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[2000] ZASCA 14
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Jasat v Natal Law Society (78/98) [2000] ZASCA 14; 2000 (3) SA 44 (SCA); [2000] 2 All SA 310 (A) (28 March 2000)
Case No 78/98
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
In
the matter between
FAROUK
JASAT APPELLANT
and
NATAL
LAW SOCIETY RESPONDENT
CORAM : F H GROSSKOPF, NIENABER,
MARAIS, SCOTT
et
ZULMAN
JJA
HEARD :
20 MARCH 2000
DELIVERED :
28 MARCH 2000
Attorney
committing perjury in criminal proceedings and suborning another to
do likewise - struck off roll.
J
U D G M E N T
SCOTT
JA/....
SCOTT
JA:
[1]
The
appellant practises as an attorney in Pietermaritzburg. He appeals to
this Court against an order of the Natal Provincial Division
striking
his name off the roll of attorneys.
[2] In
July 1993 the appellant was charged with housebreaking with intent to
steal and theft. On 12 December 1994 he was convicted
in the Regional
Court of housebreaking with intent to trespass and was sentenced to
a fine of
R 3000. He appealed to the Natal
Provincial Division. The appeal was dismissed on 5 December 1995. On
appeal to this Court the conviction
was altered to “housebreaking
with the intent of contravening s 1(1)(a) of the Trespass Act, 1959,
and the contravention
thereof”; the appeal was otherwise
dismissed. The judgment, which was delivered on 7 March 1997, has
been reported - see
S
v Jasat
1997 (1)
SACR 489
(SCA).
[3] Shortly thereafter the
respondent launched the proceedings resulting in the order against
which the appellant now appeals.
In its founding papers the
respondent relied not only on the appellant’s conviction but
also on his conduct at the criminal
trial,
viz
the raising of what was described by the respondent’s chief
executive officer as “a specious alibi defence”.
[4] It is necessary to set out the
facts of the criminal case. I shall do so in brief as they appear
more fully from the reported
judgment of Nienaber JA in
S
v Jasat, supra.
On
Friday 2 April 1993 an attorney, Mr Baboo Akoo who practised from a
suite of offices in Loop Street, Pietermaritzburg, fled
the country
for London. On Sunday 4 April 1993 he telephoned his clerk, Mr
Chutterpaul, to say that he would not be returning to
South Africa.
He suggested that Chutterpaul help himself to certain items in the
office, including the law reports. The latter
commendably declined to
do so and reported the matter to the Natal Law Society instead. The
following day, Monday 5 April 1993,
Mr Rees, an executive officer of
the respondent, took control of the premises. He had the lock to the
front door changed; he also
had a duplicate key made for a filing
cabinet which, according to Chutterpaul, contained files relating to
the appellant. On the
same day the appellant telephoned Rees; he told
him that certain files in the office belonged to him and that he was
anxious to
recover them. Rees’s attitude was that no files
would be released to the appellant until the Law Society had
been appointed
curator bonis and the appellant had signed the usual form
indemnifying the Law Society. The following day, Tuesday
6 April
1993, was a public holiday. Mr Pienaar, a consulting engineer who
worked in the office next door to that of Akoo, encountered
two men
at the entrance. The one was carrying a box of files, the other, whom
Pienaar later identified as the appellant, was busy
wiping the
aluminium frame of the door to Akoo’s offices. When confronted,
the man with the files said that they were from
“Special
Security Services” and that they had been sent to collect
files. After they had gone Pienaar examined the
lock. It had been
forced. He thereupon telephoned the police. In the meantime, Mr
Dlamini, a security guard on duty in the building,
had recorded the
registration numbers of all motor vehicles parked in the parking
area. One of them was a vehicle which proved
to be registered in the
name of a company of which the appellant was the sole director.
Dlamini also observed this vehicle being
driven by a person whom he
described as an “Indian male”. On learning that a
break-in had occurred, Rees arrived at
the premises at about 11 am.
The first thing he noticed was that the filing cabinet for which he
had had a key made was missing.
The appellant denied that he had
broken into Akoo’s office or arranged for someone else to do
so. He testified that at the
relevant time he and Akoo’s
cousin, Mr Yusuf Akoo, were busy hiring a truck for the purpose of
assisting Akoo’s wife
to
move house. Mr
Yusuf Akoo gave evidence in support of the appellant’s alibi.
[5] The
Regional Court rejected the appellant’s alibi. Because,
however, the State had failed to establish that the filing
cabinet
and the missing files belonged to someone other than the appellant,
he was convicted of housebreaking with intent to trespass
and
trespass as opposed to housebreaking with intent to steal and theft.
As previously indicated the conviction was confirmed on
appeal to the
High Court but altered in a minor respect on appeal to this Court.
[6] In
his answering affidavit filed in the striking-off proceedings the
appellant admitted for the first time that he had lied
under oath at
the criminal trial. He said that he had indeed entered Akoo’s
premises and removed the steel filing cabinet
as well as other files
and that he had been correctly identified by Mr Pienaar. He
contended, however, that by reason of his alibi
defence all the facts
relating to his conduct had not emerged during the criminal
proceedings and that he was not guilty of the
offence of which he had
been convicted as he honestly believed that he was entitled to enter
Akoo’s premises when he did.
In addition, he sought to explain
how it had came about that he had lied in court and contended that
his conduct and conviction
notwithstanding, he remained a fit and
proper person to continue practising as an attorney.
[7] In
short, the appellant’s explanation, as amplified in evidence,
was the following. He said that he and his brother practised
in
partnership for many years until the latter suffered a heart attack.
For some years prior to the termination of their partnership,
the
relationship between the two of them had been acrimonious. In 1992,
after his brother had removed confidential documents
from his safe,
the appellant arranged with Akoo for the latter to accommodate a
steel filing cabinet in his office in which the
appellant could keep
certain confidential documents and files. The cabinet was also to be
used for storing Akoo’s own files
which related to matters in
which Akoo acted for the appellant. The appellant paid for the
cabinet and both retained a key. On
discovering that Akoo had fled,
the appellant believed it essential to recover his files and
documents before their confidentiality
was compromised or before they
fell into the hands of his brother. On Monday 5 April 1993 the
appellant telephoned Rees to arrange
for the urgent retrieval of his
files. Rees was uncooperative and advised the appellant that he would
have to wait until a curator
bonis had been appointed. The appellant
said he then telephoned Akoo in London who had no objection to the
appellant removing his
papers. The appellant obtained the keys to the
office from Mrs Akoo but found that the lock had been changed. He
said he then telephoned
a Mr Myburgh who had links with a security
firm and arranged for the latter to meet him on Monday evening at
Akoo’s office.
The appellant said he thought Myburgh would know
of a locksmith who would be able to open the door. On arriving at
Akoo’s
office he found Myburgh and two other persons whom he
assumed to be locksmiths waiting for him. The door of the office was
already
open. The appellant explained that in his haste he had
forgotten his key to the steel filing cabinet. To save him the
trouble of
going to fetch it, he simply removed the whole filing
cabinet. He left Myburgh to close up the office. On arriving home he
discovered
there were a number of his files still in Akoo’s
office. He accordingly arranged to meet Myburgh at Akoo’s
office the
next morning. He said that on his arrival he found Myburgh
waiting for him. The latter opened the door and the appellant
retrieved
the missing files. On leaving the office, the appellant
said, he observed that the lock had been forced the previous day.
While
he was examining the lock they were confronted by Pienaar who
wanted to know what they were doing. Myburgh falsely said that they
were from a security company. The appellant explained that he was
preoccupied with the lock and admittedly said nothing to contradict
Myburgh’s false explanation.
[8] Later,
and upon reflection, he realised that the forced lock and false
explanation would create the wrong impression. He
testified that as
far as he was concerned he had committed no crime. He had merely
retrieved his own property with Akoo’s
permission. He contended
that the Law Society had no right to change the locks and take
control of the premises until it had been
appointed curator bonis. In
the event, the application for the appointment of a curator was only
launched on 15 April 1993. The
appellant decided, however, to do
nothing and see what happened. In July 1993 he was suddenly
approached by the police and arrested.
He was required to attend an
identity parade where Pienaar pointed him out. He explained that he
“became panicky” and,
fearing he would be disbelieved if
he told the truth, simply denied his presence at Akoo’s
offices on the day in question.
He said that thereafter he “succumbed
to the temptation” of perpetuating the lie.
[9] The Court
a
quo
(Broome DJP and
Mthiyane J) found it unnecessary to consider whether on the facts
disclosed by the appellant he was guilty of the
offence of which he
was ultimately convicted. (It did, however, refer to certain features
of the appellant’s version which
it considered improbable.)
Instead, the Court
a
quo
came to the
conclusion that the appellant’s conduct in advancing a specious
alibi defence, knowingly giving false evidence
in support of it and
calling a witness to support his false evidence, had demonstrated
that he was not a fit and proper person
to continue to practise as an
attorney and that he should be struck off the roll. In this Court
counsel for the appellant contended
that having regard to all the
circumstances of the case the Court
a
quo
had erred in
not only holding that the appellant was not a fit and proper person
to continue to practise as an attorney but also
in striking him off
the roll rather than suspending him from practise for a limited
period.
[10] The
relevant provisions of s 22(1) of the Attorneys Act 53 of 1979 read
as follows:
“
22(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 -
.....
(d)
if he, in the discretion of the court, is not a fit and proper person
to continue to practise as an attorney.”
In
Reyneke
v Wetsgenootskap van die Kaap die Goeie Hoop
[1993] ZASCA 161
;
1994 (1) SA 359
(A) at 369 D it was pointed out that the section
requires a twofold inquiry. However, before one gets to the two
inquiries referred
to, there is a preliminary question that must be
answered. Ultimately, therefore, what is contemplated is a
three-staged inquiry.
First, the court must decide whether the
alleged offending conduct has been established on a preponderance of
probabilities. (See
for eg
Nyembezi
v Law Society, Natal
1981 (2) SA 752
(A) at 756 H - 758 A where the Court was concerned
with the equivalent section in the now repealed Attorneys, Notaries
and Conveyancers
Admission Act 23 of 1934; see also
Kekana
v Society of Advocates of South Africa
[1998] ZASCA 54
;
1998 (4) SA 649
(SCA) at 654 D in relation to
s 7
of the
Admission of
Advocates Act 74 of 1964
.) The second inquiry is whether, as stated
in
s 22
(1) (d), the person concerned “
in
the discretion of the Court
”
is not a fit and proper person to continue to practise. The words
italicised were inserted in 1984 (see
Law
Society of the Cape of Good Hope v C
1986
(1) SA 616
(A) at 637 B - C). It would seem clear, however, that in
the context of the section, the exercise of the discretion referred
to
involves in reality a weighing up of the conduct complained of
against the conduct expected of an attorney and, to this extent,
a
value judgment. The discretion is that of the court of first
instance. It is well established that a court of appeal has a limited
power to interfere and will only do so on well recognised grounds,
viz
where the court of first instance arrived at its conclusion
capriciously, or upon wrong principle, or where it has not brought
its unbiased judgment to bear on the question or where it has not
acted for substantial reasons (
Law
Society of the Cape of Good Hope v C, supra
,
at 637 D - H;
Reyneke
v Wetsgenootskap van die Kaap die Goeie Hoop, supra,
at
369 E - G;
Vassen v
Law Society of the Cape of Good Hope
[1998] ZASCA 47
;
1998 (4) SA 532
(SCA) at 537 D - G.) The third inquiry is whether in
all the circumstances the person in question is to be removed from
the roll
of attorneys or whether an order suspending him from
practice for a specified period will suffice. This is similarly a
matter for
the discretion of the court of first instance and the
power of a court of appeal to interfere is likewise limited. Whether
a court
will adopt the one course or the other will depend upon such
factors as the nature of the conduct complained of, the extent to
which it reflects upon the person’s character or shows him to
be unworthy to remain in the ranks of an honourable profession
(
Incorporated Law
Society, Transvaal v Mandela
1954 (3) SA 102
(T) at 108 D - E), the likelihood or otherwise of a
repetition of such conduct and the need to protect the public.
Ultimately it
is a question of degree.
[11] The conduct of the appellant on
which the Court
a
quo
based its
conclusion was not in dispute. However, it was submitted in this
Court on behalf of the appellant that the Court below
had misdirected
itself in regard to both the second and third leg of the inquiry by
over-emphasizing the importance of truthfulness
and concluding that
“
[t]here can be absolutely no question but that an
untruthful person is not a fit and proper person to practise as an
attorney”.
[12] This Court has in the past
stressed that the profession of an attorney is an honourable one and
as such demands “complete
honesty, reliability and integrity
from its members”.
(
Vassen
v Law Society of the Cape of Good Hope, supra,
at
538 G). Similar statements have been made with regard to
advocates. (See for
eg
Kekana v Society
of Advocates of South Africa, supra,
at
655 G - H.) But this does not mean that any untruthfulness however
trifling will render an attorney unfit to practise and liable
to be
struck off the roll. As important as the requirements of honesty,
reliability and integrity are, each case must undoubtedly
be examined
in the light of its own facts and circumstances.
[13] Despite the somewhat
categorical statement (quoted above) in the judgment of Broome DJP,
who delivered the judgment of the
Court
a
quo
. I am far from
satisfied that the learned judge intended his comments to be
interpreted to mean that once it was found that the
appellant had
been untruthful that was the end of the matter. On the contrary,
the judge went to some length to distinguish the
appellant’s
conduct from what he referred to as “the sudden impetuous
telling of a lie”. This is apparent
from the following
passage in the judgment.
“
This just cannot be treated simply as the sudden
impetuous telling of a lie. The fact of the matter is that he was
party to the
lie that his accomplice Myburgh told to Pienaar, and he
was then, at the latest, aware of foul play in the sense that the
door
had been forced, and he himself told a lie (when first
approached by police). That may well have been ill advised and
something
of which he did not foresee the consequences. But that was
only the beginning. He persisted in telling lies thereafter. And this
continued for a long time. He stood by these lies from July 1993 non
stop until he delivered his answering affidavit on 31 July
1997. Not
only that, but he set about embroidering his untrue version,
attempting to bolster it with the false evidence of Yusuf
Akoo,
challenging the Applicant’s right to do what it had done, and
causing the reliability of the main State witnesses,
Mr Dlamini and
Mr Pienaar to be impeached. This was indeed a protracted attempt to
deceive the courts. As he frankly conceded
in evidence, had the
decision in the Supreme Court of Appeal gone his way, he would have
been content to have let it rest, that
is to say let sleeping dogs
lie and stood by his lies. He added that it would have been on his
conscience.”
The above statement I think fairly
reflects the appellant’s conduct. There is only one aspect
which I would emphasize; that
is that not only did the appellant
himself commit perjury, but he suborned another to do so in order to
lend credence to his own
false evidence. Even assuming there was a
misdirection on the part of the Court
a
quo
in the respect
alleged in par 11 above so that this Court would be free to
interfere, the conduct of the appellant, seen in its
totality, is
such that in my judgment there can be no doubt that it demonstrates
him to be not a fit and proper person to continue
to practise as an
attorney. Furthermore, I can see no proper basis for an order merely
suspending him from practice rather than
an order striking him from
the roll of attorneys. It follows that in my view the appeal must
fail.
[14]
A
further issue between parties in this Court concerned the record of
the evidence in the criminal proceedings. It was not included
in the
appeal record prepared by the appellant. The respondent objected to
its omission and furnished six copies to the Registrar
together with
a petition to this Court to have the appeal record supplemented by
the addition of what I shall simply call the “criminal
record”.
The respondent
opposed the relief sought.
The real issue
between the parties is who is to pay the costs of producing the
criminal record.
[15] It is necessary to sketch
briefly the background to the dispute. The founding papers filed on
behalf of the respondent contained
an undertaking that the criminal
record would be made available at the hearing. On this basis it was
not annexed as part of the
record. In its replying affidavit the
respondent took up a different attitude. This appears from the
following
passage.
“
Respondent [appellant in this
appeal] has brought into issue the correctness of his conviction for
various reasons and it is now
essential to introduce into the record
of this matter the transcript of the Regional Court
trial. This was
referred to in my founding affidavit. A copy of this record will be
filed evenly with this affidavit and will be
referred to herein as
“the Record”.
A
copy of the criminal record was accordingly filed by the respondent
together with its replying affidavit. At a pre-trial conference
the
appellant was requested to admit the correctness of the criminal
record. He, or rather his legal representatives, responded
by
indicating that the record would be covered by a paragraph of the
minutes of the pre-trial conference (par 4.3) in which it
was
recorded that the parties would “consider the status of the
documents when they are seen” and that the provisions
of
Rule
35
(9) would be applicable. In response to a question by the Court a
quo as to the status of the criminal record, counsel for the
respondent indicated in his opening address that in pursuance of par
4.3 of the minute the criminal record was “admitted without
challenge”. There is nothing in the appeal record to suggest
that the correctness of this statement was put in issue.
[16] On receipt of the appellant’s
answering affidavit the respondent found itself faced with a
situation it could hardly
have anticipated. It was not unreasonable
for it to require that the criminal record be placed before the Court
a quo
.
The record would have been relevant not only to test the appellant’s
new allegations regarding his admitted conduct against
facts which
emerged in the criminal trial, but also to establish the full extent
of the appellant’s dishonesty and the context
in which he had
lied both before and during the criminal proceedings.
[17]
The
criminal record was before the Court
a
quo
when it was
called upon to decide the application. In the absence of an agreement
between the parties or some other good cause
I can seen no reason
why it should not have been before this Court when deciding the
appeal. Depending on the course of the argument
it may well have been
necessary to consult the criminal record. The respondent expressed
concern in its petition that the absence
of the criminal record might
result in an adjournment or delay in the hearing of the appeal. Its
concern was not unreasonable.
It follows that in my view the petition
must be allowed.
[18] In
the result the following order is made.
(a) The
appeal is dismissed with costs.
(b) The
respondent’s petition dated 24 June 1998 is upheld with
costs,
such costs to include the cost of the criminal record.
D G SCOTT
JUDGE
OF APPEAL
F
H GROSSKOPF JA)
NIENABER JA)
- Concur
ZULMAN JA)
MARAIS JA
MARAIS JA:
For reasons which it is unnecessary
to dwell upon I am not sure that there was no misdirection involved
in the court
a quo’s
exposition of what it considered to be the appropriate point of
departure when dealing with an attorney who has been untruthful
in a
respect relevant to his calling. However I need come to no firm
conclusion in that regard because, for the reasons given
by my
brother Scott, I am satisfied that, even if this court were at large
in the matter, the result should be the same. I agree
with the
orders made.
R M MARAIS
JUDGE OF APPEAL