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[1988] ZASCA 147
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Asherson v Law Society of Cape of Good Hope (613/87) [1988] ZASCA 147; [1989] 4 All SA 361 (AD) (24 November 1988)
CASE NO 613/87
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
ROGER JEFFREY ASHERSON
APPELLANT
and
THE LAW SOCIETY OF THE CAPE OF GOOD HOPE
RESPONDENT
CORAM
: RABIE ACJ, BOTHA et KUMLEBEN JJA
HEARD
: 7 NOVEMBER 1988
DELIVERED
: 24 NOVEMBER 1988
JUDGMENT
KUMLEBEN
, JA/...
1.
KUMLEBEN
, JA
The respondent successfully applied on notice of motion in the Cape of Good
Hope Provincial Division of the Supreme Court ("the court")
in terms of sec
22(1) of the Attorneys Act, No. 53 of 1979, ("the Act") for an order that
appellant be struck off the roll of attorneys
of the court. Leave to appeal
against the decision was refused but was granted on petition to the Chief
Justice.
Though the application was opposed, the material facts set out in the
founding affidavit of the then president of respondent - as
opposed to the
inferences to be drawn from them - were not in dispute.
On 17 January 1968 appellant was admitted as an
attorney of the court. From that date he practised, sáve for
three intervals of approximately 13, 7 and 12 months, as an
2/...
2. attorney in Cape Town. On 8 August 1983, at the instance
of respondent, the court suspended him from practice for a period of one
year.
On 8 February 1985 he recommenced practice. On 15 December 1983 by order of
court a suspended sentence of imprisonment previously
imposed was put into
operation. Whilst this sentence was being served, appellant successfully applied
for his release from custody
and on 15 June 1984 such an order was granted
subject to certain conditions. He failed to comply with them, with the result
that
on 10 December 1985 the court again sentenced him to imprisonment for 12
months for contempt of court.
In 1980 appellant's wife sued him for divorce. A
Cape Town attorney, Mr Simon, acted for her and he instructed
a member of the local Bar, Mrs Traverso, to represent her in
court. On 5 June 1981 an order of divorce was granted and
custody of their young daughter was awarded to the mother.
The fact of the divorce, and appellant's restricted right of
3/...
3. access to his daughter, unhinged him mentally. He began
molesting, harassing and interfering with his former wife, his step-father,
Mr
Simon and Mrs Traverso. In the case of the last-mentioned two persons, his
harassment took the form of letters and press cuttings
sent to them and
telephone calls, all of which were personally or professionally disparaging.
The founding affidavit is in the main a chronicle
of unsuccessful attempts to restrain him by way of court
orders. It is unnecessary to refer to them in detail. During
a period from October 1982 to October 1985 Mr Simon and Mrs
Traverso, or one of them, obtained no less than four court
orders for contempt arising from the appellant's failure to
comply with court injunctions. The court, as I have said,
was obliged to enforce a suspended prison sentence but,
notwithstanding the experience of this form of punish-
ment, he again disregarded the court's order and was for a
4/...
4. second time sentenced to imprisonment.
It is clear that the mental disorder, over which he has little or no control,
accounts for appellant's misconduct. He admits as much.
In the answering
affidavit he says:
"My reaction to my ex-wife's legal advisers I verily believe is due to a
personality disorder which has hitherto not been effectively
treated but which I
have reason to believe is treatable if the necessary stress factors are
removed."
On the other hand, he points out that,
apart from his behaviour towards Mr Simon and Mrs Traverso, his professional
conduct has been
beyond reproach and that he has always maintained the standards
of his profession. This is not denied by respondent.
In the light of these facts we are called
upon to decide whether the decision of the court ought to be
5/...
5. reversed or altered, having regard to the provisions of
sec 22(1) of the Act. As initially promulgated, and omitting words which
are for
present purposes immaterial, it read as follows:
"(1) Any person who has been admitted and enrolled as an attorney may on
application by the society concerned be struck off the roll
or suspended from
practice by the court within the jurisdiction of which he practises -
(a) ....
(b) ....
(c) ....
(d) if the court is satisfied that he is
not a fit and proper person to continue to practise as an
attorney."
There are thus two considerations:
whether the attorney
concerned is fit to practise and, if not, the form of the
restriction (removal or suspension) to be imposed on him.
This court in
Nyembezi V Law Society, Natal
, 1981(2) S.A.
752(AD) 758 held that the second consideration involved the
exercise of a discretion, but not the first. (See too
Law
6/...
6.
Society of the Cape of Good Hope v C
1986(1) S.A.
616 (AD) 637.) For that reason subsec (d) was substituted by sec 9(c) of Act No
108 of 1984 and it now reads:
"(d) if he, in the discretion of the court, is not a
fit and
proper person to continue to practise as an attorney."
Both decisions are therefore now discretionary. The question in respect of
each is:
"Can it be said in the present case that the Court a quo has exercised its
discretion capriciously or upon a wrong principle, that
it has not brought its
unbiased judgment to bear on the question or has not acted for substantial
reasons?"
(per Greenberg J.A. in Ex
parte Neethling and
Others
1951(4) S.A. 331(AD) 335: cited with approval, in reference to sec
22(1) as amended, in
Law Society of the Cape of Good Hope v C supra
at
637.)
Mr Rosenthal, who appeared for the appellant, submitted in the first place
that the court had misdirected itself in finding that the
appellant was not fit
to practise. It decided thus, so he submitted, for the reason that
7/...
7. appellant was mentally disordered whereas the
application was based on other grounds, namely, his behaviour towards Mr Simon
and
Mrs Traverso and his disregard of court orders. This is a distinction
without a difference since the two considerations are inextricably
linked. The
former caused the latter and this was clearly appreciated by the court in
reachlng its decision.
Nor can such conclusion be faulted. Counsel
argued that appellant's misconduct was restricted to what he
described as
a small section of the public (the two persons
he victimised) and that in ali other respects he practised
proficiently and in accordance with the standards of the
profession. But the fact that he persistently harassed a
colleague and another member of the legal profession, and, as
an officer of the court, as persistently disobeyed its
injunctions, to my mind amply justify the finding that he was
unfit to continue in practice. Moreover counsel's premise
8/...
8. for this submission is questionable. Were appellant and
Mr Simon (or Mrs Traverso) to oppose each other professionally, it is unlikely
that appellant would be able to act dispassionately and in the best interests of
his client.
In the course of deciding on the form of the order, Burger J, with whom Van
Heerden J concurred, said in the judgment:
"The difficulty in the present case is that one should not exclude the
possibility that the Respondent may recover from his present
disabilities and
that he would again become 'a fit and proper person'. A court would obviously do
all in its power to assist in the
process of recovery and his return to
professional status, provided this can be done without sacrificing the
professional standards.
For this reason the court has given
serious consideration to an order merely suspending the Respondent pending his
recovery. As an
alternative it was suggested that the court should postpone the
case with an interim suspenslon.
It is however not possible to have an
indefinite suspension or postponement
. If a time limit is placed upon the
suspension or postponement, then it may be that the suspension of the Respondent
is automatically
terminated and he could
9/...
9.
start to practise, even though he has not fully recovered. It would then
necessitate a new application by the Law Society. At that
time the Law Society
may weli find that it has insufficient information in order to bring a
successful application.
These practicai difficulties are of such a nature that the only course is to
remove the Respondent's name from the Roll of Attorneys
of this court." (My
emphasis.)
It appears from this passage that the court regarded
suspension, as opposed to removal, appropriate for the reason that appellant
"may recover from his present disabilities". It, however, considered that it was
precluded from making such an order because the
condition of suspension had to
be a time period, on the expiry of which appellant would automatically be
entitled to resume practice.
Counsel for appellant submitted - to my mind
correctly - that this amounted to a misdirection. Implicitly any order of
suspension
must be conditional but, as appears from the wording of the
subsection, no restriction is placed on the form the condition may take.
It is
therefore permissible to
10/...
10.
make an order of suspension which is conditional upon
the
cause of unfitness being removed and which is in that sense
indefinite. (Cf.
Law Society of the Cape of Good Hope v C
(supra
) at 640H and
Transvaal Incorporated Law Society
v
Berman
1949(4) S.A. 311 (TPD).) Mr Kuhn, who appeared for
the
respondent, did not concede that the court had misdirected
itself but was unable to advance any argument in support of
the contrary
view.
It is therefore open to this court to decide
whether the order made should be replaced by one of
suspension. Whilst stressing that the conduct
per se
warranted
removal from the roll, two factors make a
suspension order in this case more equitable and appropriate.
Firstly, Dr Zabow, a psychiatrist, who made two affidavits on
behalf of appellant, said that appellant's personality
disorder could be
satisfactorily treated; that after his
(second) experience of being in prison he is less likely to
repeat his past misdemeanours and added that:
11/...
11 .
"I am further of the opinion that in the event of this Honourable Court seeing
fit to remove Respondent from the Roll of attorneys
the ignominy of being so
struck off the Roll may well set Respondent back and retard the beneficial
effect of the psychiatric treatment
which he is presently undergoing and cause
him further depression and retardation."
Secondly, the fact that
appellant is incapable of exercising
self-discipline as a result of a personality disorder plainly renders his
conduct, though unacceptable, less censurable than it would
have been had his
mental faculties been unimpaired.
There remains the question of costs. Despite the alteration of the order, and
the fact that it can therefore be said that appellant
was partially successful
on appeal, I consider that he should bear its costs for a number of reasons.
Firstly, the respondent is
not in the position of an ordinary litigant and is as
a rule entitled, if not under a duty, to present argument on appeal in support
of a court's
12/...
12. order in its favour. As was said by Beadle CJ in
Pitiuk v Law Society of Rhodesia
1975(2) S.A. 21 (R.,A.D.) at 30:
"To what extent the Law Society should press for the penalty which it considers
appropriate must, of course, depend on the circumstances
of each particular
case. If the decision of the Court a
quo
is taken on appeal, however, I
consider the function of the Law Society is to oppose an appeal with all the
vigour with which the
State would oppose an appeal in a criminal case where
there was an appeal against the sentence of the High Court, which sentence
the
State considers to be an appropriate one."
Secondly, the
appellant in the first instance appealed against the order declaring him to be
unfit to practise and pursued this line
on appeal. Thirdiy, as appears from what
has been said, the evidence of Dr Zabow on the likely effect of removai is a
crucial consideration
in deciding on suspension and such an order is in the
nature of a concession to appellant on medical grounds. Lastly, as regards
the
submission that there has been partial success on appeal, it is to be noted that
the variation of the order is largely one
13/...
13.
of form rather than substance. There is a difference - but
not a significant one - between removing him from the roll and reguiring
him to
apply for re-admission when he has been cured of his mental disorder and making
his suspension conditional upon his proving
that the problem has been overcome.
Mr Kuhn, who was assisted by junior counsel, asked that the costs of two counsel
be allowed.
The record is a short one and the issues were not complicated. In
the circumstances I do not consider that appellant ought to be
burdened with
those additional costs.
The appeal succeeds in part. The order of the court
a
quo
is altered to read: "1. The respondent is suspended
from practice until such time as he satisfies the court that
he is a fit and proper person to resume practice as an
attorney. Paragraphs 2, 3 and 4 of the order of the court a
quo are confirmed.
14/...
14. The appellant is ordered to pay the costs of
appeal.
M E KUMLEBEN JUDGE OF APPEAL
RABIE
A.C.J.)
BOTHA J.A.) concur