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[2009] ZAGPPHC 270
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Ex parte of Raseboye (30717/2008) [2009] ZAGPPHC 270 (7 August 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 30717/2008
DATE:07/08/2009
In
the Ex parte matter of
LESIBA
BENJAMIN RASEBOYE
…..............................................
APPLICANT
(For
his admission as an Attorney)
JUDGMENT
MAVUNDLA
J,
[1]
On the 18 June 2009 I, with Mr. Justice Mabuse A.J. concurring,
admitted the applicant as an attorney of the High Court of South
Africa and stated that I would, in due course, furnish the reasons
for so admitting the applicant.
[2]
This judgment is precipitated by the fact that the applicant’s
principal refused to sign an affidavit confirming that
the applicant
was a fit and proper person to be admitted as an attorney of this
court. The applicant’s principal (“Mogashoa”)
has
also filed an opposing affidavit denying that the applicant has
gained experience or sufficient experience in certain disciplines
of
practice. He has further denied that the applicant has completed the
prescribed period of articles of clerkship, alleging that
he
terminated the services of the applicant prematurely.
[3]
This resulted in the applicant’s application for admission
being postponed. The Law Society of the Northern Provinces
(“the
Law Society”), in compliance with the order issued by Rabie J,
with Makgoka AJ concurring on 16 March 2009, held
a meeting between
the applicant and Mr. Mogashoa to investigate the allegations
contained in the affidavit of Mogashoa and to determine
whether the
applicant was a fit and proper person to be admitted as an attorney
of this Court.
[4]
The aforesaid order directed Mogashoa to forthwith supply the Law
Society or the personnel or committee appointed to conduct
the
investigation with all relevant information and documentation as may
be required by the Law Society in respect of the aforesaid
investigations. Mogashoa was further ordered to attend meetings or
hearing of the Law Society to which he might be summoned and
to
remain in attendance until he was excused.
[5]
In this regard, the Law Society has directed a letter dated 12 June
2009 to the Registrar of this Court stating that Magashoa
has failed
to submit any substantiating documents to the Committee and that the
allegations in his opposing affidavit of 26 August
2008 remain
unsubstantiated. It is further stated in the letter that there
remains a dispute of fact as to whether the applicant
has completed
the minimum period of articles of clerkship prescribed by the
Attorneys Act 53 of 1979, as amended (“the Act”).
[6]
The Law Society has also attached a copy of the transcript of the
hearing that was held between the applicant and Mr. Mogashoa
as
directed by the order of Rabie J and Makgoka AJ. In the said
transcript, the Law Society has concluded that there is a dispute
of
fact and that therefore they recommend that the matter should be
referred to oral evidence, where the parties could be cross
examined.
BACKGOUND
FACTS
[7]
The applicant is a South African citizen born on 23 April 1977
1
.
The applicant passed his matriculation examination
2
.
The applicant obtained his-Bachelor of Laws (LLB ) degree from the
University of The North
3
.
He entered into a contract of articles of clerkship with his
principal, an attorney of this court, Mr. Ntheletseng Jacob Mogashoa
of Polokoane (Pietersburg) for a duration of one year as from 3 March
2003
4
.
The contract was duly registered by the Law Society (Law Society)
under number 603/ 2003 on 29 April 2003, in accordance with
the
provisions of section 5 of the Act.
[8]
The applicant attended and completed the full time practical legal
course at the School of Legal Practice in Polokwane (formerly
Pietersburg) during the period of 8 January 2002 to 20 June 2002 for
6 (six) months, which course is approved by the Law Society
of the
Northern Provinces for the purposes of section 7(5) of the Attorneys
Act. The applicant has attached to his affidavit copies
of the
Practical Examination for Attorneys Certificate of Examination
showing that he has sat for and passed the practical examination,
in
particular Parts 1, 11,111 and IV, as prescribed in terms of section
14 of the Act.
[9]
The applicant has attached an unsigned affidavit of his principal,
Mogashoa, in terms of which the latter was supposed to confirm
that
in his opinion the applicant was a fit and proper person to be
admitted as an attorney of this Court.
[10]
In his affidavit, the applicant has explained that after he passed
the Attorneys admission examination in May 2007, he informed
Mogashoa
of his result and requested to see him with regard to his application
for his admission as an attorney. Furthermore he
stated that Mogashoa
indicated to him that he did not finish his article of clerkship and
at one stage Mogashoa dropped the phone
on him. According to the
applicant, during June 2007 he had a meeting with Mogashoa at his
offices in Polokwane and the latter
told him that he did not serve
his articles with him and refused to discuss the matter further with
him and directed him to leave
his offices. The applicant further says
that he once more went to see Mogashoa at Mankweng Magistrate Court
where he was acting
as Magistrate, but Mogashoa told him that he was
not prepared to sign the applicant’s application.
[11]
The applicant has stated in his affidavit that he is a fit and proper
person to be admitted and enrolled as an attorney of
this Court. He
says further that there has never been any disciplinary proceedings
instituted against him by his erstwhile employer,
university, Law
Society or any body nor are there any such proceedings; his estate
has never been sequestrated; there is no civil
action pending against
him; he has never been convicted of any criminal offence nor are
there any criminal proceedings pending
against him.
[12]
The applicant has further stated in paragraph 8 of his affidavit that
he continuously served Jacky Mogashoa Attorneys under
the direct
supervision of his principal Ntheletseng Mogashoa and received
training and gained experience in the following:
“
8.2.
1. The general practice and administration of attorney’s
office’
8.2.2.
Magistrate’s Court procedures in both trials and application
matters;
'8.2.3.
Magistrate’s Court appearances and attending to taxation
matters;
8.2.4.
Debt collections in the Magistrate’s Court;
8.2.5.
Drawings of bills of costs and attending to taxation thereof;
8.2.6.
Labour Law practices and procedure;
8.2.7.
Motor vehicle accident claims;
8.2.8.
Drafting of various types of contracts;
8.2.9.
High Court litigation, including the preparation of pleadings in
divorce matters;
8.210.
Criminal Court practice and procedures.
[13]
The applicant stated, inter alia, that he has not been convicted of
any criminal offence and, to the best of his knowledge,
there is no
criminal case pending against him. The applicant further stated that
there is no civil action instituted or pending
against him, that
there was no disciplinary action pending against him by his employer
or the Law Society; that he has never been
previously admitted as an
advocate or as an attorney of the division of this court; and that he
has paid the prescribed fees in
terms of Section 18(a) of Attorneys’
Act. This is confirmed by the official stamp of the Law Society dated
27 August 2009,
certifying that the provisions of section 19(1) and
(2) of the Act have been complied with.
[14]
The applicant has also attached a copy of a letter from the Road
Accident Fund dated 30th July 2008 in which letter it is confirmed
that he was employed as a Legal Costs Officer based in the Head
Office in Pretoria. His duties entail, inter alia, “settling
bills of costs on behalf of the Road Accident Fund, consulting and
briefing of external attorneys and advocates; advising both
plaintiffs’ and defendants’ attorneys regarding costs to
be paid: advising members of the public in relation to the
RAF Act;
legal research; advising attorneys in relation to RAF tariff for
fees; making sure that all claims lodged with the Road
Accident Fund
complied with the RAF Act; advising members of the public in general
regarding how claims are lodged and what is
required to lodge such
claims.
[15]
The applicant attached his supplementary affidavit in which he seeks
condonation for the late application for his admission.
The reasons
for this late application is, according to the applicant, due to the
fact that he was busy writing practical examinations,
as required by
Section 14(1 )(a),(b) and (c) of the Attorneys’ Act. He passed
his examinations on May 2007. I am of the view
that the explanation
of- the applicant for his absence from office is reasonable and
justifies that condonation should be granted.
[16]
Mogashoa, in his opposing affidavit, denies that the applicant served
continuously and without interruption, under his supervision
from 3rd
March 2003 and furthermore states that he dismissed the applicant
during November 2003 for his pecuniary interest in his
company. He
has further alleged that the applicant collected money from clients
in court and failed to submit such monies to his
firm. Mogashoa
denies that the applicant gained experience: in collection matters;
drawings of bill of costs and attending to taxation
thereof; labour
law practices and procedure; drafting of various types of contracts
and High Court litigation, including the preparation
of pleadings in
divorce matters. He further states that he summarily dismissed the
applicant for his misconduct and that the applicant
never challenged
that dismissal as he accepted it. He further alleges that the
applicant, after he was dismissed, continued to
appear unlawfully
before courts around Polokwane soliciting money from clients for his
own account.
[17]
The applicant, in his replying affidavit, states that he served
articles of clerkship under the supervision of his principal
Mogashoa
continuously and without interruption from 3 March 2003 until 4 March
2004, when the contract of articles expired. The
said articles were
duly registered with the Law Society under 603/2003. The applicant
further denies that he was dismissed from
his position as a candidate
attorney at anytime and that he had any pecuniary interest in his
principal’s firm. He denies
that collected monies from clients
at court and failed to submit such monies to his principal’s
firm. He further states that
when he was a candidate attorney, he
never breached any contract of articles and furthermore that the
allegations levelled against
him by Mogashoa are fabrications
calculated to deny the applicant his right to be admitted as an
attorney of this court. The applicant
further states that he gained
general practice and administration of attorneys’ office,
Magistrate’s court procedures
in both trials and application
matters, Magistrate court’s appearances with regard to trials
and obligations, debt collection
in Magistrate courts, drawing of
bills of costs and attending to taxation thereof, labour law
practices and procedure, motor vehicle
accident claim procedure,
drafting of various types of contract, High Court litigation
including the preparation of pleadings in
divorce matters and
criminal court practice and procedure. The applicant further denies
that he was summarily dismissed and further
states that, according to
his records, there was no termination or cession of his contract of
articles. He further states that,
at all times when he appeared at
court around Polokwane, it was at the instructions of his principal
Mogashoa. He denies having
solicited money from clients for his own
account and states that all clients’ monies were paid at the
applicant’s firm
and into the trust account.
[18]
Attached to applicant’s papers, is a letter from the-Law
Society dated the 11th March 2009 addressed to the registrar
of this
court in respect of the applicant’s application which was set
down for the 16th March 2009. In this letter it is
stated that the
request to Mogashoa to attend a meeting with the committee of the
Council of the Law Society on 11 September and
14 October 2008 in
order to assist the committee in its assessment of the applicant to
determine whether he is a fit and proper
person to be admitted as an
attorney, was unsuccessful. The Law Society further stated that
Mogashoa furnished it with the opposing
affidavit, which I have
already referred to, without including sufficient information to
substantiate the allegations he had made
against the applicant.
Subsequent requests to Mogashoa that he should supplement his
opposing affidavit were unsuccessful. For
those reasons the Law
Society stated further in its letter that it is unable to make a
finding regarding the question whether the
applicant is a fit and
proper person to be admitted as an attorney and the granting of the
applicant’s prayers for admission
is left to the discretion of
the court.
[19]
With regard to the recommendation of the Law Society that there is a
dispute of fact and that consequently the matter must
be referred to
oral evidence in order to decide whether this court should follow
this recommendation, this court need to be guided
by the principles
that evolved from Plascon-Evans v Paints Ltd v Van Riebeeck Paints
(Pty) Ltd.
5
[20]
In the Plascon-Evans Corbett AJ
6
said, inter alia:
“
Secondly,
the affidavits reveal certain disputes of fact. The appellant
nevertheless sought a final interdict, together with ancillary
relief, on the papers and without resort to oral evidence. In such a
case the general rule was stated by Van Wyk J (with whom Devilliers
JP and ROSENOW J concurred) in Stellenbosch Farmers' Winery Ltd v
Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235E - G, to be:
"...
where there is a dispute as to the facts a final interdict should
only be granted in notice of motion proceedings if the
facts as
stated by the respondents together with the admitted facts in the
applicant's affidavits justify such an order... Where
it is clear
that facts, though not formally admitted, cannot be denied, they must
be regarded as admitted."
This
rule has been referred to several times by this Court (see Burnkloof
Caterers (Pty) Ltd v Horseshoe Caterers (Green Point)
G (Pty) Ltd
1976 (2) SA 930
(A) at 938A - B; Tamarillo (Pty) Ltd v B N Aitkin
(Pty) Ltd
1982 (1) SA 398
(A) at 430 - 1; Associated South African
Bakeries (Pty) Ltd v Oryx & Vereinigte Backereien (Pty) Ltd en
Andere
1982 (3) SA 893
(A) at 923G - 924D). It seems to me, however,
that this formulation of the general rule, and particularly the
second sentence thereof,
requires some clarification and, perhaps,
qualification. It is correct that, where in proceedings on notice of
motion disputes
of fact have arisen on the affidavits, a final order,
whether it be an interdict or some other form of relief, may be
granted if
those facts averred in the applicant's affidavits which
have been admitted by the respondent, together with the facts alleged
by
the respondent, justify such an order. The power of the Court to
give such final relief on the papers before it is, however, not
confined to such a situation. In certain instances the denial by
respondent of a fact alleged by the applicant may not be such
as to
raise a real, genuine or bona fide dispute of fact (see in this
regard Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty)
Ltd
1949
(3) SA 1155
(T) at 1163 - 5; Da Mata v Otto NO
1972 (3) SA 858
(A) at
882D - H). If in such a case the respondent has not availed himself
of his right to apply for the deponents concerned to
be called for
cross-examination under Rule 6 (5) (g) of the Uniform Rules of Court
(cf Petersen v Cuthbert & Co Ltd
1945 AD 420
at 428; Room Hire
case supra at 1164) and the Court is satisfied as to the inherent
credibility of the applicant's factual averment,
it may proceed on
the basis of the correctness thereof and include this fact among
those upon which it determines whether the applicant
is entitled to
the final relief which he seeks (see eg Rikhoto v East Rand
Administration Board and Another
1983 (4) SA 278
(W) at 283E - H).
Moreover, there may be exceptions to this general rule, as, for
example, where the allegations or denials of
the respondent are so
far-fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers (see
the remarks of BOTHA AJA in
the Associated South African Bakeries case, supra at 924A).
[21]
From the a transcript of the meeting held between the committee of
the Law Society and the applicant and Mogashoa on the 18
May 2009, it
can be noted that Mogashoa, on his own admission, did not report to
the Law Society that he had since terminated the
services of the
applicant, as he alleged. Section 11 (1) of the Attorneys Act demands
of the principal of the concerned candidate
whose contract of
articles of clerkship is terminated, for whatever reason, to report
in writing to the Law Society such cancellation.
The allegation of
Mr. Mogashoa that he terminated the services of the applicant is not
supported by any empirical evidence.
[22]
Mogashoa says that he does “not have any objection” to
the applicant “being admitted”
7
.
Mogashoa contemptuously says: “MR MOGASHOA: That is why I say
you can go and inform that Judge that myself, I do not have
any
objection if he is admitted. If he finds, if he reads those papers
and finds that he be admitted, let him admit him, I do not
have to
interrogated for somebody’s admission...”
8
[23]
Mogashoa had alleged that the applicant had taken moneys from clients
at court and had failed to account for such moneys. In
support of
these allegations, he submitted an affidavit in which the accusations
were directed against a certain Mr. Ledwaba and
not the applicant
9
.
[24]
The allegations made by Mogashoa that the applicant collected moneys
from his clients without accounting therefore, are premised
on
hearsay evidence. When he was asked about the names of his sources he
was unable to furnish them. He further stated that this
happened in
2003 and now, in 2009, he responds by saying that how could he be
expected to remember events that took place in 2003.
[25]
Mogashoa arrogantly states that he has produced 10 (ten) attorneys.
If that is the position, it begs the question of how he
trained those
attorneys if he denies that the applicant has gained any experience
from his practice in some of the respects, which
I have already
referred to herein above.
[26]
The applicant has produced proof that he has passed the examinations
prescribed in terms of section 14 of the Act. This is
a clear that
the applicant has gained sufficient experience to be admitted as an
attorney of this Court.
[27]
I am of the view that, even if this matter were to be referred for
oral evidence, nothing much would be gained out of this
exercise, i
say so because Mogashoa has been unable to produce any affidavit from
any of his clients who allege that the applicant
collected money from
them without accounting thereof to Mogashoa’s office. It is
also evident from the transcript of the
Committee established by the
Law Society to investigate Mogashoa’s allegations, even if he
can be afforded time to look to
those clients, he will never be able
to locate them. Besides, he says that this happened in 2003 and he
cannot be expected to remember
things that happened then.
Furthermore, I take note of the fact that Mogashoa has not laid any
charge of theft against the applicant,
nor did he report the alleged
conduct or misconduct of the applicant to the Law Society. He has
also not furnished any supporting
affidavit from any of his general
staff members corroborating the allegations that the applicant was
dismissed from his duties.
[28]
I am of the view that the allegations by Mogashoa against the
applicant and his denials that he has gained experience “are
so
far-fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers”
10
and I accordingly reject his allegations against the applicant. I
accept the version of the applicant that he has completed the
period
of his candidacy with the applicant in accordance with his contract
and that he has gained sufficient experience to be admitted
as an
attorney of this Court. I find that there is no tangible evidence
upon which this court can conclude that the applicant is
not a fit
and proper person to be admitted as an attorney of this Court and for
that reason, I find that he is a fit and proper
person to be admitted
as an attorney of this Court.
[29]
The above is the consideration that moved me to admit the applicant
as an attorney of this Court.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
I
AGREE.
P
M. MABUSE
ACTING
JUDGE OF THE COURT
DATE
OF HEARING : 18 JUNE 2009
DATE
OF JUDGEMENT : 7 AUGUST 2009
APPLICANTS
ATT : MOADI ATTORNEYS
APPLICANT’S
ADV ; MR. LEBALLO
1
The
applicant has attached a certified copy of his identity document
marked annexure “MN1”. “
2
Senior Certificate marked annexure “MN2” is attached to
his papers.
3
A
certified copy of his LLB degree certificate is attached as annexure
‘MN3”.
4
A copy of this contract is attached as annexure “MN5” is
attached.
5
[1984] ZASCA 51
;
1984
(3) SA 623
(A).
6
Supra
at 634E-635C
7
Page
24 line 10-11. Vide also at page 13 of the transcript at line 4-12:
“
DR
CURLEWIS: Do I understand you correctly, is it your version that you
stick to the truthfulness of
this
affidavit, but on the same hand you conveyed to us that you do not
want to oppose his admission as an
attorney?
MR
MOGASHOA: No, I said that on several times that 1 am not, even
himself, I told him that no, I cannot sign your affidavit. You
can
go there, let the Court admit you, I do not have a problem with that
one,...?
8
.
At
page 14 line 7—11 of the transcript.
9
At
page 10 line 15 of the transcript: “
MR
BENNETT;MR MOGASHOA, what I still do not understand _and perhaps.. I
am reading this thing and it is in respect of Mr. Ledwaba,
how is
this relevant to Mr. Raeboye’s application? Mr. Mogashoa gives
an illogical explanation in this regard: “MR
MOGASHOA: That is
why I say that they were together. If that person maybe... you see,
the clients are no longer responding well,
because like that man, we
abandoned his case although he paid the money, so he how will he
co-operate..” 1 can only surmise
that even if the matter were
to be referred to oral evidence, on the basis of the aforesaid
response, Mr. Mogashoa would be unable
to get any client who would
come to support his allegations against the applicant.
10
Vide
Plascon- Evans supra at 635A