A v Law Society of the Cape of Good Hope

• Jurisdiction: South Africa
• Judge: Rabie ACJ, Botha JA, Kumleben JA
• Judgment Date: 24 November 1988
• Citation: 1989 (1) SA 849 (A)
• Hearing Date: 07 November 1988
• Court: Appellate Division

Kumleben JA:

The respondent successfully applied on notice of motion in the Cape of Good Hope Provincial Division of the Supreme Court ('the Court') in terms of s 22(1) of the Attorneys Act 53 of 1979, ('the Act') for an order that appellant be struck off the roll of attorneys of the Court. Leave to appeal against the decision was refused but was granted on petition to the Chief Justice.

B Though the application was opposed, the material facts set out in the founding affidavit of the then president of respondent - as opposed to the inferences to be drawn from them - were not in dispute.

On 17 January 1968 appellant was admitted as an attorney of the Court. From that date he practised, save for three intervals of C approximately 13, 7 and 12 months, as an attorney in Cape Town. On 8 August 1983, at the instance of respondent, the Court suspended him from practice for a period of one year. On 8 February 1985 he recommenced practice. On 15 December 1983 by order of Court a suspended sentence of imprisonment previously imposed was put into operation. Whilst this sentence was being served, appellant successfully applied for his D release from custody and on 15 June 1984 such an order was granted subject to certain conditions. He failed to comply with them, with the result that on 10 December 1985 the Court again sentenced him to imprisonment for 12 months for contempt of Court.

E In 1980 appellant's wife sued him for divorce. A Cape Town attorney, Mr Simon, acted for her and he instructed a member of the local Bar, Mrs Traverso, to represent her in court. On 5 June 1981 an order of divorce was granted and custody of their young daughter was awarded to the mother. The fact of the divorce, and appellant's restricted right of access to his daughter, unhinged him mentally. He began molesting, F harassing and interfering with his former wife, his step-father, Mr Simon and Mrs Traverso. In the case of the last-mentioned two persons, his harassment took the form of letter and press cuttings sent to them and telephone calls, all of which were personally or professionally disparaging.

The founding affidavit is in the main a chronicle of unsuccessful attempts to restrain him by way of Court orders. It is unnecessary G to refer to them in detail. During a period from October 1982 to October 1985 Mr Simon and Mrs Traverso, or one of them, obtained no less than four Court orders for contempt arising from the appellant's failure to comply with Court injunctions. The Court, as I have said, was obliged to enforce a suspended prison sentence but, notwithstanding the H experience of this form of punishment, he again disregarded the Court's order and was for a second time sentenced to imprisonment.

It is clear that the mental disorder, over which he has little or no control, accounts for appellant's misconduct. He admits as much. In the answering affidavit he says:

I 'My reaction to my ex-wife's legal advisers I verily believe is due to a personality disorder which has hitherto not been effectively treated but which I have reason to believe is treatable if the necessary stress factors are removed.'

On the other hand, he points out that, apart from his behaviour towards Mr Simon and Mrs Traverso, his professional conduct has been beyond reproach and that he has always maintained the standards of J his profession. This is not denied by...