Swain v Society of Advocates, Natal

• Jurisdiction: South Africa
• Judge: Van Blerk JA, Rumpff JA, Potgieter JA, Jansen JA and Rabie JA
• Judgment Date: 28 September 1973
• Citation: 1973 (4) SA 784 (A)
• Hearing Date: 06 September 1973
• Court: Appellate Division

Van Blerk, J.A.:

H This is an appeal against the judgment of the Natal Provincial Division (JAMES, J.P., and LEON, J.) refusing the appellant's application to be admitted to practise as an advocate. The respondent, the Society of Advocates of Natal, opposed the application. In concluding that the appellant is not fit to be so admitted the Court a quo exercised a discretion with which this Court will only interfere upon recognised grounds which were recently restated in Olivier v Die Kaapse Balieraad, 1972 (3) SA 485 (AD) at p. 495. This

Van Blerk JA

Court will, for instance, interfere where the findings of fact on which the decision was based were wrongly made.

In terms of sec. 3 (a) of the Admission of Advocates Act, 74 of 1964, the onus is on the appellant to show that he is a fit and proper person A to be admitted to practise as an advocate. This onus will be discharged on a preponderance of probability (Olivier's case at p. 496).

The approach mentioned at p. 496G - H of Olivier's case does not in the instant case require consideration as it is not, in view of the facts of this case, a crucial issue.

The only dispute is whether the Court a quo erred in its findings of fact. It is trite that in resolving a dispute of this kind, where the B issue depends upon oral evidence, the opinion of the trial Court will not lightly be disturbed on appeal. To succeed the appellant in the instant case will be required to show that there were no grounds which could reasonably justify the exercise of a discretion against the appellant. It is not necessary to detail the evidence on which the Court C a quo based its conclusion that the appellant is not fit for admission. The evidence has been fully dealt with in the reported judgment at 1973 (2) SA 427 (N).

In his opposing affidavit the chairman of the respondent Society, Mr. Feetham, disputed the appellant's allegation in his affidavit in support D of his application for admission that he is a fit and proper person to be admitted. The appellant filed a replying affidavit and a supporting affidavit by one Pretorius, hereinafter referred to as Pretorius. As suggested by Mr. Feetham in his affidavit the appellant gave evidence and submitted to cross-examination.

E In expressing a doubt whether the appellant is a fit person to be admitted Mr. Feetham referred the Court to objectionable conduct by the appellant when he was still a practising attorney. This conduct relates to his dealings with a client named Wulfes and to conduct in regard to two other matters, (a) a company referred to as Supertune Service and (b) Davies & Barrow (Pty.) Ltd.

F As pointed out by the Court a quo in its judgment the appellant's conduct in the matter of Wulfes is the most serious. According to the opposing affidavit the grounds for doubting whether the appellant is fit to be admitted are, in connection with the matter of Wulfes, (1) the suspicion that the appellant, who procured (a) a written agreement which G contains a release from payment of a certain amount by Pretorius who was a client of the appellant, and (b) a document called an indemnity, did so procure these documents to protect his own interests at the expense of Wulfes, his client at the time, and (2) that the appellant acted mala fide when he procured the release and the indemnity which were advantageous to his client Pretorius and seriously prejudicial to his client Wulfes.

H Wulfes was injured in a motor collision while he was a non-fare paying passenger in a motor car driven by Pretorius. The appellant caused a summons to be issued on behalf of Pretorius and members of his family against the insurer of the other motor car involved in the accident. Subsequent thereto the appellant agreed to act for Wulfes as well, and instituted action on the latter's behalf against the insurance company; but, as he had failed to give notice of Wulfes' claim to the

Van Blerk JA

insurance company within the...