Kekana v Society of Advocates of South Africa

• Jurisdiction: South Africa
• Judge: Hefer JA, Nienaber JA, Olivier JA, Scott JA, Melunsky AJA
• Judgment Date: 01 June 1998
• Citation: 1998 (4) SA 649 (SCA)
• Docket Number: 57/98
• Hearing Date: 18 May 1998
• Counsel: JNM Poswa (with him CJ Thomas) for the applicant Q Pelser for the respondent
• Court: Supreme Court of Appeal

Hefer JA:

This is a petition for the reinstatement of an appeal which, in terms of Rule 5(4A)(b) of the Rules of this Court, is deemed to have been withdrawn. Not unlike a petition for condonation it falls to be considered upon a conspectus of all the relevant features including the J

Hefer JA

degree of non-compliance with the Rules, the explanation therefor, the importance of the case and the prospects A of success.

Let me say at the outset that, when I read the papers the first time, it appeared to me that this might well be a case where the non-observance of the Rules was so flagrant that the prospects of success need not be considered. (Compare Ferreira v Ntshingila1990 (4) SA 271 (A) at 281I--282B.) Although the applicant is B seeking to appeal against an order removing his name from the roll of advocates and one would in such a case expect diligent observance of the Rules, the degree of non-compliance was gross. After the Court a quo had granted leave to appeal not a single step was taken in time. In fact, for about five months and for reasons that we C do not know, the attorneys who represented the applicant at that stage took no steps whatsoever to prosecute the appeal. When the respondent informed him that his appeal had lapsed the applicant put together something which he apparently thought could pass for the record of the proceedings in the Court a quo, but which was in such a state that it was not accepted when he presented it to the Registrar of this Court. The applicant is not a D layman; he was admitted as an advocate during 1988, lectured at a university for four years, passed the national Bar examination, and practised his profession for another four years until his name was removed from the roll. But in his own words, it was the Registrar who then 'apprised (him) of procedures and requirements'. Thereafter E he enlisted the services of a Bloemfontein attorney. It took another (unexplained) four months before a petition for condonation was prepared and filed, and an additional (unexplained) two months before the Registrar received the notice of appeal and record.

At the hearing, however, although the petition tells a woeful tale of ignorance, ineptness and indifference as far as F the Rules are concerned, we called upon counsel on both sides to address us on the prospects of success. We did so because we also have to take account of the applicant's personal intervention after becoming aware that his attorneys had left him in the lurch, his serious (though inept) efforts thereafter to have the appeal reinstated, the G dire consequences of the order removing his name from the roll, and the fact that the respondent opposes the application on the ground of the absence of prospects of success only. Having heard the argument and having considered all relevant matters including the prospects of success, I am now firmly of the view that the petition H ought to be refused. I proceed to demonstrate why I have come to this conclusion.

The application for removal came about as a result of a report which the respondent received from a Judge who had presided at a session of the Circuit Court at Tzaneen where the applicant and a colleague, Mr Mabena, had I appeared as pro Deo counsel. The Bar Council decided to hold an internal enquiry. Charges were prepared and served. But it soon became clear that there were material disputes of fact. This, and the fact that serious allegations involving dishonesty on the part of the applicant and Mabena had been received, persuaded the Council to discontinue the enquiry and to commence proceedings for the removal of their names from the roll. J

Hefer JA

In the founding affidavit the chairman of the Bar Council brought several matters relating to the Tzaneen Circuit to A the Court's attention. With most of these we need not concern ourselves because they have fallen by the wayside. What does concern us is an allegation to the effect that the applicant and Mabena had submitted claims to the Department of Justice for amounts in respect of hotel accommodation and meals taken at restaurants to B which they were not entitled. The gravamen of the respondent's case in this regard was that the applicant and Mabena had included in their claims the costs of the hotel accommodation and restaurant meals of two women who were in their company at Tzaneen. The claims in respect of accommodation eventually also came to nought C and nothing further need be said in that regard. As far as the meals are concerned, it is common cause that the applicant submitted two accounts with his pro Deo claim. One of these was from the Emerald Creek Spur restaurant for food and other items served during the night of 26--27 October 1994. It reflected two main courses. The other account was from the Porterhouse restaurant for food and other items served on 9 November D 1994. It also reflected two main courses. The accounts which Mabena submitted with his claim were similar, except that his Porterhouse account reflected only one main course. The respondent's case was that the applicant had claimed the costs of his guest's meal on both occasions, and that Mabena had done the same in respect of the first occasion. E

In support of its allegations regarding the meals at the Emerald Creek Spur the respondent filed an affidavit by Mr John Kirstein in which he described how he had served a party consisting of two men and two women in that restaurant during the night of 26--27 October 1994 and afterwards prepared two separate accounts, each reflecting two main courses. They were the accounts referred to earlier. F

In his opposing affidavit the applicant did not dispute that he and Mabena had visited the restaurants on the occasions in question. But he denied the presence of companions. His version was that in the Emerald Creek Spur he and Mabena each first consumed one main course and, because they were still hungry, thereafter ate G another. His only explanation for the two main courses reflected in the Porterhouse account was that he had inadvertently paid some other customer's account. Mabena only filed a short affidavit confirming what the applicant had said about the meals taken at the Emerald Creek Spur.

The matter eventually came before two Judges for oral evidence. Mr Kirstein confirmed the contents of his H affidavit and particularly that the party in respect of whom the first two accounts had been issued consisted of two men and two ladies. Mabena did not testify but the applicant did. In his evidence he repeated his assertion that he and Mabena were alone when they went to the restaurant during the night of 26--27 October and...