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[2008] ZAWCHC 187
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Cape Bar Council v Festus (7257/07) [2008] ZAWCHC 187 (25 April 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No: 7257/07
In
the matter between:
THE
CAPE BAR COUNCIL
Applicant
and
PETER
JOHN FESTUS
Respondent
JUDGMENT:
25 APRIL 2008
VAN
ZYL J:
[1]
This is an application for an order striking the respondent's name
from the roll of advocates on the ground that he is not a
fit and
proper person to continue practising as an advocate. Mr M Donen SC
appears for the applicant, assisted by Ms S Seria and
Ms N
Mangcu-Lockwood. The court expresses its appreciation for their able
assistance in this matter. There is no appearance for
the respondent,
who filed a notice of opposition on 16 August 2007 but has failed to
file any papers in response to the serious
charges of professional
misconduct made against him.
[2]
The charges against the respondent are fourfold, namely two charges
of taking instructions and accepting fees from clients without
the
intermediation of an attorney, one charge of misleading the court and
one charge of attempting to induce (suborn) an attorney
to commit
perjury. The facts giving rise to these charges are set forth fully
in the founding affidavit of Mr A Schippers SC, the
chairperson of
the applicant, and need not be repeated here. Inasmuch as the
respondent has seen fit not to respond to the charges
or the facts
giving rise thereto, such charges and facts must be accepted as
admitted-
[3]
It appears to be common cause that the respondent was admitted as an
advocate of the High Court of South Africa on 6 September
J 990. He
was, and still is, duly enrolled as such. Although he was a pupil
member of the Cape Bar in 1999, he did not pass the
Bar examination
and opted to practise as an independent advocate from an address in
Somerset West. As a practising advocate, however,
he was
nevertheless, at all relevant times, subject to the rules of
professional ethics of the applicant and other constituent
Bars of
the General Council of the Bar of South Africa. See
De
Freitas and Another v Society of Advocates of Natal and Another
2001
(3) SA 750
(SCA) and
Rosemann
v
The
General Council of the Bar of South Africa
2004
(1) SA 568
(SCA).
[4]
The respondent must have been well aware of these rules when doing
pupillage at the Cape Bar. it is also evidenced by his attempts
to
exculpate himself when the charges were brought to his attention.
There is not the slightest doubt that he has indeed acted
unprofessionally and cannot be regarded as a fit and proper person to
practise as an advocate of this court. In terms of
section 7(l)(d)
of
the
Admission of Advocates Act
74
of 1964
, the court may suspend any person from practice, or order
that the name of any person be struck off the roll, if it is
satisfied
that he or she is not a fit and proper person to practise
as an advocate.
[5]
In the present case it is clear that the professional misconduct of
the respondent would not warrant mere suspension from practice
for a
period of time, particularly in view of his failure to place any
explanation whatever for his professional misconduct before
this
court. I am satisfied that the only order justified in the
circumstances of this matter is an order striking the name of the
respondent from the roll of advocates.
[6]
As for the costs of the application this is, in my view, undoubtedly
a case in which the court should indicate its displeasure
with the
respondent's misconduct and the fact that he has not favoured the
court with any response to the serious charges directed
against him,
by ordering him to pay the costs of this application on the scale as
between attorney and client.
[7]
In the event I would make the following order:
1. The
name of the respondent is struck from the roll of advocates.
2. The
respondent is ordered to pay the costs of the application on the
scale as between attorney and client.
DH
VAN ZYL
Judge
of the High Court
1
agree.
D
V DLODLO
Judge
of the High Court