Jasat v Natal Law Society

• Jurisdiction: South Africa
• Judge: F H Grosskopf JA, Nienaber JA, Marais JA, Scott JA, Zulman JA
• Judgment Date: 28 March 2000
• Citation: 2000 (3) SA 44 (SCA)
• Docket Number: 78/98
• Hearing Date: 20 March 2000
• Counsel: A Van Zyl SC (with him A R Potgieter) for the appellant. A J Dickson SC (for the respondent).
• Court: Supreme Court of Appeal

Scott JA:

[1] The appellant practises as an attorney in Pietermaritzburg. He appeals to this Court against an order of the Natal Provincial Division striking his name off the roll of attorneys. J

Scott JA

[2] In July 1993 the appellant was charged with housebreaking with A intent to steal and theft. On 12 December 1994 he was convicted in the regional court of housebreaking with intent to trespass and was sentenced to a fine of R3 000. He appealed to the Natal Provincial Division. The appeal was dismissed on 5 December 1995. On appeal to this Court the conviction was altered to 'housebreaking with the B intent of contravening s 1(1)(a) of the Trespass Act 6 of 1959, and the contravention thereof'; the appeal was otherwise dismissed. The judgment, which was delivered on 7 March 1997, has been reported - see S v Jasat1997 (1) SACR 489 (SCA).

[3] Shortly thereafter the respondent launched the proceedings C resulting in the order against which the appellant now appeals. In its founding papers the respondent relied not only on the appellant's conviction but also on his conduct at the criminal trial, viz the raising of what was described by the respondent's chief executive officer as 'a specious alibi defence'.

D [4] It is necessary to set out the facts of the criminal case. I shall do so in brief as they appear more fully from the reported judgment of Nienaber JA in S v Jasat (supra). On Friday, 2 April 1993, an attorney, Mr Baboo Akoo who practised from a suite of offices in Loop Street, Pietermaritzburg, fled the E country for London. On Sunday, 4 April 1993, he telephoned his clerk, Mr Chutterpaul, to say that he would not be returning to South Africa. He suggested that Chutterpaul help himself to certain items in the office, including the law reports. The latter commendably declined to do so and reported the matter to the Natal Law Society instead. The following day, Monday, 5 April 1993, Mr Rees, an executive officer F of the respondent, took control of the premises. He had the lock to the front door changed; he also had a duplicate key made for a filing cabinet which, according to Chutterpaul, contained files relating to the appellant. On the same day the appellant telephoned Rees; he told him that certain files in the office belonged to him and that he was anxious to recover them. Rees' attitude was that no files would be G released to the appellant until the Law Society had been appointed curator bonis and the appellant had signed the usual form indemnifying the Law Society. The following day, Tuesday, 6 April 1993, was a public holiday. Mr Pienaar, a consulting engineer who worked in the office next door to that of Akoo, encountered two men at H the entrance. The one was carrying a box of files, the other, whom Pienaar later identified as the appellant, was busy wiping the aluminium frame of the door to Akoo's offices. When confronted, the man with the files said that they were from 'Special Security Services' and that they had been sent to collect files. After they had gone Pienaar examined the lock. It had been forced. He thereupon I telephoned the police. In the mean time, Mr Dlamini, a security guard on duty in the building, had recorded the registration numbers of all motor vehicles parked in the parking area. One of them was a vehicle which proved to be registered in the name of a company of which the appellant was the sole director. Dlamini also observed this vehicle being driven by a person whom he J

Scott JA

described as an 'Indian male'. On A learning that a break-in had occurred, Rees arrived at the premises at about 11 am. The first thing he noticed was that the filing cabinet for which he had had a key made was missing. The appellant denied that he had broken into Akoo's office or arranged for someone else to do so. He testified that at the relevant time he and Akoo's cousin, Mr Yusuf Akoo, were busy hiring a truck for the purpose of assisting Akoo's B wife to move house. Mr Yusuf Akoo gave evidence in support of the appellant's alibi.

[5] The Regional Court rejected the appellant's alibi. Because, however, the State had failed to establish that the filing cabinet and the missing files belonged to someone other than the appellant, he was convicted of housebreaking with intent to trespass and trespass as C opposed to housebreaking with intent to steal and theft. As previously indicated the conviction was confirmed on appeal to the High Court but altered in a minor respect on appeal to this Court.

[6] In his answering affidavit filed in the striking-off proceedings, the appellant admitted for the first time that he had lied under oath D at the criminal trial. He said that he had indeed entered Akoo's premises and removed the steel filing cabinet as well as other files and that he had been correctly identified by Mr Pienaar. He contended, however, that by reason of his alibi defence all the facts relating to his conduct had not emerged during the criminal proceedings and that he E was not guilty of the offence of which he had been convicted as he honestly believed that he was entitled to enter Akoo's premises when he did. In addition, he sought to explain how it had come about that he had lied in court and contended that his conduct and conviction notwithstanding, he remained a fit...