Law Society, Transvaal v Behrman

• Jurisdiction: South Africa
• Judge: Jansen JA, Muller JA, Corbett JA, Joubert JA and Cillié JA
• Judgment Date: 27 August 1981
• Citation: 1981 (4) SA 538 (A)
• Hearing Date: 21 May 1981
• Court: Appellate Division

Corbett, JA.:

In this matter the respondent made application to the Transvaal Provincial Division for his re-admission and enrolment as an attorney. The application was opposed by appellant (the Law Society of the Transvaal, which I shall call "the Law Society"). The Court a quo (consisting of COETZEE and FRANKLIN JJ) granted the application, subject C to certain conditions, and ordered respondent to pay the Law Society's costs of intervention and opposition. The Law Society appeals to this Court against the whole of the judgment and order, save for the order as to costs. Briefly, it is the contention of the Law Society that, having regard to the merits of the case generally, the Court a quo should not have granted the application. The judgment of the Court a quo has been D reported (see Behrman v Law Society, Transvaal 1980 (4) SA 4 (T)).

As appears from that judgment, the respondent has had a somewhat chequered professional career. He was originally admitted to practise as an attorney in the Transvaal in 1943; and he practised in partnership in that Province until the end of 1956. In 1957 he was struck off the roll of E attorneys by the Court (the Transvaal Provincial Division) by reason of a criminal conviction on charges of having corruptly offered a bribe to an officer of the railways police and having done other acts in order to defeat the ends of justice in criminal proceedings brought against certain persons, apparently clients of his. For these offences he was sentenced F to six months' imprisonment with compulsory labour. (For the judgment of the Court in the striking-off proceedings, see Incorporated Law Society v Behrman 1957 (3) SA 221 (T).) In 1963 respondent applied for his re-admission to practise in the Transvaal and this application was granted on 29 August 1963. The application was not opposed by the Law Society. G Thereafter he practised as a professional assistant to a cousin of his, the late Mr Jack Behrman, until 1967. Then, after a short spell out of the legal profession, he commenced practice on his own account. He continued in practice until June 1975. Earlier, as a result of a H complaint lodged with the Law Society by a client of respondent's, the Law Society decided to have respondent's books of account inspected by a firm of accountants and auditors. Mr Faris of that firm carried out the inspection and reported to the Law Society at the end of May. In brief, the gist of this report was that respondent had failed to keep proper books of account, both in general and as to trust moneys, and that as at 31 August 1974, 30 November 1974, 28 February 1975 and 30 April 1975 there had been deficiencies in respondent's trust banking account. As I shall later show, when I come to deal in more detail with the state of respondent's books of account and the financial administration of his practice

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in general, there was in fact no fraudulent misappropriation of trust moneys by respondent for his own benefit; and when his practice was ultimately liquidated, a substantial balance was found to be due to A respondent from the winding-up of his trust account. The books of the practice were later investigated by the commercial branch of the South African police, but no charges were preferred against respondent.

In the meanwhile, however, the Law Society, quite rightly, took a serious view of the situation. On 12 June 1975 it obtained an order of Court B freezing respondent's trust banking account and appointing a curator thereof, pending an application for the striking-off of respondent's name from the roll of attorneys. Shortly thereafter respondent, whose health had been deteriorating for some time, became seriously ill and underwent a C gastrectomy operation. Complications set in and he remained in hospital for about seven weeks. When he was discharged he was still very ill and weak and did not regain his former strength until early in 1977.

In March 1976 the Law Society filed an application for respondent's removal from the roll of attorneys. This was heard on 22 September 1976 D and, despite respondent's opposition, an order was granted striking respondent's name from the roll of attorneys and giving certain ancillary relief. (See Incorporated Law Society, Transvaal v Behrman 1977 (1) SA 904 (T).) It was against this background that the Court a quo in April 1980 heard respondent's application for re-admission and decided, by a judgment E delivered on 13 June 1980, to grant the application.

The appeal presents two features of some novelty. It is, we gather, the first time that an attorney has been re-admitted after having twice previously been struck off the roll for misconduct; and it appears to be the first occasion on which a Law Society has appealed to this Court F against an order admitting a person as an attorney. This latter feature gave rise to a preliminary point being taken before us by respondent's counsel. He contended that, in a situation such as the present one, the Law Society has neither the locus standi nor the statutory power to appeal against the decision of the Court a quo.

While counsel for the Law Society claimed that the appeal had been validly G brought in terms of s 21 (1) of the Supreme Court Act 59 of 1959, respondent's counsel submitted that the Supreme Court Act, and particularly ss 20 and 21 thereof, which deal with the question of appeals, do not contemplate proceedings, including an appeal, by or against anyone other than a party to such proceedings; and that the "right H of audience" accorded to the Law Society in the Court below did not render it a party to the proceedings for the re-admission of respondent as an attorney. Furthermore, so argued respondent's counsel, the Law Society, a creature of statute, did not have the power in terms of the Attorneys Act 53 of 1979 to appeal to this Court from a decision of a Provincial Division.

Section 20 (1) of the Supreme Court Act makes provision for an appeal from a judgment or order of the Court of a Provincial or Local Division in "any civil proceedings" and enacts that in certain instances

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the appeal shall be to the Appellate Division. In Hassim (also known as Essack) v Incorporated Law Society of Natal 1977 (2) SA 757 (A) at 766 - A 8 it was held by this Court that applications for the striking-off of persons from the roll of attorneys were proceedings of a disciplinary nature and not "civil proceedings" as contemplated in s 42 of Act 25 of 1965. And this was followed by a decision of this Court (with reference to Rule 5 (3) of the Rules of the Appellate Division, relating to crossappeals in civil cases) to the effect that such applications were not B "ordinary civil proceedings", but proceedings of a disciplinary nature and sui generis (Cirota and Another v Law Society, Transvaal 1979 (1) SA 172 (A) at 187 - 8). Following Hassim's case supra and other precedents, the Eastern Cape Division held in Cape Law Society v Solomon and Jackson 1978 (3) SA 452 (E) at 455 - 60 that such a striking-off application was not a C "civil proceeding" as contemplated by s 20 of the Supreme Court Act and, therefore, was not appealable in terms of that section; but that in terms of s 21 (1) of the Supreme Court Act an appeal did lie, as of right, against a decision of a Provincial Division striking the name of an attorney from the roll.

Section 21 (1) of the Supreme Court Act provides:

D "In addition to any jurisdiction conferred upon it by this Act or any other law, the Appellate Division shall, subject to the provisions of this section and any other law, have jurisdiction to hear and determine an appeal from any decision of the Court of a Provincial or Local Division."

The purport of this sub-section is to vest in this Court a jurisdiction not conferred elsewhere in the Act, ie in s 20 (Heyman v Yorkshire E Insurance Co Ltd 1964 (1) SA 487 (A) at 492D) and in its application it is not restricted to civil matters (R v Lembada and Another 1961 (1) SA 411 (A) at 420). Nevertheless, the "decision" referred to in the section must be a decision of the same nature as a "judgment" or "order" in the sense in which those terms are used in s 20 of the Supreme Court Act. (As to the F meaning of "judgment" and "order" in this context, see Smit v Oosthuizen 1979 (3) SA 1079 (A) at 1085 - 9, where the authorities are reviewed.)

It was, I presume, with these authorities in mind that counsel for the Law Society submitted that the present appeal was governed by s 21 (1), rather than s 20 (1). I shall proceed on the assumption that, if the matter is G appealable, the appeal is governed by s 21 (1). I do not think in doing so I shall be doing any injustice to the respondent. His counsel did not contend to the contrary, his argument, or rather the first limb thereof, being directed rather to the Law Society's lack of locus standi. I, nevertheless, wish to guard against creating the impression that by making H this assumption I equate in all respects proceedings for the striking-off of an attorney with an application for the re-admission of an attorney. It seems to me that there are certain material differences between the two procedures.

It was not disputed by respondent's counsel that the judgment given by the Court a quo and the order made admitting respondent to the roll of attorneys for the Transvaal was a "decision" within the meaning of that term in s 21 (1). And, indeed, in this connection it is of some interest to note that respondent's counsel conceded that, if the decision of the Court a quo had gone the other way, his client would

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have had an appeal as of right to this Court, presumably in terms of s 21 (1). In the past it certainly has been accepted that this is the position (see, eg Kudo v Cape Law Society 1977 (4) SA 659 (A)) and I have no doubt A that counsel's concession was correctly made...