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[2009] ZAGPPHC 321
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Pali v Law Society Of The Northern Provinces (30327/08) [2009] ZAGPPHC 321 (14 August 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO: 30327/08
In
the matter between:
SEJAGOBE
JAHANNES
PALI
APPLICANT
And
THE
LAW SOCIETY OF THE NORTHERN PROVINCES
(Incorporated
as the Law Society of the Transvaal)
RESPONDENT
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1]
The Applicant was employed as a member of the SAPS on 24 May 1983. He
was promoted to the rank of sergeant in 1987. While a
sergeant, he
was charged with fifteen different charges. These are
(a)
Three counts of abduction (kidnapping);
(b)
Six counts of common assault;
(c)
One count of bribery and corruption, and
(d)
Five counts of rape.
He
was convicted of:
(a)
common assault (two counts) and
(b)
rape (four counts) and sentenced to two months
imprisonment
and ten years imprisonment respectively for the common assault and
the rape. The Applicant, in the meantime, studied
and obtained three
degrees, B Iuris, LLB and masters degree in law. Upon his release on
parole, the Applicant, on 14 November 2002
entered into a contract of
articleship with Attorney T Morotolo of Benoni. The Law Society of
the Northern Provinces (“the
Respondent ”) was approached
with a request that the Applicant be registered as a candidate
attorney in terms of section
4 of the Attorneys Act 53 of 1979. (“The
Act”). The Applicant was interviewed by Mr Basson of the
Respondent and then
invited to meetings of the Council of the Law
Society (“the Council”) on 6 October 2003 and 4 February
2004. On both
occasions the Council found that the Applicant could
not be considered a fit and proper person to enable the Respondent to
register
his contract of articles of clerkship with Attorney
Morotolo. The Council’s decisions were duly communicated to the
Applicant.
The Respondent denies that its Council suggested to the
Applicant that he submit expert evidence by a psychiatrist or
psychologist
to the Council. The Respondent further denies that it
furnished the Applicant with advice on his application. This
application,
according to the Applicant, is the result of such
advice. The Applicant in his application seeks an order in the
following terms:
“
(a)
Directing the Respondent to register a contract of articles of
clerkship entered into by and between the
Applicant
and attorney T. Morotolo, alternatively, with any other attorney duly
admitted to practice as such within the Republic.
(b)
Costs of the application
(c)
Granting the applicant such further and/or alternative relief as the
court may deem fit.”
[2]
The Respondent opposes the application on the basis that:
(a)
The relief that the Applicant seeks is a mandatory interdict, an
order which seeks to compel the Respondent to register the
contract
of articles of clerkship, entered into by and between the Applicant
and Attorney Morotolo. The order according to it,
is an inappropriate
remedy in the circumstances.
(b)
(i)
the power of discretion exists which is distinct from a mere duty.
This, the Respondent avers, is borne out by the provisions
of the
Act, which, according to it, indicate discretion on the part of the
Respondent when deciding whether or not to register
a contract of
articles.
(ii)
his application is not an application for review in terms of the
Promotion of Administrative Justice Act no. 3 of 2000 (PAJA),
of the
Respondent’s decision not to register the contract of articles
and that the founding affidavit is devoid of the averments
in that
regard. The Respondent also further avers that the Applicant did not
institute review proceedings in terms of Rule 53 of
the Rules of this
Court.
(c)
the Applicant, in his application, should have established all the
requirements for a mandatory interdict.
[3]
THE
ISSUES TO BE DETERMINED
The
issues to be determined are whether:
(a)
the application is flawed by reason of the nature of the relief that
the Applicant seeks;
(b)
the Applicant has established all the requirements for the relief
that he seeks, and
(c)
the Applicant has appropriately approached the court on the papers
before it.
If
the application is flawed as stated in (a) above; the Applicant has
not established all the requirements for the relief that
he seeks and
if finally he should have brought an application for review in terms
of the
Promotion of Administrative Justice Act then
it becomes
unnecessary for the court to even have to answer the question whether
or not the Applicant is “a fit and proper
person” for the
contract of articles of clerkship to be registered.
[4]
COMMON
CAUSE FACTS
The
following facts are common cause:
4.1.
The Applicant was charged, convicted and sentenced as shown above;
4.2.
The Applicant obtained the degrees that he has proved;
4.3.
The Applicant was interviewed by Mr Basson of the Respondent;
4.4.
The Applicant was invited to the meetings of the Council which he
attended;
4.5.
The Applicant, finally, has brought this application.
[5]
To properly deal with the issues before it, the court has to have
regard to sections 4(b), 4(A), 4A (b) and 5 (2) of the Act.
Section
4 (b) provides that:
“
Any
person intending to serve any attorney under articles of clerkship
shall submit to the secretary of the society of the province
in which
the service under such articles is to be performed, the following,
namely -
(b)
proof to the satisfaction of the
society that he is a fit and yroyer person and that..." (my
emphasis).
Similarly,
a candidate Attorney intending to perform community service in terms
of Section 4 A (b) of the Act shall also submit
proof ‘
to
the satisfaction of the Law
Society
that he/she is a fit and a proper person.
’
(my
emphasis).
This,
according to Mr Lamey who appeared on behalf of the Respondent,
denotes that the Respondent is called upon to exercise a discretion
when determining whether or not an applicant is a ‘fit and
proper person.’ The standards and norms of the profession,
according to him, are paramount, and having due regard to them, as he
correctly points out, results in a value judgment by the
Respondent.
This submission has merit.
The
Respondent will only be satisfied that one is ‘a fit and proper
person’ after it will have exercised a discretion.
Section 5
(2) of the Act provides that:
“
The
secretary of the society concerned shall, on payment of the fees
prescribed under section 80, examine any articles or contract
of
service lodged with him and shall, if he is satisfied that the
articles are or contract of service is in order and that the
council
has no objection
to
the registration thereof, on payment of the fees so prescribed
register such articles or contract of service and shall advise
the
principal and candidate attorney concerned of such
registration in writing by certified post.”
(my emphasis ).
The
secretary of the Law Society in the same vein, once satisfied that
the articles are or contract of service is in order and that
the
Council has no objection then proceeds to register the articles or
contract of service. This simply means that the Council
will object
to the registration of such articles or contract of service if it is
not satisfied that the person is ‘fit and
proper.’ The
Council, in so doing, exercises its discretion. See in this regard
Prince v President, Cape Law Society, and
Others
2000 (3) SA 845
(SCA) at 856 J and at 857 E.
[6]
Mr Lamey submitted on behalf of the Respondent that the Respondent’s
decision to object to the registration of the Applicant’s
articles of clerkship and the reasons therefor appear more fully in
the Respondent Answering Affidavit. The submission is correct.
The
Answering Affidavit clearly evinces that the Respondent, in deed,
exercised its discretion before arriving at the decision
to object to
the registration of the Applicant’s articles of clerkship. The
interview that Mr Basson had with the Applicant
and the meetings that
the Council had with him are a further indication that the Council
did not lightly take its decision. It
really gathered the relevant
facts and information before it arrived at the decision. Mr Lamey
correctly submitted that the Applicant’s
remedy was supposed to
have been an application for review in terms of the
Promotion of
Administrative Justice Act. The
application, according to him, ‘is
not with reference to its contents or form in which it is brought, an
application foe
review in accordance with PAJA’. It is further
submitted on behalf of the Respondent which also so avers, that the
Applicant
did not institute review proceedings in terms of
Rule 53
of
the Rules of this court either. Both the submissions, in my view,
have merit.
[7]
The Act clearly gives the Respondent a discretion to exercise when
determining whether or not an applicant ‘is a fit and
proper
person.’ It, indeed, would have been a different story had the
Act imposed a duty on the Respondent to register the
contract of
articles without at the same time giving it the discretion which is
apparent from the Act. This also happens to be
the correct view of Mr
Lamey.
[8]
It must be remembered that for the relief that the Applicant seeks
all the requirements for the granting of such relief are
paramount
and they must all be established before the court can grant the
order. This, the Applicant, has clearly not done.
[9]
Mr Mangolele on behalf of the Applicant conceded that the Act has
given the Respondent the discretion to exercise in matters
such as
the Applicant’s and that the correct route to take in the event
that the Applicant was not satisfied with the Respondent’s
exercise of its discretion would have been to institute review
proceedings.
[10]
Mr Mangolele’s submission that the Applicant is now a
completely different person, rehabilitated and requiring to be
given
a second chance, in light of what I have referred to above, takes the
Applicant’s case nowhere. The papers before the
court do not
allow it to come to the rescue of the Applicant. The above
considerations, in my view, clearly show that the Applicants’
application stands to be dismissed with costs.
[11]
It is, indeed, unnecessary for the court to decide on whether the
Applicant ‘is a fit and a proper person’ for
the
Respondent to register the articles of clerkship.
[12]
In the result, the Applicant’s application is dismissed with
costs.
W
M MSIMEKI
JUDGE
OF THE HIGH COURT
Heard
on: 09 February 2009
For
the Applicant: Adv Mangolele
Instructed
by: T. Morotolo Attorneys
For
the Respondents: Mr A. T. Lamey
Instructed
by: Rooth Wessels Motla Conradie Inc.