Society of Advocates of South Africa (Witwatersrand Division) v Edeling

• Jurisdiction: South Africa
• Judge: Van der Merwe J, Du Plessis J
• Judgment Date: 11 December 1997
• Counsel: W H Trengove (with him A P Joubert and A R Gautschi) for the plaintiff C E Puckrin (with him M M Jansen) for the defendant
• Docket Number: 96/7541
• Court: Witwatersrand Local Division

V/D Merwe et Du Plessis JJ:

This Is an Application by the Plaintiff Against the Defendant in Terms of S 7 of the B Admission of Advocates Act 74 of 1964 (The Act).

The defendant was admitted as an advocate on 27 March 1979. He was admitted as a member of the plaintiff on C 2 July 1979. He practised at the Johannesburg Bar from that date until he resigned his membership of the plaintiff on 30 April 1984 to join the Bloemfontein Bar where he practised until 1993. He reapplied for and was granted membership of the plaintiff on 24 February 1993 and has practised mainly at the Johannesburg Bar since then.

The plaintiff avers that the defendant is no longer a fit and proper person to practise as an advocate and seeks an D order that the defendant's name be removed from the roll of advocates.

During March 1996 the plaintiff brought an application for an order:

(1)

removing the defendant's name from the roll of advocates;

(2)

directing that the defendant pays the costs of the application.

The defendant opposed the application. At the same time the defendant brought a counter-application in which E he inter alia asked that:

(1)

the main application be stayed pending the final determination of the counter-application;

(2)

the counter-application be referred for the hearing of oral evidence on certain issues; F

(3)

he be entitled to call and cross-examine some 18 members of the plaintiff at the hearing of the counter-application;

(4)

certain resolutions or decisions of the plaintiff be declared irregular, unlawful and invalid and of no force and effect;

(5)

the findings of the Court hearing the counter-application be referred to the plaintiff's Bar Council or to such other tribunal or body as the Court may deem appropriate for its attention; G

(6)

the plaintiff pays the costs of the application.

The papers ran into some 770 pages containing many disputes of fact.

When the matters came before the Court on 10 February 1997 the following orders were made: H

'(1)

The main application is referred to trial for hearing in Pretoria on 12 May 1997. Applicant will file its declaration by not later than 28 February 1997. Respondent will file his plea by not later than 14 March 1997 and the parties will make discovery by not later than 1 April 1997. A pre-trial conference will be held between the parties as arranged. I

(2)

The counter-application is postponed for hearing at the trial. The counter-application will not be referred to evidence or to trial and will be decided on the papers as they stand. (The defendant nevertheless did later file a counterclaim, substantially identical to his counter-application in the motion proceedings.)

(3)

Costs are reserved.' J

V/D Merwe et Du Plessis JJ

Subsequent to the said orders of Court the necessary pleadings were filed consisting, inter alia, of plaintiff's A declaration, defendant's plea which contained two special pleas, a replication, a counterclaim and a plea thereto. Further particulars were also requested and furnished.

The relief sought in the plaintiff's declaration is as follows:

(1)

That the name of the defendant be struck off the roll of advocates or, alternatively, that he be B suspended from practice.

(2)

That the defendant be ordered to pay the costs of suit on the scale as between an attorney and his own client.

For the relief sought the plaintiff relies on four bases which will be dealt with in more detail later herein. For present purposes a brief summary of the causes of action will suffice. C

The first basis concerns the defendant's Bloemfontein property, which he purported to sell to Specialised Aircraft Utilisation (Pty) Ltd (SAU) represented by one Glyn Rudolph, which transaction the plaintiff alleges was part of a fraud on the fiscus as well as part of a scheme as described in s 73 of the Value-Added Tax Act 89 of 1991 (the D VAT Act). The second basis concerns the so-called St Margaret's property, which the plaintiff also contends was intended to be part of a fraud on the fiscus and of a scheme as described in s 73 of the VAT Act. The third basis is the giving of alleged untruthful evidence during March 1994 in the Transvaal Special Income Tax Court E (Special Court) presided over by Melamet J. These three bases were the only ones relied on by the plaintiff in the application referred to.

The fourth basis has its origin in the defendant's counter-application. In that counter-application defendant allegedly made insulting statements concerning the plaintiff, its Bar Council and certain of its members, which F statements were allegedly made without any reasonable basis for the insults they conveyed.

The parties agreed jointly to seek a direction from the Court as to the conduct of the trial. In this respect the parties requested that:

(1)

the hearing of the defendant's special pleas and counterclaim takes place at the outset in terms of Rule G 33(4) of the Uniform Rules of Court before commencement of the hearing on any other issues arising from the pleadings;

(2)

the hearing on the remaining issues between the parties, if any, commences after an order is made on the defendant's special pleas and counterclaim and proceeds as follows:

(a)

the plaintiff opens its case; H

(b)

the defendant presents his case and gives evidence first;

(c)

the plaintiff presents its case;

(d)

the defendant presents evidence in rebuttal if necessary.

The Court acceded to this request and argument on the special pleas and counterclaim was then presented. At I the end of argument the defendant's two special pleas and counterclaim were dismissed. We also ordered that the question of costs on the special pleas and counterclaim was to stand over for argument and a decision thereon at a later stage. We further stated that the reasons for the dismissal of the special pleas and the counterclaim were to be given at a later stage.

These reasons now follow. J

V/D Merwe et Du Plessis JJ

The special pleas are both related to the first three bases on which it is alleged that the defendant is not a fit and A proper person to continue to practise as an advocate. The counterclaim is related to the fourth basis referred to in the declaration but which was not relied on in the application proceedings.

In order to appreciate the essence of the special pleas a brief discussion of part of the history of events is B necessary.

During March 1994 the defendant testified before the Special Court in the matter of SAU. On 29 August 1994 his Lordship, Mr Justice Melamet, handed down a judgment in which he found in effect that the defendant had C been a party to a fraudulent scheme about which he had given perjured evidence. The judgment of the Special Court was brought to the attention of the professional committee of the plaintiff's Bar Council during September 1994. On 9 September 1994 the professional committee called upon the defendant to furnish reasons why an D application for his striking off should not be brought. After an exchange of correspondence the plaintiff resolved on 27 September 1995 to investigate the facts which gave rise to the adverse findings by the Special Court.

A document headed 'details of charges against the member' containing allegations of unprofessional conduct, E alternatively conduct unbecoming an advocate, comprising the first three bases contained in the declaration, was prepared for the purpose of a disciplinary hearing against the defendant.

On 21 October 1995 a disciplinary subcommittee of the plaintiff's Bar Council conducted a hearing during which the three charges against the defendant were preferred. On or about 9 November 1995 the said subcommittee F recommended that the professional misconduct alleged against the defendant had been established. The matter was referred to the plaintiff's Bar Council for its consideration and decision. On 14 November 1995 the said recommendations were considered by the plaintiff's full Bar Council and they unanimously confirmed them. The G defendant was thus found guilty of professional misconduct. The defendant was invited to appear before a meeting of the plaintiff's Bar Council for the consideration of a proper sentence. The defendant, represented by Attorney A Levin, appeared before the Bar Council on 28 November 1995. At this meeting nothing of H consequence regarding sentence was put before the Bar Council. The transcript of the proceedings on that day shows that most of the time was taken up by Levin demonstrating that the members of the Bar Council had not all read the entire record of the proceedings before the disciplinary subcommittee. On 5 December 1995 the Bar Council resolved that an application be made for the name of the defendant to be struck off the roll of advocates I and that the defendant be expelled from the plaintiff. On 13 December 1995 the defendant noted an appeal to the General Council of the Bar against the decisions of the plaintiff's Bar Council. On 30 March 1996 the General Council of the Bar upheld the defendant's appeal with costs. His expulsion from the plaintiff Society was therefore set aside. In the mean time, on 19 March 1996 the Bar Council had again resolved to proceed with the application to Court when the defendant's appeal was upheld by J

V/D Merwe et Du Plessis JJ

the General Council of the Bar. On 30 March 1996 the application had not been served on the defendant yet and A the plaintiff's attorneys were asked to hold back service of the application until the Bar Council had had an opportunity to reconsider the matter in the light of the outcome of the appeal. The defendant's attorney's reaction was immediately to demand access to the papers and to threaten an urgent application if such access was denied. B The Bar Council then...