
the provision of the Attorneys Act
[32]
and the Rules. Only practicing attorneys, who, by statute are
members of the Law Society, are authorised to conduct such
enquiries.
Van Niekerk, as an attorney, should have been aware of the
provisions of the Act in this regard.
DECLARATORY ORDER
[74]
The Grahams seek a declaratory order against the Law Society to do
all that is in its power to
ensure that the public is protected from
serious misconduct. There are a number of Court decisions
where the role of
the Law Society as
custos
morum of the profession
in dealing with matters of discipline of its members came under
consideration.
[33]
In almost all these matters, the courts have emphasised the
importance of this duty as well as the role of the Law Society in
regard to applications to suspend or strike off an attorney from the
roll of attorneys where the situation demands. The powers,
functions
and duties of the Law Society are stated in the Act. It is not a
matter of law but of fact, whether in this instance
the Law Society
failed to discharge its duties.
[75]
The Attorneys Act prescribes that applications to strike out or
suspend an attorney can
only be brought to Court by the Law
Society
[34]
.
In this regard, I refer to the matter of
Hurter
v Hough
[35]
.
Mr Hough, a private citizen, brought an application for Mr Hurter’s
name, an attorney, to be struck off the roll without
first lodging a
complaint with the Law Society. The Court dismissed this
application because complaints of misconduct should
be investigated
by the Law Society.
[76] The
Grahams seem to have a misapprehension or suspicion that the Law
Society would not act
bona fide
and objectively against the
Bobroffs. This view is supported by Van Niekerk’s sustained
attack on the Law Society, starting
within six weeks after the
complaint was lodged, and repeatedly threatening the Law Society that
the Grahams will approach this
Court, should their demands not be
met. This is clear in the letters written by Van Niekerk to the Law
Society.
[77]
Considering the evidence placed before this Court at this stage of
the proceedings, I am unable
to conclude that the Law Society has
failed to discharge their duties. Accordingly, there is no basis at
this stage for this Court
to grant the declaratory orders or censure
the Law Society as prayed for in the Notice of Motion
ENQUIRY
BY COURT OR UNDER COURT SUPERVISION
[78]
It is indeed trite that a Court would ordinarily not interfere with
the Law Society’s disciplinary
process until after it is
finalised. See in this regard
Law
Society of the Transvaal v Meyer
[36]
;
Incorporated Law Society v Taute
[37]
as well as
Kaplan
v Incorporated Law Society, Transvaal
[38]
.
[79]
Counsel for the Law Society concedes that there may be those
instances where the Court may have
to intervene and take over a
disciplinary process conducted by the Law Society
alternatively
supervise such disciplinary process. It seems to me that such
instances would only arise where failure to intervene would
lead to
irreparable harm to one or more of the parties who have an interest
in that process.
[80]
Where the Law Society takes disciplinary steps against a legal
practitioner, it does so as an
Organ of State
[39]
in the exercise of a public power and in the performance of a public
function in terms of the Act. The decision to
institute a
Disciplinary Enquiry on a practitioner constitutes an administrative
action as defined in section 1 of PAJA
[40]
.
[81]
It seems to me that where the Law Society fails to exercise its
duties or its functions in terms
of the Act and the Rules of the
profession, such may give rise to a review of its conduct, decision
or failure to take a decision,
at the instance of an aggrieved
complainant in terms of Section 6 of PAJA. The Law Society is
empowered by statute to Enquire into
cases of unprofessional or
dishonourable or unworthy conduct against errant members of the
attorney’s profession.
[41]
The courts are the final arbiter in these matters and should not
routinely take over the powers of the Law Society in performing
these
functions.
[82]
I am thus of the view that where a court is asked to intervene in the
Law Society’s Disciplinary
Enquiry midway, such intervention
should be limited only to instances where there is sufficient
evidence to justify such intervention.
This would be in the instance
where such Disciplinary Enquiry is so unlawful, unreasonable and/or
procedurally unfair to the extent
that the aggrieved party may not
receive relief in due course, should the disciplinary process by the
Law Society be allowed to
continue.
[83]
On the evidence before this Court, I am of the view that this is not
one of the instances where
an intervention or even supervisory relief
would be appropriate. The Law Society is being assailed for failing
to accede to the
demands of the Grahams’ attorney. There may be
merit in some of the concerns raised by the Grahams against the Law
Society
but most of these are premature.
The Grahams’
case against the Bobroffs:
Statements
under oath
[84] In
support of the contention by the Grahams that the Bobroffs should
be compelled
to state their case in the affidavits under oath
including confirmatory affidavits, the Grahams made reference to the
fact that
even in the present application before Court, the Bobroffs
did not respond to the substantive case against them. The basis
of this argument is that an attorney is enjoined by the rules and
regulations of the profession as well as being an officer of
the
court, to co-operate fully in matters of any enquiry into how he
conducts his practice.
[85] Section 71 of
the Act provides that the Disciplinary Enquiry has the power to
summon persons to testify if
necessary under oath or affirmation
during the course of the conduct of the hearing. It is
therefore premature to conclude
that the Law Society has failed to
subject the version of the Bobroffs under oath and that the
confirmatory affidavits or oral
evidence from the witnesses
identified by the Grahams would not be accepted.
[86]
The Disciplinary Enquiry still has to exercise its powers in terms of
section 71 of the Act and
the Rules of the Law Society. There is no
evidence that the Disciplinary Enquiry has decided not to invoke
these powers at all
in the Enquiry. This request by the Grahams that
the statements of the Bobroffs should be made under oath is thus
premature.
Request
for Outstanding Information
[87]
The Grahams have by notice requested certain information and items
from the Bobroffs as early
as the time when they were expected to
reply to the Bobroffs’ answer to the complaint. The outstanding
information requested
includes all Graham-related transactions in the
law firm’s electronic fee-billing system, the firm’s
books and record
of accounts, receipts and disbursement and original
letters and certificates of Mr Jerry Joubert.
[88]
The information and items were sought first from the Bobroffs’
erstwhile attorneys.
[42]
The
request was repeated when the current attorneys
[43]
of the Bobroffs came on record. The Law Society was requested to
assist when the Grahams were preparing their reply to the Bobroffs’
answer concerning the complaint.
[89]
Counsel for the Bobroffs submits that the relief claimed in this
regard is not supported by an
independent cause of action, but an
extension of the allegation that the Law Society failed to assist the
Grahams. Apart from this
contention, there appears to be no cogent
reason or reasons why the outstanding information and items requested
should not be disclosed.
[90]
The request for this outstanding information and items is part of the
relief sought against the
Bobroffs in the Notice of Motion. The
Bobroffs failed to respond to this part of the application. I am not
persuaded by the argument
submitted on behalf of the Bobroffs on this
issue. The request was raised with the Bobroffs long before the
Grahams lodged this
application.
[91]
I have considered the list of the outstanding information and items
as it appears in the notice
titled Request for Outstanding
Information and I am of the view that the information and Items
required are relevant to the complaint
and should have been
delivered. The Law Society defers to the Disciplinary Enquiry to deal
with the requested information and items.
I am not aware of any
reason why the required information and items should not be made
available to the Grahams as requested, before
the next sitting of the
Enquiry.
THE BOBROFFS’
COUNTER APPLICATION:
[92]
In their counterclaim, the Bobroffs essentially seek as relief the
dismissal of the Grahams’
main application and pray for the
resumption of the Disciplinary Enquiry, subject to the Grahams being
restrained from interfering
with the Enquiry and exerting pressure on
the Law Society. In the alternative, and in the event the Court being
prepared to take
over the Enquiry, the application be referred to
trial, alternatively that the Bobroffs be granted leave to answer to
the merits
of the complaint.
[93]
This counter application is predicated on the outcome of the main
application. If the Court
dismisses the main application, that
is the end of the matter. If, however, the Court rules that the
relief sought in the
main application is granted, in particular that
this Court be seized with the Disciplinary Enquiry as prayed for by
the Grahams,
then the Bobroffs request a chance to file their answer
to the substantive matters raised in the main application concerning
the
charges of misconduct or dishonourable or unworthy conduct.
[94]
In view of the findings I have already made and the order I intend to
make, it is not necessary
to deal with the merits of this counter
application.
[95]
The conspectus of the evidence indicate that the Disciplinary Enquiry
as appointed by the Council
of the Law Society has not had the chance
to deal with the complaint. Initially it was attacked by the Bobroffs
and had to be re-constituted
after a Court order. Thereafter the
re-constituted panel had to face request for postponement, on two
occasions, by the Grahams.
The Disciplinary Enquiry must be allowed
to complete its duties.
COSTS
[96]
The parties before Court
have all succeeded in part and failed in
part in respect of their cases as against the others. I am thus of
the view that each
party should pay its own cost.
In
the premises I make the following order:
1.
The application
for a declaratory order against the Law Society as
well as the relief sought to have this Court take over the
Disciplinary Enquiry
of the Law Society, alternatively place such
Inquiry under supervision by this Court is dismissed;
2.
The Disciplinary
Enquiry appointed by the Council of the Law
Society to Enquire into the complaint against the
Bobroffs is ordered to
convene a sitting of this Enquiry to take
place within sixty (60) calendar days from the date of this order.
3.
The Disciplinary
Department of the Law Society is ordered to conduct
an inspection of the books of account including the trust accounts of
Ronald
Bobroffs & Partners inc, as recommended by Mr Vincent
Faris, thereafter compile a report and serve the report to all the
parties
in this application, within thirty (30) calendar days from
the date of this order.
4.
Ronald
Bobroff and Partners Inc, Darren Bobroff and Ronald Bobroff
are ordered to deliver to the Law Society and the attorneys
representing
Jennifer and Matthew Graham, the information and items
listed in the notice of Request For Outstanding Information, within
fifteen
(15) calendar days from date of this order.
5.
Each party
is to pay its own costs.
JUDGE SP MOTHLE
GAUTENG DIVISION,
PRETORIA
HIGH COURT OF SOUTH
AFRICA
For the First
and Second Applicants
D Untenhalter SC
M Du Plessis
Instructed by
Edward Nathan Sonnenbergs Inc.
For the Third
Applicant (Intervening)
G J Marcus SC
F Hobden
Instructed by
Routledge Modise Inc.
For the First
Respondent
W Trengove SC
B Makola
Instructed by Rooth
and Wessels Inc.
For the Second,
Third and Fourth Respondents
M Hellens SC
D Vetten
A Lamey
Instructed by
Webber Wentzel.
[1]
Transvaal Agricultural Union v Minister of
Agriculture and Land Affairs and Others
2005 (4) SA 212
(SCA) at
paragraphs 64 to 66.
[2]
2010 (4) SA 567
(CC).
[3]
Section 2
of the
Road Accident Fund Act 56 of
1996
.
[4]
Section 3
of the
Road Accident Fund Act 56 of
1996
.
See also Engelbrecht v Road
Accident Fund and Another
2007 (6) SA 96
(CC) at para 23.
[5]
Act 66 of 1997
[6]
De La Guerre v Ronald Bobroff and Partners
Inc. and Others (22645/2011) [2013] ZAGPPHC 33 (13 February 2013).
[7]
Ronald Bobroff & Partners Inc. v De La
Guerre; South African Association of Personal Injury Lawyers v
Minister of Justice
and Constitutional Development (CCT 122/13, CCT
123/13
[2014] ZACC 2
(20 February 2014), judgment delivered after
the hearing of this application.
[8]
Mofokeng v RAF; Makhuvele v RAF; Mokatse v RAF
and Komme v RAF [2012] ZAGPJHC 150 (22 August 2012) at para 41;
Tjatji and Others
v Road Accident Fund
2013 (2) SA 632
(GSJ) and
Mnisi v Road Accident Fund
[2010] JOL 25857
(GNP).
[9]
South African Association of Personal Injury
Lawyers v Minister of Justice and Constitutional Development
2013
(2) SA 583
(GNP);
[2013 2 All SA 96
(GNP).
[10]
Grahams Heads of Argument.
[11]
Heads of Argument.
[12]
A summary of the grounds of dissatisfaction with the Law Society’s
conduct as pleaded in the Founding Affidavit and stated
in the Heads
of Argument.
[13]
Supra footnote 6.
[14]
Act 3 of 2000.
[15]
53 OF 1979
[16]
Section 67 (2) of the Act.
[17]
Heads of Argument.
[18]
Law Society’s supplementary answer p1355 para 9.1
[19]
De La Guerre v Ronald Bobroff & Partners
Inc. and Others (22645/2011) [2013] ZAGPPHC 33 (13 February 2013)
[20]
The two opinions by Adv W Trengove SC and Adv G Marcus SC expressed
a contrary view that the common law contingency fee agreements
were
invalid.
[21]
E-mail dated 9 September 2011.
[22]
The De La Guerre matter.
[23]
See footnote 7.
[24]
Act 66 of 1997
[25]
Section 70 of the Act.
[26]
Section 71 (2) of the Act.
[27]
Heads of Argument for the Law Society.
[28]
Letter of 5 April 2012.
[29]
See footnote 19.
[30]
The Law Society of the Northern Provinces v Masesela Ramashala
case 8106/2012 (GNP) judgment delivered on 23 November 2012;
Democratic
Alliance and Others v Acting National Director of Public
Prosecutions and Others
2012 (3) SA 486
(SCA).
[31]
On 13 June 2013.
[32]
Section 67 (1) (b) of the Act, which restricts
membership of the committees appointed by the Council of the Law
Society to Council
members or members of the society who are all
attorneys.
[33]
These include Solomon v
The
Law Society of the Cape of Good Hope
1934 AD 401
; Hassim v
Incorporated Law Society of Natal
1977 (2) SA 757
(A); Cirota and
Another v Law Society Transvaal
1979 (1) SA 172
(A); Law Society of
the Transvaal v Matthews
1989 (4) SA 389
(T); Prokureursorde van
Transvaal v Kleynhans
1995 (1) SA 839
(T).
[34]
Section
22 of the Act.
[35]
1987 (1) SA 380
(C).
[36]
1983 (2) SA 505
(T) at p508
[37]
1931 TPD 12
at 17.
[38]
1981 (2) SA 762
(T) at 778E-F.
[39]
Section 239 of the Constitution of the Republic
of South Africa 1996;
The Law Society
of the Northern Provinces (Incorporated as the Law Society of the
Transvaal) v Maseka and Another 2005 (6) SA
372 (BHC).
[40]
Act 3 of 2000
[41]
Section 71 of the Act.
[42]
Brugmans Inc.
[43]
Webber Wentzel.