Chetty v Law Society, Transvaal

• Jurisdiction: South Africa
• Judge: Rabie CJ, Kotzé JA, Miller JA, Viljoen JA and Galgut AJA
• Judgment Date: 25 February 1985
• Hearing Date: 06 November 1984
• Court: Appellate Division

Miller JA:

During March 1979 the Law Society of the Transvaal, the respondent in this appeal, was concerned to investigate certain matters to which its attention had been drawn, bearing upon the conduct of the appellant as an G attorney. At that time the appellant was a practising attorney at Johannesburg. For purposes of its investigation the respondent summoned the appellant to a meeting of its council to be held on 9 May 1979, the object being to discuss with the appellant the matters which had been brought to its notice. The appellant duly appeared at such meeting on 9 May. Some time thereafter the respondent, in the course of its investigations, H requested the appellant in writing to attend a meeting of the council on 9 August 1979 and to bring with him his "file and ledger accounts" relating to certain specified matters which were the subject of the inquiry in which the respondent was engaged. In a written reply dated 29 July the appellant confirmed that he would attend the meeting on 9 August and I requested the respondent to furnish him with details concerning the matters to be discussed and to provide him with a transcript of the discussions which had taken place on 9 May. The respondent's reply was that the discussions would relate to the matters referred to in its letter and that the record of the discussions at the meeting of 9 May had not been transcribed. On 8 August the appellant delivered to the respondent, by hand, a letter in which he repeated his request J for details of the proposed discussion and asked that the proposed meeting

Miller JA

on 9 August be postponed to a later date. The respondent A thereupon immediately caused the appellant to be informed by telephone that the meeting could not be postponed and that he was required to be present at the meeting on the following day.

The appellant did not appear at the meeting on 9 August. It was later discovered that without any prior intimation to the B respondent or to his professional assistant or staff the appellant had left his practice, and the Republic, on 8 August. He has not returned to the Republic nor has he given any indication of intent to return in the future.

After learning of the departure of the appellant to foreign lands, the respondent instructed its control officer to make certain inquiries and its auditor to investigate the C appellant's books of account and to report his findings to the council. The necessary steps were also taken by the council to safeguard, as far as possible, the interests of those of the appellant's clients and creditors who might be embarrassed or materially prejudiced by reason of his sudden disappearance. In due course, as a result of its investigations, the respondent D applied for and was granted, on 22 April 1980, a rule nisi calling upon the appellant to show cause on 22 May 1980 why his name should not be struck off the roll of attorneys and why certain ancillary relief should not be granted. The Court granted leave to serve the rule nisi on the appellant by delivering a copy thereof to his father-in-law who lived in Johannesburg, by delivering a copy to Mr Brand (an attorney E acting for the appellant in Johannesburg, who was known to be in communication with the appellant) and by sending, by registered post, a copy of the rule nisi to the appellant at a specified address in Switzerland. The Court had previously, prior to the issue of the rule nisi, given directions for service of the notice of motion and the papers supporting the F application for removal of the appellant from the roll of attorneys. It is clear that at the time of the granting of the rule nisi the appellant had already personally received, in Geneva, the notice of motion and the supporting affidavits and had consulted an attorney and counsel in London in connection therewith.

G It appears that Mr Brand thereafter communicated with the respondent's attorneys on behalf of the appellant. On 30 April 1980 it was agreed between them that the appellant would have time until 16 June 1980 to file opposing affidavits and that the return date of the rule nisi be extended to 16 September 1980. Shortly before 16 June, Brand approached the respondent for some indulgence in regard to the filing of opposing H affidavits and it was then agreed that the time therefor be extended to 30 June. On 26 June Brand again approached the respondent for further extension of the time within which the appellant's opposing affidavits were to be filed; it was suggested on behalf of appellant that a further period of not less than 14 days be allowed. The respondent was not prepared I to accede to this request and informed the appellant's representatives accordingly. It was also pointed out to Brand that if the affidavits were not filed by 30 June and if the appellant still intended to oppose confirmation of the rule nisi he would have to obtain the Court's condonation of the failure timeously to file the affidavits. On the extended return day, 16 September 1980 (ie very nearly four months after service of the rule nisi upon him and more than four months J after the

Miller JA

A notice of motion and the respondent's supporting affidavits had been served on him) there was no appearance by or on behalf of appellant, nor had any opposing affidavit been filed. The rule nisi was confirmed on that date. The judgment of the Court confirming the rule nisi is reported under the name Law Society, Transvaal v Chetty at 1981 (1) SA 848 (T).

B On 4 June 1981 the appellant gave notice of his intention to apply to the Transvaal Provincial Division for an order (i) setting aside the order made by it, on 16 September...