Mabaso v Law Society of The Northern Provinces (559/02) [2003] ZASCA 138 (28 November 2003)

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[2003] ZASCA 138
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Mabaso v Law Society of The Northern Provinces (559/02) [2003] ZASCA 138; 2004 (3) SA 453 (SCA) (28 November 2003)

REPUBLIC
OF SOUTH AFRICA
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
Case
number: 559/02
In
the matter between:
HECTOR
ERNEST THEMBA HEROLD MABASO
Appellant
and
LAW
SOCIETY OF THE NORTHERN PROVINCES
Respondent
CORAM
:
MPATI
DP, HARMS, SCOTT,
ZULMAN
JJA and MOTATA AJA
HEARD
:
13
NOVEMBER 2003
DELIVERED
:
28
NOVEMBER 2003
Subject:
Effect of an objection i.t.o. s 20(3) of the Attorneys Act 59 of
1979 to an application for enrolment as attorney i.t.o.
s 20(1)
____________________________________________________________
JUDGMENT
____________________________________________________________
MPATI
DP:
[1] The respondent sought
and obtained from the Transvaal Provincial Division (De Vos J) an
order setting aside the placing of the
name of the appellant on the
roll of attorneys of that court by its Registrar, which was placed on
the roll of attorneys of that
court pursuant to an application in
terms of s 20 (1) of the Attorneys Act 59 of 1979 (the ‘Act’).
The appellant was also ordered
to pay the respondent’s costs on the
scale as between attorney and client.
[2] On
25 April 2002 the court
a quo
granted the appellant leave to
appeal to this Court. A notice of appeal was lodged on 21 May 2002
and, in terms of rule 8(1) of
the rules of this Court, the appellant
was required to lodge with the Registrar six copies of the record of
the proceedings in the
court
a quo
within three months of the
lodging of the notice of appeal. He failed, however, to comply with
the provisions of rule 8(1), but
was granted an extension by the
registrar, in terms of rule 8(2), to lodge the record by 2 October
2002. The record was not lodged
on that date with the result that
the appeal lapsed.
[3] It is common cause
that an incomplete record was filed on 5 November 2002 together with
a notice of application for condonation
for its late filing and for
the reinstatement of the appeal. Although the fact of the incomplete
record was brought to the attention
of the appellant, no effort was
made by him to rectify the position. Ultimately, the respondent’s
attorneys prepared and lodged
the remaining portion of the record,
which contains relevant affidavits and documents. The appellant also
lodged an application
for condonation for the late filing of his
heads of argument, which were only filed on 17 June 2003 when they
ought to have been
filed on or before 4 February 2003.
[4] Both
condonation applications were opposed. In its affidavit filed in
opposition to the appellant’s application for condonation
in
respect of the late filing of his heads of argument the respondent
avers that the appellant’s conduct of this appeal has been
characterised by delays and non-compliance with the rules of this
Court. That averment is undoubtedly correct, but to enumerate
and
deal with each and every one of those delays and non-compliances will
serve no useful purpose. Only two instances need mention,
viz the
failure to lodge the record by the extended date of 2 October 2002
and the lodging of an incomplete record. As to the latter,
there is
no explanation why an incomplete record was lodged and why no steps
were taken to rectify the shortcoming even after it
was brought to
the appellant’s attention. What is more, there is no explanation
whatsoever from the appellant for the period 14
October 2002 and 5
November 2002, the former being the date upon which the incomplete
record was received by the appellant. That
really disposes of the
matter (
Beira v Raphaely-Weiner and Others
[1997] ZASCA 59
;
1997 (4) SA 332
(SCA) 337 C-F), but because counsel was invited to deal with the
merits of the appeal in his argument in the condonation application,
I proceed to consider the prospects of success in the proposed
appeal. A brief reference to the facts will be a convenient starting
point.
[5] The
appellant was admitted and enrolled as an attorney by the
Bophuthatswana High Court on 14 June 2001 under and in terms of
the
provisions of the Attorneys, Notaries and Conveyancers Act 29 of 1984
(the ‘Bophuthatswana Act’). That Act regulated the
attorneys’
profession in the erstwhile Republic of Bophuthatswana. It remains
in force by virtue of Schedule 6 of the Constitution
of the Republic
of South Africa Act 108 of 1996, which reads:
‘
2(1) All law that was
in force when the new Constitution took effect continues in force,
subject to –
(a) any amendment or
repeal; and
(b) consistency with the
new Constitution.
(2) Old order
legislation that continues in force in terms of sub-item (1) –
(a) does not have a
wider application, territorially or otherwise, than it had before the
previous (interim) Constitution took effect
unless subsequently
amended to have a wider application; and
(b) continues to be
administered by the authorities that administered it when the new
Constitution took effect subject to the new
Constitution.’
[6] During August 2001
the appellant lodged an application with the registrar of the Natal
Provincial Division in terms of s 20(1)
of the Act for his name to be
placed on the roll of attorneys of that court. A notice of his
application was served on the Law Society
of Natal. There was no
objection to the application and the appellant’s name was placed on
the roll of attorneys of the Natal
Provincial Division on 18
September 2001.
[7] On 10 October 2001
the appellant applied to the Registrar of the Transvaal Provincial
Division, in terms of s 20(1) of the Act,
for his name to be placed
on the roll of attorneys of that court. Upon receipt of the notice
of the application the respondent lodged
with the registrar an
objection on the basis that such application can only be made by a
person who had been admitted and enrolled
under the Act. Section
20(1) reads:
‘
Any
person admitted and enrolled as an attorney
under this Act
may
in the manner prescribed by subsection (2), apply to the registrar of
any court other than the court by which he was so admitted
and
enrolled to have his name placed on the roll of attorneys … of the
court for which such registrar has been appointed.’
(Emphasis
added)
Section 20(3) provides:
‘
A
registrar receiving an application referred to in subsection (1)
shall place the name of the applicant on the roll of attorneys
…
kept by him in terms of s 21,
unless an objection in writing
against it is lodged with him by the secretary of the society
concerned
within 21 days from the date of receipt of the
application by the registrar.’
(Emphasis
added.)
[8] It is clear from the
provisions of s 20(3) that where an objection against an application
by an attorney for the placing of his
name on the roll of attorneys
of a particular court the Registrar of that court cannot enrol such
attorney until such time as the
objection has been considered one way
or the other. However, in spite of the respondent’s objection in
the instant case, the appellant’s
name was so enrolled on 9
November 2001. It is not necessary to record here what occurred on
that day. Suffice it to say that the
respondent’s letter of
objection was not placed before the Registrar who considered the
application and who subsequently placed
the appellant’s name on the
roll of attorneys of the Transvaal Provincial Division. It was
subsequent to being informed of the
enrolment that the respondent
launched the application to remove the appellant’s name from that
roll.
[9] The
first issue raised in this Court by Mr Poswa, for the appellant,
concerns the respondent’s
locus standi
. It is argued that
the respondent is not a statutorily recognised body whose continued
existence is ensured or recognised by s 56
of the Act. The Law
Society, which has powers to regulate the exercise of the attorneys’
profession in the area where the appellant
sought to be enrolled, is
the Transvaal Law Society and is thus the only entity, so it was
argued, which could and should have launched
the application to set
aside the placing, by the registrar, of the appellant’s name on the
roll of attorneys of the Transvaal Provincial
Division.
[10] This argument is
fallacious. The respondent describes itself in the founding
affidavit as the Law Society of the Northern Provinces,
which came
into existence ‘by Volksraadbesluit 1307 dated 10 October 1892’
and which continued in existence ‘by virtue of the
Constitution of
the Incorporated Law Society of the Transvaal Ordinance No 1
(Private) of 1905’ and continued further in existence
by virtue of
the Attorneys Act. It is true that the name of the respondent does
not appear amongst the Law Societies mentioned in
s 56 of the Act,
but on its letterhead and date stamp and below the name of the
respondent appears the words: ‘Incorporated as
the Law Society of
the Transvaal’ and the words: ‘Serving Gauteng, Mpumalanga,
Northern and North West Provinces’. It can
hardly be disputed that
the old Transvaal no longer exists, this since the advent of our
constitutional dispensation. In my view,
judicial notice can be
taken of the fact that the areas served by the respondent as
indicated on its letterhead now make up the biggest
portion, if not
all, of what used to be known as ‘Transvaal’. It was not
suggested in this Court that there exists any other
body or entity in
the area concerned that performs the functions of the Law Societies
as provided for in ss 58 and 59 of the Act
other than the respondent.
Section 57 of the Act provides that every practitioner who practises
in any province, whether for his
own account or otherwise, shall be a
member of the society of that province. Again there was no
suggestion that attorneys practising
in the area of the registrar of
the Transvaal Provincial Division belong to a law society other than
the respondent.
[11] In
any event, Mr Poswa conceded that at least the respondent is an
association of attorneys. He conceded too, though reluctantly,
that
a voluntary association of attorneys would have been entitled to
launch the application.
Cadit quaestio.
[12] In
the respondent’s founding affidavit the deponent, Jan Petrus
Stemmett, who was at the time president of the respondent,
alleges
that on receipt of the appellant’s application the appellant was
requested to appear before a meeting of the respondent’s
counsel on
5 November 2001. After a discussion between the appellant and
members of the respondent’s council the appellant was
advised that
the respondent could not support his application and that he had to
lodge a substantive application in terms of s 15
of the Act.
(Section 15 deals with the admission and readmission of attorneys.)
Indeed, in a letter to the appellant dated 6 November
2002 the
respondent reiterated its stance that the appellant should apply
under s 15 of the Act to be admitted as an attorney of
the Transvaal
Provincial Division. That stance clouded the real issue before the
court
a quo
, which was whether, because there was an objection
to it, the enrolment of the appellant by the registrar as an attorney
of the Transvaal
Provincial Division in terms of s 20(1) of the Act
was irregular and thus liable to be set aside.
[13] I
have already stated in para 8 above, as did the court
a quo
,
that the registrar is not empowered to enrol an applicant’s name in
such circumstances until the objection has been disposed of.
It
follows that the order of the court
a quo
cannot be interfered
with. The result is that there are, in my view, no prospects of
success on appeal.
[14] In
the course of its judgment the court
a quo
considered an
argument advanced on behalf of the appellant that s 20(1) of the Act
is inconsistent with the Constitution. The submission,
in which
counsel persisted in this Court, was that the sub-section
discriminates against persons who have been admitted and enrolled
as
attorneys in the area of the former Bophuthatswana Republic and under
the Bophuthatswana Act. Such persons, it was correctly
argued,
cannot utilise the provisions of s 20(1) of the Act should they wish
to be enrolled as attorneys of any other court in the
country,
because they would not have been admitted and enrolled ‘under this
Act’, ie the Attorneys Act, whereas persons who have
been admitted
as attorneys elsewhere in the country can do so. The court
a quo
found that the mere fact that ‘the administrative process in terms
of section 20 is not available’ to the appellant – since
he was
admitted under the Bophuthatswana Act – is ‘not discrimination
let alone unfair discrimination’.
[15] Because
there are no prospects of success on appeal, it is not necessary to
consider the correctness or otherwise of the finding
of the court
a
quo
in relation to the constitutional issue. I would, however,
recommend that legislative attention be given to the issue as soon as
possible so as to ensure uniformity and certainty in the attorneys’
profession.
[16] The application for
condonation for the late filing of the record is dismissed with
costs, including the costs relating to the
appeal.
L
MPATI DP
CONCUR:
HARMS JA
SCOTT JA
ZULMAN JA
MOTATA AJA