Hassim (Also Known as Essack) v Incorporated Law Society of Natal

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Jansen JA, Rabie JA, Muller JA and Joubert AJA
• Judgment Date: 17 March 1977
• Citation: 1977 (2) SA 757 (A)
• Hearing Date: 01 March 1977
• Court: Appellate Division

Hassim (Also Known as Essack) v Incorporated Law Society of Natal
1977 (2) SA 757 (A)

1977 (2) SA p757

Citation	1977 (2) SA 757 (A)
Court	Appellate Division
Judge	Rumpff CJ, Jansen JA, Rabie JA, Muller JA and Joubert AJA
Heard	March 1, 1977
Judgment	March 17, 1977

Flynote : Sleutelwoorde

Attorney — Misconduct — Disciplinary proceedings — Such not civil proceedings as contemplated in sec. 42 of Act 25 of 1965 — G Attorney convicted of a criminal offence — Court entitled to accept evidence of such conviction as prima facie proof of the commission of the offence — Attorney entitled to prove he was wrongly convicted — Practice of admitting such evidence well established — Evidence — Admissibility of — Rule that evidence of a conviction of a party H in a criminal case is irrelevant and inadmissible in a civil action — Such evidence acceptable as prima facie proof of the commission of the offence in disciplinary proceedings against an attorney — Such proceedings not civil proceedings as contemplated by sec. 42 of Act 25 of 1965.

Headnote : Kopnota

Disciplinary proceedings against an attorney before the Supreme Court are not civil proceedings as contemplated in section 42 of the Civil Proceedings Evidence Act, 25 of 1965.

Accepting that the Court acts judicially in disciplinary proceedings against attorneys,

1977 (2) SA p758

then, once it is decided that applications for the striking off of attorneys are not legal proceedings within the contemplation of section 42 of Act 25 of 1965, the rule in Hollington v F. Hewthorn and Co. Ltd., (1943) 2 All E.R. 35, that, in a civil action, evidence of the conviction of a party of a criminal A offence is irrelevant and therefore inadmissible as proof of guilt, does not apply. That being so, there is no valid reason why the Court, in undertaking an enquiry which is clearly of a disciplinary nature, should not be entitled to accept evidence of the conviction for the limited purpose which it does, namely as prima facie proof of the commission of the offence, leaving it to the attorney concerned to prove that he was wrongly convicted. It seems not only a sensible and practical B procedure, but it is also fair in that the attorney is allowed a proper opportunity of meeting the charge brought against him. Over the years, the practice has crystallised of accepting such evidence as prima facie proof of the commission of the offence, and that practice is well established.

The decision in the Natal Provincial Division in Incorporated Law Society of Natal v Hassim (also known as Essack), 1976 (4) SA 332, confirmed. C

Case Information

Appeal against a decision in the Natal Provincial Division (KRIEK, J., and HOWARD, J.). The facts appear from the judgment of MULLER, J.A.

R. C. C. Feetham, S.C. (with him C.R. Nicholson), for the appellant: The portions of the founding affidavit which the appellant applied to have struck out, reflected (a) the D findings made by the Natal Provincial Division in a criminal case in which the appellant was the accused that the appellant was guilty of certain crimes and had given untruthful evidence at his trial; (b) the findings of this Court in an appeal to it against the judgment of the Natal Provincial Division in the said criminal case. The portions of the founding affidavit E which the appellant sought to have struck out constituted inadmissible evidence in terms of the law stated in Hollington v F. Hewthorn and Co. Ltd., 1943 K.B. at pp. 594 - 602; (1943) 2 All E.R. 35, in that they (a) related to res inter alios acta; (b ) were hearsay evidence of the opinion of another Court; (c) were irrelevant. The law stated in Hollington's case applies in this matter because it was part of the law F of evidence which was in force in this country on 30 May 1961. Secs. 42 and 44 of the Civil Proceedings Evidence Act, 25 of 1965; sec. 1 of Law 17 of 1859 (N); sec. 292 of the Criminal Procedure Act, 56 of 1955, as amended; Ex parte Minister of Justice: In re S. v Wagner, 1965 (4) SA at p. 513F - G; Van der Linde v Calitz, 1967 (2) SA at pp. 246H - 247A; Rusmarc G S.A. (Pty.) Ltd. v Hemdon Enterprises (Pty.) Ltd., 1975 (4) SA at p. 630D - G. That the law stated in Hollington's case was still the law in England on 30 May 1961 is clear from the decision of the Court of Appeal in Goody v Odham's Press, (1966) 3 All E.R. at pp. 371I - 372B. Hollington's case has been followed in many cases decided in this country. See, e.g., Birkett v Accident Fund and Another, 1964 (1) SA at pp. 566H H - 567B; Yusaf v Bailey and Others. 1964 (4) SA at pp. 126G - 127A. The law in Hollington's case is also binding upon this Court. Cf. Surmon v Surmon, 1926 AD at p. 50; 84 S.A.L.J. (August 1967), at p. 330, article by Ellison Kahn; 85 S.A.L.J. (February 1968) at p. 77, article by Jean Davids; 87 S.A.L.J. (August 1970) at p. 336, article by D. Zeffertt. It has been held that an application made by a law society for an order striking an attorney off the roll is not a civil suit or action and that it is difficult to place it in a particular legal docket. Solomon v Law Society of the Cape of Good Hope, 1934 AD at pp. 408 - 409; Lord

1977 (2) SA p759

DE VILLIERS, C.J., suggested that such proceedings are quasi -criminal in nature. Gabriel v Natal Law Society. 1931 AD at p. 330; Solomon's case, supra at p. 408. It has been said that the proceedings are statutory and sui generis and that the Law Society's role is merely to submit facts to the Court and to leave it to the Court to determine how to deal A with the attorney in the exercise of the Court's disciplinary power. Solomon's case supra at pp. 408 - 409. It has been held that the onus of proof in an application for striking off is that applicable in a civil case, i.e. proof on a preponderance of probability, and that earlier decisions in the Provincial Divisions requiring proof beyond a reasonable doubt were B incorrect. Olivier v Kaapse Balieraad, 1972 (3) SA at pp. 495H - 496H. Whether proceedings of the kind in question are quasi -civil or quasi -criminal or whatever the precise category may be into which they fall they concern matters of grave importance and the Court, in dealing with them, acts judicially. Where the facts are in dispute, the Court should require nothing less than admissible evidence to establish them. Incorporated Law Society v Lewin, 1917 E.D.L. at p. 390; C Incorporated Law Society v Seme, 1927 T.P.D. at pp. 860 - 861; Incorporated Law Society v Coetzer, 1932 OPD at pp. 156 - 157. Cf. Attorney-General of Gambia v N'Jie, 1961 A.C. at pp. 631, 633; Bhandari v Advocates' Committee, (1956) 3 All E.R. at pp. 744I - 745B; Halsbury, Laws of England, 3rd ed., D vol. 36, p. 220, para. 305. If there is a rule of practice in our Courts it is either warranted by our law or it is not. If it is not warranted and it is challenged, it will not be given effect. Bydawell v Chapman, N.O., 1953 (3) SA at p. 521D; Arenstein v Secretary for Justice, 1970 (4) SA at p. 279C. In so far as a rule of practice has grown up in our Courts E allowing disputed facts in applications for the striking off of attorneys to be established by some means less than admissible evidence, such practice is not warranted by our law and is contrary to principle. In any event, the so-called practice is (a) uncertain and (b) has never been applied to the detriment of an attorney in any case in which its validity has been challenged. It is true that this Court spoke of a practice F which existed in proceedings of this kind in Solomon's case supra at p. 412 but in that case counsel for the appellant expressly did not challenge the practice and also admitted that a criminal conviction may be regarded as prima facie evidence establishing the guilt of "the accused". Solomon's case, supra at p. 411. In consequence, the Court did not then consider the G points which have been raised in the present case. The following differences of view are to be found in the reported cases concerning the procedure to be followed in applications for the striking off of an attorney from the roll: (a) In Incorporated Law Society v Lambert, 1906 T.S. at pp. 637, 638 - 639, INNES, C.J., said it would perhaps have been sufficient to examine the record of the criminal case in order to H ascertain whether there was evidence to support the finding. However, in view of the respondent's assertions of his bona fides the Court went carefully into the details of the case. SMITH, J., said that the finding of the jury was almost conclusive of the matter, but he read through the record several times and was unable to see his way to go behind the jury's finding that the respondent had been guilty of fraudulently appropriating moneys. (b) In Incorporated Law Society v De Jong, 1909 T.S. at pp. 497 - 499, SMITH, J., said that the fact

1977 (2) SA p760

of the conviction, "of course, is not conclusive evidence in the matter but is prima facie evidence". Nevertheless (the respondent having disputed certain important facts) the case was in effect reheard by the Court. MASON, J., said that the A offence had been conclusively proved before the Court apart from the conviction before the magistrate. (c) In Incorporated Law Society v Seme, 1927 T.P.D. at pp. 860 - 861. GREENBERG, J., having found that it was unnecessary to go the length of finding that proof of the criminal conviction by a Judge in another case was inadmissible, proceeded to examine the record B of the criminal case as though the matter were an appeal from a conviction by a magistrate, and came to the conclusion that the charge had not been proved. GEY VAN PITTIUS, J., concurred. (d) In Incorporated Law Society v Levin, 1927 T.P.D. at pp. 998 - 9, and 1928 T.P.D. at pp. 232 - 3, TINDALL, J., held that, if the attorney wanted to raise the issue that the conviction was not justified, the evidence taken at the...