Natal Law Society v N

• Jurisdiction: South Africa
• Court: Natal Provincial Division
• Judge: Milne JP, Kriek J and Galgut J
• Judgment Date: 07 June 1985
• Citation: 1985 (4) SA 115 (N)
• Hearing Date: 26 April 1985

Milne JP:

At the conclusion of argument in this matter, the majority of the Court had formed a clear view that the application should be dismissed. We were all agreed, however, that the respondent should pay the applicant's costs. The application was accordingly dismissed, and the respondent was C ordered to pay the applicant's costs. Reasons for our decision were to be filed later. These are my reasons.

This is an application, in terms of s 22 (1) (d) of the Attorneys Act 53 of 1979, to strike the respondent off the roll of attorneys. He was admitted as an attorney of the Natal Provincial Division on 2 June 1980.

During August 1982, the respondent declined to testify as a D State witness in a trial in which five accused were charged with treason. After due enquiry, it was found that he had no just excuse within the meaning of those words in s 189 of the Criminal Procedure Act 51 of 1977. He was sentenced to three years' imprisonment. He appealed to the Appellate Division against the sentence, but the appeal was dismissed.

All this is common cause. It is, furthermore, expressly E conceded by the respondent in his affidavit that he was correctly found to have contravened the section. In para 17 of his affidavit he says:

"I fully accept the finding of the Court that I had, in law, no just excuse for my refusal to testify."

The contravention of s 189 is referred to in the affidavit F filed on behalf of the applicant as a conviction. Although he made no special point of it, Mr Kentridge pointed out, correctly in my view, that technically speaking it is probably not correct to refer to such a contravention as a "conviction". See the remarks of RABIE JA in S v Mthenjane 1979 (2) SA 105 (A) at 111A. It is, nevertheless, very closely akin to a conviction. It was open to the respondent to challenge the G correctness of the finding that he had contravened the provisions of s 189 but, as already mentioned, he expressly accepted the correctness of that finding.

In the affidavit filed on behalf of the applicant, it is submitted that:

"As an officer of this honourable Court, the respondent acted improperly and has proved himself not to be a fit and proper person to continue to practise as an attorney of this honourable Court."

H It is further submitted that:

"As an officer of this honourable Court, the respondent has a duty to testify in proceedings before this honourable Court in respect of all matters of which he has knowledge and his failure and/or his refusal to allow himself to be sworn in and subsequently to testify about matters of which he has personal knowledge constitutes a breach of such duty, notwithstanding I the personal objections which the respondent raised at the said proceeding."

It is on this ground, and this ground alone, that the applicant submits that the respondent should be struck off.

As the respondent is an admitted attorney, it appears to me that the onus lay upon the applicant to satisfy the Court on a balance of probabilities that the respondent was not a fit and J proper person to practise. See Olivier v Die Kaapse Balieraad 1972 (3) SA 485 (A) at

Milne JP

495 - 496H. (That case dealt with the degree of proof but it A is clearly implicit that the onus was on the applicant.) If an attorney has been convicted of a criminal offence, that may, depending on the circumstances, of itself suffice to discharge the onus; or it may go some way to discharging the onus. It is quite obvious that a minor traffic offence would not suffice. On the other hand, the circumstances would have to be exceptional indeed for an attorney who had committed treason B not to be struck off or suspended. In Incorporated Law Society, Transvaal v Mandela 1954 (3) SA 102 (T) at 109, RAMSBOTTOM J (with whom ROPER J concurred) said:

"Every attorney in the Union must take an oath of allegiance when he is admitted to practice. It is an implied condition of C his right to continue in practice that he shall continue to give true allegiance. If he repudiates his allegiance, he breaches a condition of his right to practice. In addition, the violation of an oath, solemnly taken by an attorney, undoubtedly reflects upon his fitness to remain in the profession. Finally, treason involves treachery, and treachery is commonly and rightly regarded as dishonourable."

Even in the case of treason however, the Courts have not always D taken the view that the most severe step, namely that of striking off, should be followed. In Incorporated Law Society v Vermooten (1900) 17 SC 312, an attorney who had been convicted of treason and sentenced to four years' imprisonment was suspended "until further order", and it was said that when he had

"by his conduct shown contrition, and regarded his character as E a loyal and true subject of Her Majesty, the Court may at some future time be inclined to listen to any application he may make".

Compare also Incorporated Law Society v Roos and Others 1915 OPD 112. One might think that a conviction of murder would be sufficient, of itself, but it is possible to conceive of circumstances where even such a serious offence would not F warrant striking off. See, for example, the circumstances which arose in S v Hartman 1975 (3) SA 532 (C). In that case, of course, the accused was a medical practitioner who had given his father a lethal injection to save him from prolonged agony caused by incurable cancer. He was found guilty of murder with extenuating circumstances and sentenced to one year's G imprisonment, the whole of which was suspended save the period until the rising of the Court. If the accused had been qualified not only medically but also as an attorney, it is by no means clear to us that he would have to be struck off. Reliance was placed upon the remarks of MULLER JA in Hassim (also known as Essack) v Incorporated Law Society of Natal 1977 (2) SA 757 (A) at 765H - 766A where he described, and H subsequently approved, the practice followed whereby:

"(a)

The fact of an attorney's conviction of a criminal offence is regarded as prima facie proof that he had in fact committed that offence, and

(b)

of placing upon the convicted attorney the onus of proving either that he was wrongly convicted or that there were I circumstances which reduced the degree of his blameworthiness to such an extent that, despite the conviction, he ought to be allowed to continue to practise as an attorney."

The remarks of the learned Judge were there, in terms, concerned only with a matter of "practice" and did not lay down a rule of law. In Incorporated Law Society, Transvaal v Meyer and Another 1981 (3) SA 962 (T) at 967, the Full Bench of the Transvaal declined to extend the practice to cover the case of J a finding of a Court in proceedings by way of

Milne JP

A application. This approach is entirely in accordance with the Full Bench decision of this Division in Incorporated Law Society, Natal v Roux 1972 (3) SA 146 (N) at 148H - 149E. In that case, an attorney had been convicted of fraud and was found, furthermore, to have been untruthful in his evidence at B the criminal trial. At 150H, MILLER J (as he then was) described the respondent's lack of candour and attempts to conceal rather than reveal the truth as "reprehensible and deplorable". The Court nevertheless, having regard to all the circumstances of the case, did not strike the respondent off the roll, but suspended him from practice for one year. It is perhaps worth noting that it was in his capacity as one Moodley's attorney that the respondent in that case had C fraudulently represented that Moodley was "a good mark".

It is clear, therefore, that the nature and circumstances of the conviction are important and that one of the most important factors to consider is the motive with which the offence was committed. This is particularly well illustrated in the case of D Ex parte Krause 1905 TS 221. In that case, the applicant, an English barrister, an advocate of the Supreme Court of the Cape Colony and of the High Court of the late South African Republic, was convicted in England of an attempt to commit the crime of murder in respect of a person resident in the Transvaal. At the time of his conviction, he was a burger of E the late South African Republic, on parole in England and the subject whose murder was contemplated was a British subject in the Transvaal. As a consequence of his conviction, the applicant was disbarred by the benchers of his Inn in England. On his return to South Africa, after the expiration of his sentence, he resumed practice as an advocate in the Supreme F Court of the Cape Colony, no objection being taken. He then applied for admission as an advocate of the Supreme Court of the Transvaal. It was held, inter alia, that the offence being political in nature, and not being committed with any idea of personal gain or revenge, the Court, in the exercise of its discretion, would admit the applicant. Each of the Judges G (INNES CJ, SOLOMON and MASON JJ) delivered a separate judgment. In his judgment at 233, MASON J said:

"The special circumstance which has affected me is the fact that, at this time (when he committed the criminal offence), he was in England under parole and practising really under an oath of allegiance to the King at the English Bar. Whether technically or not he had committed a breach of the parole, to H my mind, makes no difference. In my opinion, it was a dishonourable act on his part while he held that position, while he enjoyed those privileges, to abuse his position and endeavour to have an act of this kind committed. But, of course, this act was committed under very strong political feeling and, if we examine history, we find incidents similar to the present case."

It is not suggested (save in a very indirect sense as will I appear later) that the "offence" committed by the applicant in this case was committed under a strong...