The Law Society of the Northern Provinces v Mothoagae
| Jurisdiction | South Africa |
| Judge | Hendricks J |
| Judgment Date | 12 January 2006 |
| Docket Number | 1460/2005 |
| Court | Bophuthatswana High Court |
| Hearing Date | 24 November 2005 |
| Citation | 2006 JDR 0037 (B) |
Hendricks J:
A. Introduction:
The Applicant, the Law Society of the Northern Provinces, apply on an urgent basis, as interim relief, that:-
the First Respondent be suspended from practising as an Attorney;
the First Respondent be interdicted from operating his trust accounts; and
that a curator be appointed with certain powers to perform certain functions and duties with regard to the practice of the First Respondent.
This application was opposed and was argued before me on the 24th November 2005. After listening to the submissions of both Mr Lever on behalf of the Applicant and Mr Mabaso on behalf of the First Respondent, and having perused the affidavits and documents filed, I granted an order, the contents whereof is repeated at the end of this judgment. I also ordered that the reasons for the granting of the order will follow. Here follows the reasons:-
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Hendricks J
B. The Parties:
[a] The Applicant:
The Applicant is the Law Society of the Northern Provinces incorporated as the Law Society of the Transvaal. It is a society as contemplated in Chapter 3 of the Attorneys' Act, Act 53 of 1979. The Law Society of the Transvaal is described as a juristic person in terms of Section 56(c). Upon the disappearance of the former Transvaal Province the Law Society of the Transvaal has renamed itself as the Law Society of the Northern Provinces.
[b] The First Respondent:
The First Respondent is Goborone Mathoagae, an attorney of this court, who was admitted as such on 26 October 1993, and who is practising under the name and style of G Mothoagae Attorneys at Mafojane Shopping Complex, Zone 1, Ga-Rankuwa.
[c] The Second Respondent:
The Second Respondent is the Law Society of Bophuthatswana, a statutory body established by Section 50 of the Attorneys, Notaries and Conveyancers Act, No 29 of 1984 (the Bop Attorneys Act), with its offices situated at 5049 Zone 4, Molatlhwa Street, Ga-Rankuwa. No relief is sought against the Second Respondent.
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Hendricks J
c. Points-in-limine:
On the day that this matter was argued, Mr Mabaso handed in a document which is titled "Notice of Motion in the Counter-Application by the 1st Respondent". This document was issued and handed over to Mr Lever, who appeared on behalf of the Applicant, on the same day that it was handed into court. Upon scrutiny of this document, it appears to me that what is termed a "counter-application" is nothing else than points-in-limine raised.
Before dealing with the merits, I will deal with the following points-in-limine raised:-
lack of locus standi;
the unconstitutionality of Section 84 A of the Attorneys Act;
that the Bophuthatswana Law Society has exclusive jurisdiction over the First Respondent.
[i] Lack of locus standi:
The first issue raised in limine in this Court by Mr Mabaso for the First Respondent, concerns the Applicant's locus standi. It is argued that the Applicant is not a statutorily recognised body whose continued existence is ensured or
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Hendricks J
recognised by Section 56 of the Act. The Law Society, which has powers to regulate the exercise of the Attorneys' profession in the area of jurisdiction of the Transvaal Provincial Division, is the Transvaal Law Society and is thus the only entity, so it was argued, which could and should have launched this application. The Law Society of the Northern Provinces (the Applicant) therefore lacks the necessary locus standi to bring this application.
The Applicant describes itself in the founding affidavit as the Law Society of the Northern Provinces, incorporated as the Law Society of the Transvaal, which came into existence "by Volksraadbesluit 1307 dated 10 October 1892" and which continued in existence "by virtue of the Constitution of the Incorporated Law Society of the Transvaal Ordinance No 1 (Private) of 1905" and continued further in existence by virtue of the Attorneys Act.
It is true that the name of the Applicant does not appear amongst the Law Societies mentioned in Section 56 of the Attorneys Act, but, on its letterhead, attached as annexure "1", below the name of the Applicant appears the words:-
"Incorporated as the Law Society of the Transvaal."
and also:-
"Serving Gauteng, Mpumalanga, Limpopo (now the Northern Province) and the North West Provinces."
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Hendricks J
It can hardly be disputed that the old Transvaal no longer exists, this since the advent of our constitutional dispensation. In my view, judicial notice can be taken of the fact that the areas served by the Applicant as indicated on his letterhead now makes up the biggest portion, if not all, of what used to be known as "Transvaal".
In my view, the fact that the Applicants' name does not appear in Section 56 of the Attorneys Act does not mean that it cannot and should not be recognised. It is clear that the Applicant has incorporated the Law Society of the Transvaal, which was statutory recognised. Thus, I find that this point, which was raised in limine by Mr Mabaso, to be without merit.
See:- Mabaso v Law Society, Northern Provinces 2004 (3) SA 453 (SCA).
[ii] The Unconstitutionality of Section 84 A of the Attorneys Act, Act 53 of 1979:-
As the second point in limine raised by Mr Mabaso, it is stated:-
"that Section 84 A of the Attorneys Act, Act 53 of 1979, as amended (should) be declared unconstitutional and invalid by virtue of the fact that it unfairly discriminates between Attorneys practising in the area of the erstwhile Bophuthatswana, and treats them unequally from those who practice in the area of
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the erstwhile 'Republic of South-Africa', and infringes upon their right to equality and equal treatment in and before the law and seeks to unlawfully subject the Attorneys practising in the area of the erstwhile Republic of Bophuthatswana to control and regulation by two bodies, called statutory law societies, whereas it does not so require the same in the case of Attorneys practising in the erstwhile area that was the Republic of South-Africa, thus subjecting the said Attorneys to more burdens and hardships as opposed to those brought to bear on their colleagues (those practising in the area erstwhile known as the Republic of South-Africa) because they practice from the social area located in the erstwhile homelands, thereby infringing the said Attorneys' right to equality (Section 9) and equal treatment in and before the law, Rule of Law (Section 1 (C), Just Administrative Action, freedom of association, and other rights, in terms of the Act, number 108 of 1996, as amended, as well as summarily bring litigation against them before hearing their side as happens in the case of Attorneys in the erstwhile Republic of South-Africa, thereby contravening Section 3 of Act 3 of 2003, contrary to Section 8 (1) of Act 108 of 1996, amongst others,"
Section 84 A of the Attorneys Act reads as follows:-
"Law Society of Transvaal may exercise certain powers in respect of practitioners practicing in areas of former Republics of Bophuthatswana and Venda.
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Hendricks J
Notwithstanding any other law, the Law Society of the Transvaal and its council, president and secretary, may in respect of practitioners practicing in the areas of the former Republics of Bophuthatswana and Venda, perform any function which is similar to a function assigned to that Law Society, council, president or secretary, as the case may be, by section 22 (1) (d) or (e), (2), 67 (2), 69 (a), (e) or (m), 70,71,72,73,74 (1) (a), (e) and (f), 78, 81 (1) (e) and (f), (2) (a), (d), (e), (i) or (j), (5) or 83 (9), (13) or (15)."
In essence Section 84 A provides that notwithstanding any other law, the Law Society of the Northern Provinces may, in respect of practitioners practising in the area of the former Republic of Bophuthatswana perform any functions "which is similar to a function assigned to that Law Society" by various Sections of the Attorneys Act, which are referred to in Section 84 A.
The purpose of Section 84 A is to:-
extent the cover of the Attorneys fidelity fund to the former territory of Bophuthatswana;
make certain provisions of the Attorneys Act applicable to Attorneys practising in Bophuthatswana for the purpose of this Section;
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Hendricks J
provide the Law Society of the Northern Provinces with the power and authority
to ensure that Attorneys practising in Bophuthatswana comply with those provisions of the Attorneys, Notaries and Conveyancers Act, No 29 of 1984 (Bop Attorneys Act) of the former Bophuthatswana which are similar to the corresponding provisions of the Attorneys Act, such as:-
the keeping of a proper trust account;
the keeping of proper accounting records; and
the compliance with the appropriate rules.
to enable the Law Society of the Northern Provinces to inspect the accounting records of such practitioners;
to initiate disciplinary procedures against those practitioners who contravene the appropriate Sections of the Bop Attorneys Act and the Rules; and
to initiate proceedings in the appropriate court to suspend or strike off Attorneys who, because of unprofessional, dishonourable and unworthy conduct, are deemed no longer fit and proper to remain on the roll of Attorneys in the appropriate circumstances.
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Hendricks J
Prior to the enactment of the Attorneys and Matters relating to Rules of Court Amendment Act, Act 115 of 1998, which came into operation on the 15th January 1999, an Attorney who practised in the erstwhile Republic of Bophuthatswana, belonged to the Bophuthatswana Law Society, by virtue of the Attorneys...
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