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[2016] ZACC 29
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Ndleve v Pretoria Society of Advocates (CCT74/16) [2016] ZACC 29; 2016 (12) BCLR 1523 (CC) (1 September 2016)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 74/16
In
the matter between:
RALPH
PATRICK
NDLEVE
Applicant
and
PRETORIA
SOCIETY OF
ADVOCATES
Respondent
Neutral
citation:
Ndleve
v Pretoria Society of Advocates
[2016]
ZACC 29
Coram:
Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and
Zondo J
Judgment:
The Court (unanimous)
Decided
on:
1 September 2016
Summary:
Striking advocate from the roll of
advocates
—
unethical professional
conduct in continued practice
—
duty
of Society of Advocates to courts and public
ORDER
The
following order is made:
The
application for leave to appeal is dismissed.
JUDGMENT
THE
COURT (Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo
J):
[1]
At issue is an order striking a
legal practitioner off the roll of advocates for malpractice and
theft. This is a further
application in a series of five the
applicant, Mr Ndleve, has filed in this Court over the last
twelve months. In the
present application, lodged on 8 April
2016, he seeks an order declaring proceedings in the High Court of
South Africa, Gauteng
Division, Pretoria (High Court) invalid and
setting aside its judgment and order of 12 June 2013,
including an order
requiring him to pay the costs. In the
alternative, he seeks leave to appeal against that judgment to either
the Supreme
Court of Appeal or the Full Court of the High Court.
[2]
The
High Court admitted him as an advocate on 18 February 2002. Between
2006 and 2013, the Pretoria Society of Advocates (Society)
received
at least six complaints against him.
[1]
These detailed his practices of taking instructions directly from lay
clients without being briefed by an attorney, taking
money from
clients without the intervention of an attorney and stealing money
intended for his clients’ creditors.
[2]
The Society applied to the High Court for an order striking his name
off the roll of advocates. On 12 June 2013, the
High Court
(Ebersohn AJ; De Vos J concurring) granted the order with costs.
[3]
[3]
The
applicant then sought leave to appeal from the High Court. He
submitted that he was denied a fair hearing and that a failure
of
justice had occurred as the Court had refused to allow him to file a
supplementary affidavit. The Society had not afforded
him an
opportunity to call and cross-examine witnesses before approaching
the High Court to strike him off. On 8 July 2015,
the High
Court, noting that the applicant had confessed to stealing money from
his clients,
[4]
and that he was not entitled to submit a supplementary affidavit or
to call and cross-examine witnesses before the proceedings
to strike
him from the roll,
[5]
refused leave to appeal with costs.
[6]
The applicant then sought leave to appeal from the Supreme Court of
Appeal. It likewise refused leave with costs.
[4]
He
then approached this Court. The present application is not his
first. Over the last year, he filed five applications
with this
Court targeting the High Court’s striking-off decision of 12
June 2013. The previous four applications were
all dismissed as
bearing no prospects of success.
[7]
[5]
The
present application is no different. The only distinction
between it and the one immediately preceding it
[8]
is that the applicant now seeks, as alternative relief, an order
granting him leave to appeal to the Supreme Court of Appeal or
the
Full Court. In substance, the founding affidavit makes only
minor additions to encompass this additional relief.
It is
otherwise identical to Case No. 35/16. Now, the alternative
relief sought is the same relief the applicant sought in
Case No.
185/15. That was his first application to this Court.
[6]
The applicant submits that the
transcript of his initial hearing before the High Court, which
was not provided in Case No.
185/15, and which he now attaches,
demonstrates an infringement of his rights and should impel the Court
to reconsider his case.
But this is nonsensical. The
applicant provided this transcript in Case No. 240/15 and
Case No. 35/16, both
of which this Court dismissed. So there is
nothing new.
[7]
The only conclusion that can be
drawn is that the applicant is peppering this Court with repeated
applications, each entirely devoid
of merit, simply to stave off the
coming into effect of the order striking him from the roll of
advocates. This conduct cannot
be countenanced.
[8]
The
Court notes with deep concern that the applicant appears to have
continued practising as an advocate despite being struck from
the
roll of advocates. This appears from an entirely unrelated
application lodged in this Court in 2015.
[9]
There, the applicant was mentioned as counsel for the accused before
the lower courts. The founding affidavit in that
case makes
clear that the applicant was still practising as an advocate on 4
October 2013 – four months after his striking
off.
[9]
While
the general rule is that an order is suspended while under appeal,
the applicant filed an application for leave to appeal
in the High
Court only on 7 February 2014.
[10]
The
dies
for filing his application for leave to appeal in the High Court
had expired by no later than 4 July 2013.
[11]
This means that at the time he was actively representing two accused
in October 2013, there was an enforceable order of the
High Court
striking him from the roll. His appearance was unlawful and
imperilled the fairness of the criminal proceedings
in which he
appeared.
[10]
These
are grave matters. The applicant’s continued practice as
an advocate after this Court dismissed his first application
for
leave to appeal borders on contempt of court. It is certainly
unethical professional conduct. It is especially
troubling
since the purpose of a court’s order striking an advocate from
the roll is not simply punishment. It is rather
“the
protection of the public”.
[12]
[11]
Compounding
this concern, the Court notes that as at 4 August 2016 the roll of
advocates listed the applicant as an advocate.
[13]
[12]
What is to be done? It seems
obvious. On 23 November 2015, the Society directed a letter to
this Court regarding Mr
Ndleve’s second application. The
Society noted that the Court’s rules do not provide for
multiple applications
for leave to appeal in the same matter and
requested directions from the Court on how to approach the second
application as the
Society did “not want to incur further and
unnecessary expenses”. On 23 February 2016, the Society
again wrote
to this Court in relation to Mr Ndleve’s fourth
application requesting additional directions, as the Society believed
that
the applicant had exhausted all remedies in his previous
applications.
[13]
The
litigant that successfully obtained an order striking the applicant
from the roll of advocates is the Society. It is for
the
Society to take appropriate steps in the High Court to stop the
applicant’s unavailing stream of litigation – and
to stop
him appearing in courts on behalf of accused and other parties.
The Society owes that duty to the Court, and to the
public.
[14]
Advising the Society on its role in the practical steps it must take
to fulfil this duty is not something the Court can undertake.
This Court’s Registrar is directed to draw this judgment and
order to the attention of the Society and to the attention of
the
Judge President of the Gauteng Division of the High Court of South
Africa.
Order
[14]
The following order is made:
The
application for leave to appeal is dismissed.
[1]
Pretoria
Society of Advocates v Ralph Patrick Ndleve
,
unreported judgment of the High Court of South Africa, Gauteng
Division, Pretoria, Case No. 36147/2009 (26 April 2013) (High
Court
Judgment) at para 5.
[2]
Id at paras
23-5. See also
Ndleve
v Director of Public Prosecutions North Gauteng, Pretoria
[2013] ZAGPPHC 108.
[3]
High Court
Judgment above n 1 at para 47.
[4]
Ralph
Patrick Ndleve v Pretoria Society of Advocates; In re Pretoria
Society of Advocates v Ralph Patrick Ndleve
[2015]
ZAGPPHC 448 (High Court Leave to Appeal Judgment) at para 4.
[5]
Id at para
11.
[6]
Id at para
14.
[7]
Ralph
Patrick Ndleve v Pretoria Society of Advocates
,
order of the Constitutional Court, Case No. 185/15
(29 October 2015);
Ralph
Patrick Ndleve v Pretoria Society of Advocates
,
order of the Constitutional Court, Case No. 213/15 (26
November 2015);
Ralph
Patrick Ndleve v Pretoria Society of Advocates
,
order of the Constitutional Court, Case No. 240/15 (3 February
2016); and
Ralph
Patrick Ndleve v Pretoria Society of Advocates
,
order of the Constitutional Court, Case No. 35/16 (4 May 2016).
[8]
Ralph
Patrick Ndleve v Pretoria Society of Advocates
,
order of the Constitutional Court, Case No. 35/16 (4 May 2016).
[9]
Stance
Selomane and Others v S
,
order of the Constitutional Court, Case No. 231/15 (30 March 2016).
[10]
High Court
Leave to Appeal Judgment above n 4 at para 2.
[11]
Uniform
Rules of Court, rule 49(1)(b).
[12]
Van der
Berg v General Council of the Bar of South Africa
[2007]
ZASCA 16; [2007] 2 All SA 499 (SCA).
[13]
Department
of Justice and Constitutional Development, “High Court
Advocates Roll, Pretoria” (4 August 2016)
at page
25.
[14]
See
Solomon
v Law Society of the Cape of Good Hope
25
[1934] AD 401
(“Law Society protects the interests of the
public in its dealings with attorneys”), cited in
Law
Society of the Northern Provinces v Mabando
[2011] ZASCA 122
;
[2011] 4 All SA 238
(SCA);
Pretoria
Balieraad v Beyers
1966
(1) SA 112
(T) (Law Society has a statutory duty to uphold ethical
practice even in relation to non-members); and
Law
Society of the Northern Provinces v Sonntag
[2011]
ZASCA 204
;
2012 (1) SA 372
(SCA) (Law Society has a “statutory
duty to approach the court” to have an attorney who is not a
fit and proper person
struck off the roll).