Rösemann v General Council of The Bar of South Africa (364/2002) [2003] ZASCA 96; [2003] 4 All SA 211 (SCA) (26 September 2003)

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[2003] ZASCA 96
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Rösemann v General Council of The Bar of South Africa (364/2002) [2003] ZASCA 96; [2003] 4 All SA 211 (SCA); 2004 (1) SA 568 (SCA) (26 September 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
CASE NO
: 364/2002
In the matter between :
ECKHARD RÖSEMANN
Appellant
and
THE GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA
Respondent
_____________________________________________________________________
Before: HOWIE, MPATI, STREICHER, CONRADIE & HEHER JJA
Heard: 2 SEPTEMBER 2003
Delivered:
26 SEPTEMBER 2003
Summary: Advocate – professional misconduct – instruction by
an attorney to do all the administrative and preparatory work
normally
done by an attorney should not be accepted by an advocate –
advocates may not sign pleadings and notices of motion in
magistrate's
court proceedings.
_____________________________________________________________________
J U D G M E N T
_____________________________________________________________________
STREICHER JA
STREICHER
JA:
[1] I have read the judgment of Heher JA and agree that
the appeal should be dismissed.
[2] The court
a quo
found –
2.1 that, in signing the two notices of motion as
‘Applikant/Prokureur vir die Applikant’ knowing that his capacity
was falsely
described therein, the appellant was guilty of
misconduct;
2.2 that it is not proper for an attorney to ‘shuffle
off’ certain functions onto the shoulders of an advocate by simply
briefing
the latter to attend to them on his own and that it cannot
be proper for counsel to accept such a brief;
2.3 that the furnishing by the appellant of an address
for the service of process was improper;
2.4 that the appellant’s ignorance (which was a
possibility that could not be excluded) that he could not sign the
summonses and
notices, in itself constituted professional misconduct.
[3] The appellant tried to justify his conduct on the
basis that he had been instructed by an attorney. In this regard the
court
a quo
found –
3.1 that the court order made by King JP cannot have the
effect of permitting the respondent to do what the law prohibits and
that
the order must accordingly be restrictively interpreted;
3.2 that the appellant could nevertheless not be found
guilty of having breached the terms of the order as the order was
ambiguous
in that it could be interpreted as sanctioning ‘the
undertaking by the respondent of work normally performed by an
attorney,
provided that he is instructed to do so by an attorney’.
[4] The appellant received the instructions on which he
relied in Cape Town from an attorney in Pretoria. In the one case,
involving
one of the summonses signed by the appellant, the
instruction, dated 18 January 2000, reads as follows:
‘Ek het bogemelde kliënt na jou verwys vir konsultasie en advies
rakende geld wat sy aan `n ene Wayne Right geleen het en wat
hy toe
versuim het om op die vervaldatum te betaal.
Help haar asseblief en reik ook dagvaarding uit indien nodig.
Aangesien sy in die Kaap is, moet jy ook maar verder met die
litigasie
aangaan en alles doen om die saak tot finaliteit te bring
want ek weet nie wanneer ek weer `n draai in die Kaap sal kan maak
nie.
Hou my net asseblief op hoogte.’
[5] In the other case, involving the other summons
signed by the appellant, the instruction, dated 24 January 2000,
reads as follows:
‘Ons verwys na bogemelde en die telefoon gesprek tussen uself en
skrywer vandag.
Hiermee word u opdrag gegee om namens ons kliënt Mnr B Ramsauer
dagvaarding vir die bedrag van R100 000.00 uit te reik teen

Michael Wurbach synde 'n mondelinge ooreenkoms.
Soos bespreek bevestig ons graag dat u fooie direk met die kliënt
ooreengekom sal word.
Geliewe ons op hoogte te hou van die vordering en ook versoek ons
insae in alle pleitstukke en korrespondensie.’
[6] In the two applications the instructions read as
follows:
6.1 ‘Hiermee word u opdrag gegee om voort te gaan om aansoek te
doen om summiere vonnis namens ons teen M Wurbach en stel die
nodige
beëdigde verklaring op vir Mnr Ramsauer in hierdie verband.’
6.2 ‘Hiermee word u opdrag gegee om voort te gaan met die opstel
van `n
ex-parte
aansoek teen Mnr Wurbach en Overberg
Duikers-vereniging (beslagskuldenaar), beëdigdeverklaring, en toe te
sien tot liassering.
Geliewe ook die verskyning hierin waar te neem.’
[7] Our law recognises a divided profession coupled with
the referral system (see
Commissioner,
Competition Commission v General Council of the Bar of South Africa
and Others
2002 (6) 606 (SCA) at 620C-D). In
terms of the referral system an advocate may, save in certain
exceptional circumstances, not
presently relevant, only accept
instructions from an attorney. In the
Commissioner,
Competition Commission-
case (
loc.
cit.
) Hefer AP said in regard to a refusal
by the Competitions Commission to exempt the referral rule of the
members of the General
Council of the Bar of South Africa from the
provisions of the
Competition Act 89 of 1998
:
‘This is the law of the land and the Commission was not entitled to
“bend” it.’
[8] In
De Freitas and Another v
Society of Advocates of Natal and Another
2001 (3) SA 750
(SCA) at 763G Cameron JA said:
‘[I]t is in the public interest that there should be a vigorous and
independent Bar serving the public, which, subject to judicial

supervision, is self-regulated, whose members are in principle
available to all, and who in general do not perform administrative

and preparatory work in litigation but concentrate their skills on
the craft of forensic practice.’
[9] There can in my view be no doubt that one of the
objects of the referral practice is to ensure that administrative and
preparatory
work in litigation is handled by attorneys who are
trained and organised to do so, thereby enabling advocates to
concentrate their
skills on the craft of forensic practice. It
follows that a proper use of the referral practice serves the public
interest. It
follows, furthermore, on the other hand, that to allow
advocates to accept instructions by attorneys to conduct litigation
on behalf
of a client from beginning to end i.e. to do all the
administrative and preparatory work in respect of litigation would
not serve
the public interest and would constitute an abuse of the
referral practice.
[10] The instructions relied upon by the appellant were
to do all the administrative and preparatory work normally done by an
attorney.
I, therefore, agree with the court
a
quo
that the instructions were not proper
instructions and that they should not have been accepted by the
appellant. Like the Competition
Commission, attorneys and advocates
are not entitled to ‘bend’ the referral rule. By accepting the
instructions the appellant
acted contrary to the interests of his
profession and contrary to the public interest.
[11] There is no merit in the appellant’s contention
that a finding against him would be contrary to the provisions of s
22 of
the Constitution. In terms of the section citizens have the
right to choose their professions freely. There has been no
interference
with the appellant’s freedom to choose his profession.
He chose to be an advocate not an attorney. Section 22 provides,
furthermore,
that the practice of a profession may be regulated by
law. As pointed out above the referral practice is neither arbitrary
nor
irrational as contended by the appellant, relying on the
statement by Cameron JA in
De Freitas
at 763A that
'[r]egulation of professional practice will certainly have to be
rational and non-arbitrary to pass constitutional
scrutiny'.
[12] I agree with the court
a quo
that the order
made by King JP should not be interpreted so as to authorise the
appellant to do all work normally performed by
an attorney as long as
he is instructed by an attorney. There is certain work normally done
by an attorney which can be done by
an advocate if instructed by an
attorney to do so. In my view on a proper interpretation of the order
it prohibits the appellant
from doing such work without having been
instructed by an attorney. The order does not purport to authorise
the appellant to do
anything, it only prohibits him from doing
certain things. Furthermore, it is so well established that certain
work normally done
only by attorneys should not be done by advocates
that it could not have been the intention of King JP to authorise the
appellant
to do such work provided he was briefed by an attorney.
There is, therefore, no room for interpreting the order so as to, by
implication,
grant permission to the appellant to do all work
normally done by an attorney provided he is instructed by an
attorney.
[13] The appellant applied for the admission of new
evidence to the effect that, relying on the court order, he believed
that he
was authorised to undertake all work normally performed by an
attorney if instructed by an attorney. However, it appears from the

appellant’s answering affidavits that he was, like the respondent,
under the impression that the draft order annexed to the respondent’s

founding affidavit had been made an order of court i.e. that he was
not even aware that the court order differed from the draft
order.
His explanation for not having denied the respondent’s allegations
as to the terms of the court order and for not having
raised the
defence he now wishes to raise is unconvincing. I, therefore, agree
that the appellant’s application to lead new evidence
should be
dismissed.
[14] Like Heher JA I fully agree with the judgment of a
full court of the
Natal Provincial Division in Society of
Advocates of Natal v De Freitas and Another
(
Natal Law Society
Intervening
)
1997 (4) SA 1134
(N) at 1174-1176 to the effect
that, in terms of the magistrates' courts rules, an advocate may not
sign pleadings in magistrates'
courts proceedings. The reasoning in
that judgment applies with equal force to the signing of notices of
motion which, in terms
of the prescribed form, require a signature by
the applicant or his attorney. The judgment could not be ignored by
the appellant.
His alleged ignorance that he could not sign the
summonses and notices of motion itself constituted professional
misconduct.
[15] It follows that I agree with the court
a quo
's
findings set out in paragraphs 2.2 to 2.4 above.
[16] For these reasons I agree with Heher JA that the
appellant was properly found guilty of unprofessional conduct. I also
agree
that there are no grounds upon which this court can interfere
with the punishment imposed by the court
a quo
. I, therefore,
agree with the order proposed by Heher JA.
_________________
STREICHER JA
HOWIE P)
MPATI AP) CONCUR
CONRADIE JA)
HEHER JA:
[1]
The appellant has been
an admitted advocate since 1997. He was called to the Bar without
previous experience as an attorney although
he had worked for several
years as a legal adviser to a company. Instead of joining the Cape
Society of Advocates and setting
up chambers in proximity to his
colleagues with all the advantages which that offers in learning by
collegial example and advice
he elected to become a member of the
Independent Association of Advocates of South Africa and to practise
from an office in Bellville.
[2]
In 1999 the respondent
brought an application before the Cape High Court to have the
appellant’s name struck off the roll of
advocates for accepting
work from clients without the intervention of an attorney. The
application was settled at court. An order
by consent was made by
King JP in the following terms:
‘1. The Respondent shall not from the date of this order accept
instructions directly from a member of the public or, without
being
instructed by an attorney, undertake any work normally performed by
an attorney.’
[3]
During 2000 complaints
were received by the Cape Bar Council from a magistrate and a member
of the Cape Bar. They related to the
manner in which the appellant
had allegedly involved himself in the running of proceedings in the
magistrate’s court. This led
the respondent to bring a further
application to disbar the appellant.
[4]
The evidence that the
respondent presented to the Cape High Court was essentially to the
effect that
(a) the appellant had breached the previous court order
by undertaking the work customarily only done by an attorney; and
that
(b) the appellant had conducted himself unprofessionally
by undertaking work properly that of an attorney only, that he
accepted
instructions without the intervention of an attorney, that
he signed two summonses initiating proceedings in magistrates’
courts
which bore his own name and address and, in one case, his
telephone number and that he signed two notices of motion in a
magistrates’
court which did not reflect the name and address of an
attorney but did carry his own name, address and telephone number.
[5]
Thring J (with Cleaver J concurring) found
certain of the charges proved. He concluded that the appellant had
been guilty of unprofessional
conduct and suspended him from practice
for a period of two months. The judgment, which sets out the facts
and the law with great
care, is reported at
2002 (1) SA 235
(C).
[6]
Leave was granted by the Court
a quo
to appeal to this Court against the whole of the order.
[7]
Before the Court
a quo
the respondent
presented its case upon the erroneous assumption that the order made
by King JP had been formulated in terms materially
different from the
reality. Its files apparently contained a number of draft orders and
it relied on one which recorded the ‘order’
as follows:
'3 The respondent acknowledges that he has previously performed those
functions normally performed by an attorney and undertakes
that he
will not from the date of this order:
3.1 take instructions directly from a member of the public, other
than through an attorney;
3.2 perform any type of work normally performed by an attorney.’
The respondent alleged that the terms of the settlement
between the parties were embodied in this ‘order’. The appellant
did
not deny that averment. The respondent only discovered its error
after argument had been completed. Neither party has been able
to
explain why the order of King JP was actually made in the form which
it eventually took. As will appear from what I say hereafter
the
probability is that the wrong draft was presented to the learned
Judge although it is possible that some mangling occurred
in
transferring the correct draft to the court file. What is important
is that the order as made purported to permit the appellant
to
perform the work of an attorney provided he acted under instructions
from an attorney. The Court
a quo
found
that such a construction would confer authority which the law
prohibited. To that extent the order required a restrictive

construction. For the reasons given in para [20] below I agree with
that approach.
[8]
At the commencement of
this appeal the appellant’s counsel applied for leave to introduce
new evidence in the form of an affidavit
from his client. The object
was to show that the unprofessional practices attributed to the
appellant in the founding affidavit
had been carried on by the
appellant in
bona fide
reliance
upon the terms of the order made by King JP and that, as he had at
all material times acted on the instructions of an attorney,
one
Louanda Fourie, (a concession reluctantly made by the respondent in
the Court
a quo
) his
conduct did not fall foul of the order.
[9]
In order to succeed in
his application the appellant had to satisfy the tests laid down in
Colman v Dunbar
1933
AD 141
at 162-3: the circumstances justifying leave to adduce
further evidence must be exceptional; that the evidence was not
brought
forward before must not be owing to any remissness on his
part; the evidence must be weighty, material and believable and such
that if adduced would be practically conclusive; conditions should
not have changed so that the fresh evidence will prejudice the

opposite party. Only the last-mentioned requirement is not in issue
here.
[10]
The appellant would have
this Court believe that at all material times since the first order
was made he knew of its terms and
acted in reliance on them. In this
way he seeks to justify what the Court below regarded as
unprofessional conduct on his part.
[11]
A careful analysis of
the appellant’s actions before and at the time of the first appeal
demonstrates as a probability that he
had no belief in the authority
of the order and did not rely on it. On the contrary there is little
doubt that he thought an order
had been made in the terms relied on
by the respondent in its founding affidavit. My reasons for these
conclusions are set out
in paragraphs [12] to [19].
[12]
The respondent annexed a
copy of a document which reflected an undertaking by the appellant
that the respondent thought had been
made an order of court. The
respondent quoted paragraph 3 of that document. It alleged that the
appellant had breached the undertaking
given in that paragraph and
that ‘as such his actions are not only unethical, but his conduct
amounts to contempt of court’.
To these allegations the respondent
answered, citing the same supposed order:
‘15.1 Die inhoud hiervan word erken. Dit word erken dat in
saaknommer 5151/99 ‘n voorwaarde van die skikking was, dat die

Respondent onderneem om:
“. . . not from date of this order:
3.1 take instructions directly from a member of the public . . .
3.2 perform any type of work normally performed by an attorney.”
15.2 Die Respondent eerlikwaar glo dat die Respondent tot op datum
die genoemde bevel strik nagekom het en nie op enige wyse die
bevel
van die Agbare Hof verontagsaam het nie.
16. [Having repeated the substance of para 15.2 the appellant added]
. . . en nie op enige wyse oneties gehandel het nie.’
The respondent did not expressly or by implication refer
to the existence of the order actually made or its terms.
[13]
In paragraph 22 of the
founding affidavit the Chairman of the Respondent deposed as follows:
‘. . . since the settlement by agreement of the previous
application, the Respondent has been aware that, in terms of an order

of this Honourable Court to which he consented, he has been
prohibited from performing those functions normally performed by an

attorney and undertook that he would not perform such functions.
Notwithstanding this, the Respondent has persisted in performing

functions normally performed by an attorney. I aver that in doing
so, the respondent has shown a fundamental disregard for the
rules of
the advocate’s profession, as well as for an order of this
Honourable Court.’
Those allegations demanded an appropriate response.
There can be no doubt that if the appellant had been aware of the
terms of
the order he would have relied on them in meeting the
accusation. The literal words of the court order had, ostensibly,
put the
appellant into a class of his own, authorizing him to
practise in a way not open to the general body of advocates. But the
appellant,
if he knew of it, spurned the opportunity. He answered as
follows:
’48.1 Die Respondent ontken dat die Respondent op enige manier voor
23 November 1999 bewus was dat Advokate en lede van die Onafhanklike

Vereniging van Advokate van Suid-Afrika ook aan die beletsel
onderworpe was dat daar nie direk by die publiek opdragte geneem mag

word nie.
48.2 Die Etiese Kodes van hierdie Balie, het inderdaad lede daarvan
gemagtig om direk opdragte by die publiek te verkry. Die Respondent

submiteer daarom dat die lede van hierdie Balie eers gedurende Maart
2001 kennis gegee is dat alle Advokate nou onderworpe is aan
die
Reëls van die Applikant.
48.3 Die Respondent submitteer respekvol, dat die Respondent alle
pogings aangewend het om te bepaal watter handeling Advokate

inderdaad legitiem ingevolge die Reëls van die Applikant mag verrig.
Respondent het soos uiteengesit ook Adv Gauntlett persoonlik
om hulp
en toewysing genader, maar het bloot verneem om eerder die
Wetsgenootskap vir inligting te kontak.
48.4 Die Respondent ontken derhalwe respekvol dat die Respondent
minagtend teenoor die bevel van die Agbare Hof en die Reëls van
die
Advokatuur opgetree het.’
Why the appellant who, so he would now have it, believed
himself entitled to do any and all work of an attorney under a brief
to
that effect, would have tried to ascertain the scope of the
ethical rules observed by the respondent’s constituent Bars, is
very
difficult to understand.
[14]
The same perplexity is
created by his evidence that, in an effort to ascertain how he was
allowed (by the terms of the order) to
practise, he sought advice
from,
inter alios
,
the Chairman of the respondent, the Law
Society of the Cape Province, the Law Society of the Transvaal, a
professor in the Department
of Civil Procedure at the University of
Pretoria and Advocates Van der Spuy SC, De Freitas and Klein of his
Association. He offered,
as a reason for these consultations (in his
answering affidavit):
‘om uitklaring te kry watter instruksies en regsdienste Advokate
inderdaad in Suid-Afrika mag lewer en die terme darvan, sodat
die
Agbare Hof se bevel nagekom word’.
The appellant did not say that he told any of the
persons whose advice he sought that the court order permitted him to
do the work
of an attorney. Indeed it seems clear that he did not.
On the probabilities it was the putative order that he discussed with
them since it was that ‘order’ which invited such questions and
not the order which actually bound him.
[15]
The appellant replied in
writing to a letter addressed to him by a magistrate in February 2000
complaining,
inter alia
,
that he had performed work usually performed
by an attorney. He defended himself by denying that he accepted
instructions directly
from clients and stating that he was furnished
with instructions from attorneys in so far as necessary but he made
no mention of
the court order which should have been the obvious
point of reference.
[16]
In April 2000 a member
of the Cape Bar wrote to the Secretary of the Cape Bar Council
drawing to her attention specific instances
where the appellant had
carried out the work of an attorney (including signing applications,
a summons, a notice of address for
service and an application for
summary judgment as well as negotiating and signing a deed of
settlement). The appellant was invited
by the Bar Council to respond
to the complaints. He replied on 23 May 2000. He emphasized that he
acted on all occasions under
instructions from attorney Fourie of
Pretoria but made no mention of the order which would, on his reading
of it, have provided
substantial justification for his explanation.
[17]
The appellant was
represented at the hearing in the Court below by counsel. No attempt
was made to persuade that Court that the
appellant had acted in
reliance on the terms of an order which supposedly permitted him to
undertake any work of an attorney.
[18]
The appellant relied for
the first time on the terms of the issued order in his application to
lead further evidence, his affidavit
in that regard being attested on
19 July 2002. He there states that his whole case on appeal to the
Court of first instance was
presented on the mistaken premise that
the ‘order’ that the respondent had annexed to its papers was the
correct order and
that his own interpretation and understanding of it
was incorrect. He continued:
’41. Due to time constraints, and the fact that it never crossed my
mind that the Respondent would use the incorrect order, I
never
examined the papers to establish that the correct order was being
used.
42. I argued vigorously with my legal representatives who insisted
that I had violated the Court Order and who wished me to ameliorate

my position by throwing myself on the mercy of the court. With the
benefit of hindsight, this was obviously because they had the

incorrect draft Order, attached by the Respondent to their
Application “JJG5”, to hand at the time of taking instructions.
43. I clearly instructed my legal representatives that I did not
contravene the first order as I did not take instructions directly

from the public, but through the medium of an attorney, nor did I
perform any work without being properly instructed by an attorney.
44. It is important, with respect, to note that my clear and
unequivocal instructions to all my legal representatives from the

outset, was to prepare a proper case and argument on the following
basis:
(i) If an attorney gives an advocate instructions to do something and
he does so, the performance of such instructions is the performance

thereof in his capacity as an advocate, and thus he is executing
advocates’ work.
Accordingly my conduct was not unprofessional and/or unlawful, for
it was not in contravention of any Act.
(ii) The De Freitas and Van der Spuy cases differed in essence for
they did attorneys’ work without a brief, where I had an
instructing attorney.
45. These two essential points were not addressed in any way.’
The content of paras 43 and 44 is entirely unconvincing.
First, it requires the Court to accept that the appellant, a
practising
advocate, in a matter of the gravest personal concern to
himself, deposed to an answering affidavit which he knew to be a
false
reflection of his case or without paying reasonable attention
to its content. Second, it is inconceivable that the argument with

his legal representatives to which the appellant refers would not
have led to the discovery that he and they were at cross purposes

about the substance of the order. If the appellant had possessed the
slightest faith in his version he could have confirmed it
or
disabused his mind of the wrong impression by the simple expedient of
perusing the court file. Third, the state of mind which
the
appellant attributes to himself at the time of preparing the case
flies in the face of his reactions to the complaints to which
I have
already referred and is inconsistent with the basis upon which he
sought advice as to the scope of professional activities
permitted to
an advocate.
[19]
There is another serious
inherent improbability in the proposed new evidence. It requires
acceptance that the court order that
was made was indeed the subject
of agreement during the settlement. I have already pointed out that
the respondent’s Chairman
deposed that the order put up by the
respondent reflected the agreement and that the appellant did not
deny this. In his proposed
new evidence he does not deal with that
apparent concession saying only that he relied on the order as made.
Given its strong
opposition to the performance by the appellant of
the work of an attorney which is manifest in its papers in the first
application,
it seems very unlikely that the respondent would have
yielded the principle in the settlement purely to secure an
undertaking which
allowed the appellant to do the same work under
brief. It is almost as incredible that the appellant could have
believed that
the respondent intended to make such a concession. For
him it would have represented a signal triumph not afterwards to have
kept
silent about.
[20]
Perhaps just as
improbable is the fact that the all-embracing language of the order
was also at odds with the existing law, knowledge
which could hardly
have escaped the attention of the experienced judge who made the
order. Given its literal meaning it impermissibly
authorized the
appellant to do anything within the field of practice of an attorney
including receiving and holding the money of
clients (see
Society
of Advocates of Natal v De Freitas and Another
1997
(4) SA 1134
(N) at 1168E-1169E), negotiating his own fees with the
client (a practice impliedly frowned on in
Beyers
v Pretoria Balieraad
1966 (2) SA 593
(A) at
605H), signing and serving notices, furnishing the advocate’s
address for service of process and writing letters for clients

(
General Council of the Bar of South Africa v
Van der Spuy
1999 (1) SA 577
(T);
De
Freitas, supra
, at
1173G-H).
That interpretation ignores the
fundamental differences between the two professions recognized in
In
re Rome
1991 (3) SA 291
(A) at 306 and
Society of Advocates of Natal v
De Freitas and Another
,
supra
,
at
1161F-1162A and 1167D-1168A. It also ignores the cautionary note in
Pretoria Balieraad v Beyers
1966
(1) SA 112
(T) at 115 E that the infringement by advocates and
attorneys on to territory which is properly the domain of the other
would make
co-operation between them impossible.
[21]
Counsel, rightly, did
not submit that any aspect of the totality of the evidence already
before the Court in the appeal or contained
in the proposed new
evidence raises a probability that such evidence is true or should be
accepted.
[22]
The conclusion on this
application must be that the new evidence is inherently improbable
(and opportunistic). The fact that it
was raised at all reflects
badly on the appellant. The evidence is certainly not such as would,
if adduced, be practically conclusive.
Moreover, even if one were to
accept that the appellant and his legal representatives held
divergent views about the terms of
the order which was made in
consequence of the settlement, the failure to identify the correct
order in the Court
a quo
was
entirely due to the appellant’s want of due diligence in perusing
the affidavit to which he deposed or in following up the
original
order made by King JP.
[23]
The application to
adduce new evidence must be dismissed. The application for
condonation of the late filing of the appellant’s
notice of appeal
which we granted without opposition at the commencement of the appeal
and the application to lead new evidence
were embodied in a single
affidavit. Counsel for the respondent did not seek a costs order in
his client’s favour in relation
to the condonation but there is no
reason why the usual order should not follow the dismissal of this
application.
[24]
The main submission of
appellant’s counsel on the merits of the appeal was that,
irrespective of the existence of an enabling
court order, the
appellant was entitled in law to carry out any and all the work of an
attorney provided that he was mandated by
an attorney to do so. In
that case, he submitted, the existence of the brief rendered whatever
work was the subject of the instruction
the proper work of an
advocate. This he submitted was consistent with the insistence that
the profession of an advocate is one
of referral.
[25]
The decision as to what
constitutes the proper work of an advocate is, as pointed out by this
Court in
Beyers v Pretoria Balieraad
,
supra
, at 605D, largely a question of
impression and experience
.
Speaking
for myself, in more than twenty years of practice at the Bar,
including more years than I care to remember in the environment
of
the magistrate’s courts, I never found myself in doubt as to where
the boundaries should be drawn. The other members of this
Court all
share meaningful experience of a greater or lesser extent in the
practice of an advocate. Reasons of public policy and
practicality
supplement experience and enable one to identify where the dividing
lines naturally fall.
[26]
A convenient starting point is the reality
of two distinct professions engaged in different fields of legal
expertise. People choose
to become attorneys or advocates not
because they are forced to select one profession or the other but
because of the different
challenges which they offer, one, the
attorney, mainly office-based, people-orientated, usually in
partnership with other persons
of like inclinations and ambitions,
where administrative skills are often important, the other, the
advocate, court-based, requiring
forensic skills, at arms length from
the public, individualistic, concentrating on referred problems and
usually little concerned
with administration.
[27]
The training of each profession is different
and results in different skills. That of an attorney demands that a
candidate serves
lengthy articles and is exposed to a wide range of
activities from accounting through drawing commercial documents to
corporate
takeovers. In so far as litigation in the High Courts is
concerned, the primary emphasis is not on forensic skills but rather
on case management. A candidate attorney is required to undergo a
number of practical courses designed for the demands of the
profession and which bear hardly at all on the equivalent demands of
the profession of the advocate. The upbringing of an advocate,
by
contrast, is essentially directed to court skills and the paper work
which necessarily precedes the exercise of such skills.
Even the
extensive ethics training bears little relevance to the practice of
any but the profession of advocacy. The result of
this divergence is
(or should be) the production of two classes of professionals each
skilled in its chosen field but not substantially
equipped to operate
in the sphere of the other profession. It hardly needs stressing
that attorneys usually provide the infrastructure
appropriate to the
nature of their practices. An advocate, by contrast, does not keep
office hours or provide a secretary in attendance
on the public and
is not equipped to deal with debtors who arrive to pay or negotiate.
[28]
At this point the referral rule and its
implications (as to which see
De Freitas and Another v Society of
Advocates of Natal and Another
2001 (3) SA 750
(SCA) at 756C-760I
and 764C-765A and
Commissioner, Competition Commission v General
Council of the Bar of South Africa and Others
2002 (6) SA 606
(SCA) at 620C) become significant. An advocate in general takes work
only through the instructions of an attorney. The rule is
not a
pointless formality or an obstacle to efficient professional
practice, nor is it a protective trade practice designed to
benefit
the advocacy. The rule requires that an attorney initiates the
contact between an advocate and his client, negotiates
about and
receives fees from the client (on his own behalf and that of the
advocate), instructs the advocate specifically in relation
to each
matter affecting the client’s interest (other than the way in which
the advocate is to carry out his professional duties),
oversees each
step advised or taken by the advocate, keeps the client informed, is
present as far as reasonably possible during
interaction between the
client and the advocate, may advise the client to take or not take
counsel’s advice, administers legal
proceedings and controls and
directs settlement negotiations in communication with his client. An
advocate, by contrast, generally
does not take instructions directly
from his client, does not report directly or account to the client,
does not handle the money
(or cheques) of his client or of the
opposite party, acts only in terms of instructions given to him by
the attorney in relation
to matters which fall within the accepted
skills and practices of his profession and, therefore, does not sign,
serve or file documents,
notices or pleadings on behalf of his client
or receive such from the opposing party or his legal representative
unless there is
a Rule of Court or established rule of practice to
that effect (which is the case with certain High Court pleadings but
finds no
equivalent in magistrates’ court practice). The advocate
does not communicate directly with any other person, save opposing
legal representatives, on his client’s behalf (unless briefed to
make representations), does not perform those professional or

administrative functions which are carried out by an attorney in or
from his office, does not engage in negotiating liability for
or the
amount of security for costs or contributions towards costs or terms
of settlement except with his opposing legal representative
and then
only subject to the approval of his instructing attorney. (This
catalogue does not purport to be all-embracing. It is
intended only
to illustrate the sharpness of the divide and to point the answer to
other debates on the same subject.)
[29]
It follows from the preceding overview that
an instruction by an attorney to represent a client is not a proper
instruction if-
(a) it is not specific in identifying the work to be
carried out by the advocate;
b) it confers on the advocate a general discretion to
litigate on behalf of his client;
(c) it expressly or impliedly authorises the advocate to
by-pass the attorney or to run litigation without the particular
participation
of the attorney which I have described;
(d) it purports to authorise counsel to carry out any
function which is not the proper function of an advocate or is
properly the
function of an attorney in the sense that it would
normally be carried out only by an attorney or in or from his office.
[30]
Counsel submitted that the division of work
between the professions was arbitrary and irrational and constituted
an unreasonable
limitation on his client’s right to practise his
profession now enshrined in s 22 of the Constitution. But that begs
the question.
The appellant has the right to become an attorney or
an advocate but he has no right to redefine the limits of either
profession.
He cannot complain that he is not being permitted the
free exercise of his right if he is unwilling to practise within the
acknowledged
or accepted scope of the profession. But in any event,
as I have attempted to show, the division is anything but arbitrary
or
irrational and has been observed and developed over many years as
the means of enabling both professions to represent the interests
of
the client to the best of the particular practitioner’s ability
according to his training and skills. The client does not
engage an
advocate to look after the attorney’s interests or to exercise the
attorney’s skills nor should he pay the advocate
to do so. Certain
obvious benefits accrue to the client from the strict maintenance of
the division of the professions. Looked
at from the side of the
advocate these can be identified as-
(1) the encouragement of independence of thought and
action, and candour and objectivity in advice;
(2) the avoidance of emotional involvement or friction
with the client, both of which failings can seriously undermine
proper professional
service; attorneys by contrast often have ongoing
business or professional relationships with their clients;
(3) a clear division of responsibility allowing the
advocate to serve the client expertly without the likelihood of
conflict or
compromise with his instructing attorney;
(4) avoidance of financial involvement with the client
and the likelihood of dispute about fees or their recovery;
(5) the receipt of instructions which have been filtered
through the attorney for relevance and importance and directed by the
attorney
to an advocate known by the attorney to be skilled in the
particular field in which his client requires assistance;
(6) in a good working relationship between advocate and
attorney, an effective, efficient and complementary pooling of skills
and
knowledge in which the client benefits by more than the mere sum
of the parts.
[31]
I have not attempted to
address the vexed question of whether, in pure financial terms, the
division between the existing professions
benefits or prejudices the
client. No information was placed before us nor was the matter
debated. It must be obvious that any
question of what serves the
public interest best cannot be determined merely by reference to any
one aspect, such as cost, but
must be assessed upon an overall
conspectus of relevant factors. Such balance as one is able to
strike suggests to me that the
existing public interest is, in
general, best served by the established division of the professions,
(cf
De Freitas
,
supra
,
at
756H)
albeit that
abuses in the practices on both sides of the line sometimes suggest
otherwise. I, therefore, find no reason to uphold
the constitutional
argument.
[32]
Counsel submitted that
none of the allegedly unprofessional conduct of the appellant was
‘calculated, if generally allowed, to
lead to abuses in the
future’:
Pienaar and Versfeld v Incorporated
Law Society
1902 TS 11
at 16;
De
Freitas
,
supra
,
at 763D-E.
[33]
I do not agree. The
inherent evils in allowing a practising advocate to sign summonses,
notices of motion and affidavits and to
furnish his own address for
service of process and a contact telephone number are, put simply,
that the capacity in which he acts
is thereby blurred (or tends to
become so) in his own perception and that of his client and in the
perception of his opponent.
When the advocate becomes uncertain his
objectivity and independence is susceptible of compromise; he is
tempted to charge for
functions which are not properly his
1
;
the client, to whom the distinction is not apparent anyway, begins to
treat counsel as he would his attorney and expects the services
of an
attorney. His opponent, having little choice, is bound to equate the
two. The client unwittingly suffers the loss of the
advantages which
I have referred to above without a corresponding gain in service.
[34]
The suggestion, which is
to be found in the affidavits and in counsel’s heads of argument,
that the practical reality of an instructing
attorney a thousand
kilometres distant and therefore incapable of carrying out his or her
proper functions in person, excused or
justified the appellant’s
conduct is untenable. The attorney’s incapacity is not the concern
of the advocate and cannot, by
implication, broaden the advocate’s
mandate to authorise the carrying out of work which falls outside his
or her professional
competence.
[35]
The aforegoing
discussion leaves no doubt as to the proper domain of the challenged
activities of the appellant which are the subject
of the appeal. The
signing of the summonses and notice of motion and the furnishing of
the name, address and telephone number
of the legal practitioner on
such documents belong among the bread and butter activities of an
attorney. Nor can the context of
his conduct be ignored: a nominal
instructing attorney in Pretoria, clients in the Cape (one being the
company for whom the appellant
had previously worked as a legal
adviser), an obvious expectation that the attorney would do no more
than discuss the matters with
counsel if he called upon her to do so,
while he would drive the litigation. The appellant showed a complete
lack of insight into
his proper professional role. Confused he may
have been, but having chosen to practise in a particular field of
expertise he was
guilty of negligence in failing to equip himself
with the necessary knowledge to enable him to do so properly and
within the legal
and practical constraints of the profession.
[36]
Some attempt was made by
his counsel to mitigate the appellant’s failure to furnish his
attorney’s name and address on two
notices of motion, thereby
creating the impression that he was acting uninstructed by an
attorney. The Court
a quo
,
with some understandable hesitation, accepted the appellant’s
explanation that an error between his computer and the printer
led to
the omission of that information. It was submitted that he only
became aware of this when it was drawn to his attention
(shortly
after service and filing) and that he immediately remedied the
matter. The Court
a quo
found
that he must have known of the error as soon as it was made, but that
he nevertheless allowed (undertook) the service without
correcting
the documents. Such evidence as the appellant placed before the
Court
a quo
supports
that finding. The appellant deposed that
’23.3 Die aansoeke van 16 en 17 Februarie 2000, was albei in konsep
gereed op 16 Februarie 2000. Die verduideliking met betrekking
tot
die weglating is in kort, dat daar ‘n onverklaarbare weglating met
die rekenaar plaasvind, waartydens die sinsnede wat aandui
dat die
Opdraggewende Prokureur Louanda Fourie is, nie uitgedruk is nie.
Die
Respondent nie ‘n rekenaardeskundige is nie en geen kennis gehad
het hoe om die problem te herstel nie
. Die Respondent het direk
hieropvolgend die tekortkoming reggestel deur ‘n Kennisgewing van
Betekeningsadres te liaseer en te
beteken, soos blyk op bladsy 40 van
AANHANGSEL “JJG8”, welke dan ook deur die geagte Landdros aanvaar
is.’
(The underlining is mine.)
Although the appellant said in a letter to the Cape Bar
Council on 23 May 2000 that the error ‘is met vasstelling direk
daarna
reggestel’ he failed to confirm under oath that he only
discovered the error after causing the documents to be served and
filed.
[37]
Counsel for the
appellant further submitted that the rules of professional practice
could not override the statutory authorisation
of his client’s
conduct which, so he said, was to be found in s 1 and Rules 2(1) and
52(1)(a) of the Magistrates’ Court Act
32 of 1944. This is the
argument which was put forward in
Society of
Advocates of Natal v De Freitas and Another
,
supra
, and rejected by the Court (per
Combrinck J at 1174D-1176D) in a carefully motivated judgment with
which I fully agree. I would
merely add in amplification of the
concluding remarks of the learned Judge that s 83(8)(a)(v) of the
Attorneys Act 53 of 1979 renders
it an offence for any person other
than an attorney, notary or conveyancer to draw up or prepare or
cause to draw up or prepare
(for any fee, gain or reward, direct or
indirect, or in expectation of such)
‘any instrument or document relating to or required or intended for
use in any action, suit or other proceeding in a court of
civil
jurisdiction within the Republic’.
Section 83(12)(f) exempts from the prohibition in s
83(8) any practising advocate
‘in so far as he would be entitled but for the passing of this Act
to draw or prepare any of the aforesaid documents in the ordinary

course of his profession’.
As I have attempted to show, by that criterion, the
appellant must fail.
[38]
In the result the appellant has failed to
persuade me that the Court
a quo
erred in any of the
conclusions which it reached. He was properly found guilty of
unprofessional conduct in the respects set out
in the judgment of
that Court.
[39]
Although counsel submitted that the
punishment imposed on the appellant exceeded what was warranted in
the circumstances he was
unable to point to any misdirection in the
judgment. The appropriate penalty in such a case is a matter for the
Court which hears
the application. This Court will not interfere in
the absence of an arbitrary exercise of the discretion, the
application of a
wrong principle, proof of bias or a closed mind, or
unless no well-grounded reasons existed for the action taken:
Beyers
v Pretoria Balieraad, supra,
at 605G. No such criticism has been
directed to the judgment of the Court
a quo
in this appeal.
It follows that the suspension order must stand.
[40]
The following order is made:
1. The appeal is dismissed with costs including the
costs of the application for condonation on an unopposed basis and
the costs
of the application to adduce new evidence.
2. Paragraph 2 of the Order of the Court
a quo
is
varied to provide that the suspension of the appellant from
practising is to commence on 1 November 2003.
__________________
J A HEHER
JUDGE OF APPEAL
1
The two summonses prepared and signed by the appellant which are
included in the appeal record are endorsed with the amounts
of the
attorney’s fees allowed by the tariff and the defendant is
informed that these form part of the costs which are being
claimed
from him.