Law Society of The Northern Provinces v Mamatho (435/02) [2003] ZASCA 82 (16 September 2003)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2003
>>
[2003] ZASCA 82
|

|

Law Society of The Northern Provinces v Mamatho (435/02) [2003] ZASCA 82; 2003 (6) SA 467 (SCA) (16 September 2003)

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case no: 435/02
Reportable
In the
matter between:
THE LAW
SOCIETY OF THE
NORTHERN
PROVINCES Appellant
and
MUTSHUTSHU
WILSON MAMATHO Respondent
_____________________________________________________
Coram
:
SCOTT, FARLAM, CONRADIE JJA, VAN HEERDEN
et
MOTATA AJJA
Date of hearing
: 22 AUGUST 2003
Date of delivery
: 16 SEPTEMBER 2003
Summary
:
Attorney
– admitted in the TPD but practising in Venda – jurisdiction of
the TPD to strike him off the roll of attorneys
_____________________________________________________
JUDGMENT
_____________________________________________________
SCOTT JA/…
SCOTT JA:
[1] The appellant, which was formerly known as the Law Society of the
Transvaal, instituted motion proceedings in the Transvaal Provincial
Division for an order striking the respondent off the roll of
attorneys together with the usual ancillary relief. The principal
grounds
relied upon for the relief sought were that the respondent
had failed to submit an audit certificate for the year ending
February
1999 and was practising as an attorney without a fidelity
fund certificate issued in terms of s 42(3) of the Attorneys Act 53
of
1979 (‘the Act’). An audit certificate is a requirement for
the issue of a fidelity fund certificate. Practising without the
latter is a criminal offence and a serious breach of an attorney’s
duty.
[2] Previously, on 2 July 1996, the appellant had brought an urgent
application in the same court for an order suspending the respondent
from practising as an attorney. A rule
nisi
was granted by
Swart J calling on the respondent to show cause why a final order
should not be made:
‘
That the respondent be suspended from practising as
an attorney within the jurisdiction of this honourable court, but
excluding the
area formerly known as Venda, for an indefinite period,
pending the institution of an application at the instance of either
applicant
or respondent to discharge this order.’
It is not apparent from the record in this appeal why Swart J
expressly excluded ‘the area formerly known as Venda’ from the
operation of the order. In the event, the order in that form was made
final on 6 February 1997.
[3] Prior to 2 July 1996 the respondent practised within the
jurisdiction of the Transvaal Provincial Division. From that date he
ceased to do so and has since practised as an attorney at Thohoyandou
within the jurisdiction of the Venda High Court.
[4] Three points
in limine
were taken in the Court
a quo.
The first was abandoned in that Court and requires no further
consideration. The second was that the appellant had no
locus
standi
. The point failed in the Court
a quo
and, for
reasons which will become apparent, was correctly not pursued in this
Court. The third point was that by reason of the provisions
of s
22(1)(
d
)) of the Act, the Court
a quo
had no
jurisdiction to hear the application because at the time the
application was launched the respondent was no longer practising
within its jurisdiction. Section 22(1)(
d
) reads:
‘
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’
(emphasis added).
The latter point was upheld by the Court
a quo.
Its reasoning,
in so far as is relevant for the purposes of the present appeal,
appears from the following passage in the judgment
of Mynhardt J
(with whom Moseneke J concurred):
‘…
I do not think that it is correct to say that
merely because the respondent is an attorney and merely because he is
before this court
this morning, that this court is entitled to
exercise its inherent jurisdiction over him. It is clear from the
provisions of the
Attorneys Act 1979, as I have already indicated,
that there are different high courts exercising jurisdiction in
different territorial
areas. By virtue of section 56 of the Attorneys
Act 1979, there are different law societies having jurisdiction in
different territorial
areas. It must follow therefore, that this
court cannot merely because a person is an attorney, exercise
jurisdiction over him by
virtue of the inherent powers that the court
has. That would make a mockery of the provisions of the Attorneys
Act, 1979, which I
think has been drawn meticulously to provide for
the different law societies to exercise jurisdiction over
practitioners practising
within their respective areas over which
they have control and also the different High Courts which exercise
jurisdiction over different
territorial areas.’
The application was accordingly dismissed with costs by the Court
a
quo
without considering the merits of the matter and simply on
the ground that the Court had no jurisdiction to entertain it. The
appellant
contends that the Court
a quo
does have
jurisdiction, hence the appeal.
[5] It is clear that in the absence of any statutory provision
excluding the jurisdiction of the Transvaal Provincial Division that
court would have jurisdiction at common law to strike the respondent
from the roll of attorneys. In this regard, the respondent was
admitted as an attorney in the Transvaal Provincial Division on 25
November 1986. In terms of s 21(1) of the Act the registrar would
have enrolled his name on the register of all attorneys admitted by
that Court. The respondent thereafter practised in that Division
until 2 July 1996. His name remains on the register and subject to
his suspension he remains entitled to practise in that Division.
Moreover, in terms of s 6 of the Attorneys and Matters relating to
Rules of Court Amendment Act 115 of 1998, the respondent, being
an
attorney practising within the former Republic of Venda, became
obliged within 21 days of the commencement of that Act (15 January
1999) and subject to the rules of the Law Society of the Transvaal
(the appellant) to apply for the issue of a fidelity fund certificate
in terms of s 42(3) of the Attorneys Act. Section 84A of the Act
(inserted by s 5 of Act 115 of 1998) specifically affords to the
appellant the power, in respect of an attorney practising in Venda,
to perform any function which is similar to a function assigned
to it
by
inter alia
s 22(1)(
d
) of the Act. The effect of
these provisions is therefore to place attorneys practising in the
area of the former Republic of Venda
under the jurisdiction of the
appellant in so far as matters relating to the fidelity fund are
concerned.
[6] The question in issue is whether s 22(1)(
d
) of the Act is
to be construed as excluding the jurisdiction of the Transvaal
Provincial Division in the circumstances outlined above.
The present
Act repealed the Attorneys, Notaries and Conveyancers Admission Act
23 of 1934, which was the first post-Union statute
regulating the
admission of attorneys. Initially the 1934 Act contained no
provisions dealing with the striking off or suspension
of attorneys
but in 1964 that Act was amended by the insertion of s 28
bis
.
This section was similar to the present s 22 but differed in that it
provided for an application to strike off or suspend to be
‘at the
instance of any law society concerned’. Section 28
bis
and
subsequently s 22 of the 1979 Act have been construed as not limiting
the inherent power of a court to discipline its practitioners
and the
courts on occasion have done so in a manner or in circumstances not
falling within the ambit of s 28
bis
and subsequently s 22 of
the 1979 Act. See eg
Incorporated Law Society, Transvaal v G
1953 (4) SA 150
(T) at 160E-H;
Law Society of the Cape of
Good Hope v C
1986 (1) SA 616
(A) at
638C-639F; see also
Hurter and Another v Hough
1987 (1) SA 380
(C) at 381H-382C;
Prokureursorde van Transvaal v Kleynhans
1995 (1) SA 839
(T) at 851E-H.
[7] Against this background counsel for the appellant submitted that
the Court
a quo
ought to have exercised its inherent
jurisdiction to entertain the application to strike the respondent
off the roll of attorneys.
However, as interesting as the question
may be, I prefer to decide the issue on another basis and that
involves the proper construction
of s 22 of the Act.
[8] Quite clearly s 22(1) must not be read in isolation but in the
context of the section as a whole. Section 22(2) is significant.
It
reads as follows:
‘
2(
a
) If it appears to the court that a person
in respect of whom a society intends making an application under
subsection (1), has left
the Republic and that he probably does not
intend to return to the Republic and that his whereabouts are
unknown, the court may order
that service on that person of any
process in connection with such application may be affected by the
publication of such process
in an Afrikaans and an English newspaper
circulating in the district in which the said person’s last known
business address, as
entered in the records of the society concerned,
is situated.
(
b
) Any such process may, if the court so orders,
be so published in a form as near as may be in accordance with Form 1
(Edictal Citation)
of the First Schedule to the Supreme Court Rules.
(
c
) Any process referred to in paragraph (
b
),
shall before publication thereof be approved and signed by the
registrar concerned.’
If, of course, an attorney has left the Republic ‘and probably does
not intend to return’ it could be said that he or she no
longer
practises within the jurisdiction of a court in South Africa.
But
s 22(2) contemplates that such an attorney would fall within the
ambit of s 22(1). The word ‘practises’ in s 22(1) must therefore
be construed as meaning ‘practises or has practised’. A contrary
construction would render s 22(2) meaningless. It would also
result
in the anomalous situation that s 22(1) would not include an attorney
who had ceased to practise in anticipation of process
being served
upon him or her.
[9] In
Vassen v Law Society of the Cape of Good Hope
[1998] ZASCA 47
;
1998 (4)
SA 532
(SCA) the attorney in question had previously practised in the
jurisdiction of the Cape Provincial Division but by the time the
application
for his removal from the roll was launched he no longer
practised and was employed by the Department of Foreign Affairs in
Pretoria.
It was not contended that the Cape Provincial Division
lacked jurisdiction. Instead, it was argued that by virtue of the
wording
of s 22(1) the appellant could not be struck from the roll as
he had ceased to practise and therefore was beyond the purview of the
section. In disposing of this contention Eksteen JA said at 537B-D:
‘
Such a person should not be allowed to remain on the
roll of attorneys so as to be entitled to practise in the future, as
he may have
done in the past. Indeed it seems to me that anyone who
has been admitted and enrolled as an attorney but has not yet
commenced practising
may be subject to being struck off the roll in
terms of this section [s 22(1)(
d
)] where he has committed such
a misdemeanour as to show that he is not a fit and proper person to
remain on the roll. The Act itself
seems to contemplate such an
eventuality if one has regard to the provisions of ss 57(1), 71(1)
and 72 (and more particularly s 72(6)).’
In the passage quoted the learned judge goes somewhat further than in
effect construing the word ‘practise’ in s 22(1) as including
‘has practised’. The section is stated also to apply to an
attorney who has been admitted and enrolled but who has not yet
commenced
practising. But the Court was concerned only with the case
of an attorney who had ceased to practise. The statement regarding an
attorney who has not yet commenced to practise is therefore
obiter
.
There can be little doubt that the court which admitted an attorney
would have jurisdiction to strike him or her off the roll on
the
grounds of not being a fit and proper person, even although such
attorney had not commenced practising. But whether in such
circumstances
the court would be acting in terms of s 22(1) (in which
event the word ‘practises’ would have to be read as including
‘entitled
to practise’) or whether it would be acting in the
exercise of its inherent jurisdiction, need not be decided.
[10] It is common cause that the respondent in the present case
previously practised within the jurisdiction of the Transvaal
Provincial
Division. The Court
a quo
accordingly erred in
holding that it did not have jurisdiction to entertain the
application to strike him off the roll of attorneys.
[11] The appeal is upheld with costs. The order of the Court
a quo
is set aside and the matter is referred back to the Court
a quo
for determination of the merits of the application.
D G SCOTT
JUDGE OF APPEAL
CONCUR
:
FARLAM JA
CONRADIE JA
VAN HEERDEN AJA
MOTATA AJA