General Council of the Bar of South Africa v Geach and Others

• Jurisdiction: South Africa
• Judge: Mpati P, Nugent JA, Ponnan JA, Leach JA and Wallis JA
• Judgment Date: 29 November 2012
• Citation: 2013 (2) SA 52 (SCA)
• Docket Number: 277/12 and other cases [2012] ZASCA 175
• Hearing Date: 04 September 2012
• Counsel: S Rosenberg SC (with A Katz SC and M Ioannou) for the first respondent. E Botha for the second respondent. JF Mullins SC (with R Kayingo) for the third and fifth respondents. JH Ströh SC for the fourth respondent. BC van den Heever SC (with WW Geyser) for the sixth and seventh respondents. Q Pelser SC (with LE Vilakazi) for the eighth respondent. EM Coetzee SC (with HJ de Wet) for the appellant (case No 274/12). M Khoza (with A Cajee) for the appellant (case No 275/12). CE Puckrin SC (with C Harms) for the appellant (case No 280/12). PP Delport SC for the appellant (case No 281/12). Q Pelser SC (with LE Vilakazi) for the first respondent. H Epstein SC (with A Bester, C Malema and R Wilson) for the second respondent. Q Pelser SC (with LE Vilakazi) for the respondent.
• Court: Supreme Court of Appeal

Nugent JA (Mpati P and Ponnan JA concurring):

[1] These appeals concern thirteen practising advocates who are members of the Pretoria Society of Advocates. Twelve [1] of the advocates were C found guilty by the Bar Council of the Society, on their own admissions, of unprofessional conduct. In each case the Bar Council visited their conduct with disciplinary sanctions. The Society thereupon applied to the North Gauteng High Court for orders 'noting' the disciplinary action that had been taken. It also applied for an order striking the name of a thirteenth advocate [2] from the roll of advocates. The General Council of D the Bar (GCB) intervened in the proceedings and sought orders striking the names of all the advocates from the roll.

[2] The applications were heard together by a full court (Van Dijkhorst, PC Combrinck and De Villiers AJJ). [3] It imposed further sanctions upon E seven [4] of the twelve who had been disciplined by the Bar Council, which included paying various amounts to the Road Accident Fund. As for the remaining five, [5] and the thirteenth [6] advocate who had not been sanctioned by the Bar Council, it ordered them to pay various amounts to the Fund, and struck their names from the roll of advocates.

[3] The GCB appeals the orders made in respect of the seven advocates F who were not struck from the roll, contending that they ought to have been. The remaining six advocates appeal the orders made against them, contending that it was not competent to order them to make payments to the Fund, and that they ought not to have been struck from the roll. All the appeals are before us with the leave of this court. G

[4] I conclude that all the appeals should fail and I think it is useful at the outset to state briefly the basis upon which I reach that conclusion.

[5] As I expand upon later in this judgment the case called for three steps in the enquiry before the court below. The first two are not controversial. H

Nugent JA (Mpati P and Ponnan JA concurring)

A The appeal turns on the third step of its enquiry — which was whether the advocates concerned ought or ought not to have been struck off, as the case may be. That decision fell within the discretion of the court below and there are limited grounds upon which an appeal court may interfere. The only ground relied upon in this case (apart from reliance by two B advocates upon perceived bias on the part of one member of that court, which is dealt with in the judgment of Ponnan JA) was that the court was said to have misdirected its enquiry in various ways. It is only if we conclude that it did misdirect its enquiry that we are entitled to embark upon that enquiry afresh and, if appropriate, substitute our decision for C that of the court below.

[6] The enquiry before us thus falls to be conducted in two stages. The first enquiry is whether the court misdirected its enquiry. It is only if we conclude that it did that we move to the second stage.

[7] I see no proper grounds for finding that the court below indeed D misdirected its enquiry. On that basis the second stage does not arise. It is on that basis that I dismiss all the appeals.

[8] Some background is necessary to understand the nature of the misconduct. The Road Accident Fund established under the Road Accident Fund Act 56 of 1996 is obliged to compensate any person for E loss or damage from death or bodily injury caused by or arising from the negligent or other wrongful driving of a motor vehicle. A large majority of claims made against the Fund are meritorious. To the extent that any dispute exists in those cases the dispute is generally confined to the apportionment of responsibility or to the amount of compensation to F which the claimant is entitled, or to both. For those who are experienced in that field, settling disputes of that kind is often relatively straightforward. Thus it might be expected that many claims against the Fund would be promptly assessed and paid, perhaps after discussion with attorneys for the claimants to settle disputed issues, thereby minimising legal costs and ensuring that claimants promptly receive their due.

G [9] But that is not how the Fund conducted its affairs at the relevant time. For some years the administration of the Fund had been in disarray. Claims were not being evaluated and settled promptly, and claimants found themselves compelled to institute action. Even then the Fund would procrastinate and claimants would be compelled to bring H the pleadings to a close, and to set the actions down on the trial roll, even when claims were not truly disputed. In the belief that procrastination would ease its cash flow the Fund went so far as to have as its policy that claims would not be settled more than twenty days before the date set for the trial.

I [10] The situation that prevailed was described in his affidavit by the chairman of the GCB as follows:

'The Fund is frequently wholly unprepared for trial and has often incurred substantial expenses in taking to trial or appeal matters which it should responsibly have not contested and should have resolved. The Fund has sought to manage its ongoing cash flow problems by delays in J conceding liability, forcing matters to trial and only conceding liability

Nugent JA (Mpati P and Ponnan JA concurring)

after a trial matter has been called at roll call. The Fund's inadequate A and inefficient administration has resulted in legal costs being driven up by the Fund drawing out litigation and by generating unnecessary litigation with the overall intention of settling matters at the doors of the court. A vast number of RAF trials do not start or run but are settled at court. Moreover, settlements are invariably concluded on the basis that B the Fund either makes a contribution towards or agrees to pay the claimants' costs. It has been financially constrained which has impeded its ability to pay claims, and to a large extent the Fund has been dysfunctional.'

[11] The Fund's procrastination in promptly settling and paying meritorious claims can only be deprecated. Not only was its conduct C increasing legal costs that became payable by the Fund — both its own costs and the costs that were incurred by claimants, for which the Fund would invariably be liable — but it kept claimants from the compensation that they were entitled to.

[12] Its conduct also had adverse consequences for the management of D the trial roll in the North Gauteng High Court. It became inundated with actions that claimants were compelled to set down for trial, even though no trial was anticipated, only to bring matters to a head. The problem became so acute that the Deputy President of that court found it necessary to compile a separate roll for actions against the Fund on which 70 actions against the Fund were listed per day. E

[13] Needless to say, the burden imposed on the court, and upon attorneys acting for claimants, was intolerable. To find 140 or more advocates every day — one for the claimant and one for the Fund — to bring each of those cases to finality would be well-nigh impossible. F Moreover, it could hardly be expected that advocates would hold themselves available for a full day in matters that were clearly destined to be settled or postponed. And so a practice developed that advocates would receive and accept briefs for multiple cases that had been set down on the trial roll on one day.

[14] Accepting briefs to conduct more than one trial on the same day is G generally prohibited by the rules of the bar for the obvious reason that an advocate is not capable of conducting trials simultaneously. The consequence of holding briefs to conduct two trials on one day is inevitably that if both trials proceed the advocate will find himself or herself compelled to overcome the dilemma by directing at least one case to H settlement, perhaps against the interests of the client, or by postponing one so as to continue with the other, again against the interests of the client, or by surrendering the brief to an unprepared colleague (assuming a colleague was willing to accept it). It is not surprising then that the practice of accepting potentially conflicting briefs — commonly called I 'double-briefing' — is expressly prohibited by rule 2.6 of the Uniform Rules of the bar:

'It is improper for counsel to retain a brief previously accepted by him if the circumstances are such that he should reasonably foresee . . . that he would have to surrender the brief for whatever reason, and that the surrender of such brief could cause inconvenience and/or embarrassment J

Nugent JA (Mpati P and Ponnan JA concurring)

A and/or prejudice to his client and/or a colleague who is to succeed him in the brief and/or his instructing attorney.'

[15] In its heads of argument the GCB submitted that an advocate transgresses the rule if he or she holds briefs even to settle two or more cases on the trial roll on a day but I do not think that is necessarily B correct. The rule prohibits accepting a brief if the advocate 'should reasonably foresee' that it would have to be surrendered and whether that is so will depend on the particular case. No doubt there are cases in which settlement negotiations can be expected to be intense and protracted, calling for the advocate's full attention and time, but that will C not always be so, particularly in road-accident cases. Indeed, rule 2.8 recognises that multiple briefs in such cases are not prohibited when it provides that '[it] is not improper for counsel to accept a brief to settle a matter, as opposed to a brief on trial'.

[16] An advocate who accepts a brief to conduct a trial must hold himself or herself available to do so. Because the advocate has held D himself or herself available he or she is generally...