The Law Society of The Cape of Good Hope v Mtshabe

• Jurisdiction: South Africa
• Judge: Jones J, Dawood J
• Judgment Date: 05 December 2008
• Docket Number: 743/2007
• Court: Transkei Division
• Hearing Date: 20 November 2008
• Citation: 2008 JDR 1552 (Tk)

Jones J:

[1] This is an application by the Law Society of the Cape of Good Hope to strike the respondent's name off the roll of attorneys and conveyancers, together with related ancillary relief, on the ground that he committed fraud. It is opposed. In addition, the respondent has raised certain objections to the application in a counter application, which is also opposed.

[2] The respondent was admitted as an attorney in March 1995, and after a short spell as a professional assistant he commenced to practise on his own account in Mthatha in January 1996. The fraud was allegedly committed between March and June 1998. It gave rise to a criminal charge. The striking off application was not brought until the criminal proceedings were concluded. The criminal trial commenced before Chetty J in the Mthatha High Court,

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Transkei on 18 April 2006. The respondent was convicted on 26 July 2006, and, on 4 December 2006, was sentenced to 8 years' imprisonment. On that date Chetty J refused an application for leave to appeal against both the conviction and sentence. The Supreme Court of Appeal dismissed a petition for leave to appeal against the conviction, but granted leave to appeal to the Full Bench of this Court on sentence. On 23 September 2008, the majority of the Full Bench (Ebrahim and Plasket JJ) upheld the sentence of 8 years' imprisonment. The minority judgment (Jansen J) considered that a lesser sentence was warranted, one of imprisonment for a period of 5 years, subject to conversion to correctional supervision at the discretion of the Commissioner of Correctional Services in terms of section 276(1)(i) of the Criminal Procedure Act No 52 of 1977.

[3] The respondent then petitioned the President of the Supreme Court of Appeal for special leave for a further appeal on sentence, and for a reconsideration of that Courts' refusal of leave to appeal against the conviction. The petition was pending when the striking off application was set down for hearing, initially in October 2008 and then on 20 November 2008. For that reason the applicant brought a substantive application in the Mthatha High Court for an order postponing the striking off application. Pillay J dismissed this application on the ground that the respondent had exhausted his remedies insofar as his conviction was concerned, and that there was no good reason to delay the striking off proceedings because the issue of sentence was not yet finalized.

[4] That is how matters stood when the striking off application was called before Dawood J and me on 20 November 2008. At the commencement of

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the hearing Mr Notshe, for the respondent, once again applied for a postponement of the application pending the decision of the Supreme Court of Appeal on the petition. He argued that Pillay J's refusal of a postponement was a provisional interlocutory order which was open to reconsideration and reversal.

[5] It is desirable at this juncture to deal briefly not only with the renewed application for a postponement but also with the objections raised by the respondent in his counter application. These are preliminary to the main application, which is for a striking off order.

[6] I can understand why a postponement is being sought. The application to strike the respondent's name off the roll is based solely on the fraud conviction. The respondent clearly entertains the hope that the Supreme Court of Appeal might re-open the correctness of the conviction, and that he might yet be able to overturn his conviction on appeal. This hope derives from of a recent statement in the judgment of the Supreme Court of Appeal in Vilakazi v The State (Case No 576/2007) [2008] ZASCA 87 (2 September 2008) that it is open to that Court to broaden the issues in an appeal solely on sentence so as to include an appeal on conviction, if upon reflection the Court is of the view that on the evidence the appellant should not have been convicted. The Court's inherent jurisdiction to prevent an injustice does not, however, give a person in the position of the respondent a procedural right to submit a second or further petition for leave to appeal against his conviction where such a petition has already been considered and turned down. Both applications for a postponement incorrectly presupposed that the respondent has a right to submit a second petition. If he has no such right, the application

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for a postponement cannot be granted. We therefore dismissed it, and the application and counter application then proceeded. I may mention in parenthesis that we have since been advised that the petition for special leave to appeal was dismissed by the Supreme Court of Appeal on 20 November 2008, the very day when the striking off application was set down before us.

[6] The counter application seeks relief (1) on review and (2) by way of declaratory orders. It raises procedural and constitutional objections to the hearing of the striking off application. None have merit. In the first place, the respondent alleges (a) that the deponent to the founding affidavit in the striking off application did not have the authority of the Law Society to sign the affidavit, and (b) that the meeting at which the Law Society took the resolution to apply for the respondent's striking off was not quorate. I need say no more than that these points are patently without substance, and they are fully answered in the papers opposing the counter application. Secondly, the respondent argues (i) that his rights have been adversely and irregularly affected by the Law Society's decision to bring striking off proceedings without first giving him an opportunity to state his case at a previously held disciplinary inquiry, and (ii) that insofar as certain provisions of the Attorneys Act No 53 of 1979 and the rules promulgated under it purport to permit the Law Society to bring a striking off proceedings without first affording the respondent a hearing, they should be struck down as being unconstitutional. No authority in support of these points was placed before us. No sound reasons of principle or policy make it unconstitutional for the Law Society to refer allegations to the High Court without first holding a disciplinary hearing, particularly where there has already been a criminal hearing. In my opinion,

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these points are also patently bad. Mr Notshe did not abandon them, but he was not, understandably in my view, in a position to take the arguments which were put up in the respondent's affidavit in support thereof any further. Issues of principle and policy apart and purely from a practical point of view, the respondent cannot be heard to submit, after going through the process of a lengthy criminal trial, that he has not been afforded a...