Ex parte Knox

• Jurisdiction: South Africa
• Judge: Williamson JP and James J
• Judgment Date: 18 December 1961
• Hearing Date: 16 November 1961
• Court: Natal Provincial Division

Williamson, J.P.:

The applicant approached the Court for an order that he be reinstated on the roll of advocates of the Supreme Court of South H Africa, Natal Provincial Division. He had originally been admitted to practise as an advocate of this Court in August, 1937, and he practised as such until 15th December, 1953. What happened on that date appears from the judgment of BROOME, J.P., in the case of the Society of Advocates of Natal and Another v Knox and Others, 1954 (2) SA 246 (N). As a result of the order made in that case his name was removed from the roll of advocates. The proceedings leading up to that order have been attached to the record in the present case. On behalf of the applicant in that matter, the Society of Advocates of Natal, an affidavit was made by the then chairman

Williamson JP

of the Society and in it he informed the Court that the present applicant, then a person in the Durban gaol, had been convicted in August, 1952, together with two Natives, on a charge of being in unlawful possession of unlicensed firearms and, on a second charge, of being in possession of housebreaking implements between the hours of A sunset and sunrise. He had appealed to the Court and this appeal was dismissed on the 13th April, 1953. He had again appealed to the Appellate Division and that appeal was also dismissed. In his judgment dismissing the appeal in the Appellate Division, HOEXTER, J.A., after setting out the facts and making reference to two motor cars found by B the police near Stanger on the night the offence was supposed to be committed, went on to say

'that the only inference to be drawn from the evidence of the police witnesses, which was accepted by the magistrate, was that both the cars found by the police were engaged in a joint nefarious enterprise, involving the use of various articles found in those cars, and organised and led by the appellant (the present applicant). The helmet, macintosh C and handcuffs were intended to enable the appellant to impersonate a policeman and the pistols to enable the occupants of the car G432 N.D. at the very least to make a show of force. We thought that it was fortunate for the appellant that the magistrate took the view that the Crown had not proved beyond a reasonable doubt that the jemmybar was intended for the purpose of housebreaking. In our view not only were both cars engaged in some nefarious enterprise, but their occupants were all jointly engaged in that enterprise, and we agreed with the finding D of the magistrate that the appellant and his two co-accused were jointly in possession of all the articles which were to be used in that joint enterprise'.

The judgment of the Court below dismissing the first appeal from the magistrate's court, is also attached to the present record and contained similar findings.

E The magistrate in his judgment which was also attached, had said that, when taking all the facts into consideration together with the present applicant's untruthful explanation of his movements that night and the failure of the other two accused (the two Natives) to give any evidence, he was irresistibly driven to the conclusion that the accused were out on some sort of joint venture. The magistrate, in fact, found that the F applicant in this matter could not be believed on a number of other points. In other words, he was found by the Court to have given false evidence. The application for his striking off was also based upon certain dealings that he had had with one von Dortmond. It appeared that von Dortmond had handed to the applicant sums of money totalling £8,500 G which money had not been accounted for. It was suggested, at one stage, that this money had been embezzled by the applicant or by one or other of two persons with whom he had dealings on behalf of von Dortmond, one Bird and one Youseff, but the blame has not been actually laid at the door of any one of the three.

The application for his striking off was granted on the basis of the H conviction for the two offences above-mentioned. It was remarked by the JUDGE-PRESIDENT that the offence, in the circumstances in which it was committed, was a very serious one. The fact that it was unconnected with the profession of an advocate was irrelevant. A person who had committed such an offence had, in the view of the Court, demonstrated his unfitness to be an officer of the Court and his name was, accordingly, struck from the roll of advocates. This happened over seven years ago.

Williamson JP

It has been urged on behalf of the applicant that all necessary conditions have been fulfilled and all necessary time elapsed to enable this Court to re-admit the applicant to his profession as an advocate. A Attached to his present application are affidavits of six persons of standing in Pietermaritzburg and in Durban who all say that they have known the applicant for a number of years and that they are aware of his unfortunate history but, having known him particularly during the period since his name was struck off, they consider that he is now fit to be B reinstated as an advocate. It is, of course, for this Court to make a decision as to whether he is fit to be re-admitted but the Court has given careful consideration to...