About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 32
|
|
Ncongwane v Tarcia NO and Others (A737/2010) [2012] ZAGPPHC 32 (16 February 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA
Case
no: A737/2010
DATE:16/02/2012
In
the matter between:
Mandla
Macbeth
Ncongwane
.......................................................................................
Appellant
And
J
Tarcia
N.O
........................................................................................................
1st
Respondent
AY Bhayat
N.O
...................................................................................................
2nd
Respondent
G
Nochumsohn
N.O
...........................................................................................
3rd
Respondent
Law
Society of the Northern
Provinces
..............................................................
4th
Respondent
The
Minister of Justice
&
....................................................................................
5th
Respondent
Constitutional Development
Black
Lawyers
Association
.................................................................................
6th
Respondent
Law
Society of South
Africa
................................................................................
7th
Respondent
JUDGMENT
Baqwa
A.J
[1]
The Appellant herein, Mandla Macbeth Ncongwane is an adult male
person practising as an attorney with the firm Macbeth Ncongwane
Attorneys situated at Macbeth Law Chambers 24 Drysdale Street,
Mbombela.
[2]
The Law Society of the Northern Provinces which is the Fourth
Respondent this appeal instituted disciplinary action against
the
Appellant and its disciplinary committee appointed the First to Third
Respondents to conduct disciplinary proceedings against
the
appellant.
[3]
The Appellant was originally charged with five counts regarding
"unprofessional or dishonourable or unworthy conduct on
the part
of the practitioner". This occurred subsequent to a complaint
which was lodged against the appellant by one Mr C
Smith of Nelspruit
and his client O.B Peters.
[4]
The charges that were put to the Appellant were phrased as follows:
"1.
On 1 December 2006, you misled the court by indicating that you have
lodged a Review Application, and thus causing the
eviction order
obtained under case number 9251/2006 in the Magistrates Court
Nelspruit to be set aside; and
2.
That you failed to notify the opposing attorney of record about the
application brought on 1 December 2006.
3.
That you instructed you client on receipt of the order on 1 December
2006 to re-occupy the property without intervention of
the Sheriff
causing your client to overpower the Security Guard, braking (sic)
locks and entering the house; and
4.
That you, after your Order obtained on 1 December 2006 being set
aside and costs de bonis propis awarded against yourself on
the 8
December 2006, indicated to your client that you have lodged and
(sic) Appeal and furnishing them with a notice and thus
instructing
them to re-occupy the property without intervention of the Sheriff
causing you client to overpower the Security Guard,
braking (sic)
locks and entering the house; and
5.
That you, after the Spoliation order being granted on 12 December
2006, lodged an Appeal against the Spoliation Order and instructing
your clients after furnishing them with notice thereof to re-occupy
the property without intervention of the Sheriff causing your
client
to overpower the Security Guard, braking (sic) locks and entering the
house."
[5]
At the conclusion of the disciplinary hearing the Appellant was found
guilty of charge 2 and not guilty on charge 1,3,4 and
5.
[6]
In the light of the above I am not going to deal with the findings of
the disciplinary committee in so far as they dealt with
the other
charges.
[7]
The Appellant contends that the Respondents erred in disregarding the
evidence showing that the Appellant was entitled to bring
an
application in terms of Rule 55(9) of the Magistrate's court rules
which would entitle him to decide on whether to bring an
application
on notice or ex parte.
[8]
A brief summary of the sequence of events that led to charge 2 serves
to put matters in perspective:
8.1.
Prior to 1 December Attorney D.M Van Schalkwyk was Mr Peters'
attorney of record and the latter was involved in an eviction
action
with one Mrs Mogane who was represented by the Appellant.
8.2.
On the morning of the 1st of December 2006 pursuant to Mrs Mogane's
eviction from the premises in question on that day:
8.2.1.
Mrs Mogane instructed Appellant to launch an application in court for
the staying of the eviction order.
8.2.2.
The Appellant ascertained that Mr C Smith was now representing Mr
Peters.
8.2.3.
Appellant contacted Mr C Smith telephonically requesting him to
withdraw his instructions to evict Mrs Mogane by virtue of
the Notice
of Review that had been previously served and filed; and
8.2,4.
The Appellant did not, during the course of this telephonic
conversation informs Mr C Smith of his intention to launch an
application to stay the eviction order.
8.3.
The Appellant was served with a Notice of Appointment as Mr Peters'
Attorney of record by Mr C Smith on the early afternoon
of the Is1
December 2006 whilst he was still drafting the application for the
staying of the eviction order.
8.4.
the Appellant did not serve a copy of the said application on Mr C
Smith prior to the hearing of the said application.
8.5.
The Appellant launched the said application on the afternoon of the
1st of December 2006 on an ex parte basis.
[9]
According to his written representations to the Respondents the
Appellant submitted that he was under no obligation to serve
Mr Smith
because the latter was not an attorney of record but that David Van
Shcalkwyk was. It is incomprehensible how such a submission
could be
made in the light of the conversation between Appellant and Mr C
Smith and the notice of Appointment served on Appellant
on the same
afternoon the application was launched.
[10]
The Respondents rejected, correctly in my view, that Mr C Smith was
not an attorney of record at the time.
[11]
The Respondents further rejected Appellant's attempt to rely on the
provisions of Rule 55(9) of the Magistrate's Court. Appellant
stated
in his submission to Respondents that he made a judgment call in his
client's interests not to bring the application on
notice.
[12]
I find that the judgment call by the Appellant was wrongly made
because as the record shows he did not even disclose to the
Magistrate that he had omitted to serve his colleague (opponent) with
papers despite his most recent communication with him. It
is quite
clear that he would have been hard pressed to furnish cogent reasons
to the court for such an omission.
[13]
It is appropriate to refer to an authority on which the Respondents
relied when they referred to the 6th edition of Morris-
Technique in
Litigation;
'Attorneys
.. .Have duties towards the judiciary to ensure the efficient and
fair administrating of justice [perDe Villiers JP in;
Cape
Law Society vs Voster-1949(3) SA 421(C) % 425 & Van Den Berg vs
General Council of the Bar of South Africa-2007(2) All
SA499 (SCA) @
paras. 14 to 18].
It
is suggested that the duty applies primarily, but not exclusively, in
ex parte applications or in those matters where the party
affected by
the relief which is being sought is not yet before the Court. In
opposed or defended matters the duty might be stated
as a duty not to
actively mislead the court [Van Den Berg vs General Council of the
Bar of South Africa-2007(2) All SA 499 (SCA)
@ paras. 14 to 18].
It
would probably, almost certainly, not be held to require the
disclosure of weaknesses in one's case, but might cover the
suppression
of fact, unknown to the other side, which would
completely disentitle the client to the relief claimed."
[14]
Further support for the view that Appellant's actions were
inappropriate is to be found in Legal Ethics by Lewis (1982) page
123
"Repetitively, as all aspects of practice unfold, the
practitioner finds an insistence on fair dealing and good faith
whether in his relationship with his client, his adversary, or any
other. Integrity has been emphasised as a required 'fundamental
quality " of all who would practice law, its lack being
castigated as destructive both of the lawyer's value to his client
and of his professional reputation................
The
warning to attorneys is that their profession give unusual scope for
the exercise of the unfair, of sharp practice and even
knavery...
.That being so, especial effort must be made by every practitioner to
ensure that all his dealings are honourable".
[15]
It is quite clear that Appellant ought to have given Mr Smith notice
for the many reasons have been advanced and that his failure
to do so
does constitute unprofessional conduct.
[16]
Further, what I find regrettable is the attitude of the Appellant who
even at the end of the proceedings fails to show any
remorse
regarding his actions. He instead attacks the Fourth Respondent.
16.1.
Inter alia counsel for the Appellant submits that "the finding
of the committee amounted to unethical and grossly irregular
review
of court proceedings. Such is the power that the disciplinary
committee of the Fourth Respondent did not have".
Appellant
makes other disparaging remarks of and concerning the Fourth
Respondent which do not bear repeating herein.
16.2.
Appellant goes on to cite the Minister of Justice and Constitutional
Development, Black Lawyers Association and the Law Society
of South
Africa as the Fifth, Sixth and Seventh Respondents. There is
absolutely no justification for citing these parties who
were not
parties in the disciplinary action.
16.3.
The remarks of Malan J.A in the case of Law Society of the Northern
Provinces v Sonntag 2012(1) SA 372 para 17 are appropriate
to cite in
this matter. He comments
as follows:
"There
are also other misdirections to which I will
refer.................................. These remarks were echoed in
Law
Society of the Northern Provinces v Mogami and Other 2010(1) SA
186 SCA para 26:
"Very
serious, however, is the respondent's dishonest conduct of the
proceedings. Instead of dealing with the issues they launched
an
unbridled attack on the appellant. It has become a common occurrence
for persons accused of wrongdoing, instead of confronting
the
allegation, to accuse the accuser and seek to break down the
institution involved. This judgment must serve as a warning to
legal
practitioners that courts cannot countenance this strategy. In itself
it is unprofessional".
I
agree.
[17]
The Appellant submits that the costs order was wrongly imposed on
him. The matter was supposed to proceed on 12 November 2009
and the
Respondents found that Appellant should not be responsible for the
wasted costs incurred by the Respondents on that occasion.
[18]
Concerning the subsequent costs order and considering the failure to
paginate documents for the hearing of 27 January 2010
and the
resultant further hearings on 8 and 9 March 2010 I find no fault in
the costs being awarded against the Appellant.
[19]
Regarding the sanction ordered against Appellant he submits that it
was harsh. Appellant was ordered to pay a fine of R15 000
half of
which was conditionally suspended for a period of three years.
[20]
The Appellant argues that having been found guilty of the least of
five charges, he should have been treated with more leniency.
20.1.
The fact is, the profession of an attorney is an honourable and
respected one and to be held in the utmost esteem. It is an
indispensible adjunct to every one, not only in law suits, but in
many other private affairs and his office is deemed both necessary
and praiseworthy See Van Zyl: The Judicial Practice of South Africa
Volume 1 at p41
20.2.
Any deviation therefore from conduct considered appropriate for this
high calling ought to be visited with the necessary opprobrium.
20.3.
Any sanction, therefore below the effective fine of R7 500 would be
seen by all concerned as a slap in the wrist and not expressing
sufficiently the disapproval which should accompany such conduct.
20.4.
In terms of Section 58 of the Attorneys Act, the objects of the
Society as the cvstos morum are inter alia to maintain and
advance
the prestige, status and dignity of the profession, to uphold and
improve the standards of professional conduct and qualifications
of
practitioners and to provide for the effective control of the
professional conduct of the practitioners.
20.5.
I am of the view that the Respondents took into account the
Appellants circumstances when they suspended half of the R15 000
fine. I accept that the Respondents blended the sanction with an
element of mercy by taking into account that Appellant had only
been
in practice for one year at the time of the commission of the
offence.
[21
] In the result I propose that the following order be made:
The
appeal is dismissed with costs.
I
agree
S.A.M.
Baqwa
Acting
Judge of the High Court
I
agree, it is so ordered.
H.J
Fabricius Judge of the High Court