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[2014] ZAGPPHC 283
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Law Society of the Northern Provinces v Kyle (57490/2013) [2014] ZAGPPHC 283 (22 April 2014)
REPUBLIC OF SOUTH
AFRICA
HIGH COURT OF
SOUTH AFRICA (GAUTENG PROVINCIAL DIVISION, PRETORIA)
CASE
NO: 57490/2013
DATE:
22 APRIL 2014
In the matter
between:
THE LAW SOCIETY
OF THE NORTHERN PROVINCES
.............................
Applicant
And
FREDERICK
KYLE
......................................................................................
Respondent
JUDGMENT
THE COURT
[1] This is an
application by the Law Society of the Northern Provinces (the Law
Society) to have the respondent suspended from
practising as an
attorney, as well as related ancillary relief. The respondent was
admitted as an attorney of this court on 4 September
2006 and is
currently practicing for his own account in Johannesburg under the
name of Kyle Attorneys. The respondent served notice
of intention to
oppose the application on 1 November 2013, but did not deliver an
answering affidavit. The notice of set down was
served personally on
the respondent on 29 January 2014.
[2] The Law Society
alleges that the respondent has made himself guilty of several
transgressions of its rules, which conduct includes
the following:
practising without a valid fidelity certificate since January 2013,
and for the periods 2009, 2010, 2011 and 2012;
failure to submit an
auditor’s report in terms of rule 70 of the Law Society rules
for the periods ending 28 February 2011
and 29 February 2102,
respectively, which reports are still outstanding; failure to account
to clients; delayed payment of trust
funds; and failure to give
proper attention to the affairs of his clients. The Law Society also
received several complaints against
the respondent from clients of
the respondent, an advocate, a Bar council and an attorney.
[3] The complaints
all concern failure to pay monies which were due, or the payment of
which was delayed. As a result of these complaints,
the Law Society
appointed an auditor to conduct an inspection of the respondent’s
trust account. That inspection never materialized
as the respondent
reportedly failed to co-operate with the auditor appointed by the Law
Society.
[4] When the matter
was mentioned this morning, the respondent appeared in person and
conveyed to us that he wished to oppose the
application on the papers
filed by the Law Society. In other words, he did not intend to file
any answering affidavit. We pointed
out to him the undesirability of
such procedure, and that we deemed it unwise on his part to do so. In
terms of rule 6(5) of the
uniform rules of court, where a party does
not wish to file any answering affidavit, but wishes only to argue a
point of law, such
party shall file a succinct statement containing
the points of law sought to be argued.
[5] The Law Society,
quite correctly, objected to this procedure, pointing out that it was
prejudiced as it had no inkling what
the points the respondent wished
to argue were. Despite this, we gave the respondent an opportunity to
indicate the nature of the
points he wished to argue. During his
submissions, it became clear that the respondent, among others,
wished to join issue with
the correctness of some of the Law
Society’s factual allegations against him. He also sought to
hand up a court file in another,
related application, which, the
respondent argued, advanced his defence to the Law Society’s
case against him.
[6] After hearing
the parties on preliminary issues, we formed a view that it would be
in the respondent’s interest to be
afforded an opportunity to
properly place before court, all what he sought to convey to us from
the bar. This inevitably led to
a possibility of a postponement.
Although the respondent persisted that his so-called points in limine
are dispositive of the matter,
we deemed it in the interest of
justice that the matter be postponed for the reason we have stated
above. Ultimately the parties
agreed that that the matter be
postponed.
[7] It is what
happens in the interim that the parties are not agreed on. The Law
Society proposes that an interim order of suspension
from the roll be
granted. The respondent strongly disagreed, contending that such an
order would effectively amount to a final
order, being relief the Law
Society sought in the first place. We are not certain why this should
be so if he is afforded an opportunity
to have that order discharged.
[8] The respondent
further submitted that in any event, we do not have the power to make
an interim order, as it was not sought
in the papers. The only court,
so was the argument, which could possibly entertain such an order is
the urgent court, in which
the Law Society would allege fresh facts
to justify an interim suspension. We find no merit in these
submissions. They are partly
based on a misconception of the nature
of the proceedings such as the present, and the inherent power of
this court in such proceedings.
[9] Proceedings such
as the present are sui generis and of a disciplinary nature. There is
no lis between the Law Society and the
respondent. The Law Society,
as a custos morum of the attorneys’ profession, places before
court facts for consideration
and an exercise of a discretion. See
generally: Hassim v Incorporated Law Society of Natal
1977 (2) SA 757
(A) at 767 C-G; Law Society, Transvaal v Matthews 1989 (4) SA 389 (T)
at 393E; Cirota & Another v Law Society, Transvaal
1979 (1) SA
172
(A) at 187 H and Prokureursorde van Transvaal v Kleynhans
1995
SA 839
(T) at
851E-F.
[10] The question
whether an attorney is no longer a fit and proper person to practice
as such lies, in terms of section 22 (1)
(d) of the Act, in the
discretion of the court. See Law Society of the Good Hope v Budricks
2003 (2) SA 11
(SCA). Once a court has determined that an attorney is
no longer fit to remain on the roll of
attorneys, the court
must determine an appropriate sanction, namely a suspension from
practice or striking from the roll. This determination
also lies
within the discretion of the court. The opinion or conclusion of the
Law Society that a practitioner is no longer a fit
and proper person
to practise as an attorney carries great weight with the court,
although the court is not bound by it: Kaplan
u Incorporated Law
Society, Transvaal
1981 (1) SA 762
(T) at 781H.
[11] The application
requires a three-stage enquiry. First, the court must decide whether
the alleged offending conduct has been
established on a preponderance
of probabilities, which is factual enquiry. Second, it must consider
whether the person concerned
is ‘in the discretion of the
court’ not a fit and proper person to continue to practice.
This involves a weighing-up
of the conduct complained of against the
conduct expected of an attorney and, to this extent, is a value
judgment. And third, the
court must enquire whether in all the
circumstances the person in question is to be removed from the roll
of attorneys or whether
an order of suspension from practice would
suffice (Law Society, Northern Provinces v Mogami and Others 2010(1)
SA 186; [2010]
1 All 315 (SCA) para 14).
[12] In Summerley v
Law Society, Northern Provinces [2006] SCA 59 (RSA) para 2, the court
explained the test to be applied during
the third stage of the
enquiry as follows:
The third enquiry
again requires the Court to exercise a discretion. At this stage the
Court must decide, in the exercise of its
discretion, whether the
person who has been found not to be a fit and proper person to
practice as an attorney deserves the ultimate
penalty of being struck
from the roll or whether an order of suspension from practice will
suffice.’
[13] In the present
case, as stated in the introduction, the respondent has not filed any
answering affidavit. The allegations of
the Law Society, based on the
complaints against the respondent, stand unchallenged, and we have no
reason not to accept them as
correct. Even if one ignores all other
allegations which the respondent might join issue with, it is
indisputable that the respondent
is currently practicing without a
valid fidelity fund certificate. This places the public at risk. On
this consideration alone,
we are of the view that the public should
be protected against the respondent.
[14] The
postponement should be subject to a rule nisi suspending the
respondent from further practice. We would be shirking our
responsibility towards the public were we not to adopt that course.
There is no prejudice to the respondent as he would be entitled
to
show cause why that order should not be confirmed. If he has such a
strong defence to the Law Society’s case against him,
he should
not be unduly concerned about an interim order, which would be
discharged once he places his version before the court.
[15] Finally, the
issue of costs. In matters such as these, policy considerations are
that the Law Society, as the custos morum
of the attorneys’
profession, should not be burdened with legal costs when launching
applications against attorneys who have
made themselves guilty of
dishonourable, unworthy or professional conduct. A practice has
therefore developed on that basis that
costs are granted on an
attorney and client scale. The respondent has offered to pay the
costs occasioned by the postponement.
We see no reason why those
costs should not be ordered on an attorney and client scale. The
respondent should appreciate that we
afforded him an indulgence which
he did not deserve. As the papers stand, the Law Society is entitled
to an order of suspension
against the respondent. An order of costs
on an attorney and client scale is therefore justified.
[16] In the result
we make the following order:
1. The application
is postponed sine die;
2. A rule nisi is
hereby issued, to operate with immediate effect, in terms of which
the respondent, FREDERICK KYLE is suspended
from practising as an
attorney of this court;
3. The return date
of the rule nisi is 26 May 2014 at 10h00, on which day the respondent
shall show cause why the above order should
not be made final;
4. The respondent
may, on five (5) days’ notice to the Law Society, anticipate
the return date;
5. The respondent is
ordered to pay the wasted costs due to the postponement on an
attorney and client scale.
TM MAKGOKA
JUDGE OF THE HIGH
COURT
And
ALCM LEPHOKO
ACTING JUDGE OF THE HIGH COURT
DATE HEARD : 22
APRIL 2014
JUDGMENT
DELIVERED : 22 APRIL 2014
FOR THE APPLICANT
: MR. J LEOTLELA INSTRUCTED BY : ROOTH & WESSELS, PRETORIA
THE RESPONDENT IN
PERSON