Botha v Law Society, Northern Provinces

• Jurisdiction: South Africa
• Judge: Farlam JA, Cloete JA, Heher JA, Ponnan JA and Cachalia JA
• Judgment Date: 23 September 2008
• Citation: 2009 (1) SA 227 (SCA)
• Docket Number: 446/2007
• Hearing Date: 04 September 2008
• Counsel: JC Klopper for the appellant. AT Lamey (attorney) for the respondent.
• Court: Supreme Court of Appeal

Cloete JA: I

[1] On 14 September 2004 the Pretoria High Court (Rabie J) granted an interim order as a matter of urgency at the suit of the respondent and with the consent of the appellant preventing the appellant from practising as an attorney for his own account and appointing a curator bonis to administer and control his trust account. On 28 February 2006 the court J

Cloete JA

A a quo (RD Claassen J and Mavundla J) struck the appellant's name from the roll of attorneys, but subsequently granted him leave to appeal to this court.

[2] Section 22(1)(d) of the Attorneys Act 53 of 1979 provides:

Any person who has been admitted and enrolled as an attorney may on B application by the society concerned be struck off the roll or suspended from practice by the court within the jurisdiction of which he practises . . . if he, in the discretion of the court, is not a fit and proper person to continue to practise as an attorney.

As was said in Jasat v Natal Law Society[1] and repeated most recently in C Malan and Another v Law Society, Northern Provinces, [2] the section contemplates a three-stage inquiry: First, the court must decide whether the alleged offending conduct has been established on a preponderance of probabilities, which is a factual inquiry. Second, the court must consider whether the person concerned 'in the discretion of the court' is D not a fit and proper person to continue to practise. This involves a weighing-up of the conduct complained of against the conduct expected of an attorney and, to this extent, is a value judgment. Third, the court must inquire whether in all the circumstances the attorney is to be removed from the roll of attorneys or whether an order of suspension from practice would suffice.

E [3] The appeal was directed at the sanction imposed by the court a quo. The decision whether an attorney who has been found unfit to practise as such should be struck off or suspended is a matter for the discretion of the court of first instance. That discretion is an example of a 'narrow' discretion. [3] The consequence is that an appeal court will not decide the F matter afresh and substitute its decision for that of the court of first instance; it will do so only where the court of first instance did not exercise its discretion judicially, which can be done by showing that the court of first instance exercised the power conferred on it capriciously or upon a wrong principle, or did not bring its unbiased judgment to bear G on the question or did not act for substantial reasons, or materially misdirected itself in fact or in law. [4] It must be emphasised that dishonesty is not a sine qua non for striking-off. As Harms JA said in Malan: [5]

Obviously, if a court finds dishonesty, the circumstances must be H exceptional before a court will order a suspension instead of a

Cloete JA

removal . . . .Where dishonesty has not been established the position A is . . . that a court has to exercise a discretion within the parameters of the facts of the case without any preordained limitations.

[4] It is necessary to examine the facts in a little detail. Before I do so and in view of some of the submissions made on behalf of the respondent, I wish to point out that an applicant law society is entitled to apply for a B respondent attorney to be called for cross-examination under Uniform Rule 6(5)(g). That right may usefully be invoked where the facts alleged in the attorney's answering affidavit fall peculiarly within such attorney's knowledge and suspicion attaches to their veracity. (A court could also call for oral evidence mero motu: whatever the position may be in relation C to other types of application, [6] in matters such as the present the court is exercising its supervisory function over legal practitioners and is entitled to call for evidence to enable it properly to do so.) If the attorney is not cross-examined then, unless the allegations and denials made in the answering affidavit are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers, the case must be D decided on the common cause facts and, where there is a conflict, on the attorney's version. [7] Speculation as to what might really have happened is not permissible.

[5] There were four complaints made to the respondent about the appellant's conduct. Two - by Mr Biyela and attorney Deon de Klerk - E prompted the respondent to appoint Mr AT van Rooyen, a management consultant and forensic investigator, to investigate the appellant's practice.

[6] Mr Biyela wanted to sell a property to Mr Mangwane, whom the appellant had previously represented professionally. The appellant drew F up the sale agreement and because he was not a conveyancer, he undertook with the consent of both parties to arrange with attorney De Klerk for the property to be transferred into Mr Mangwane's name. The latter paid R40 000, the first instalment of the purchase price, to the appellant in about September 2004. The payment was made in cash and G the appellant says that he decided to take it home and put it in his safe as he had no safe at his office (shared with five other attorneys, all practising for their own account) and the banks were already closed. On the way home he attended a function with colleagues. He later discovered that the money, which he had been carrying on him, was gone. He H decided to replace the money from his own income. A further instalment of R25 000 was paid to him by Mr Mangwane in November and a final instalment of R25 000 in December. He kept these amounts in his safe at his home. He issued no receipts at any time. He says that he contacted

Cloete JA

A Mr Biyela and told him of his predicament after he had received the first R25 000 and this allegation was not challenged in the replying affidavit. He thereafter made payments of R10 000 (on a date unspecified), R20 000 on 1 February, R16 000 on 2 February, R28 000 on 24 May, R12 000 on 3 June and a final payment of R4000 on 6 June 2005.

B [7] There is no explanation why the two amounts of R25 000 were not paid over to Mr Biyela immediately they were received. However, the appellant annexed to his answering affidavit a copy of a letter dated 25 August 2005 sent by Mr Biyela to the respondent in which he withdrew his complaint and confirmed that the full amount had been C paid over to him; and the appellant also said that in August 2005 he paid to Mr Biyela interest calculated by the latter's bank in an amount of R5500. Again, this allegation was not challenged in the replying affidavit.

[8] In the mean time Mr Mangwane had, in about October 2004, paid an amount of R2000 to the appellant for the transfer costs of the D property that he had bought from Mr Biyela. That amount comprised the fee the appellant had agreed with attorney De Klerk plus disbursements. Transfer took place on 26 October 2004. In March 2005...