Malan and Another v Law Society, Northern Provinces

• Jurisdiction: South Africa
• Judge: Harms ADP, Streicher JA, Cloete JA, Leach AJA and Kgomo AJA
• Judgment Date: 12 September 2008
• Citation: 2009 (1) SA 216 (SCA)
• Docket Number: 568/2007
• Hearing Date: 28 August 2008
• Counsel: LW de Koning for the appellants. AT Lamey (attorney) for the respondent.
• Court: Supreme Court of Appeal

Harms ADP:

F [1] This is an appeal by two attorneys, the brothers André and Francois Malan, who had practised in partnership in Alberton under the name Malan & Partners. Both were removed from the roll of attorneys and conveyancers (and the first appellant, André, from that of notaries) by the High Court, Pretoria. They appeal with leave of the High Court on the ground that the High Court had erred in the exercise of its discretion G by deciding to remove them from the roll. Instead, they say, they should have been suspended from practice for a given time, bearing in mind that they had been provisionally suspended since 10 September 2002.

[2] The leisurely pace of the proceedings needs some explanation. The H appellants did not file affidavits to oppose the application for their provisional suspension because, they said, they were so shocked and traumatised by the allegations that they were unable to reply. (Since most of the allegations turned out to be true and of their own making their shock is somewhat difficult to understand.) During March 2003, the present respondent, the Law Society of the Northern Provinces (the I Society), filed a short supplementary affidavit. It took the appellants more than three years to file their answering affidavits. The High Court delivered its judgment on 14 May 2007 and granted leave to appeal on 10 September 2007.

[3] Although the principles applicable to striking-off applications have J often been stated, it is necessary to restate them once more to emphasise

Harms ADP

aspects that tend to be ignored or misunderstood. The Society launched A its application under s 22(1)(d) of the Attorneys Act 53 of 1979, which provides that '(a)ny person who has been admitted and enrolled as an attorney may on application by the society concerned be struck off the roll or suspended from practice by the court if he, in the discretion of the court, is not a fit and proper person to continue to practise as an B attorney'.

[4] As was said in Jasat v Natal Law Society2000 (3) SA 44 (SCA) ([2000] 2 All SA 310) at para 10, s 22(1)(d) contemplates a three-stage inquiry:

First, the court must decide whether the alleged offending conduct has C been established on a preponderance of probabilities, which is a factual inquiry.

Second, it must consider whether the person concerned 'in the discretion of the court' is 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 D value judgment.

And third, the court must inquire whether in all the circumstances the person in question is to be removed from the roll of attorneys or whether an order of suspension from practice would suffice.

[5] As far as the second leg of the inquiry is concerned, it is well to E remember that the Act contemplates that where an attorney is guilty of unprofessional or dishonourable or unworthy conduct different consequences may follow. The nature of the conduct may be such that it establishes that the person is not a fit and proper person to continue to practise. In other instances the conduct may not be that serious and a law F society may exercise its disciplinary powers, particularly by imposing a fine or reprimanding the attorney (s 72(2)(a)). This does not, however, mean that a court is powerless if it finds the attorney guilty of unprofessional conduct where such conduct does not make him unfit to continue to practise as an attorney. In such an event the court may discipline the attorney by suspending him from practice with or without G conditions or by reprimanding him: Law Society of the Cape of Good Hope v C1986 (1) SA 616 (A) at 638I - 639E; Law Society, Cape of Good Hope v Berrangé 2005 (5) SA 160 (C) ([2006] 1 All SA 290) at 173G - I (SA) and 302 (All SA).

[6] As pointed out in Jasat, the third leg is also a matter for the discretion H of the court of first instance, and whether a court will adopt the one course or the other depends upon such factors as the nature of the conduct complained of, the extent to which it reflects upon the person's character or shows him to be unworthy to remain in the ranks of an honourable profession, the likelihood or otherwise of a repetition of such I conduct and the need to protect the public. Ultimately it is a question of degree. It is here where there appears to be some misunderstanding.

[7] First, in deciding on whichever course to follow the court is not first and foremost imposing a penalty. The main consideration is the protection of the public. J

Harms ADP

A [8] Second, logic dictates that if a court finds that someone is not a fit and proper person to continue to practise as an attorney, that person must be removed from the roll. However, the Act contemplates a suspension. This means that removal does not follow as a matter of course. If the court has grounds to assume that after the period of B suspension the person will be fit to practise as an attorney in the ordinary course of events it would not remove him from the roll but order an appropriate suspension. In this regard the following must be borne in mind:

The implications of an unconditional order removing an attorney from the roll for misconduct are serious and far-reaching. Prima facie, the C Court which makes such an order visualises that the offender will never again be permitted to practise his profession because ordinarily such an order is not made unless the Court is of the opinion that the misconduct in question is of so serious a nature that it manifests character defects and lack of integrity rendering the person unfit to be on the roll. If such a person should in later years apply for re-admission, he will be required D to satisfy the Court that he is 'a completely reformed character' (Ex parte Wilcocks 1920 TPD 243 at 245) and that his 'reformation or rehabilitation is, in all the known circumstances, of a permanent nature' (Ex parte Knox1962 (1) SA 778 (N) at 784). The very stringency of the test for re-admission is an index to the degree of gravity of the E misconduct which gave rise to disbarment.

(Incorporated Law Society, Natal v Roux1972 (3) SA 146 (N) at 150B - E quoted with approval in Cirota and Another v Law Society, Transvaal1979 (1) SA 172 (A) at 194B - D.) It is seldom, if ever, that a mere suspension from practice for a given period in itself will transform a F person who is unfit to practise into one who is fit to practise. Accordingly, as was noted in A v Law Society of the Cape of Good Hope1989 (1) SA 849 (A) at 852E - G, it is implicit in the Act that any order of suspension must be conditional upon the cause of unfitness being removed. For example, if an attorney is found to be unfit of continuing to practise because of an inability to keep proper books, the conditions G of suspension must be such as to deal with the inability. Otherwise the unfit person will return to practice after the period of suspension with the same inability or disability. In other words, the fact that a period of suspension of, say, five years would be a sufficient penalty for the misconduct does not mean that the order of suspension should be five H ...