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[2014] ZAGPPHC 496
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Graham and Others v Law Society of the Northern Provinces and Others (61790/2012) [2014] ZAGPPHC 496 (15 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
CASE
NO: 61790/2012
DATE:
15/4/2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
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.