Ex parte Aarons (Law Society, Transvaal, Intervening)

• Jurisdiction: South Africa
• Judge: Ackermann J and Spoelstra J
• Judgment Date: 08 February 1985
• Court: Transvaal Provincial Division
• Hearing Date: 01 November 1984
• Citation: 1985 (3) SA 286 (T)

Ackermann J:

This is an application for the re-admission of the applicant as an attorney. Respondent, the Law Society of the Transvaal, was granted leave to intervene and opposes the C application.

The applicant, who is presently nearly 55 years of age, was originally admitted as an attorney on 19 March 1957 and practised as such for six years, initially as a professional assistant, thereafter as a partner in a firm of attorneys and later on for his own account. His name was removed at his own D request from the roll of attorneys on 2 April 1963 and on 7 October 1963 he was admitted as an advocate of this Court and practised as such as a member of the Johannesburg Bar until 15 April 1977, when he resigned this latter membership. On 9 September 1976 applicant was arrested by the South African police on a charge of fraud.

He faced a summary trial before HIEMSTRA J in the Witwatersrand Local Division of the Supreme Court which commenced on 18 April E 1977 and applicant was, on his plea of guilty, convicted of being an accessory after the fact to fraud and of contravening the Exchange Control Regulations promulgated by virtue of s 9 of Act 9 of 1933. I shall deal more fully presently with the details of these transgressions. On 25 April 1977 HIEMSTRA J sentenced the applicant to three years' imprisonment. A copy of F the indictment and judgment on sentence are annexed to the applicant's founding affidavit. Leave to appeal against the sentence was granted, but the appeal was withdrawn and on 9 May 1977 applicant surrendered himself to the authorities and commenced serving his sentence on that date. On 3 November 1978, and on the application of the Society of Advocates of G South Africa (Witwatersrand Division), applicant's name was struck off the roll of advocates. He did not oppose the application. On 9 January 1979, and after serving 20 months of his sentence, the applicant was released on parole. On his release he obtained temporary employment with a concern known as Allied Metals until March 1979 when he took up employment as a legal adviser with Tuckers Land and Development Corporation H (Pty) Ltd ("Tuckers") in Johannesburg. While working at Tuckers the applicant received an offer from his cousin, one Gerson Swartzberg, to join him as a partner in the latter's business as a wholesale dealer in motor vehicles in Johannesburg. The applicant was not very happy at Tuckers. He found the repetitious, unpleasant litigation boring and he did not agree with Tuckers' litigation policy. He felt that more I cases should have been settled. Consequently the applicant accepted Swartzberg's offer and was associated with him as a partner in the aforementioned motor business from October 1979 until September 1981. From September 1981 until 30 June 1983 applicant was employed as a legal adviser with Dimacor Diamond Mining Co (Pty) Ltd ("Dimacor") in Johannesburg. As a result of the deterioration in the diamond market, applicant's employment J with Dimacor was terminated

Ackermann J

A on 30 June 1983. During July 1983 applicant was offered employment as a clerk in the office of an attorney, one R Smith. In a letter dated 4 October 1983 the respondent intimated to Smith that while it would not be competent for respondent to grant Smith permission in terms of s 83 (5) of the Attorneys Act 53 of 1979 ("the Act") to employ applicant, B there would be no objection to applicant being so employed. It would appear that s 83 (5) of the Act was not applicable to applicant's position inasmuch as the subsection only applies to persons struck off the roll of attorneys or suspended from practice as an attorney. Applicant commenced employment as a clerk in the offices of Smith with effect from 11 October 1983. Despite his conviction and sentence the C applicant's domestic life has remained intact. He has been married for 29 years and has four children.

I shall, of course, deal more fully later with the applicant's case, but the basis of his approach to the Court is summarised in the following paragraphs of his founding affidavit:

"37.

D I have since my discharge from prison, and for some time prior to such discharge, resolved to lead a decent and honest life. I am thoroughly aware of the nature and extent of my deviation from the accepted norms of morality, reliability and acceptable social behaviour. I have genuine, honest and lasting remorse and regret for my conduct, which led to my arrest, imprisonment and striking off the roll of advocates. I find it incomprehensible that I could have acted in E the way I did when the offences were committed.

38.

I humbly and respectfully submit that I am permanently reformed and rehabilitated. I believe in all sincerity, and am fully convinced, that since my conviction, imprisonment and release, I am irrevocably committed to leading an orderly, honourable, honest, trustworthy and a socially acceptable life. I am convinced that should this honourable F Court grant my application to be re-admitted as an attorney, I will never betray the trust which this honourable Court placed upon me.

39.

In regard to the aforegoing I respectfully refer this honourable Court to the further attached affidavits of:

David Colville	Annexure H
Gerson Swartzber	Annexure J
Ptachya Chelchinskey	Annexure K
Raphael Smith	Annexure L
Ramond Joffe	Annexure N
Louis Gishen	Annexure O
Abe Siritzky	Annexure P
Nigel Vivian Burleigh Andrews	Annexure Q
Rabbi Irma Aloy	Annexure R"

H The notice of motion and supporting affidavits in this matter were served on the respondent on 8 February 1984. On 16 March 1984 the applicant appeared at a meeting of respondent's council held at Pretoria. At this meeting the applicant was invited to fill in certain details relating to his application and was questioned by members of the council. At the conclusion of the meeting respondent's council resolved that the I respondent would intervene in and oppose the applicant's application for re-admission. A copy of the minutes of this meeting is attached to respondent's answering affidavit.

With the exception of ss 4 (b) and 10 thereof, the Attorneys Amendment Act 108 of 1984 came into operation on 15 August 1984, some two and a half months before the hearing of this J application. This Act amended the Attorneys Act 53 of 1979 ("the principal Act") in several

Ackermann J

respects. In terms of s 7 of the amending Act s 15 of the A principal Act was replaced with a new s 15. The relevant part of s 15 (1) as amended reads as follows:

"Unless cause to the contrary to its satisfaction is shown, the Court shall on application in accordance with this Act, admit and enrol any person as an attorney if:

(a)

such a person, in the discretion of the Court, is a fit and B proper person to be so admitted and enrolled; and

(b)

............"

Section 15 (3) of the principal Act, as amended, now makes express provision for the re-admission and re-enrolment of a person as an attorney (whereas the original s 15 did not). C Section 15 (3) reads as follows:

"A Court may, on application made in accordance with this Act, re-admit and re-enrol any person who was previously admitted and enrolled as an attorney and has been removed from or struck off the roll, as an attorney, if:

(a)

such person, in the discretion of the Court, is a fit and proper person to be so re-admitted and re-enrolled; and

(b)

the Court is satisfied that he has complied with the D provisions of ss (1) (b) (ii)."

Section 15 (3) (b) is not relevant for purposes of this application.

Section 15 (3) (a) embodies the statutory resolution of the controversy which once existed in our Courts as to whether a Court has any discretion in the matter of re-admitting an attorney or whether the enquiry is purely a factual one. In E Kudo v Cape Law Society 1977 (4) SA 659 (A) JANSEN JA, delivering the judgment of the majority of the Court, held (at 675H - 676B) that the determination as to whether a person who has previously been struck off the roll as being no longer a fit and proper person to remain an attorney has shown, for the purposes of his re-admission, that he is once again a fit and F proper person to practise again, is essentially a factual enquiry which does not fall within the ambit of "discretion" of the Court of first instance. Kudo's case was decided under Act 23 of 1934. This Act was replaced by the Attorneys Act 53 of 1979, s 15 (1) whereof provided, inter alia, as follows:

"15 (1)

Unless cause to the contrary to its satisfaction is G shown, the Court shall on application, in accordance with this Act, admit and enrol any person as an attorney if the Court is satisfied that such person has satisfied the following requirements or, where applicable, has been exempted therefrom in terms of the provisions of this Act, namely that such person:

(a)

is a fit and proper person to be so admitted and enrolled;

H ............"

In Kaplan v Incorporated Law Society, Transvaal 1981 (2) SA 762 (T) BOSHOFF JP, delivering the judgment of a Full Bench of this Division, distinguished JANSEN J's judgment in Kudo's case and held that s 15 of Act 53 of 1979 left the Court with a discretion to decide whether or not the applicant is a fit and proper person to be admitted as an attorney. At 789H - 790A I the learned JUDGE PRESIDENT said the following:

"Section 15 is in this respect so materially different from the old s 4 that it can with justification be said that the Legislature intended it to be different and it would be setting at naught the clear intention of the Legislature to give it the construction placed by JANSEN JA on the old s 4. Section 15 must thus be regarded as overriding legislation as far as the present application is concerned.

If this...