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[2012] ZAECMHC 13
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General Council of the Bar of South Africa v Dlova (1713/2007) [2012] ZAECMHC 13; [2012] 4 All SA 417 (ECM) (13 September 2012)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, MTHATHA)
Case No: 1713/2007
In the matter between:
THE GENERAL COUNCIL OF THE BAR OF
SOUTH AFRICA
......................
Applicant
And
VUYISILE DLOVA
.........................................................................................
Respondent
Coram:
Chetty and Griffiths JJ
Date Heard:
24 July 2012
Date Delivered:
13 September 2012
Summary:
Advocate
–
Misconduct – Breach of referral rule –
Whether established – Sanction imposed – Respondent’s
conduct
during hearing – Perjurious testimony –
Aggravating circumstances – Striking off only appropriate
sanction
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1] The
Admission
of Advocates Act
1
(the Act), was promulgated to provide
for the admission of persons to practice as advocates in the Republic
of South Africa. One
of the prerequisites to admission is the
requirement that the court must be satisfied that such person is fit
and proper to be
admitted to the ranks of the profession and
authorised to act as an advocate. The Act,
inter
alia
, empowers the General
Council of the Bar of South Africa or any of its constituent bars, as
part of its regulatory function, to
bring evidence of actual
misconduct to the notice of the court. The applicant herein is the
General Council of the Bar of South
Africa. The misconduct, upon
which the relief sought by the applicant is predicated, is succinctly
stated thus in the founding
affidavit –
“
15.1.
The Respondent, though an advocate, engages in the practice of an
attorney;
15.2. the Respondent
practices as such without having been admitted and enrolled as an
attorney as required by the Attorneys Act,
No. 53 of 1979;
15.3. the Respondent
accepts instructions directly from clients without the intervention
of an attorney;
15.4. the Respondent
takes money directly from clients which, as an advocate, he is not
permitted to do;
15.5. the Respondent
failed to carry out his mandate with serious consequences for Mr
Mjekula.”
[2] It will be gleaned from the
aforegoing that the applicant’s opprobrium is specifically
directed at the infraction of the
referral rule which governs the
practice of an advocate. It was described thus by the Supreme Court
of Appeal in
Rösemann
v General Council of the Bar of South Africa
2
-
“
[28]
At this point the referral rule and its implications (as to which see
De
Freitas and Another v society of Advocates of Natal and Another
2001
(3) SA 750
(SCA) at 756C-760I and 764C-765A and
Commissioner,
Competition Commission v General Council of the Bar of South Africa
and Others
2002
(6) SA 606
(SCA) at 620C) became significant. An advocate in general
takes work only through the instructions of an attorney. The rule is
not a pointless formality or an obstacle to efficient professional
practice, nor is it a protective trade practice designed to benefit
the advocacy. The rule requires that an attorney initiates the
contact between an advocate and his client, negotiates about and
receives fees from the client (on his own behalf and that of the
advocate), instructs the advocate specifically in relation to
each
matter affecting the client’s interest (other than the way in
which the advocate is to carry out his professional duties),
oversees
each step advised or taken by the advocate, keeps the client
informed, is present as far as reasonably possible during
interaction
between the client and the advocate, may advise the client to take or
not to take counsel’s advice, administers
legal proceedings and
controls and directs settlement negotiations in communication with
his client. An advocate, by contrast,
generally does not take
instructions directly from his client, does not report directly or
account to the client, does not handle
the money (or cheques) of his
client or of the opposite party, acts only in terms of instructions
given to him by the attorney
in relation to matters which fall within
the accepted skills and practices of his profession and, therefore,
does not sign, serve
or file documents, notices or pleadings on
behalf of his client or receive such from the opposing party or his
legal representative
unless there is a Rule of Court or established
rule of practice to that effect (which is the case with certain High
Court pleadings
but finds no equivalent in magistrate’s court
practice). The advocate does not communicate directly with any other
person,
save opposing legal representatives, on his client’s
behalf (unless briefed to make representations), does not perform
those
professional or administrative functions which are carried out
by an attorney in or from his office, does not engage in negotiating
liability for or the amount of security for costs or contributions
towards costs or terms of settlement except with his opposing
legal
representative and then only subject to approval of his instructing
attorney. (This catalogue does not purport to be all-embracing.
It is
intended only to illustrate the sharpness of the divide and to point
the answer to other debates on the same subject.)”
[3] It is not in issue that the
respondent, a duly admitted and enrolled advocate of this court is
not a member of any of the applicant’s
constituent bars. It
matters not however. It has long been recognised that the applicant
or any of its constituent bars has a direct
interest in the
professional conduct of any person admitted and enrolled as an
advocate in the Republic of South Africa and is
legally obliged, as
the
custos morum
of the profession, to bring
applications for the striking off or the suspension of any advocate
from its ranks. In terms of section
7 (1) (d) of the Act an advocate
may be struck off the roll of advocates or suspended from practicing
as such
“
if
the court is satisfied that he (or she) is not a fit and proper
person to continue practice as an advocate
”
.
The starting point in this inquiry is to determine whether, as a
matter of fact, the offending conduct has been established. If
so,
the court is required to make a value judgment whether the person
concerned is not a fit and proper person as envisaged in
section 7
(1) (d). If it does make such a finding,
caedit
questio
. Striking off or
suspension must follow as a matter of consequence.
[4] The respondent refuted the
allegations levelled against him. In his opposing affidavit, his
riposte to the applicant’s
contentions that he breached the
referral rule were articulated as follows -
“
5.7
Whilst working as a Professor of law at the then University of
Transkei, I established a community of advisory business law
centre
known as NIKWANTO COMMUNITY BUSINESS LAW CENTRE in Mthatha. This
centre was formally registered in 2000 as a Trust the registered
name
thereof being NIKWANTO LEGAL AND FINANCIAL CONSULTANTS with Trust
number 26/9/570/2000. It was established as a community
centre to
assist the community of Mthatha and surrounding districts on various
matters including legal matters. It employed attorneys
and advocates
as its consultants. I left the University of Transkei during 2002 and
was also engaged by this community business
law centre as one of its
consultants. Although the said centre had always engaged an
instructing attorney whenever it used the
services of an advocate, we
have always understood and still understand it in the same contact as
the legal Resources Centre which
also employs attorneys and
advocates. I learnt that the Legal Resources Centre, for instance, in
Port Elizabeth had employed Judge
Pickering, Judge Bam and Judge
Mpati when they were still advocates and other lawyers. These then
advocates used to appear in all
the courts at the instructions of the
Legal Resources Centre. Members of the community with legal problems
would approach the Legal
Resources Centre which in turn would engage
its aforementioned lawyers to represent such members in all the
courts in respect of
court matters. Mr Justice Pickering and Mr
Justice Bam, when they were still advocates, established the Legal
Resources Centre
in Port Elizabeth. The only difference between the
Legal Resources Centre and NIKWANTO LAW CENTRE, as far as I am
concerned, is
that the latter, unlike the Legal Resources Centre, had
been generating its own resources and not dependent, for finance, on
finance
agencies that financed non-governmental organisations. No
proceedings were ever instituted against the said lawyers for their
removal
from the roll of advocates on the basis that by representing
in court members of the community that had engaged the Legal
Resources
Centre on instructions direct from the Legal Resources
Centre, they had in fact dealt directly with clients whereas, just as
I
am, they were advocates and not attorneys.
5.8 Despite the above
knowledge on the practice of the Legal Resources Centre, NIKWANTO LAW
CENTRE took an additional precaution
that whenever an advocate,
including myself, was engaged by the centre, it would also instruct
an attorney to instruct the advocate
concerned. In respect of all my
appearances at court at the instance of the centre, I have always had
an instructing attorney.
In the case under consideration, Mr Mjekula
had appointed his attorney in 2001 when the case commenced. The
centre assured me that
those attorneys were attorneys of record in
the Mjekula case and that my appearance in mitigation of sentence in
the said case
was premised on the said attorneys being my instructing
attorneys in the matter.”
It will be gleaned from the aforegoing
that central to the respondent’s defence is the contention that
Nikwanto was in reality
a counterpart of the Legal Resources Centre,
and, as such, entitled to operate in the manner in which it did. But
as I shall in
due course show, it was a conduit through which the
respondent solicited work from the general public in flagrant
disregard of
the referral rule. I shall henceforth refer to Nikwanto
Law Centre interchangeably as either Nikwanto or the Centre
[5] Although the application could
properly have been decided on affidavit, it was, perhaps presciently,
given the respondent’s
conduct during the hearing, referred for
oral evidence on defined issues, formulated as follows –
“
2.
. . .
whether, in acting for
G.M. and N.C. Mjekula during the period of April – November
2002, the Respondent was conducting himself
as an attorney or as an
advocate;
if the respondent was
conducting himself as an advocate, whether he was properly
instructed by an attorney for that purpose;
whether the
Respondent’s conduct is deserving of the sanction of striking
off the roll of advocates or any other sanction.”
[6] In argument before us, Mr
Tshiki
,
on behalf of the respondent raised, as a point
in
limine
, the admitted
unfortunate delay which has beset this application. He submitted that
the delay negated the respondent’s constitutionally
entrenched
right to a fair trial as provided for in section 35 (3) (d) of the
Constitution
3
and was of such magnitude that the
application should on that ground alone, without recourse to the
merits of the application, be
dismissed, and urged us to firstly make
a ruling thereanent. We declined this self-serving invitation by
reason of the fact that
the delay cannot be viewed in isolation.
Section 35 (3) (d) reads as follows –
“
35
Arrested, detained and accused persons
. . .
. . .
Every accused person
has a right to a fair trial, which includes the right –
(a) . . .
(b) . . .
(c) . . .
(d) to have their trial
begin and conclude without unreasonable delay."
[7] Although applications of this ilk
are
sui generis
,
and not criminal proceedings, I shall assume, in favour of the
respondent that, given the punitive character of potential sanctions
which may be imposed, that the broad based fair trial requirements
are of equal application herein.
[8] The question whether a court may
properly dismiss an application by reason of an inordinate delay in
its prosecution was recently
considered by the Supreme Court of
Appeal in
Mohammed
Cassimjee v Minister of Finance
4
where Burochowitz AJA, writing for the
Court, with reference to a long line of authority, affirmed the
principle that
“
an
inordinate or unreasonable delay in prosecuting an action may
constitute an abuse of process and warrant the dismissal of an
action”
. The
question is, is this such a matter. In the founding affidavit the
deponent, the applicant’s then chairperson, acknowledged
that
although the resolution to launch the application was taken on 8
March 2003, the application papers were only filed on 12
December
2007. The reasons advanced for the delay are firstly, the
dilatoriness and inaction of certain members of the Transkei
Bar who
were entrusted by the General Council of the Bar to bring the
application and was thereafter compounded by administrative
problems
occasioned by successive changes in its council, in particular its
chairpersonship. Although the delay may be construed
as inordinate, I
am satisfied, for the reasons proffered, that the delay is not
inexcusable or sufficient to,
per
se
, warrant the dismissal
of the application. In any event, apart from lamenting the delay the
respondent does not say that it impacted
deleteriously upon his
ability to mount a meaningful defence to the charges of misconduct.
In applying the balancing test espoused
by Sachs J in
Bothma
v Els
5
,
I am satisfied that the delay, such as it is, does not taint the
overall substantive fairness of the application. With that prelude
therefor, I turn to a consideration of the facts which underpin the
applicant’s case.
[9] In his testimony in chief Mr
Mjekula
alluded to the circumstances under which he met the
respondent and eventually came to be represented by him in his
criminal trial.
His evidence is a mirror image of the averments made
in his supporting affidavit to the applicant’s founding
affidavit. Therein,
he described how, given the nexus between his
spouse and that of the respondent, he was directed to the
respondent’s offices
situate at 22 Chatham Street, Mthatha,
where he met the respondent and sought his advice concerning a
plethora of legal problems
pertaining to the imminent sale in
execution of his home at the instance of Standard Bank and the
criminal prosecution instituted
against him. He testified that the
respondent undertook to assist him and requested an initial deposit
of R20 000.00 which
he duly paid but was not issued with a
receipt.
[10] Thereafter the respondent advised
him of his successful negotiations with Standard Bank whereby they
had agreed to accept the
sum of R5000.00 per month in satisfaction of
the amount misappropriated from them by the respondent. He advised
Mjekula
to deposit a further sum of R40 000.00 into his
trust account which he would disclose to the court during the
criminal trial
to vouchsafe
Mjekula’s
commitment to
repay Standard Bank. He testified further that he duly paid the money
into the respondent’s trust account and
was issued with a
deposit slip, (annexure GMM1 to his affidavit). The respondent duly
represented him in the regional court during
2002 and sought a
postponement which was duly granted. During a subsequent appearance
the respondent delegated a young man, whom
he introduced to him as a
candidate attorney, to appear for him. On the date of trial the
respondent appeared on his behalf and
at the conclusion of the trial
he was duly convicted and sentenced to imprisonment for five years,
wholly suspended for five years,
on condition that he repaid the sum
of R265 000.00 to the bank at the rate of R5000.00 per month.
[11] Under cross-examination, save for
the assertion that another person at the Nikwanto Law Centre had
introduced him to the respondent
and that the respondent had been
instructed by Nikwanto to represent him at his criminal trial,
Mjekula’s
evidence went unchallenged.
[12] In his oral testimony the
respondent, save for admitting that the extent of his participation
in
Mjekula’s
affairs was limited to addressing the trial
court in mitigation of sentence, refuted, and castigated as false,
the entire body
of Mjekula’s evidence. He steadfastly
maintained that the first and only time he met
Mjekula
was on
the morning of the trial in a “porch” leading to the
court room where he briefly obtained instructions from
him regarding
his personal circumstances. The respondent’s evidence that he
met
Mjekula
for the first time in the corridors of the
magistrates’ court is, as I have recounted, in conflict with
the narrative contained
in his affidavit where he in effect admitted
having met
Mjekula
at Nikwanto. The latter’s evidence
hereanent was never disputed. He furthermore steadfastly denied
having received any money
from
Mjekula
and maintained that
whatever monies may have emanated from him, were collected by the
Centre but that he bore no personal knowledge
of the arrangements
between
Mjekula
and the Centre.
[13] Under cross-examination he was
referred to the trial papers and bundle and to a letter and an
annexure thereto in the bundle
which he had sent to advocate
Dukada
in response to a letter addressed to him by the latter concerning a
complaint lodged with the Society of Advocates of Transkei
by
Mjekula
. Counsel’s attempt to get the respondent to look
at these documents elicited a vituperative response. He became
abusive,
pointedly refused to look at the documents provided to him,
raised his voice and proceeded to shout at counsel. Eventually, after
being admonished by me, he maintained that both documents were
written by the Centre and decried any personal knowledge thereof.
Counsel’s attempt to extract an answer that his signature was
appended to the letter was deftly evaded and so too questions
concerning the content of the annexure. The letter bears his
signature and there is no doubt that he signed the letter and sent
both it, and the annexed statement, to
Dukada
. His reluctance
to admit the obvious is not difficult to discern. Its content not
only gives the lie to his evidence that he neither
consulted with nor
received money from
Mjekula
but establishes, quite
unequivocally, that he is the Centre’s alter ego. During his
testimony he was at pains to place as
wide a berth as possible
between himself and the Centre. It is common cause that the offices
from which he practices in Mthatha,
bore the name, Nikwanto Law
Centre. That is the address
Dukada
forwarded his letter to.
[14] It is not in issue that the
respondent answered Dukada’s letter whilst in Elliott. This
appears clearly from the letter
itself. The annexure, which he
decried any knowledge of, was likewise sent to
Mjekula
from Elliott and establishes the
falsity of the respondent’s evidence. It affords ample
corroboration for
Mjekula’s
evidence that he not only paid the
respondent the sum of R20 000.00 plus the R40 000.00 but
that he consulted with him
on a whole range of issues as reflected on
the statement.
[15] As adverted to earlier the
respondent denied having personally received either the R20 000.00
or the R40 000.00.
During cross-examination he was referred to a
bank deposit slip annexed to
Mjekula’s
affidavit. It reflected a payment of
R40 000.00 deposited into account number 4048192833 on 30 April
2002 in the name of Prof.
V Dlova Trust Fund. The respondent’s
answers to questions relating hereto was evasive in the extreme and,
on being provided
with the deposit slip, suddenly maintained that he
could not properly see the document. He was then referred to the
trial bundle
and in particular to extracts of cheque account no,
4048192833 bearing the name Dlova Vuyisile Trust and in particular
the crediting
of the account in the sum of R40 000.00 on 10 May
2002.
[16] The respondent refused to answer
any questions concerning these bank statements contending that by
reason of their alleged
hearsay status he was absolved from answering
them. These bank statements are clearly admissible. They were
obtained by the applicant
pursuant to a subpoena
duces
tecum
having been served on
Absa Bank for their production in terms of the provisions of section
28 of the
Civil Proceedings
Evidence Act
6
.
The entries constituted prima facie evidence of the transactions
recorded therein and the respondent’s refusal to even look
at
the statements provides further proof of his untruthfulness. It is
apparent therefrom that the R40 000.00 emanating from
Mjekula
was indeed deposited into his own
banking account.
[17] The respondent’s evidence
that he merely pleaded in mitigation of sentence became the focus of
further cross-examination.
Mr
Suhr
referred him to the transcript of the
criminal proceedings which formed part of the trial bundle. After
prevaricating, he eventually
relented and put to counsel that it
vindicated him and conclusively established the correctness of his
answer. The truth is, it
exposed his duplicity. The transcript
commences with the prosecutor placing on record the composition of
the court, its personnel
and the parties’ representation prior
to the charge being put to
Mjekula
.
The respondent, rather disingenuously, sought to show that the record
merely established that
Mjekula
had previously pleaded guilty. The
record reads as follows –
“
COURT:
Mr Dlova
MR DLOVA:
Your
Worship, Adv Dlova, I represent the accused in this matter. The
accused has pleaded guilty to the charge and we will address
the
Court at the defence stage.
COURT:
Are you
handing in any statement stating the plea of guilty, are you going to
address the Court?
MR DLOVA:
Your
Worship, I will address the Court.
COURT:
Okay, you
can do so.
MR DLOVA:
Your
Worship, my client has pleaded guilty to this offence, in order to
save the time of this Court and the Court all around, the
charge of
unauthorised borrowing. The accused was a bank manager at Standard
Bank, he had been there for 25 years and rose through
the ranks.
Around the time of June to November he lapsed into temporary
financial difficulties, according to him and he did tap
into an
overdraft facility which was not authorised. He was the manager in
capacity to recommend overdrafts but when it related
to him, he
needed a special permission which never obtained. It is clear from
the reading the statement, between June and November
that there was
trafficking in and out of money on this account, it is clear that
around November he ran out of cash and was not
able to service this
facility, unauthorised facility and as a result he was invited by the
manager of the bank to account. He promptly
admitted, asked for an
apology, resigned in embarrassment, subsequently dismissed and did
not challenge the procedure, reduced
his indebtedness by almost half
to 265 with the bank and has made this plea before you for guilty. If
appropriate, Your Honour,
I must mention that he has no previous
convictions or acquittal, in other words has never been an allegation
of a criminal nature
against him. I have already mentioned his
service to the bank.
COURT:
It
suffices that you . . .
MR DLOVA:
Thank
you.
COURT:
Let us just have a
short adjournment. Court will adjourn.”
[18] Although the aforementioned
extract from the evidence could perhaps, charitably construed, convey
the impression that
Mjekula
had tendered a plea on some prior
occasion, contextually, it establishes that the respondent tendered a
plea and explanation of
plea on behalf of
Mjekula
at the
commencement of the trial. The magistrate then delivered his judgment
and the matter proceeded to sentence. The record yet
again
establishes the falsity of the respondent’s testimony.
[19] The parallelism which the
respondent sought to establish between Nikwanto and the LRC is, upon
a proper appraisal of his own
testimony, fatuous. Under
cross-examination he was constrained to admit that Nikwanto was not
staffed by any qualified legal practitioners,
save himself, and it is
instructive to reproduce his evidence hereanent for it establishes,
quite clearly, that Nikwanto was merely
the vehicle which he utilised
to circumvent the referral rule. During his examination in chief, his
attorney attempted to establish
that as regards the
Mjekula
matter, he had been instructed by an attorney. The question was
deftly avoided. Instead of a simple answer he proffered the following
convoluted response –
RESPONDENT
:
Nikwanto Law Centre is a ... (inaudible) and by its very nature I
also had another institution called the Law Clinic there. By
its very
nature it does instruct people. That is a practice that is well
known. The ... (indistinct) used to do that and the other
people,
Late Bam used to do that in the Legal Resources Centre. They were
advocates. They went straight to court on the instructions
of the
Legal Resource Centre. But I say as a matter of – because of
the time we were at war with the Bar Council at that
time the Bar
Council wanted us to send – I was a professor, I had practice,
I even appeared in the International Court of
Justice on behalf of
South African – on behalf of the Pan Africanist Congress which
was – had an observer status at
the United Nations there. So
when we come here I applied to the Bar Council to be a member and
they say that I should do ... (indistinct).
And I said to them,
“Who’s going to be my master amongst you here?” I
wanted his CV so that I can – so
ultimately we had to go to
Parliament to get recognition under the Foreign Legal Jurisdiction
Act to act in this country. When
we were fighting for this country
for more than twenty years right in the battlefield as ...
(inaudible) we were. So I knew –
we knew that we were on a
minefield here. We were in a very hostile environment. The old order
did not want us to practice here.
MR TSHIKI
:
And the persons who were employed at the Nikwanto Law Centre at that
time are they available ... (inaudible)?
RESPONDENT
:
(Inaudible) … none of them is under our control here. I don’t
even know whether they – I know ... (inaudible)
is not there. I
know ... (inaudible) died and I don’t know who else is –
was there now. But at any rate a person who
would intimate Nzuma was
there was a financier and Jilata was there ... (inaudible) was the
administrator there. So that is what
happened.
COURT 1
:
Were they qualified lawyers?
RESPONDENT
:
No. Legal resources are not run by qualified lawyers in general.
COURT 1
:
No, I’m asking you these people whose names you mentioned ...
(intervention).
RESPONDENT
:
No, they were not. Legal resources can't afford lawyers. These are
community centre advisory centres. They can't pay lawyers they
are
just there to facilitate. And they invite lawyers when and where it
is necessary and those lawyers are operating ... (inaudible)
basically.
MR TSHIKI
:
How do they instruct ... (inaudible)?
RESPONDENT
:
From my own ... (inaudible) you can see the records ... (inaudible)
records there. They are there on file.
MR TSHIKI
:
Is there ... (intervention).
RESPONDENT
:
(Inaudible). Throughout in the High Court I’ve given you
records there. In the Magistrate Court I’ve given you records
there. My accusers the ... (inaudible) the Bar Council don’t
bring anything and yet they are in control of these things even
today.
MR TSHIKI
:
You wouldn’t recall the particular attorney who was involved in
this Mjekula matter?
RESPONDENT
:
How would I recall that when Mjekula is saying here he – this
case started in 2002 lying through his teeth here saying this
case
appeared – I mean came in when the case is clearly in 2001.
That is within his province. That is within the province
of my
accusers. He who alleges must prove. That’s at least what I
taught my children.
MR TSHIKI
:
Were you handling a few or so many cases on behalf of the centre
through attorneys?
RESPONDENT
:
I’m very busy, Mr Tshiki. I was a Dean of Faculty of Law, I was
– I couldn’t sit there. As a Dean I attend meetings
almost every day with the Vice Chancellor. I’m a member of
Council. I’m a member of ... (indistinct). I’m a
distinguished writer in the law and the researcher. Spend quite a lot
of my time in the library. And I had no time to sit and –
if I
wanted to be an attorney why should I do ... (indistinct). Why should
I do the Doctor of Law if I wanted just to be an attorney
to sit in
the office as a clerk? And as a solicitor searching for clients. That
was below me as far as I’m concerned. My
apologies to attorneys
who are here. I’m sorry.”
[20] The respondent’s
difficulties in providing a coherent answer to this simple question
was compounded during his cross-examination.
Mr
Suhr
questioned him on the identity of the person(s) who, according to the
statement of account sent to
Mjekula
under cover of a letter
signed by him, performed various tasks. He responded as follows –
MR SUHR
:
Are you able to tell us who did those elaborate negotiations?
RESPONDENT
:
Yes.
MR SUHR
:
Who was it?
RESPONDENT
:
I told you that Nikwanto Law Centre asked me to ... (intervention).
MR SUHR
:
But who at Nikwanto Law Centre?
RESPONDENT
:
The people who running Nikwanto Law Centre at the time.
MR SUHR
:
Ja, but the people – but who?
RESPONDENT
:
I told you, Ms Nzuma was the responsible administrator at that time.
I did tell you.
MR SUHR
:
You see ... (intervention).
RESPONDENT
:
I did tell you that Ms Nzuma was there. I told you that I couldn’t
be sitting at Nikwanto Law Centre, sir, I didn’t
– I was
busy I was a full time – I was a person who was engaged in so
many things. I’ve got 17 Trusts I can't
– I’ve got
10 Trusts I couldn’t sit in all of them at the same time. Why
are you drilling me on having to be
at that office of Nikwanto when
there are many? You go to the Master’s office you’ll see
the offices what I am Trustee
of. And that is usual practice in South
Africa. People go to 91 sites and you can't be drilling them on all
the instances. I’ll
tell you what I was told to do and I didn’t
write that letter. I was not responsible for but I was – what
the import
of what I said in 73 was that “please contact
Nikwanto Law Centre who have got idea – the full idea about
what you
are saying”. And they neglected to contact Nikwanto
Law Centre so that they can pin down the author of this letter who
would
now come and enrich this Court about the issues. When you were
preparing this case so experienced the high – the greatest
legal brains in the country ... (intervention).”
[21] The above reproduced nonsensical
response demonstrates, quite unequivocally, the falsity of his
testimony. The truth of the
matter is that he lied unashamedly. On a
conspectus of the evidence, I can attach no weight whatsoever to his
testimony and accept
Mjekula’s evidence unreservedly. The
respondent’s breach of the referral rule has clearly been
established.
[22] Generally speaking, an isolated
breach of the referral rule would not, ordinarily, attract the
sanction of as harsh a penalty
as a striking off from the roll of
advocates. There are however a number of aggravating circumstances
which demand its imposition.
These factors, considered seriatim
thereafter, relate to his conduct during the oral hearing, his
perjurious testimony and his
avowed intent to continue to act on
behalf of members of the general public through the conduit of
Nikwanto.
The respondent’s conduct
during the hearing
[23] In the course of the judgment I
adverted to the respondent’s conduct under cross-examination.
At the inception thereof,
Mr
Suhr
,
in fairness to the respondent, given his intended line of
questioning, sought to establish whether the latter was in possession
of both the papers and the trial bundle. Copies of the documents
aforesaid were duly handed to the respondent and counsel put the
innocuous question,
“
Do
you follow?”
It
elicited a litany of nonsensical complaints that was to become the
hallmark of his answers thereafter. The question elicited
the
following answer –
“
RESPONDENT
:
I’m not a child don’t say “you follow?”
Please, with respect. Don’t say, “You follow?”
Don’t be condescending when you are talking to me. Just say –
don’t tell me that I follow that’s why you
want to make
me a pupil because you want to – you think I don’t
follow.
COURT
1
:
The counsel is asking you a simple question.
RESPONDENT
:
No but why does he say, “you follow” – “do
you follow?” That is condescending and that’s not
acceptable.
COURT
1
:
Have a look at those documents on the side.
RESPONDENT
:
Sorry?
COURT
1
:
On the – the ones Mr Tshiki gave you.
RESPONDENT
:
Yes.
COURT
1
:
And then you’ll understand what he’s trying to say.
RESPONDENT
:
No, he said, “Do you follow?” That is condescending your
Lord – My Lordship, with all the respect. I have never
been
addressed like that at this level where a person says something and
they say, “Do you follow?” That is condescending
...
(inaudible).
COURT
1
:
I don’t think so. Just answer the question please.”
[24] The next question put, in order
to establish whether his date of birth was in fact 4 March 1955,
required a simple yes or no.
Instead he dramatically reached into his
pocket and produced his book of life which he impertinently thrust
forward for counsel
himself to view. The next question put by counsel
and which arose from his opposing affidavit which conveyed the
distinct impression
that he had practiced abroad, elicited a venomous
response and evaded. It is unfortunately necessary to reproduce the
answer in
its totality as an example of the evasive nature of his
replies. The answer proffered was –
“
RESPONDENT
:
Yes. The operative word there is “we remain”. I’m
talking of the Freedom Fighters who are lawyers and my element
of
practice there is the broader element of having taught at West Brunal
University. That was the broader context that I was talking
to myself
but I say there “we” because I was talking about the
vendetta there that you Bar Council are having against
educated
exiles.
MR
SUHR
:
Mr Dlova, do I understand from your reply that you have not practiced
in any of the leading countries of the world?
RESPONDENT
:
What do you mean by “practice”? That’s what I want
to say. I say practice of law you are a professor of law,
you are in
law practice. You are an attorney at law you are a practitioner. I
don’t say I was – we were practitioners.
I say we have
practiced. I’ve said we were law practitioners. There’s a
distinction between that. Between a law practitioner
and a person who
practices law. A judge is not practicing. An academic like professor
... (inaudible) is not practicing and he
was not practicing at that
time.
MR
SUHR
:
So you did not practice? These persons referred to in page 95
paragraph 5.6 ... (intervention).
RESPONDENT
:
I say ... (inaudible) given you the context of that. I’ve said
“we”. I was ... (inaudible) in the – and
I’m
saying “we have been excluded by you as exiles”. There
are a lot of us who were practicing in court I was
not one of them.
There were a lot of us who were practicing in the academia. I was one
of them. There was a lot of us who were
practicing in the
prosecurials – prosecutorial service. There are three branches
of practicing law, sir. There is the side
Bar, there is the Bench,
there is also the academia, there is also the prosecutorial service.
That is my – that is what I’m
saying. So if you want to
give a narrow description that you are the only practitioner of law
because you practice at the side
Bench then no, sir.
MR
SUHR
:
So what is your answer?
RESPONDENT
:
It’s – I don’t know what answer you want. I’ve
told you that I – there are three branches. I was
practicing in
the academia branch of the law. I was practicing as a academic and as
a law professor. I practiced in that. I was
in West London University
teaching English Law in English”
[25] The cross-examination then
proceeded to establish whether the use of the word, professor, in
various of his missives, was an
emeritus title conferred upon him
subsequent to his departure from the local university. The garbled
response concluded with the
diatribe –
“
You
have contempt for academia, sir, if you are saying that. You have got
complete contempt and I understand why you didn’t
proceed in
your studies.”
[26] During questioning related to the
Nikwanto Law Centre Trust, the respondent produced a form, CM22 of a
company, Capital and
Securities Exchange (Pty) Ltd. When asked why
the document had not been discovered, the respondent’s answer
clearly established
that he had no understanding of what discovery
entailed.
[27] Mr
Suhr
then referred the
respondent to the letter written by him to Mr
Dukada
of the
Transkei Bar and the annexed fee statement sent to
Mjekula
emanating from the Nikwanto Law Centre, Elliott. It reads as follows
–
“
Complaint
Thanks for your rather
rude and uncouth letter you dated 6/2/2002.
I am not a member of
your organisation and I was not commissioned under your auspices in
rendering the services rendered on behalf
of Nikwanto Law Centre to
the Mjekula’s.
As for the substance of
your letter suffice to refer to the fee statement sent to Mr Mjekula
in November last year and herein enclosed.
That statement will
show that advocacy constitutes less than 20% of the range of
consultancy services provided to Mr and Mrs Mjekula.
You are free to pursue
any course of action that may please you in this matter. For future
reference however may I remind you that
my title is not Dlova, I am a
Professor of Law, an advocate and a Doctor of Law.
Yours sincerely
Prof V. Dlova”
[28] Although it is apparent from the
content of the letter that the respondent sent the fee statement to
Dukada
,
he, quite disingenuously, decried all knowledge of either it or its
content. His difficulty in providing a coherent response to
the
simple question is not difficult to discern. It is obvious that he
was the author of the fee statement. Its content conclusively
establishes the falsity of his evidence. The record is replete with
further examples of the contemptuous manner in which the respondent
conducted himself in court. Repeated admonishments to curb his errant
and at times, obnoxious behaviour, were ignored and his shouting
increased in tempo which he sought to justify by stating that it was
a trait of the
Zandwa
family. The aforegoing excerpts from
the transcript detailing the manner in which the respondent conducted
himself in court was,
as adumbrated hereinbefore, deplorable. It
evinces a peculiar lack of understanding of the manner in which
officers of the court
should conduct themselves.
Respondent’s
untruthfulness
[29] The question whether the
respondent’s untruthfulness may properly be taken into account
as an aggravating circumstance
in the decision to strike his name
from the advocates roll appears settled. In
Olivier
v Die Kaapse Balieraad
7
,
Rabie J.A, reasoned as follows –
“
Namens
appellant is daarop gewys dat in laasgenoemde sake - anders as in die
saak waarop hy steun - die Hof gelet het op gedrag
van die advokaat
buite die Hof, nie, soos in die onderhawige geval, op leuenagtige
getuienis wat in die loop van die verrigtinge
van die Hof self gegee
is nie. Dit is so, maar die feit bly staan dat die Hof kennis geneem
het van getuienis oor gebeure wat nie
die onderwerp van spesifieke
klagtes was nie en van daardie getuienis gebruik gemaak het in sy
beoordeling van die vraag oor hoe
teen die betrokke advokaat opgetree
moes word. In laasgenoemde beslissings is daar geen bespreking
van die saak van
Dagg
en die
sake waarin daardie beslissing gevolg is nie en dit blyk nie dat
hulle onder die Hof se aandag gebring is nie. In die omstandighede
kan dit waarskynlik nie gesê word dat ons gewysdes in hierdie
stadium helderheid gee oor die punt wat namens appellant geopper
is
nie. Ek sal gevolglik aanvaar, sonder om daaroor te beslis, dat
dit 'n verkeerde benadering is om - soos die Hof
a
quo
gedoen
het - leuenagtige getuienis wat in die loop van 'n verhoor gegee word
as 'n selfstandige grond vir die skrapping van 'n advokaat
se naam te
beskou. Dit laat die vraag of die Hof dan hoegenaamd nie geregtig was
om van sodanige getuienis kennis te neem nie.
Appellant se betoog is
dat hoewel die Hof natuurlik geregtig was om te bevind - en te
sê - dat getuienis leuenagtig
was en om dit om daardie rede te
verwerp, dit nie geregtig was om verder te gaan en om van die feit
dat valse getuienis gegee is
gebruik te maak by die beoordeling van
die vraag oor hoe daar teen appellant opgetree moes word nie. Voordat
die Hof dit kon doen,
lui die betoog, moes appellant meegedeel
gewees het dat die Hof beoog het om van daardie getuienis vir daardie
doel kennis
te neem en moes hy 'n geleentheid gegun gewees het om hom
daarop voor te berei en moontlik omstandighede ter versagting aan te
voer. Die Balieraad, kan kortliks daarop gewys word, sou nouliks so
'n mededeling aan appellant kon gedoen het, want dit kon nie
geweet
het hoe die Hof oor appellant se getuienis gaan oordeel nie. Ek
meen dat dit ietwat kunsmatig is om te sê dat
die Hof geregtig
is om getuienis te verwerp op grond daarvan dat dit vals is maar dat
dit dan nie geregtig is om, bv beoordeling
van die vraag oor hoe teen
die betrokke persoon - 'n beampte van die Hof - opgetree moet word,
kennis te neem van die feit dat
hy 'n persoon is wat bereid is om
valse getuienis te gee nie. 'n Advokaat wie se gedrag die onderwerp
van 'n aansoek onder
art. 7 van die Wet is, besef noodwendig dat as
dit bevind word dat hy hom van leuens bedien het, sy getuienis om
daardie rede verwerp
kan word en dat dit dan kan lei tot 'n bevinding
dat hy hom skuldig gemaak het aan die gedrag wat hom ten laste gelê
is.
In hierdie omstandighede kom dit my nie as onbillik voor nie om
te sê dat hy ook moet verwag dat die Hof leuenagtige getuienis
as 'n verswarende omstandigheid kan beskou wanneer dit moet beslis
oor die vraag hoe teen hom opgetree moet word. 'n Hof sal
vanselfsprekend
nie 'n weg volg wat verrassing en dus moontlik
onverdiende nadeel vir 'n persoon inhou nie en sal derhalwe in
gepaste gevalle moontlik
'n prosedure kan volg soos deur appellant
voorgestaan word, maar andersins is dit my mening dat 'n Hof wel
kennis kan neem van
die feit dat 'n advokaat leuenagtige getuienis
gegee het wanneer dit beslis oor die vraag hoe teen hom
opgetree moet word.
In die onderhawige geval word namens appellant
toegegee dat hy 'sekere stellings gemaak het wat nie juis is nie' en
daar is nie
te betwyfel dat hy in verskeie opsigte valse getuienis
gegee het nie. In al die omstandighede is daar weinig rede om te dink
dat
die Hof
a
quo
anders
sou geoordeel het as wat dit inderdaad gedoen het indien dit die
benadering gevolg het wat ek pas hierbo genoem het
eerder as
dié wat dit wel gevolg het.”
[30] The aforementioned approach was
affirmed by Hefer J.A, in
Kekana
v Society of Advocates of South Africa
8
.
Where the learned judge stated the following –
“
I
share the view expressed in Olivier’s case
supra
at
500H
ad
fin
that,
as a matter of principle, an advocate who lies under oath in
defending himself in an application for the removal of his name
from
the roll, cannot complain if his perjury is held against him when the
question arises whether he is a fit and proper person
to continue
practicing. I also support Heher J’s observation in the present
case that
‘
(t)he
word of an advocate is his bond to his client, the court and justice
itself. In our system of practice the courts, both high
and low,
depend on the
ipse
dixit
of
counsel at every turn.’
This is why there is a
serious objection to allowing an advocate to continue practicing once
he has revealed himself as a person
who is prepared to lie under
oath. Legal practitioners occupy a unique position. On the one hand
they serve the interest of their
clients, which require a case to be
presented fearlessly and vigorously. On the other hand, as a officers
of the Court they serve
the interests of justice itself by acting as
a bulwark against the admission of fabricated evidence. Both
professions have strict
ethical rules aimed at preventing their
members from becoming parties to the deception of the Court.
Unfortunately the observance
of the rules is not assured, because
what happens between legal representatives and their clients or
witnesses is not a matter
for public scrutiny. The preservation of a
high standard of professional ethics having thus been left almost
entirely in the hands
of individual practitioners, it stands to
reason, firstly, that absolute personal integrity and scrupulous
honesty are demanded
of each of them and, secondly, that a
practitioner who lacks these qualities cannot be expected to play his
part.”
Intent to continue to act
through the medium of the Centre
[31] During the concluding stages of
his cross-examination Mr
Suhr
asked the respondent whether he
considered the circumstances under which he appeared for
Mjekula
to be above reproach. The question elicited the following response –
“
RESPONDENT
:
I’m saying that Mr Mjekula knows his attorney. I don’t
know the attorney. Nikwanto knows the actual attorney but I’ve
said to you that I’ve got the records here that I always appear
with an attorney and I’m saying to you that I didn’t
participate in this case. And people who talk in mitigation do not
have to – people who talk in mitigation in cases are not
–
we are – the pleadings I was not part of the pleadings of these
things. I was not part of anything on this but I
know that the case
had gone on for a year under Nikwanto and some lawyers and this
fellow. So I talked only on mitigation, sir,
the transcript says
that. I’m sorry. The Court said that I am talking on a –
so what I’m saying is that this
is clear from the transcript
that I’m in at mitigation stage.
MR SUHR
:
Right so ... (intervention).MACHINE SWITCHED OFF - ON RESUMPTION
RESPONDENT
:
And at the invitation of Nikwanto and their lawyers. That’s
what I’m saying and there’s nothing improper that
I’ve
done this. And that you have taken 12 years to bring these things
shows very clearly that your conscience also tells
you that there’s
nothing improper in my conduct.
MR SUHR
:
Then ... (intervention).
RESPONDENT
:
Just your vendetta.
MR SUHR
:
And what you are saying is that you did nothing wrong there, you’ve
done – you’ll do the same again today?
RESPONDENT
:
Do the same what?
MR SUHR
:
You’ll take instructions without meeting an attorney, without
getting a brief, without rendering a fee note, without keeping
a
record. You did nothing wrong then and you’ll still ...
(intervention).
RESPONDENT
:
I don’t keep records, my friend, I’m very sophisticated,
I’m very – I’m also a little bit –
have a
little bit of money. I don’t have to do accounts now. I’ve
done that in my early ages but now I’ve become
more relaxed and
I’ve got people around me. As I’m talking now I’ve
got about 30 people around me.
MR SUHR
:
You did nothing wrong and you’ll carry on doing what you did
then you’ll do it now?
RESPONDENT
:
You don’t know what I did and I told you what I did. If you are
saying I’ll carry on doing what you suggest that I
did then I
will not answer that question.”
[32] The aforementioned response,
commensurate with the entire body of his evidence shows quite clearly
that the respondent has
no insight that continuing to act on behalf
of the general public through Nikwanto constitutes an ongoing and
flagrant breach of
the referral rule.
[33] In the result the following
orders will issue –
The respondent’s name is
struck off from the roll of advocates.
The respondent is ordered to pay
the costs of the application on the scale as between attorney and
client.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Griffiths,
J
I
agree.
_______________________
R.E
GRIFFITHS
JUDGE
OF THE HIGH COURT
On behalf of the Applicant: Adv
Suhr instructed by X.M Petse Incorporated
Suite 445 – 4
th
Floor, Development House, York Road, Mthatha; Tel : (047) 531 1572;
Ref: Mr Vika
On behalf of the Respondent: Mr
Tshiki of Messrs Thsiki and Sons Incorporated, 18 Spigg Street,
Mthatha; Ref: Mr Tshiki
Obo the Applicant: Adv Suhr
instructed by X.M. Petse Incorporated, Suite 445 – 4
th
Floor, Development House, York Road, Mthatha, Tel: (047) 531 1572,
Ref: Mr Vika
Obo the Respondent: Mr Tshiki of
Messrs Tshiki & Sons Incorporated, 18 Sprigg Street, Mthatha
1
Act
No, 74 of 1964
2
2004
(1) SA 568
(SCA) per He
h
er JA at para [28]
3
Act
No. 108 of 1996
4
[2012]
ZASCA 101
(1 June 2012)
5
2010
(2) SA 622
(CC)
6
Act
No, 25 of 1965
7
1972
(3) SA 485
(A) at 500A-501B
8
[1998] ZASCA 54
;
1998
(4) SA 649
(SCA) at 655G-656A