South Africa: High Courts - Gauteng

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In the matter between:

CASE NO.: 5232/2005

DATE: 19/4/2007

THE LAW SOCIETY OF THE NORTHERN PROVINCE (INCORPORATED AS THE LAW SOCIETY OF THE TRANSVAAL)

Applicant

VS

MAFISA (NHLABATHI), ALICE MAMELLO

Respondent

REASONS FOR JUDGMENT

MOTIMELE AJ:

INTRODUCTION

After hearing arguments in this matter on the 8 May 2006, I issued an order dismissing the application with costs, such cost to be paid on the scale as between attorney-and own client. I intimated that my reasons would follow later. These are my reasons for the order made on 8 May 2006.

1.

1.1

The applicant herein is an incorporated law society which has authority and power to regulate and control the exercise of the profession of attorneys, notaries and conveyancers in the areas of Gauteng, Mpumalanga, Limpopo and the North-West Provinces.

1.3

1.4

1.5

2

The respondent was, until, she had her name voluntarily removed from the roll of practising attorneys on 30 April 2003, an attorney practising within the jurisdiction of this court, having been duly admitted as such on 7 December 1997.

She practiced for her own account in various partnerships from December1998 until 30 October 2002.

On or about 30 September 2003, the respondent was duly admitted under case number 21488/2003 as an advocate of this court.

The respondent is presently employed by the Department of Social Development in Pretoria.

2.

The applicant issued a hydra-headed application against the respondent on 17 February 2005 in terms whereof it sought the following relief:

2.1

2.2

2.3

2.4

2.5

2.6

"That the order granted by this court on 30 September 2003 enrolling the name of Alice Mamello Mafisa (Nhlabathi) on the roll of advocates, is hereby rescinded.

That the name Alice Mamello Mafisa (Nhlabathi) is removed from the roll of advocates;

That the order granted by this court on 22 April 2003 removing the name of Alice Mamello Mafisa (Nhlabathi) from the roll of attorneys, is hereby rescinded;

That the name of Alice Mamello Mafisa (Nhlabathi) be re-enrolled on the roll of attorneys.

Payment of costs on the attorney and client scale;

Further and/or alternative relief".

3.

I interpose to state that the application was vigorously opposed by the respondent.

4.

In support of its prayers, the applicant relied on the affidavit of one Henry Muzikayise Selby Msimang ("Msimang") who describes himself as the president of the applicant. Msimang stated that he had the requisite authority to bring this application on behalf of the applicant.

5.

Simply stated, the thrust of this application, inter alia, is to rescind;

5.1

the court order removing the respondent's name from the roll of practising attorneys; and

5.2

the court order enrolling her as an advocate of this court; and

5.3

thereafter to have her re-enrolled as an attorney of this court.

6.

In aid of what, and for what reasons? I ask myself. It appears to me that the real purpose and intention of this application is to found or confirm

jurisdiction (ad fundandam vel ad confirmandam jurisdictionem) on the part of the applicant against the respondent, as clearly set out in paragraph

13.3. of Msimang's affidavit.

7.

For its case, the applicant avers that in applying for her removal of her name from the roll under case number 7935/2003, the respondent falsely stated in her affidavit that, she had no knowledge of any pending or expected proceedings to remove her name from the roll of attorneys. However, the applicant concedes that at the material time of this application, it did not oppose such application as it had no indication, in its record that the respondent was not in good standing with the applicant. As a result the respondent's name was removed, on her own initiative, on 22 April 2003, without any opposition by the applicant.

8.

It appears from the applicant's founding affidavit that as far back as July 2002, applicant had received a complaint of some unprofessional conduct in respect of Mafisa-Koto Attorneys, where the respondent was a partner. However, for reasons which are not clear to me, the applicant elected to investigate the conduct of Attorney Koto and not the applicant. This investigation was conducted by one V. J. Farris, CA (SA), Public Accountant and Auditor.

9.

According to Msimang, the report by Farris provided evidence that the firm of Mafisa & Mkombo Attorneys, Mafisa & Koto Attorneys and Koto Attorneys had contravened number of provisions of the Attorneys Act, in particular section 78(1),78(4), 78(6)(d); rule 680.1, rule 68.5, rule 68.7, rule 68.9, and rule 69.6.1, which prima facie, amounts to unprofessional, dishonourable or unworthy conduct on the part of respondent and her erstwhile partners.

10.

Msimang further alleges that the applicant desires, and in fact has a statutory duty, to investigate these serious findings by Farris. The applicant intends to institute an enquiry against the respondent, similarly, as it has done so against Attorneys Koto. However, as the applicant has removed her name from the roll of Attorneys, so the argument goes, it is virtually impossible for the applicant to launch such an enquiry as it has no

jurisdiction over the applicant. This is the main reason why the applicant wishes to have the respondent re-enrolled so as to enable them to take disciplinary action against her.

11.

As I indicated earlier in my judgment, this matter is vigorously opposed by the respondent. The respondent avers that her application for removal was properly served on the applicant as required by the rules. This gave the applicant ample opportunity to investigate and consider the application. Having considered the application, the applicant issued a certificate to

confirm that there are no pending or intended disciplinary proceedings against her.

12.

Furthermore, the respondent avers that the applicant had already commenced investigations into the affairs of Mafisa & Koto Attorneys, as early as 2002. Accordingly respondent denies that she misled the applicant and contends that as her name has been properly removed from the roll of attorneys, that the applicant has no jurisdiction over her.

13.

Regarding the prayer to have her name removed from the roll of advocates, the respondent contends inter alia that;

13.1 the applicant has no right nor locus standi to apply for her removal; and

13.2 the applicant has not cited any misconduct on her part which justifies

such a drastic step.

13.3 the applicant's prayers is untenable as it has the deleterious effect of unduly interfering with her constitutionally protected right to choose and pursue her career or profession freely.

14.

In so far as the allegations of fraud and/or theft of trust monies, whilst she was still an attorney, are concerned, the respondent contends that such serious allegations could and should be referred for proper investigation and possible prosecution to members of the South African Police Services ("SAPS") and/or National Prosecuting Authority. Of even great significance is the averment by the respondent that after the disciplinary action was taken against her former partner Ms Koto, she(the respondent) offered to co-operate with the applicant in order to resolve the matters raised in the report by Farris. However, despite her repeated request, she alleges that the applicant, without any justification, refused to place her in possession of the Rule 101 report by Farris which forms the basis of the intended enquiry against her.

15.

Counsel appearing for the applicant argued that it is imperative, in order to enable the applicant to institute an enquiry into the conduct of the respondent, that the respondent be removed from the roll of advocates and re-enrolled as an attorney. This will clothe the applicant with the requisite authority over the respondent, so the argument continues. Quite clearly counsel was hard pressed and unable to proffer any good reasons to justify the removal of the respondent from the roll of advocates.

16.

On the other hand Mr. Seabi appearing on behalf of the respondent submitted vigorously that the whole of the applicant's application was ill­conceived and flawed in material respect. He zealously and spiritedly submitted that the allegation that respondent misled the applicant when she applied for her name to be removed from the roll of attorneys is without any basis or substance. On the contrary, so he argued, the applicant is to blame for its inexcusable failure to make proper and diligent enquiries before it issued the respondent with a Certificate of Good standing.

17.

Mr. Seabi argued further, that the court was justified to rely on the Certificate of Good Standing issued by the applicant as the applicant was the sole custodian of the records of its members. Logically, he argued that there is no basis or reason in law why the order to remove the respondent from the roll of practising attorney should, be rescinded.

18.

Concerning the order to admit and enroll the respondent as an advocate, Mr. Seabi submitted that the respondent was legally entitled to be admitted as an advocate as she is fit and proper to be so admitted, and qualifies and fulfills the requirements of the Advocates Act, 1964 (Act no. 74 of 1964), as amended.

In conclusion, he submitted further that the respondent's name could only be removed from the roll of advocates if there is clear proof that she is not a fit and proper person to practice as an advocate, let alone for the mere

purpose of assisting the applicant to institute disciplinary proceedings against the respondent. Finally it was contended on behalf of the respondent, that in the unlikely event of the applicant being in possession of any evidence which could prove that the respondent was not fit and proper to be admitted and/or practice as an advocate of this court, applicant was free to refer such information to the relevant constituent Bar Council and/or General Council of the Bar ("GCB") where the respondent is a member for appropriate investigation and action.

19.

It is clear from the affidavits filed that at the time when the respondent applied for the removal of her name from the roll of attorneys, the applicant did not issue any negative report about her. In fact, the applicant issued a certificate to the effect that there were no pending disciplinary proceedings against her. This report issued by the applicant is very crucial when one bears in mind that the applicant is in possession of all the records of all attorneys, conveyancers and notaries operating within its area of

jurisdiction. The applicant as the custos morum of the attorney's profession has a duty and responsibility to ensure that whatever reports they issue in respect of the character of a particular member is accurate. This is so, as the applicant knows fully well that the court and the general public are likely to accept without hesitation, any certificate concerning a legal practitioner which emanates from it

20.

In casu, the applicant has not offered any explanation why, when it initiated the investigations against Mafisa & Koto Attorneys during 2002, it concentrated exclusively on Ms Koto only and not the respondent, particularly as it is clear that they, operated in a partnership. The enquiry against Ms Koto was finalised in 2005. The applicant failed to explain why it had to wait until late 2003 before it could decide to take action against the respondent. It is common cause that in the interim, the respondent had herself enrolled as an advocate. It is clear from the papers that she is currently employed by the Department of Social Development. It is clear that the relief prayed for by the applicant is likely to have a serious, far-­reaching and disruptive effect on the life and employment of the respondent.

21.

I am not satisfied from the papers that the applicant has made out a case entitling it to the relief which it seeks. In my view, the order to remove the respondent from the roll of attorneys at her own request was properly granted on the papers before the court as there was no evidence of fraud or willful suppression or distortion of material information by the respondent.

22.

Regarding the admission and enrolment of respondent as an advocate, there is no averment or scintilla of acceptable evidence to the effect that she misrepresented facts or lied in her application to the court. In my view the respondent was properly admitted and enrolled as an advocate of this court.

23.

In so far as the application to have her name removed from the roll of advocates is concerned, the main reason advanced by the applicant is that it is important to remove her so that the applicant can have her re-enrolled as an attorney to enable the applicant to take disciplinary action against her (see Replying applicant p.86 Para 7). I take it to be a truism that a person can only be legitimately removed from the roll of advocates if proper grounds have been advanced therefore. Understandably, such grounds may be myriad. In this matter, one would naturally have expected the applicant to make clear allegations that the respondent has ceased to be a fit and proper person to remain on the roll of advocates and serve such application on the relevant constituent Bar Council and/or the GCB.

24.

I do not think that the reasons advanced by the applicant for the removal of the respondent from the roll of advocates are sound and legitimate. Much as I appreciate the onerous responsibilities of the applicant to rid the profession of unworthy persons, I do not think that, in casu the applicant adopted the correct procedure. After much cogitation, I am inclined to agree with Mr. Seabi that this whole application appears to be ill-conceived. In fact, it appears to me that the applicant is motivated more by a desire to discipline the respondent rather than to rid the profession of unworthy

characters in the interests of the public. It is not without regret that I come to this conclusion, as my sympathies are entirely with the applicant and the enormous responsibility it bears in this regard.

25.

I say so because it is clear from the papers that the respondent is no longer practising as an attorney. As a result she poses no danger to members of the public in that capacity. For that reason and that reason alone, there is no way in which she can still bring the attorney's profession into disrepute. By her own volition she ceased to be an attorney. Why would the applicant force her, against her wishes to be re-enrolled as an attorney? Surely there are various alternative measures which are less drastic and invasive which the applicant can resort to, to bring the respondent to book without embarking on such a draconian and expensive route.

26.

Even if I am wrong in my aforestated findings, I am of the view that the applicant failed to make out a case for rescission of judgment in terms of the common law. The applicant failed to prove the existence of any fraud, iustus error or that there are new documents which have been discovered which might have a material effect on its case. It should be borne in mind that what applicant requested is to be clothed with the authority to investigate the respondent to ascertain if the applicant has evidence to charge her or not. In my view, the applicant is not entitled to approach the matter on the basis that a mere possibility of untruth might exist or that there exist a possibility of fraud perpetrated by the respondent.

27.

One important aspect which I feel duty bound to comment on is the unreasonably long delay which took place before the applicant decided to take action against the respondent. According to the papers the applicant first decided to investigate the affairs of Mafisa & Koto Attorneys during 2002. On the 22 April 2003, the respondent had her name voluntarily

removed from the roll of attorneys. This occurred with full knowledge of the applicant who elected not to oppose the application.

28.

In fact, on the contrary, the applicant issued the respondent with a "clearance" certificate to the effect that there were no disciplinary actions contemplated or pending against her. Following here upon, the respondent was duly admitted and enrolled as an advocate of this court on 30 September 2003. The respondent is now gainfully employed by the Department of Social Development.

29.

The application to have the respondent's name removed from the roll of advocates and re-enrolled as an attorney was issued by the registrar of this court on 16 February 2005. This is notwithstanding the fact that the Farris report was sent to the applicant on 23 May 2003. It is clear from the papers that between 22 April 2003 and 16 February 2005, the respondent had obtained alternative employment and reorganised her life accordingly.

30.

Self evidently the ultimate effect of the applicant's action would be disruptive of and seriously affect the respondent's life adversely. I am of the view that the applicant has failed itself, the profession and the public and is guilty of dereliction of duty in the manner in which it dealt with this matter. The least said about this the better. It is in this context that I find the remarks of Coetzee J in Vereniging van Advokate van SA v Theunissen 1979(2) SA 218 (T) of 222H to be opposite, wherein the learned judge stated thus:

"In hierdie opsig is daar 'n verdere aspek wat nie uit die oog verloor moet word nie. Wanneer 'n liggaam soos die Balieraad of die Ingelyfde Wetsgenootsap optree teen 'n lid dan moet hy ook verantwoordelik optree uit die oogpunt van daardie lid se belange en moet daar met die nodige deernis en omsigtigheid te werk gegaan word. Ons insiens grens dit aan die onmenslike om 'n persoon, soos in hierdie geval, te laat voortgaan vir drie jaar om sy beroep waarvoor hy gekwalifiseerd is te beoefen sonder om enigeiets te doen en dan skielik die valbyl oor sy kop te los."

I find the above quotation to be both apposite and instructive.

31.

Having considered this matter carefully, I find that that the applicant in casu did not act fairly and with the necessary compassion towards the respondent. In fact I am persuaded to find that the applicant acted more out of a sense of vengeance than its duty to protect its reputation and the general public against the respondent. As I indicated already I fail to understand why the applicant elected to embark on this course whilst there are other alternative remedies which the applicant could have resorted to. I also cannot understand why the applicant took so long before it could take action. In all the circumstances I find that the applicant acted unreasonably and frivolously in launching this applicant. These are the reason why I made the order which I made on 8 May 2006.

I agree and it is so ordered.

MOTIMELE AJ

ACTING JUDGE OF THE HIGH COURT