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

• Jurisdiction: South Africa
• Judgment Date: 29 November 2012
• Citation: 2013 (2) SA 52 (SCA)

General Council of the Bar of South Africa v Geach and Others
2013 (2) SA 52 (SCA)

2013 (2) SA p52

Citation	2013 (2) SA 52 (SCA)
Case No	277/12 and other cases; [2012] ZASCA 175
Court	Supreme Court of Appeal
Judge	Mpati P, Nugent JA, Ponnan JA, Leach JA and Wallis JA
Heard	September 4, 2012
Judgment	November 29, 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.

Flynote : Sleutelwoorde E

Advocate — Misconduct — Appropriate order — Restitution — Court has inherent power to order advocate with right to practise to repay moneys as condition for further practice — Court has no such power in respect of advocate who has been struck off.

Headnote : Kopnota

F In issue in this case was whether a high court correctly exercised its powers under s 7 of the Admission of Advocates Act 74 of 1964 (the Act) to suspend certain advocates from practice and to strike others from the roll, and also whether it had been competent for the court to order the advocates to repay moneys to the Road Accident Fund.

G The facts were that the advocates had accepted multiple briefs to conduct trials on the same day against the Road Accident Fund and in each case had charged a full trial fee. The relevant society of advocates had disciplined them and applied to a high court for it to note the sanctions imposed. Ultimately the high court, exercising its powers under s 7 of the Act and its inherent powers, suspended a first group of the advocates and ordered that H they repay moneys to the Fund; and struck a second group from the roll and ordered them also to repay moneys. The General Council of the Bar (the GCB) appealed the high court's findings in respect of the first group, contending that they ought to have been struck from the roll; and the advocates in the second group appealed the high court's orders striking them off, as well as the orders of repayment. (Paragraphs [17], [38], [45], [47] and [49] at 60F – G, 65G – 66C, 67D – E, 67G – I and 68B – D.)

I The law relevant to the appeals of both groups of advocates was in s 7(1)(d) of the Act:

'7 Suspension of advocates from practice and the removal of their names from the roll of advocates

(1) Subject to the provisions of any other law, a court of any division J may, upon application, suspend any person from practice as an

2013 (2) SA p53

advocate or order that the name of any person be struck off the roll of A advocates —

. . .

(d)

if the court is satisfied that he is not a fit and proper person to continue to practise as an advocate; . . . .'

There were three stages in the enquiry into whether such action should be taken. B First, whether the impugned conduct had been established; second, whether the individual was fit and proper to continue to practise; and third, whether the individual was to be removed from the roll or suspended. (Paragraph [50] at 68D – H.)

Only the high court's findings on the third stage were controversial, the appeals directed solely to whether the court properly exercised its discretion at this C stage. The exercise of this discretion involved two enquiries: the first was to establish the material facts, and the second was to evaluate those facts towards the correct objective. Only if the court had incorrectly conducted these enquiries could a court of appeal interfere with its decision. (Paragraphs [56] – [57], [60] – [61] and [65] – [66] at 69H – 70B, 70F – 71C and 71I – 72C.)

In this case the end to which the high court had conducted its enquiry was the D protection of the public. The Supreme Court of Appeal noted that once an advocate had exhibited dishonesty it might be inferred that the dishonesty would recur and for that reason he ought ordinarily to be barred from practice. Only in exceptional circumstances would this inference not need to be drawn and striking off not need to follow. The exception could be expressed in the distinction of a 'character defect' as against a 'moral lapse'. (Paragraphs [67] and [69] at 72C – E and 72F – I.) E

Applying this law to the high court's treatment of the cases of the first group of advocates, the SCA held that the high court had been alert to the above distinction and had directed its enquiry to whether the cases were the exception. It had also proceeded from a correct appreciation of the facts and F had directed its enquiry toward answering the correct question. Having done so it was difficult to see how the appellants could suggest that the enquiry was misdirected. The complaint appeared to be that the high court ought to have evaluated the facts differently, which was not a ground on which the SCA could interfere with the decision. (Paragraphs [69] – [70], [73] – [76] and [83] at 72F – 73B, 73H/I – 74H and 76A – C.)

As to the high court's order of repayment to the Fund, the GCB submitted that G it was not competent in respect of the advocates who were struck off. The SCA agreed, holding that once the court had struck them off, its disciplinary powers over them were exhausted. In respect of these powers, the Act provided that a court could permit a person to practise and also withdraw this permission by striking off or suspension. However, the Act was silent about the powers of a court to discipline practitioners while they enjoyed H the right to practise. In this regard, a court had an inherent power, and this permitted it to order repayment of moneys as a condition for further practice. (Paragraphs [77] – [78] at 74H – 75C.)

The SCA accordingly held that the high court had not misdirected itself in the exercise of its discretion to suspend the first group of advocates and dismissed the GCB's appeal. (Paragraphs [83] and [86] at 76A – C and 76F – H.) I

As to the second group of advocates who appealed their striking off and orders of repayment, they did not contest the high court's findings on the facts or that they were not fit and proper to continue to practise. They contended that the high court had erred in the exercise of its discretion as to whether to strike them off or to suspend them. (Paragraphs [3] and [88] at 57F – G and 77C – I.) J

2013 (2) SA p54

A The SCA considered the reasoning and findings of the high court and concluded that the advocates had failed to establish a ground on which it could interfere with the decision. Accordingly the advocates' appeals had to fail. However, the high court's orders that the advocates repay moneys to the Fund were set aside. (Paragraphs [116] and [118] at 89E – I and 90C – F.)

Cases Considered

Annotations: B

Case law

Southern Africa

A v Law Society of the Cape of Good Hope 1989 (1) SA 849 (A): referred to

African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 (3) SA 699 (A): referred to

Aircraft Completions Centre (Pty) Ltd v Rossouw and Others 2004 (1) SA 123 (W): referred to C

Algemene Balieraad van Suid-Afrika v Burger en 'n Ander 1993 (4) SA 510 (T): referred to

Besselaar v Registrar, Durban and Coast Local Division and Others 2002 (1) SA 191 (D): referred to

Botes and Another v Nedbank Ltd 1983 (3) SA 27 (A): referred to D

Botha v Law Society, Northern Provinces 2009 (1) SA 227 (SCA): dictum in para [3] applied

Botha and Others v Law Society, Northern Provinces 2009 (3) SA 329 (SCA): referred to

Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another [2012] ZACC 17: referred to E

City of Cape Town v Arun Property Development (Pty) Ltd and Another 2009 (5) SA 227 (C): referred to

De Villiers and Another v McIntyre NO 1921 AD 425: dicta at 428 and 435 applied

Estate Agency Affairs Board v McLaggan and Another 2005 (4) SA 531 (SCA): referred to F

Ex parte Knox 1962 (1) SA 778 (N): referred to

Ex parte Ngwenya: In Re Ngwenya v Society of Advocates, Pretoria, and Another 2006 (2) SA 88 (W): referred to

Ex parte Swain 1973 (2) SA 427 (N): referred to

Fine v Society of Advocates of South Africa (Witwatersrand Division) 1983 (4) SA 488 (A): referred to G

General Council of the Bar of South Africa v Matthys 2002 (5) SA 1 (E): referred to

Hayes v The Bar Council 1981 (3) SA 1070 (ZA): referred to

Jacobs en 'n Ander v Waks en Andere 1992 (1) SA 521 (A): referred to

Jasat v Natal Law Society 2000 (3) SA 44 (SCA) ([2000] 2 All SA 310): dictum in para [10] applied H

Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA) ([1998] 3 All SA 577): dictum at 654E – H and 655G applied

Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA) ([2003] 3 All SA 1): referred to

Law Society of the Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA) ([2002] 4 All SA 441): referred to I

Law Society of the Cape of Good Hope v C 1986 (1) SA 616 (A): referred to

Law Society of the Cape of Good Hope v Peter 2009 (2) SA 18 (SCA): dictum in para [16] applied

Lepholletsa v S [1997] 3 All SA 113 (A): dictum at 115f – g applied

Malan and Another v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) ([2009] 1 All SA 133): dictum in para [4] applied J

2013 (2) SA p55

Manong and Associates (Pty) Ltd v City of Cape Town and Another A 2011 (2) SA 90 (SCA): referred to

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