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[2014] ZAGPPHC 362
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Ho T/A Betxchange and Another v Minister of Police and Others (47483/2013) [2014] ZAGPPHC 362 (12 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 47483/2013
In the matter
between:
PRETORIA SOCIETY OF
ADVOCATES
..........................................................................................
Applicant
And
NKADIMENG MATTHEW
MANAMELA
.....................................................................................
Respondent
JUDGMENT
TEFFO, J:
[1] The applicant
brought an urgent application for an order that the respondent be
interdicted from practising as an advocate of
this court pending the
hearing of the application for an order that the name of the
respondent be struck from the roll of advocates.
[2] My brother
Bertelsmann J granted the urgent application on 16 August 2013 and
the respondent was interdicted from practising
as an advocate of this
court.
[3] The applicant
also sought an order that the application be referred to the Director
of Public Prosecutions ("DPP")
for investigation.
[4] The basis of the
application is that the respondent never obtained the LL.B degree
required for admission as an advocate.
[5]Both applications
were opposed.
[6] After the
granting of the urgent application in terms whereof the respondent
was interdicted from practising as an advocate,
the respondent
brought an application whereby he sought an order that the jirgent
application granted by my brother Bertelsmann
J on 16 August 2013
interdicting him to practise as an advocate, be reviewed and
discharged forthwith.
[7] The review
application was also opposed.
[8] The review
application by the respondent together with the application for the
striking off of the name of the respondent from
the roll of advocates
were heard together.
[9]
Prior to the hearing of the two applications referred to
supra
in
para 8, the review application was brought on an urgent basis but was
struck from the roll with costs due to lack of urgency.
[10] For the sake of
convenience I will refer to the application by the applicant as the
main application and the review application
as an interlocutory
application. The application for interdicting the respondent from
practising as an advocate will be referred
to as portion A of the
main application and the application for the striking off of the
respondent’s name from the roll of
advocates will be referred
to as portion B of the main application.
Background facts
that led to the main application
[11] On 26 October
2009 the respondent brought an application in this court under case
number 65590/2009 for his admission to practise
as an advocate of the
High Court of South Africa.
[12]
On 29 January 2010 the applicant brought an application to intervene
in the application for the admission of the respondent
to practise as
an advocate of the High Court of South Africa. Leave to intervene as
a party in the application was granted and
the application was as a
result thereof postponed
sine
die
and
costs were reserved.
[13] While the
application for the respondent's admission to practise as an advocate
was still pending in this court, the respondent
brought another
application for his admission to practise as an advocate under case
number 1604/2010 in the Bophuthatswana Provincial
Division of the
High Court of South Africa (North West High Court).
[14] In that
application the respondent never disclosed the fact that there was a
pending similar application in this court.
[15] In his
application for admission to practise as an advocate which came
before the High Court in North West, the respondent
stated in his
founding affidavit in support for his application that the degree of
Bachelor of Laws (LL.B) was conferred upon him
on 11 April 1999 after
he had satisfied all the requirements for the said degree at the
University of South Africa (UNISA). He
alleged that he had attached a
copy of the degree certificate to the application and indicated that
the original certified copy
will be presented to the court at the
hearing of the application. He further stated that he had pursued
courses of study for the
said degree for a period of four (4) years
after he had successfully completed the degrees of Bachelor of Arts
(1985), Bachelor
of Education (1989), Master of Education (1999) and
Doctorate of Education in Philosophy of Education (1993), at the same
university
(UNISA).
[16] The applicant
alleged in its papers that the respondent has never submitted and/or
made available the alleged LL.B degree certificate
to this court
and/or the North West High Court.
[17] It was also
alleged that the application for the respondent’s admission as
an advocate that was brought in the North
West High Court was never
served upon the applicant.
[18] In his
answering affidavit the respondent reiterated that he had completed
all the requirements towards an LL.B degree in terms
of which he was
entitled to be admitted and enrolled as an advocate of the High Court
of South Africa.
[19] The respondent
is a member of the Church Square Association of Advocates.
Averments made in
respect of the interlocutory application
[20]
The respondent anticipated the return date for the
rule
nisi
with
a view to persuade the court for an order discharging the interdict
that was granted by Bertelsmann J on 16 August 2013.
[21] The basis of
the application was that Bertelsmann J wrongly found that he did not
have an LL.B degree and that since the statements
regarding the
issuing of the degree were not supported by his academic record, he
had failed to prove his credentials and consequently
he is not a fit
and proper person to practise as an advocate.
[22] He stated in
his founding affidavit that on 14 April 1999, a degree of Bachelor of
Laws was conferred upon him by UNISA at
a properly constituted
congregation of UNISA. He then attached a statement regarding the
issuing of a degree certificate and his
academic record.
[23] The issues for
determination are whether the respondent did obtain an LL.B degree,
and what are the consequences if he lied
under oath.
[24] In terms of
section 7(1) of the Admission of Advocates Act 74 of 1964 ("the
Act”), as amended, the court may suspend
any person from
practice, or order that the name of any person be struck off the
roll, if it is satisfied that he is not a fit
and proper person to
continue to practise as an advocate.
[25]
There are three steps in the enquiry whether such an action should be
taken. First, the court must decide whether the alleged
offending
conduct has been established on a preponderance of probabilities.
Second, it must consider whether the person concerned
in its
discretion is not a fit and proper person to continue to practise.
This involves a weighing up of the conduct complained
of against the
conduct expected of an attorney (advocate) and, to this extent, is a
value judgment. Third, the court must inquire
whether in all the
circumstances the person in question is to be removed from the roll
of attorneys (advocates) or whether an order
of suspension from
practice would suffice.
(Malan
and another
v
The Law Society,
Northern Provinces
[2008] ZASCA 90
;
[2009]
1 All SA 133
(SCA);
General
Council of the Bar of South Africa
v
Geach and others
2013
(2) SA 52
(SCA);
Pillay
and other related matters
v
Pretoria Society
of Advocates and Another; Bezuidenhout
v
Pretoria Society
of Advocates
[2013]
1 All SA 393
(SCA);
Kekana
v Society of Advocates ofSA
[1998] ZASCA 54
;
[1998]
3 All SA 577
(SCA);
Jasat
v
Natal Law Society
2000
3 SA 44
(SCA)).
[26]
In the
Kekana
matter
referred to
supra
the
appellant was removed from the roll of advocates due to allegations
of serious misconduct and dishonesty. The appellant's collegue
who
was involved in the same incident giving rise to the removal, was
suspended from practice for a short period. The court
a
quo
rejected
the appellant’s evidence as untruthful and found that he was
not a fit and proper person to continue practising as
an advocate.
Leave to appeal against the order was granted, but the appellant
failed to observe the procedural steps in respect
of time limits and
had taken no steps to prosecute the appeal. Due to this failure the
appeal was deemed to have been withdrawn
in terms of rule 5(4)
bis
(b)
of the Uniform Rules of the Supreme Court. In a petition for the
reinstatement of the appeal, the appellant did not contest
the court
a quo's
factual
findings or the finding that he was not a fit and proper person to
continue to practise as an advocate. He argued that the
court
a
quo
over-emphasised
the importance of his peijured evidence and had failed to maintain
reasonable parity in its treatment of the offenders
whose misconduct
did not differ materially. The court held that the appellant's
perjury which the court
a
quo
rightly
took into account was an aggravating feature of the case and which
tipped the scale in the decision to strike his name from
the roll.
The petition was dismissed with costs.
[27]
Hefer J made the following remarks in the
Kekana
matter
referred to
supra
:
"An
advocate should not be allowed to continue practising once he has
revealed himself as a person who is prepared to lie under
oath It is
a profession which has strict ethical rules aimed at preventing their
members from becoming parties to the deception
of the court The
preservation of a high standard of professional ethics is left almost
entirely in the hands of individual practitioners
.
Absolute personal
integrity and scrupulous honesty are demanded of each of them and a
practitioner who lacks these qualities cannot
be expected to play his
part
"
[28]
In the
Jasat
matter
where the court
a
quo
held
that the appellant's conduct in advancing a specious alibi defence,
knowingly giving false evidence in support of it and calling
a
witness to support his false evidence, had demonstrated that he was
not a fit and proper person to continue to practise as an
attorney
and that he should be struck off the roll, the Supreme Court of
Appeal (SCA) held that the profession of an attorney was
an
honourable one and as such demanded complete honesty, reliability and
integrity from its members. It further held that but that
did not
mean that any untruthfulness, however trifling, would render an
attorney unfit to practise and liable to be struck off
the roll.
Scott JA said:
"The
appellant's conduct was distinguishable from the sudden impectuous
telling of a lie. His conduct constituted a protracted
attempt to
deceive the courts. He had not only himself committed perjury, hut he
had suborned another to do so in order to lend
credence to his own
false evidence. The conduct of the appellant, seen in its totality
,
was such that
there could be no doubt that it demonstrated him not to be a fit and
proper person to continue to practise as an attorney
."
[29] In the founding
affidavit of Salie Joubert, the applicant relied on the averments
made by Gerhardt Otto Waldeck, Manager Student
Disciplinary Matters,
Office of the Registrar of the University of South Africa (UNISA) and
a special representative of senate
and Pro-Forma Prosecutor of the
University of South Africa (UNISA) wherein he stated under oath that
he conducted a search on the
respondent and confirmed that no degree
has been conferred by UNISA upon the respondent. Waldeck also
confirmed that no Bachelor
of Law degree or any degree has been
conferred upon the respondent. It was also pointed out that 11 April
1999 being the date on
which the respondent alleged that the LL.B
degree was purportedly conferred upon him, was a Sunday and that no
congregation was
constituted by UNISA for purposes of conferring
degrees upon successful candidates on 11 April 1999 or on Sundays. He
also pointed
out that no credit whatsoever was ever obtained by the
respondent and no examination was successfully completed by the
respondent
at UNISA.
[30] In a later
affidavit attached to the applicant's opposing affidavit to the
respondent's interlocutory application, Waldeck
corrected the error
in the allegation earlier made that no degree was conferred upon the
respondent by stating that the respondent
did obtain various degrees
in education from UNISA but UNISA never conferred an LL.B degree upon
the respondent.
[31] The following
was stated in Waldeck's second affidavit:
"3. I
confirm having consulted with Andreas Bernhadus Theron van der Hoven
on Monday, 26 August 2013 regarding the status of
degrees conferred
upon Nkadimeng Matthew Manamela by UNISA. I confirm that Van der
Hoven was misunderstood by me in that my affidavit
dated 26 June 2013
wrongly indicated that no degree was ever conferred upon Manamela by
UNISA.
4.
Nkadimeng Matthew Manamela was indeed conferred the degrees of
Bachelor of Arts
,
Higher Education
Diploma
,
Bachelor of
Education, Master of Education and Doctorate of Education by UNISA.
However, no Bachelor of Laws degree or the LL.B
degree was ever
conferred upon the aforestated Manamela by UNISA. For purposes of the
above
,
I confirm the
following with reference to the annexures to the opposing affidavit
of Salie Joubert:
4.1
The applicant indeed registered for the LL.B degree for the 1997
academic year as appears from annexures A1 and A2. I point
out that
the applicant's student number namely 323-112-7 appears on the
aforestated document for purposes of registration for the
LL.B degree
under code 0351- 4 which is the LL.B code. For purposes of
registration
,
the applicant had
to pay an amount of R1 800,00 and he registered for three courses and
4 papers namely:-
•
CLW100-S
Constitutional law
•
CRL100-C
Criminal law
•
MCL101-T
Mercantile law 1, paper 101
•
MCL102-U
Mercantile law 1, paper 102
•
PRL101
-3 Private law I paper 101
•
PRL
102-4 Private law I paper 102
•
UVW
1001-A Interpretation of statutes
4.2 To have been
registered as a candidate for the LL.B degree, the applicant had to
hold a Bachelor's degree. The LL.B could not
be completed under four
years (two years in the case of students who had completed a B.Iuris
degree, BLC degree or a B.Proc degree).
The Curriculum comprised 12
courses for the first two years and 22 papers for the last two years.
4.6.7 The applicant
was reinstated for all courses and papers on 13 December 1996. In
this regard, reference is made to annexures
A2 and D which
is the
complete student academic record for the LL.B degree with reference
to the applicant Annexure D clearly indicates that applicant
never
remotely qualifiedfor the LL.B degree.
4.6.8 On 19 July
1997, the applicant’s registration for UVW100-A, CLW100-S and
MCL100T both papers were cancelled programmatically
due to
non-payment of the outstanding study fees which was R204 000,00. All
study fees had to be paid in full before 19 July 1997.
4.11 On annexure
El, it can be seen that the applicant was absent from the examination
held on 21 October 1997 and therefore received
'A' for his final
percentage. *A'means absent The applicant submitted one assignment
for which he received 60% which gave him 100
credits which allowed
him to write the examination for this course.
4.12 On annexure
E3, it is indicated that the applicant was also absent from the
writing of the paper PRL101-3. He submitted an
assignment before 30
June 1997 for which he received 92% and 100 credit marks which
allowed the applicant to write examinations
for this paper on 16
October 1997. On annexure E, the applicant was also absent from the
writing of the paper PRL102-4. The applicant
submitted assignment two
before 30 June 1997 for which he received 23%
and
100 credit marks which allowed applicant to write the examination for
this paper on 27 October 1997.
4.13
As annexure FI and F2, I enclose a personal letter received from the
applicant by UNISA dated 21 January 2006 in which the
applicant
claimed that he had a housebreak and lost all his degree certificates
and in which he requested certification of all
his completed degrees.
In the letter, he mentioned all his completed degrees by name and
correct dates of
completion
.
No mention was
made by the applicant himself that he had allegedly completed prior
to 2006 a Bachelor of Law degree. On 21 and 22
February 2006, the
University of South Africa generated the requested statements and
posted the original statements regarding the
issuing of the degree
certificates to the applicant. No record was found on all the systems
of UNISA that the applicant completed
the Bachelor of Laws degree
(LL.B) and therefore no statement in this regard was generated nor
sent to the applicant by UNISA as
appears from annexure G
."
[32] As to the
allegations made by the respondent in the interlocutory application
that the LL.B degree certified statement was
issued to him on 14
April 1999, Waldeck mentioned in his affidavit that UNISA has no
record that annexure
M
D
M
(statement regarding
the issuing of the degree certificate) was generated nor issued by
it. He further stated that the respondent
was only registered for one
year towards the LL.B degree according to annexures A, B, C and D
which cannot be completed in less
than four years. He stated that it
would not have been possible for the respondent to complete all the
outstanding courses and
papers in one academic year to be able to
obtain the degree on 11 April 1999 or 14 April 1999 as he alleged.
Further to the above
Waldeck pointed out that on 14 April 1999, UNISA
only awarded degrees obtained from the faculty of Economics and
Management Sciences,
Arts and Sciences. He stated that no degrees
from the faculty of law were conferred on 14 April 1999.
[33] It is clear
from Waldeck's affidavit and annexures attached to it that the
respondent was not one of the successful candidates
upon whom the
LL.B degrees were conferred in 1999.
[34] It is common
cause between the parties that the respondent did not file a replying
affidavit to his interlocutory application.
It is evident from the
papers filed of record that after the service of the respondent’s
interlocutory application on the
applicant, the applicant had to
verify its facts as alleged in the main application and in response
to the respondent’s interlocutory
application. A proper
investigation was done as to whether indeed the respondent had
satisfied the requirements of an LL.B degree
as he had alleged in his
papers.
[35]
In its opposing affidavit by Salie Joubert reference is made to the
affidavit of Waldeck which has been discussed
supra
together
with the annexures attached to it. Despite all these allegations
against him, the respondent chose not to reply to the
applicant's
opposing affidavit to the interlocutory application. The allegations
therefore remain uncontested.
[36]
In paras 20-22
supra
I
dealt with averments made by the respondent in respect of
interlocutory application. No grounds have been set in respect of the
review application. Counsel for the applicant submitted that it is
impossible to review and discharge an interim order. He further
pointed out that the proper approach that the respondent should have
taken was to seek an order for the upliftment of the interim
relief
and/or for the discharge of the
rule
nisi.
I
agree with counsel for the applicant's submissions in this regard and
it is my view that the interlocutory application by the
respondent is
bound to fail as it does not have any merit.
Portion B of the
main application - application for striking off the name of the
respondent from the roll of advocates
[37] The respondent
raised a number of issues with regard to the authority of Waldeck to
depose to an affidavit whereby he make
allegations about UNISA's
affairs. He specifically contended that it is not clear as to whether
Waldeck deposed to his affidavit
in his official capacity as a
representative of UNISA or in his personal capacity. Furthermore he
contended that it is not clear
whether Waldeck was duly authorised to
depose to his affidavit by UNISA. This is an application for portion
B of the application.
Portion A of the application has already been
dealt with. Issues raised by the respondent are not new issues. They
were obviously
entertained by my brother Bertelsmann J when he dealt
with portion A of the application.
[38] It is clear
from the papers filed of record that the respondent never presented a
certified copy of his LL.B degree at court
(be it the North West High
Court and/or this court).
[39] The respondent
alleged in two different affidavits that the LL.B degree was
conferred upon him on two different days. Initially
in his affidavit
opposing the main application he stated that the degree was conferred
upon him on 11 April 1999 which happened
to be a Sunday, After it was
proved to him that 11 April 1999 was a Sunday, in his founding
affidavit for interlocutory application,
he changed and said the date
was wrong as according to the certified statement for the degree, the
degree was conferred upon him
on 14 April 1999. From Waldeck's
affidavit it became evident that no law degrees were conferred upon
students on the alleged date.
In any event without repeating the
contents of Waldeck's affidavit which remain uncontested, it is
Waldeck's testimony that the
certified statement of an LL.B degree
that the respondent alleges was conferred upon him on 14 April 1999
was not issued or generated
by UNISA. Furthermore according to
Waldeck, his investigation revealed that the respondent was
registered for an LL.B degree at
UNISA in 1997, he was absent from
the examinations for courses he registered for and he never passed
any of the courses he was
registered for in that academic year. His
investigation also revealed that because the respondent did not have
a B.Iuris, B.Proc
or a BLC degree, he could not have completed the
LL.B degree he was registered for in 1997 in less than four years.
The documents
attached by Waldeck to his affidavit tally with the
outcome of his investigation in that there was no way in which the
respondent
could have completed all the LL.B degree courses in 1999
taking into account that his registration for the LL.B degree was
from
1997. It follows therefore that there is merit in the allegation
that no LL.B degree was conferred upon the respondent in 1999.
[40] The fact that
the respondent changed his statement with regard to the date as to
when the LL.B degree was conferred upon him
in the interlocutory
application from 11 April 1999 to 14 April 1999, is a clear
indication that he lied under oath in his application
for admission
as an advocate before the North West High Court by alleging that the
LL.B degree was conferred upon him on 11 April
1999.
[41]
That allegation was never corrected until the
present application. He continued to lie even in the interlocutory
application by alleging that the LL.B degree was conferred upon him
on 14 April 1999 for the reasons highlighted
supra
in
para 39.
[42] I still cannot
find any acceptable explanation as to why the respondent launched an
application for his admission as an advocate
in the North West High
Court while he had initially done the same in this court. Is it
because the applicant intervened in the
proceedings for his
application for admission in this court and because he knew that he
did not have an LL.B degree as he alleged,
he realised that this fact
was going to be picked up because of the intervention by the
applicant?
[43]
When he was asked during argument as to why he failed to disclose to
the North West High Court that there was a pending similar
application in this court, his response was that the application in
this court was withdrawn. In his affidavit opposing the main
application, he stated that the application was withdrawn. No notice
of withdrawal of the application was furnished to the court
to prove
this allegation. He conceded during argument that he was obliged to
disclose the status of the application that he initially
brought in
this court to the North West High Court taking into account that the
application was
ex
parte.
[44] The
discrepancies in the dates on which the respondent alleges that the
LL.B degree was conferred upon him by UNISA, his failure
to furnish
the North West High Court with the LL.B degree certificate, although
he stated in his application that the original
certified copy will be
presented to the court during the hearing of the application,
suggests that when he applied for his admission
he knew that he did
not have an LL.B degree but proceeded with his application. This is
evident from the fact that he still fails
to furnish this court with
the LL.B degree certificate. The allegations in the letter he wrote
to UNISA in 2006, in which he requested
copies of his degree
certificates after a housebreaking at his place where the
certificates were kept, that no mention of an LL.B
degree was made,
were never challenged. These allegations are evidence that prior to
2006 the respondent never obtained an LL.B
degree from UNISA.
[45] I am therefore
satisfied from these facts that the applicant had established the
offending conduct of the respondent on a preponderance
of
probabilities.
[46]
I have already ruled in para 40
supra
that
the respondent lied under oath in his application for admission as an
advocate before the North West High Court. I find that
he also lied
before this court in his opposing affidavit to this application and
in his founding affidavit for his interlocutory
application.
[47]
I have referred to numerous case law as to the consequences of lying
under oath by a practitioner (attorney/advocate). These
professions
are honourable professions which have strict ethical rules which are
aimed at preventing their members from becoming
parties to the
deception of the court. It is expected from members of these
professions to display absolute personal integrity
and scrupulous
honesty (the
Kekana
matter
referred to
supra).
[48] The conduct of
the respondent, seen in its totality, is such that there could be no
doubt that it demonstrated him not to be
a fit and proper person to
continue to practise as an advocate.
[49] Section 3 of
the Act reads:
"3.
Admission of persons to practise as advocates
(1)
Subject to the provisions of any other law
,
any division shall
admit to practice and authorise to be enrolled as an advocate arty
person who upon application made by him satisfy
the court-
(a) that he is
over the age of 21 years and that he is a fit and proper person to be
so admitted and authorised;
(b) that he is
duly qualified;
(c)
that he is a South African citizen or that he has been lawfully
admitted to the Republic for permanent residence
...
(d) in the case
of any person who has at any time been admitted to practise as an
attorney in any court in the Republic or elsewhere,
that his name has
been removed from the roll of attorneys on his own application; and
(e)
..."
[50] The respondent
has failed to show on his papers that he satisfied all the
requirements for the LL.B degree he alleges was conferred
upon him by
UNISA as contemplated in section 3(1) (b) of the Act.
[51] Up to now no
copy or original certificate for the LLB degree was furnished to this
court and/or the North West High Court where
the respondent was
admitted to practise as an advocate.
[52] The respondent
does not therefore have the necessary qualifications to enable him to
be admitted to practise as an advocate.
[53] He was
therefore not supposed to have been admitted as such by the North
West High Court.
[54] I am therefore
persuaded that this application should succeed.
[55] The applicant
prayed for costs on a scale as between attorney and client. Given the
nature of the application I am of the view
that the court will be
justified in granting costs on a scale as between attorney and
client.
[56] In the result I
propose the following order:
56.1 that the
application to review and discharge the order granted by Bertelsmann
J on 16 August 2013 is dismissed with costs;
56.2 that the name
of the respondent be struck from the roll of advocates;
56.3 that the
respondent be ordered to pay the costs of this application on a scale
as between attorney and client;
56.4 that this
application is referred to the Director of Public Prosecutions for
investigation.
M J TEFFO
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
I agree and it is so
ordered:
R TOLMAY (Ms)
JUDGE OF THE
GAUTENG DIVISION, PRETORIA
COUNSEL FOR THE
APPLICANT: J DE BEER
INSTRUCTED
BY: BERNHARD VAN DER HOVEN ATTORNEYS
COUNSEL
FOR THE RESPONDENT: IN PERSON
INSTRUCTED
BY: SENANYA INC
DATE
OF HEARING: 20 MARCH 2014
DATE
OF JUDGMENT: JUNE 2014