Law Society, Northern Provinces v Mogami and Others

• Jurisdiction: South Africa
• Judge: Harms DP, Mthiyane JA, Heher JA, Mlambo JA and Maya JA
• Judgment Date: 22 September 2009
• Docket Number: 588/08
• Hearing Date: 03 September 2009
• Counsel: AT Lamey (attorney) for the appellant. ZP Makondo for the respondent.
• Court: Supreme Court of Appeal

Harms DP:

Introduction

[1] The appellant, the Law Society of the Northern Provinces (incorporated D as the Law Society of Transvaal), launched an application against two attorneys, Mr TC Mogami and Mr NMD Mabuse, in the Bophuthatswana High Court. The application was in two parts. Part A was for an interim order suspending them from practice as attorneys pending the final determination of part B, and for ancillary relief. Part B was for an order striking them from the roll of attorneys, and for costs. E

[2] The relief sought in part A of the notice of motion was granted by Hendricks J, but the full bench (Monama AJ in a judgment concurred in by Gura J), when dealing with part B, refused to take any punitive action against the respondents; permitted them to recommence their practice; F and ordered the parties to pay their own costs. The appeal is against this judgment. As a result of the interim order the respondents were effectively suspended from practising for a period of about ten months.

[3] Although the full bench was able to deliver judgment on the merits within six weeks the application for leave to appeal was handled differently. The application was filed on 15 November 2007; the matter G was heard only on 14 March 2008, and it took nearly seven months to deliver on 3 October 2008 a one-page judgment granting leave. It is inexplicable why such an uncomplicated judgment took so long to deliver especially in a case such as this which not only affects the parties but where a public-interest element is involved H (Pharmaceutical Society of South Africa and Others v Tshabalala-Msimang and Another NNO; New Clicks South Africa (Pty) Ltd v Minister of Health and Another 2005 (3) SA 238 (SCA) ([2005] 1 All SA 326; 2005 (6) BCLR 576) in paras 36 - 38). Courts are obliged to deal with applications for leave expeditiously and systems ought to be in place enabling courts to hear them soon after having been filed. There is also no reason why they I cannot be disposed of in chambers without oral argument.

[4] Applications for the suspension or removal from the roll require a three-stage enquiry. First, the court must decide whether the alleged offending conduct has been established on a preponderance of probabilities, which is a factual inquiry. Second, it must consider whether the J

Harms DP

A person concerned is 'in the discretion of the court' not a fit and proper person to continue to practise. This involves a weighing-up of the conduct complained of against the conduct expected of an attorney and, to this extent, is a value judgment. And third, the court must enquire whether in all the circumstances the person in question is to be removed B from the roll of attorneys or whether an order of suspension from practice would suffice (Jasat v Natal Law Society 2000 (3) SA 44 (SCA) ([2000] 2 All SA 310); Malan and Another v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) ([2009] 1 All SA 133; [2008] ZASCA 90) at para 10).

C [5] The full bench found the respondents guilty of some offending conduct but either overlooked or failed to assess the evidence in regard to the other allegations properly. In spite of its finding of guilty it did not consider the second question squarely but moved immediately to the third, holding that the period of suspension due to the interim order was a sufficient penalty for their transgressions.

The first enquiry: the offending conduct D

[6] The respondents were admitted as attorneys of the Bophuthatswana High Court. They are members of the local law society, the Law Society of Bophuthatswana. It was joined as a respondent in the court below E because of its possible interest in the matter and took part in some of the proceedings but chose not to be involved in the appeal.

[7] The Attorneys Act 53 of 1979 was amended during 1998 by the Attorneys and Matters Relating to Rules of Court Amendment Act 115 of 1998. In brief, the effect of the amendment was that for purposes F of Ch 2 of the principal Act (the provisions dealing with the Fidelity Fund) attorneys practising within the former Bophuthatswana are deemed to be members of the appellant (s 55); and the appellant obtained concurrent jurisdiction with the Bophuthatswana society in relation to disciplinary matters (s 84A). The powers given to the G appellant by s 84A include the jurisdiction to make rules as to conduct that constitutes unprofessional or dishonourable or unworthy conduct; to enquire into any case of alleged unprofessional or dishonourable or unworthy conduct; to apply for the suspension or striking-off of an attorney on the ground that the attorney is not a fit and proper person to continue to practise as an attorney; to prescribe the books, records, H certificates or other documents to be kept and inspection thereof; and to direct any practitioner to produce for inspection any book, document, record or thing.

[8] Practitioners of Bophuthatswana and members of the Bophuthatswana I society objected to the fact that the appellant was given these powers and refused to comply with the law as it stands. The society even instructed their members to ignore the law by refusing to recognise the appellant's powers and jurisdiction as conferred by the Act. The judgment in Law Society, Northern Provinces (Incorporated as the Law Society of the Transvaal) v Maseka and Another 2005 (6) SA 372 (B) is in J this regard particularly important. It involved an application permitting

Harms DP

the appellant to inspect the books of the then chair and acting administrator A of the society. Judgment was delivered on 8 March 2005 and the court held that the appellant had the powers referred to in the preceding paragraph (at 378D - G). On 23 May the society resolved more or less to ignore the judgment, insisting that all disciplinary matters against its members should be dealt with by it. Both this court and the Constitutional B Court dismissed applications for leave to appeal, the latter on 4 October 2005. In spite of this the society made common cause with the respondents during May 2006 in rearguing the same point, namely that the appellant had no locus standi to (a) investigate complaints against the respondents; (b) require an inspection of the respondents' books; and (c) launch the present application. C

[9] It went further. A council member of the Bophuthatswana society (Mr RV...