Law Society, Northern Provinces (Incorporated as the Law Society of the Transvaal) v Maseka and Another

• Jurisdiction: South Africa
• Judge: Landman J
• Judgment Date: 08 March 2005
• Citation: 2005 (6) SA 372 (BH)
• Docket Number: 978/2003
• Hearing Date: 16 February 2005
• Counsel: L G Lever for the applicant. J H F Pistor for the first respondent. M Mmolawa for the second respondent.
• Court: Bophuthatswana High Court

Landman J:

The applicant, the Law Society of the Northern Provinces (NP Law Society) incorporated as the Law Society of the Transvaal, seeks a mandamus against the first respondent, Mr J P Maseka, an attorney practising within the G jurisdiction of this Court, compelling him to produce various records for inspection. The first respondent and the second respondent, the Bophuthatswana Law Society, oppose the application.

Points in limine H

The first respondent raised several points in limine, ie non-joinder of the Bophuthatswana Law Society, the absence of the NP Law Society's jurisdiction and the absence of locus standi on the part of the NP Law Society. But misjoinder has been cured and the locus standi point has been abandoned. I

Jurisdiction of the NP Law Society

I turn to deal with the point that the NP Law Society has no jurisdiction in respect of the first respondent. The NP Law Society is the new name for the Transvaal Law Society. As its name suggests the J

Landman J

society had jurisdiction in the Transvaal province. The territory of the Transvaal province was eroded when the Republics of Bophuthatswana A and Venda were carved out of this province. The society's name change coincides with the division of the province of the Transvaal into the Provinces of Gauteng, North West, Limpopo and Mpumalanga. The NP Law Society has jurisdiction in these areas (except for the territory of the former republics). B

Two sections of the Attorneys Act 53 of 1979 are particularly relevant to the issue of jurisdiction. The NP Law Society contends that these sections create two independent grounds of jurisdiction.

'71 Enquiry by council into alleged cases of unprofessional or dishonourable or unworthy conduct C

(1) A council may in the prescribed manner inquire into cases of alleged unprofessional or dishonourable or unworthy conduct on the part of any attorney, notary or conveyancer whose name has been placed on the roll of any court within the province of its society, whether or not he is a member of such society, or of any person serving articles of clerkship or a contract of service with a member of its society, or of any former candidate attorney referred to in s 8 (4).' D

(My emphasis.)

'84A Law Society of Transvaal may exercise certain powers in respect of practitioners practising in areas of former Republics of Bophuthatswana and Venda

Notwithstanding any other law, the Law Society of the Transvaal and its council, president and secretary, may in respect of practitioners E practising in the areas of the former Republics of Bophuthatswana and Venda, perform any function which is similar to a function assigned to that Law Society, council, president or secretary, as the case may be, by ss 22(1)(a) or (e), (2), 67(2), 69(a), (e) or (m), 70, 71, 72, 73, 74(1)(a), (e) and (l), 78, 81(1)(e) and (l), (2)(a), (d), (e), or (5) or 83(9), (13) or (15).' F

(a) Jurisdiction by virtue of enrolment in TPD

Mr Pistor, who appeared for the first respondent, made certain submissions. These submissions were adopted by Mr Mmolawa, who appeared for the Bophuthatswana Law Society, as his own.

(a)

Mr Pistor pointed out that it is common cause that the name of the respondent is on the roll of the G High Court in the Transvaal Provincial Division.

(b)

He submitted that if s 71 is intended to mean that, if the name of an attorney is on a roll of a court in one province, the law society of that province could conduct an inquiry in respect of such attorney where that attorney is practising in another province H where a law society exists, then the section would be in conflict with the spirit and express provisions elsewhere in the Act and would render such unreasonable results that one can safely say that such an interpretation results in an absurdity.

(c)

The 'golden thread' that runs through several sections of the Act shows that the Legislature intended that the I jurisdiction in respect of any practising attorney lies with the law society of the province where that attorney is practising. He referred to ss 5, 10, 14, 16 and 22.

(d)

It would be absurd to say that a law society in one province (where J

Landman J

the name of the attorney is on the roll) would have the right to conduct an inquiry in terms of s 71 but that the law society A in the province where he practises should file an application for the removal of his name.

(e)

Consequently, he submitted, the provision in s 71 in respect of an attorney whose name is on the roll in that province but who is not a member of that law society must have been intended to B refer to an attorney who is not practising within another province where a law society exists. Therefore the applicant does not derive any jurisdiction in respect of the first respondent in the present case from s 71.

I agree with Mr Pistor that the thread running through the Attorneys Act of 1979 is that a law society has C jurisdiction over attorneys practising within its area of jurisdiction. But the Legislature is entitled to confer extra-territorial jurisdiction on a law society. Prima facie this is what s 71 does. The thrust of Mr Pistor's argument is that where the attorney, who is on the roll in one province but does not practise there, but instead practises in another province, the law society where he or she practises will have jurisdiction to the D exclusion of the law society at the place of enrolment. Mr Pistor submits that if this were not so s 71 leads to an absurdity.

If an attorney has committed unprofessional conduct in another province it would not, in my view, be unreasonable for the law society E having jurisdiction where he or she is enrolled to seek to investigate the matter. If the investigation warrants further steps, that law society could take steps alone or in conjunction with another law society also having jurisdiction, to address the situation.

(b) Concurrent jurisdiction on some issues F

Mr Pistor submitted with regard to s 84A that:

(a)

The powers conferred on the NP Law Society by virtue of the section under discussion only relates to fidelity fund matters.

(b)

The basis of this submission is that the section was inserted by the provisions of s 5 of the Attorneys and Matters Relating to Rules of Court Amendment Act 115 of 1998 (the 1998 Act) G which repealed ch 2 of the Attorneys, Notaries and Conveyancers Act 29 of 1984 of the erstwhile Republic of Bophuthatswana (the Attorneys Act of 1984 (B)). See s 6(4). Chapter 2 of the Attorneys Act of 1984 (B) contained provisions that related to fidelity fund matters. At the same time the 1998 Act extended the jurisdiction of the fidelity fund in H 'South Africa' to attorneys practising in Bophuthatswana.

(c)

Consequently, attorneys in Bophuthatswana were, after the 1998 Act came into operation, to consider the South Africa fidelity fund as their fidelity fund.

(d)

It was therefore necessary to extend the powers of the NP Law Society in respect of fidelity fund matters to attorneys in I the erstwhile Bophuthatswana. This was done by inserting s 84A.

(e)

To read into s 84A any other or wider powers, such as that the NP Law Society was given general powers to inquire into matters other than fidelity fund matters, would be an incorrect interpretation and J

Landman J

would render the continued existence of the Attorneys Act of 1984 (B) unnecessary. If the Legislature intended to A entrust (by virtue of s 84A) such wide powers to the NP Law Society, then it could easily have said so and in such event it would have repealed the Act.

(f)

The facts of the present case will have to be examined in order to establish whether, by virtue of the nature of the complaint against the respondent, it can reasonably be said that the...