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[2000] ZASCA 172
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Prince v President of the Law Society of the Cape of Good Hope and Others (220/98) [2000] ZASCA 172; 2000 (3) SA 845 (SCA); 2000 (7) BCLR 823 (SCA) (25 May 2000)
Case No: 220/98
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter between:
GARETH ANVER PRINCE
Appellant
and
THE PRESIDENT OF THE LAW SOCIETY
OF THE CAPE OF GOOD HOPE
1
st
Respondent
THE LAW SOCIETY OF THE
CAPE OF GOOD HOPE
2
nd
Respondent
THE SECRETARY OF THE LAW SOCIETY
OF THE CAPE OF GOOD HOPE
3
rd
Respondent
THE MINISTER OF JUSTICE
4
th
Respondent
THE ATTORNEY GENERAL OF THE
CAPE OF GOOD HOPE
5
th
Respondent
CORAM
: HEFER,
VIVIER, OLIVIER, ZULMAN JJA and MTHIYANE AJA
DATE OF HEARING
: 17
FEBRUARY 2000
DELIVERY DATE
: 25
MAY 2000
______________________________________________________
JUDGMENT
_______________________________________________________
. . . MTHIYANE AJA
MTHIYANE AJA:
[1] I have had the benefit of
reading the judgment of Hefer JA and respectfully agree with the
reasons given and the conclusions
to which he has come. I however
wish to add the following in relation to the ‘fit and proper’
requirement referred
to in s 4A(b)(i) of the Attorneys Act 53 of
1979 (‘the Attorneys Act’) and the argument advanced on
the appellant’s
behalf in that regard. Counsel for the
appellant submitted that the Law Society failed to take into account
that the appellant’s
previous convictions and his stated
intention to use cannabis in the future did not adversely reflect on
his honesty, integrity
and reliability, and therefore on his fitness
to be a member of the attorneys’ profession. He urged us to
adopt, as the
correct test to be applied, the remarks of Ramsbottom
J in
Incorporated
Law Society, Transvaal v Mandela
1954 (3) SA 102
(T) at 108 C-H (‘the
Mandela
case’), where the learned judge said the following:
‘
The sole question that the Court has to decide
is whether the facts which have been put before us and on which the
respondent
was convicted show him to be of such character that he is
not worthy to remain in the ranks of an honourable profession. To
that question there can, in my opinion, be only one answer. Nothing
has been put before us which suggests in the slightest degree
that
the respondent has been guilty of conduct of a dishonest,
disgraceful, or dishonourable kind; nothing that he has done
reflects upon his character or shows him to be unworthy to remain in
the ranks of an honourable profession. In advocating the
plan of
action, the respondent was obviously motivated by a desire to serve
his fellow non-Europeans. The intention was to bring
about the
repeal of certain laws which the respondent regarded as unjust. The
method of producing that result which the respondent
advocated is an
unlawful one, and by advocating that method the respondent
contravened the statute; for that offence he has been
punished. But
this offence was not of a “personally disgraceful character”,
and there is nothing in his conduct
which, in my judgement, renders
him unfit to be an attorney.
Mr
O’Hagan
contended that the test of whether the Court should take
disciplinary action against the respondent is whether the conduct is
“a matter of indifference to the Court”. As the
authorities I have quoted show, that is not the test. The
respondent’s
conduct is not a matter of indifference to the
Court; he has been tried, convicted and punished. He must not be
punished again
by being struck off the roll or suspended. That
action will only be taken if what he had done shows that he is
unworthy to
remain in the ranks of an honourable profession.’
I also agree that the above remarks do not assist the
appellant.
[2] I do not have a problem with due weight being given
to the said remarks provided that sight is not lost of the context
in
which they were made. On a proper reading of the judgment as a
whole I do not think that Ramsbottom J is to be understood as saying
that ‘character’ is the sole criterion to be considered
when making the ‘fit and proper’ determination.
To place
such a construction on what was said, as the appellant seeks to do,
is with respect, fallacious. There are indeed passages
in the rest
of the judgment which indicate that other criteria are just as
important. For example, when dealing with the taking
of the oath of
office, the learned judge says the following:
‘
Every attorney in the Union must take an oath of
allegiance when he is admitted to practice. It is an implied
condition of his
right to continue in practice that he shall
continue to give true allegiance. If he repudiates his allegiance
he breaches a
condition of his right to practice. In addition, the
violation of an oath, solemnly taken, by an attorney undoubtedly
reflects
upon his fitness to remain in the profession.’ (See
p. 109 A).
[3] The
Mandela
case is distinguishable on the facts from the present matter. What
was before Ramsbottom J was the case of a person who it was
sought
to strike off the roll on the basis of a previous conviction and not
because of an avowed intention to continue to break
the law. But,
what is perhaps of importance, and relevant to the present matter,
is what the learned judge says concerning the
oath of allegiance.
He describes it as an implied condition of an attorney’s right
to continue in practice and says that
a violation of that oath
reflects upon an attorney’s fitness to remain in the
profession. In the present matter one is
of course dealing with an
appellant who is not an admitted attorney, but who, if he wishes
ultimately to enter the attorneys’
profession, would be
required to take such an oath of office. The current form of oath
taken by persons who wish to become
advocates, attorneys, notaries
and conveyancers reads as follows:
‘
ADMISSIONS
Your full names and surname please
Do you have any objections to taking the oath?
Do you consider the oath to be binding on your
conscience?
Do you swear (
do
you affirm and/or declare
)
that you will truly & honestly demean yourself in the practice
of
Advocate,
Attorney, Notary, Conveyancer
according to the best of your knowledge and liability
and further that you will be faithful to the Republic of South
Africa?
Say then: ‘So help me God’
(
I do
)’
[4] Like any other candidate
attorney the appellant would at his admission be required to take
what is referred to in the
Mandela
case as a solemn oath of allegiance. He would be required to swear
or affirm and/or declare that he will truly and honestly
demean
himself in the practice of an attorney and that he will be faithful
to the Republic of South Africa.
[5] In The Concise Oxford
Dictionary, 8
th
ed at p. 421, the word ‘faithful’ is given,
inter
alia
, the
following meanings: ‘showing faith, loyal, trustworthy,
constant’. In s 1(c) of the Constitution the ‘Republic
of South Africa’ is described as a sovereign, democratic state
whose foundational values are the constitution and the rule
of law.
[6] In this context the Republic of South Africa is, in
my view, not to be seen as a lifeless or immutable institution
divorced
from its system of laws and legal principles operating
within the constitution. The Drugs and Drug Trafficking Act 140 of
1992
(‘the Drugs Act’) and the Medicines and Related
Substances Control Act 101 of 1965 (‘the Medicines Act’)
form part of those laws of the Republic whose foundational values
are the constitution and the rule of law. It therefore seems
to me
that any person who wishes to be a member of the attorneys’
profession and takes the oath or makes an affirmation
in the manner
described above, also swears or affirms loyalty to the laws of the
Republic of which the Drugs Act and the Medicines
Act are a part.
If the appellant declares that he will defy any of the laws of the
Republic, it is difficult to see how he can
be considered to be a
fit and proper person as is envisaged in the Attorneys Act. His
conduct seems to me to amount to a repudiation
of the oath or
affirmation of allegiance even before he takes it.
_________________
K K MTHIYANE
ACTING JUDGE OF APPEAL
ZULMAN JA)
agrees
HEFER JA
HEFER JA
[1]
Section
4A of the Attorneys Act 53 of 1979 (“the Attorneys Act”)
requires a candidate attorney who intends to perform
community
service as part of his training, to submit his contract of service
to the secretary of the relevant Law Society and
to prove to the
satisfaction of the Society that he is “a fit and proper
person.” If the council of the Society
has no objection and
all the other requirements have been met, the secretary registers
the contract and the candidate may begin
his service.
[2]
On
15 February 1997 the appellant submitted his contract of community
service to the secretary of the Law Society of the Cape
of Good Hope
together with an affidavit to prove his fitness. It appeared from
the affidavit that he had twice been convicted
under s 4(b) of the
Drugs and Drug Trafficking Act 140 of 1992 (“the Drugs Act”)
for the unlawful possession of
cannabis sativa (cannabis).
The affidavit made it clear moreover that the appellant
intended to continue using the drug. His explanation that he is a
Rastafarian
and that he uses cannabis in the observance of his
religion failed to persuade the council of his fitness. The
council objected
to the registration of the contract and the
secretary refused to register it.
[3]
The
appellant then applied in the Cape Provincial Division for an order
reviewing and setting aside the council’s decision
and
directing the secretary of the Society to register the contract.
Friedman JP (with Brand and Hlophe JJ concurring) dismissed
the
application but granted the appellant leave to appeal to this Court.
[4]
At
the outset it is necessary to record the following:
(a) Initially the sole ground of review was that the
refusal to register his contract violated the appellant’s
constitutional
freedom of religion and other constitutionally
protected rights. The Law Society and its president were cited as
the only respondents
and its secretary was joined later. (In this
judgment the Law Society, the president and the secretary will be
referred to
collectively as the Society unless it becomes necessary
to refer to any one of them separately.) Still later, when it
emerged
from the appellant’s heads of argument that it would
be argued that s 4(b) of the Drugs Act was unconstitutional, the
application was served on the Minister of Justice, the Minister of
Health and the Attorney-General of the Cape of Good Hope.
The
Minister of Justice and the Attorney-General applied for and were
granted leave to intervene in the proceedings and both
of them
opposed a declaration that s 4(b) is unconstitutional.
(b) In his papers the Attorney-General drew attention
to s 22A(10) of the Medicines and Related Substances Control Act 101
of
1965 (“the Medicines Act”) which also contains a
prohibition against the possession and use of cannabis.
(c) The
appellant did not complain in his application or in the court
a
quo
or
in his heads of argument in this court about the way in which the
council’s decision was reached. But shortly before
the
hearing of the appeal, and after he had engaged a new legal team, we
received additional written submissions in which it
was contended
for the first time that the council had not properly exercised its
discretion. This was an entirely new ground
of review not covered
by the allegations in the appellant’s founding affidavit but,
since counsel for the Society consented
to its introduction, we
agreed to consider it. It is obvious however that, in the absence
of suitable factual averments, we
can only deal with points which
emerge with sufficient clarity from all the papers.
(d) To formalize the attack on the Drugs Act and the
Medicines Act we granted an application for the amendment of the
Notice
of Motion by the insertion of the following prayer:
.
“4 (a)
Declaring section 4(b) of the Drugs and Drug Trafficking Act, No
140 of 1992 (as amended) (“the Drugs Act”)
and section
22A(10) of the Medicines and Related Substances Control Act, No 101
of 1965 (“the Medicines Act”) to
be inconsistent with
the Constitution of the Republic of South Africa, Act 108 of 1996
(“the Constitution”) and accordingly
invalid.
ALTERNATIVELY, declaring
section 4(b) of the Drugs Act and section 22A(10) of the Medicines
Act to be inconsistent with the Constitution,
to the extent that
they fail to provide an exemption applicable to the use, possession
and transportation of cannabis sativa
by a Rastafarian for a
bona
fide
religious purpose, and accordingly invalid.
(b) Suspending the aforesaid declarations of invalidity for a
period of twelve (12) months from the date of confirmation of
this
order by the Constitutional Court to enable Parliament to correct
the inconsistencies which have resulted in the declarations
of
invalidity.”
(e) After the amendment appellant’s counsel
proceeded to argue the appeal on the grounds that the application
for the registration
of the contract was not properly considered,
and that s 4(b) of the Drugs Act and s 22A(10) of the Medicines Act
are inconsistent
with the Constitution and accordingly invalid. They
declined to address us on the constitutionality of the council’s
decision
(although the point was raised in the original heads of
argument). Counsel for the Society in turn declined to address us
on
the constitutionality of the prohibitions. His clients, we were
told, do not wish to become involved in what they regard to be
a
dispute between the appellant and the State.
(f) After the noting of the appeal the Minister of
Justice informed the registrar that he would not oppose it and would
abide
the decision of the court. The Attorney-General however
persists in his opposition.
The facts
[5]
The
appellant was informed of the council’s decision on 25
February 1997. On 27 February 1997 he met with two members of
the
council, Messrs Pauw and Ntsebeza. He reaffirmed his intention to
continue using cannabis in practising his religion and
sought to
justify this by claiming that the criminalisation of the use and
possession of the drug violated his freedom of religion.
Although
Mr Ntsebeza observed at the meeting that the council “may very
well be wrong in its decision,” but “was
of the view
that it should rather err on the side of caution” the
appellant’s case was reconsidered on 24 March
1997. The
council confirmed its previous decision and, by letter dated 25
March 1997, the secretary informed the appellant
in the following
terms of the reasons:
“The Council’s reasons for this decision, as outlined to
you by Messrs Pauw and Ntsebeza may be confirmed as follows:
1. It is common cause that the possession and use of
cannabis sativa are presently prohibited by law and that you have
breached
the law as it stands. It was noted that you stated in your
affidavit that the burning of cannabis is a fundamental tenet of
your
religion and that you gave no indication that you were
intending to depart from this practice.
2. Although the Council has noted your contentions that
the law is incorrect and that it impedes your constitutional right
to
practise your religion, it has not by reason thereof been
persuaded that it should reverse its decision.
3. It is the view of the Council that a person who
states his intention to break the law, and actually continues to do
so, cannot
be regarded as a fit and proper person to have his
contract of service registered because his conduct may bring the
profession
into disrepute.
4. The Council wishes to place on record that in
reaching this decision it is not seeking in any way to discriminate
against you
on racial, moral or religious grounds. Its view is based
purely on legal principles.”
[6]
The
Society’s stance is explained as follows in the answering
affidavit deposed to by its secretary:
“10. At its meeting of 24 February 1997 the ... council
concluded that it was clear from the said ‘affidavit’
that the applicant ‘would continue, as part of his religion,
to use cannabis’ ... and consequently that ‘he
could not
be viewed as a fit and proper person, until such time as the use of
cannabis was decriminalised’.
11. During a meeting held on 27 February 1997 ... the
applicant confirmed that he would continue to use and possess
cannabis in
the future. ...
16. The [Law Society] is aware that there is currently
a debate about the decriminalisation of the use of cannabis and its
possession
for personal use ... It is by no means clear, however,
that Parliament intends to decriminalise the use of cannabis and its
possession
for personal use. In South Africa the matter is
controversial ...
18. The [council’s] rejection of the applicant’s
application for the registration of his contract of service was
informed
by the following considerations:
18.1 the question whether the use of cannabis and its possession for
personal use should be a criminal offence is a matter to
be decided
by Parliament and, if needs be, by the Constitutional Court;
18.2 the criminal prohibition represents Parliament’s
judgment that the use and possession of cannabis is inherently
harmful and dangerous;
18.3 the criminal prohibition is not obviously unconstitutional; and
18.4 the [Law Society’s] duty to act in a manner which
advances respect for and compliance with the law.
19. Accordingly, unless and until Parliament repeals
the criminal prohibition, or the Constitutional Court declares it to
be unconstitutional
and invalid, the [Law Society] considers itself
to be duty bound to adopt the attitude that an applicant who has
stated and repeated
in unequivocal terms that he or she intends
contravening the provisions of the
Drugs and Drug Trafficking Act
relating
to the possession and use of cannabis, does not meet the
‘fit and proper’ requirement imposed by section 4A(b)(i)
of the Attorneys Act. In the [Law Society’s] view, conduct of
that sort reflects adversely upon an applicant’s character,
is
inconsistent with the duties and obligations of members of the
profession and is contrary to the standards of behaviour expected
of
officers of the Court.”
30 Paragraph 4 of the letter [of 25 March 1997] was intended to
convey nothing more than that the [council’s] decision
to
object to the registration of the applicant’s contract of
service was based solely on his previous convictions for possession
of cannabis and his stated intention to continue the use of cannabis
in spite of the fact that it is a criminal offence to do
so.”
The
Constitutional validity of the legislation
[7]
Cannabis
is classified in the Drugs Act as an undesirable
dependence-producing substance which, in terms of s 4(b), no person
shall use or have in his possession. In the Medicines Act it is
classified as a Schedule 8 substance which, in terms of s
22A(10),
no person shall acquire, use, have in his possession, manufacture or
import. Both prohibitions are subject to certain
exceptions not
presently relevant save to the extent mentioned in paragraph [11]
infra
.
[8]
In
the court
a
quo
the appellant relied for his attack on ss 4(b) and 22A(10) on
violations of his freedom to practise his religion, his right to
choose his profession, his right to human dignity, and the
proscription of unfair discrimination in the Constitution. The
court found that the prohibitions do indeed limit Rastafarians’
freedom to practise their religion and presumably also discriminate
unfairly against them and impair their choice of a profession, but
that all this is justified under s 36(1) of the Constitution.
[9]
It
is not necessary to deal with all the submissions in this court
because, as the argument developed, it became clear that the
appellant does not seek a declaration of total invalidity of the
prohibitions and that his exclusive aim is an order in terms
of the
alternative prayer 4(a) in the amended Notice of Motion. The
question whether there should be an exemption for the use
of
cannabis by Rastafarians for
bona
fide
religious observance eventually became the only issue.
[10]
Briefly
stated the appellant’s argument is as follows: In terms of s
36(1)(e) of the Constitution account must be taken
of less
restrictive means to achieve the purpose of the prohibitions; a
prohibition on the possession and use of cannabis advances
the
purpose of the legislation, but a
general
proscription is unnecessary; a limited number of persons who only
use cannabis in the practice of their religion may and should
be
exempted because in that way society will remain adequately
protected without the fundamental rights and freedoms of members
of
the group being affected.
[11]
The
first problem with this approach is that, although in form the
alternative prayer 4(a) asks for the limitation of allegedly
overbroad prohibitions, in effect it seeks to create an exemption
through the application of s 36(1)(e) of the Constitution.
The
Drugs Act and the Medicines Act each has its own exemptions and what
the appellant is trying to achieve, is the introduction
of an
additional one. In
S
v Lawrence; S v Negal; S v Solberg
1997(4) SA 1176 (CC) par [80] Chaskalson P had this to say about the
powers of the courts:
“[T]he appellant has approached the Court for an order that
the scope of the exception made by ss 87 and 88 be enlarged.
In
effect what the appellant has asked this Court to do is amend the
Liquor Act so as to make provision for a ‘grocer’s
wine,
beer and cider licence’ as an exception to the prohibition
imposed by s 40 of the Act. A Court can strike down legislation
that
is unconstitutional and can sever or read down provisions of
legislation that are inconsistent with the Constitution because
they
are overbroad. It may have to fashion orders to give effect to the
rights protected by the Constitution, but what it cannot
do is
legislate.”
I respectfully
agree. The only difference between that case and the present one
is that in this case the appellant has attacked
the prohibitions;
but his claim in the alternative prayer is for an order declaring
the relevant provisions inconsistent with
the Constitution “to
the extent that they fail to provide an exemption applicable to the
use, possession and transportation
of cannabis sativa by a
Rastafarian for a
bona
fide
religious purpose”. This, it seems to me, is but another way
of claiming an exemption not provided for in the legislation
and
which a court of law cannot provide. It may well be that on this
ground alone the prayer cannot be granted but, in view of
what
follows, it is not necessary to come to a firm decision.
[12]
The
appellant’s case turns entirely on the submission that a
general ban on the use and possession of cannabis is unnecessary
since the abuse of illegal drugs can be equally effectively
suppressed without banning the use of cannabis by Rastafarians for
the observance of their religion. This is plainly wrong. Legalizing
the use of a forbidden substance by one section of the
community
for
a particular purpose
cannot
possibly prevent its abuse within that section. On the evidence
cannabis is harmful, particularly when used in large doses
and, if
its use is limited as to purpose only, Rastafarians will be at
liberty to use it as often and in such doses as they like,
provided
only that they do so for the right purpose. This will leave the door
wide open for abuse. Indeed, taking account of
* Dr Zabow’s uncontested evidence that the use
of cannabis has already caused the referral of Rastafarians to a
mental
institution for behavioral problems;
* the likelihood of an influx of neophytes attracted
to the Rastafarian faith by the prospect of the practically
unfettered
use of the prohibited drug, and
* the evidence that cannabis is often the stepping
stone to the use, and ---eventually to the abuse of and dependence
on other
more harmful drugs,
one shudders at the thought of the consequences of
lifting the ban to Rastafarians themselves and, more importantly, to
society
generally. We must not forget that drug abuse is a social
problem. As Dr Zabow points out,
“[t]he harm to society from the use of cannabis rests in the
economic consequences of the impairment of the individual’s
social functioning and his enhanced proneness to asocial and
antisocial behaviours.”
And there are
other socially harmful consequences, so notorious, that we need not
dwell on them. The prevention of drug abuse
is plainly a legitimate
governmental aim and an effective prohibition thereof a pressing
social purpose (
S
v Bhulwana; S v Gwadiso
[1995] ZACC 11
;
1996 (1) SA 388
(CC) at 396B-C). It is beyond doubt that the ban
on the use and possession of cannabis in both Acts was imposed to
protect
society as a whole. (Cf
Administrator,
Cape
v
Raats
Röntgen and Vermeulen (Pty) Ltd
[1991] ZASCA 126
;
1992 (1) SA 245
(A) at 254B quoted with approval in
Mistry
v Interim National Medical and Dental Council of South Africa
[1998] ZACC 10
;
1998 (7) BCLR 880
(CC) par [10].) Lifting it partially to allow its
uncontrolled use by one section of the community cannot leave
society unaffected
and adequately protected.
[13]
This
conclusion renders it unnecessary to consider all the other
objections raised by the Attorney-General (eg that a partial
ban
will constitute unfair discrimination against other members of the
community). One last point should however be made.
The
Attorney-General correctly submits that it will be impossible to
police an order in terms of the alternative prayer 4(a).
Consider
the dilemma of a policeman who finds cannabis in the possession of
a person who claims to be a Rastafarian. How
can he be sure that
the claim is valid? The appellant’s suggestion that
Rastafarians be issued with permits is manifestly
impractical.
Apart from other conceivable complications, how can a policeman who
is presented with a permit be sure that the
holder will use the
cannabis in his possession for the right purpose? However, it is
not merely a question of impossibility
of enforcement, but a
question about the feasibility of the order sought. The appellant
tells us that Rastafarians use the
drug for spiritual,
inspirational, medicinal and culinary purposes. We do not know
whether it forms part of their
religious
observance when it is used to cure or prevent disease or as an
additive to food or for inspirational purposes (whatever the
last
term may denote). The alternative prayer cannot be granted in its
present form and the available evidence does not enable
us to
fashion a suitable order with adequate precision.
[14]
It
follows that the attack on the constitutional validity of the
prohibitions must fail.
The alleged improper consideration of the application
[15]
The
appellant’s case is that the council did not properly exercise
its discretion in that it (1) erred in adopting an
over-cautious
approach, (2) was bound to consider the appellant’s fitness by
reference to his honesty, integrity and reliability
but failed to do
so, and (3) failed to consider the constitutionality of its
decision.
[16]
The
first submission arises from Mr Ntsebeza’s remark mentioned in
paragraph [5]
supra
.
It is to the effect that, when making a “threshold
determination” in what appellant’s counsel refer to
as
“hard” cases, the council should not adopt an
over-cautious approach and should defer to the ultimate discretion
of the admitting court rather than excluding the court from ever
exercising its discretion. What this means in plain language
is
that the council should simply have registered the appellant’s
contract, leaving it to the court to decide on his fitness
as an
attorney when he eventually applied for his admission. This is not
correct. Section 4A(b)(i) of the Attorneys Act
requires a
candidate attorney to prove
to
the satisfaction of the Society
that he is a fit and proper person; and in terms of s 5(1)
the
council
has
the right to object to the registration of his contract. It is
the
council’s
right, and indeed its duty, to determine his fitness to be permitted
to perform community service.
[17]
The
submission that the council was bound to consider the appellant’s
fitness by reference exclusively to his honesty,
integrity and
reliability is also devoid of substance. We were referred to
several cases in which the fitness of attorneys
and advocates (to be
admitted to or remain in the ranks of their professions) was
discussed and I accept the relevance of the
judgments in these
cases. Unlike s 15 of the Attorneys Act which requires an
applicant for admission as an attorney to
be a “fit and
proper person
to
be so admitted and enrolled”
,
s 4A(b)(i) requires proof to the satisfaction of the Law Society
that a candidate attorney is “a fit and proper person.”
In context this can only mean that the council must be satisfied
that the candidate is a fit and proper person to be permitted
to
perform that kind of service. But the purpose of the service is
to instruct the candidate in the skills which an attorney
requires
and to prepare him generally for eventual admission to an honourable
profession. Bearing in mind further that s 8
allows candidate
attorneys with the prescribed academic qualifications to appear in
certain courts and before any board, tribunal
or similar institution
immediately upon the registration of their contracts, the
determination of their fitness must proceed
along lines broadly
similar to those applicable to attorneys. For this very reason
they ought to be, not only honest and reliable,
but “fit and
proper” persons in every respect. If there is a question
about a candidate’s honesty, integrity
or reliability, the
council will obviously object to the registration of his contract;
but if there is not, it does not follow
that he or she qualifies
automatically. Indeed, if the council were to fail to raise a
valid objection of any other kind of
which it is aware, it would
undoubtedly shirk its duty.
One of the
cases to which we were referred is
In
Re Chikweche
1995(4) SA 284 (ZSC) in which (at 291H-J) Gubbay CJ said (in regard
to the admission of an attorney in terms of comparable legislation):
“
Construed in
context, the words ‘a fit and proper person’ allude, in
my view, to the personal qualities of an applicant
- that he is a
person of honesty and reliability. See
S
v Mkhise; S v Mosia; S v Jones; S v Le Roux
1988(2) SA 868 (A) at 875D”.
The judgment
in
Mkhise’s
case
must not be misunderstood or applied out of context. One of the
questions in that case was whether the skills and proficiency
of the
person who had never been admitted as an advocate played any part in
determining whether his appearance for the accused
constituted a
fatal irregularity. It is in this context that it was said (at
875C-E) that
“
it
would be wholly impracticable to attempt to determine
ex
post facto
... whether counsel concerned was ‘a fit and proper person’
in the sense that this term is applied and understood
in the
[Admission of Advocates Act], ie whether he is generally a person of
integrity and reliability. (Cf
Kaplan
v Incorporated Law Society, Transvaal
1981(2) SA 762 (T) at 782H-783H.) ”
In an earlier
passage (874D-G) the requirement of “unquestionable honesty
and integrity” on the part of an advocate
was emphasized and
this is probably the reason for the reference in the quotation to
the same qualities. (In
Kaplan
’s
case the reference is merely to an attorney’s “personal
qualities”, not to his honesty or reliability.)
Be that as
it may, the judgment does not hold that other traits of character
are to be ignored or may not in suitable cases
override honesty,
integrity and reliability; nor does any of the other cases to
which we were referred support that proposition.
Appellant’s
counsel also rely on the following passage in the judgment (in an
application for the removal from an attorney’s
name from the
roll) in
Incorporated
Law Society, Transvaal v Mandela
1954 (3) SA 102
(T) at 108D-F:
“Nothing has been put before us which suggests in the
slightest degree that the respondent has been guilty of conduct of
a
dishonest, disgraceful, or dishonourable kind; nothing that he has
done reflects upon his character or shows him to be unworthy
to
remain in the ranks of an honourable profession. In advocating the
plan of action, the respondent was obviously motivated
by a desire
to serve his fellow non-Europeans. The intention was to bring about
the repeal of certain laws which the respondent
regarded as unjust.
The method of producing that result which the respondent advocated
is an unlawful one, and by advocating
that method the respondent
contravened the statute; for that offence he has been punished. But
this offence was not of a ‘personally
disgraceful character’,
and there is nothing in his conduct which, in my judgement, renders
him unfit to be an attorney.”
None of these remarks assist the appellant. What the
council found objectionable in the present case was not merely his
convictions
in the past, but also (and particularly) his avowed
intention of contravening the law in future. Its view, as stated in
paragraph
3 of the letter of 25 March 1997, was that
“a person who states his intention to break the law, and
actually continues to do so, cannot be regarded as a fit and proper
person to have his contract of service registered because his
conduct may bring the profession into disrepute.”
[18]
I
turn to the final submission. As mentioned earlier appellant’s
counsel did not address the point originally made in
the founding
affidavit that the decision was unconstitutional for violating the
appellant’s entrenched rights. Instead
they submitted that
the council did not take the constitutionality of its decision into
account. I cannot understand their
stance; for, if the decision is
found to be unconstitutional, there is an end to the matter; if it
is found to be constitutional,
it can plainly not be disturbed
merely because the council did not consider its constitutionality.
Be that as it may, the simple
fact of the matter is that the
allegations in the appellant’s founding affidavit (and even
in his additional and replying
affidavits) do not cover the point,
and the opposing affidavit (particularly in paragraph 19) contains
strong indications that
the constitutional validity of the decision
was indeed considered.
[19]
For
the sake of completeness it should be mentioned that the contention
that the refusal to register the appellant’s contract
was
invalid for breaching his constitutional rights is not properly
before us. Although it was initially the sole ground on
which the
review proceedings were brought, the point was not argued in the
court
a
quo
;
it was not mentioned
in
the court’s judgment or in the application for leave to
appeal.
[20]
The
appeal can accordingly not succeed. The Attorney-General has not
asked for an order of costs but the Society did, and I
can find no
reason for deviating from the ordinary rule that costs should follow
the result.
The appeal is dismissed. The appellant is ordered to
pay the first, second and third respondents’ costs.
__________________
JJF HEFER
JUDGE OF APPEAL
CONCURRED:
Vivier JA
Olivier JA
Zulman JA