Court name
High Court
Case number
211 of 2008
Case name
Disciplinary Committee for Legal Practitioners v Murorua and Another
Media neutral citation
[2012] NAHC 161
Judge
Van Niekerk J
Parker J





CASE NO











CASE NO.: A 211/2008











IN THE HIGH COURT OF NAMIBIA







In the matter between:







DISCIPLINARY COMMITTEE



FOR LEGAL PRACTITIONERS
…...................................................................Applicant







and







LUCIUS MURORUA
…........................................................................First
Respondent



LAW SOCIETY OF NAMIBIA
….....................................................Second
Respondent











CORAM: VAN NIEKERK, J et
PARKER, J et SIBOLEKA, J







Heard on: 2010 November 25 – 26



Delivered on: 2012 June 25



_________________________________________________________________







JUDGMENT



_________________________________________________________________



PARKER J: [1] This
application has been brought by the applicant (the Disciplinary
Committee) (‘DC’) in terms of Part IV of the Legal
Practitioners Act, 1995 (Act No. 15 of 1995) (‘LPA’),
particularly s. 35(9) thereof. The founding affidavit is deposed to
by the chairperson of the applicant at all material times, Mr Theo
Jooste Frank SC. The applicant, represented by Mr Smuts SC, prays for
an order in the following terms according to the notice of motion:







(1)
That first respondent be struck from the roll of legal practitioners;







alternatively







that
first respondent be suspended from the practice of legal practitioner
for a period of 2 years or such other period as the Court deems
appropriate.







(2)
That first respondent immediately surrender and deliver to the
Registrar of this Honourable Court his certificate of enrolment as
legal practitioner of this Honourable Court.







The
further relief sought in prayers 2–8 flow consequentially from
the primary relief in prayer 1.







[2] The first respondent, represented
by Mr Soni SC, has moved to reject the application and the respondent
does so on two primary grounds, namely, (1) there is no proper
application before the Court, ‘and for that’, says Mr
Soni, ‘we rely on what is contained in the Supplementary
Affidavit’; and (2) the first respondent ‘disputes that
he was rightly convicted of any of the offences’. That is to
say, the first respondent disputes his being found guilty of the
charge in consequence of which the applicant has made application in
terms of Part IV of the LPA in which it has prayed for the relief set
out in the notice of motion.







[3] When I come to deal with the
aforementioned two grounds, I shall also treat Mr Soni’s
submission and prayer that there are disputes of fact relating
thereto and so the matter should be referred to oral evidence.







[4] I proceed to consider the first
respondent’s contention that there is no application properly
before the Court in terms of Part IV of the LPA. This issue concerns
proceedings of the applicant respecting the respondent’s
disciplinary hearing. In this regard, it is also Mr Soni’s
submission and prayer, as I have intimated previously, that a
determination of the matter calls for referring it to oral evidence
because the issue involved concerns the basic point as to whether
there was a meeting properly so called of the applicant at which a
decision also properly so called was taken by the applicant that
would make the bringing of the application conform with the relevant
provisions of Part IV of the LPA.







[5] I shall now proceed to treat the
first ground first on account of Mr Soni’s submission that if
the Court found that there was no proper application before the
Court; then that would be the end of the matter.







[6] As respects the first ground, Mr
Soni relies on two items. The first is a supplementary affidavit by
the first respondent. Although there were initial objections to the
filing of this affidavit without the leave of the Court, the
applicant did file answering affidavits to the issues raised in the
supplementary affidavit. At the hearing Mr Smuts for the applicant
informed the Court that he was no longer objecting to the reception
of the supplementary affidavit only because he wanted the application
to proceed without undue delay. In this spirit the affidavit is
allowed.







[7] The annexures to this affidavit
are important for Mr Soni’s argument. These are, inter alia,
the minutes of the applicant’s meeting on 4 February 2008
during which the complaint against the first respondent was heard
(Annexure “SLHM2”); the minutes of the applicant’s
meeting on 27 and 28 May 2008 when a decision regarding the sanction
to be imposed was taken (Annexure “SLHM5”); and a letter
by a member of the applicant, Mrs A Van der Merwe (Annexure “SLHM7”)
(the “Van der Merwe letter”). In this letter addressed to
the first respondent, Mrs Van der Merwe gives certain explanations
regarding errors and omissions in the minutes and clarifying certain
matters. In the supplementary affidavit the first respondent takes
issue with the composition of the applicant on the dates of the
meetings mentioned above to provide a basis for the submission made
by Mr Soni.







[8] The second item on which Mr Soni
relies is a letter under the hand of the first respondent in which he
records what, according to the respondent, arose out of a
conversation he had with Mr Dyakugha, the secretary of the applicant
at all material times (“the Murorua letter”).







[9] Mr Smuts strenuously objected to
the letter being admitted as part of the papers as it was only
presented the day the hearing of the application commenced and was
not properly supported by a written application. Argument was heard
on the issue but a ruling was held over for decision along with the
merits of the main application. The letter was handed up as its
contents assisted in an understanding of the argument.







[10] As I have said, the gist of the
letter is that the first respondent records the contents of a
conversation he had with Mr Dyakugha, in which the latter had
allegedly indicated that he had no recollection that the decision
regarding the sanction was taken at a meeting and that it was taken
by telephone. This conversation allegedly took place long after the
supplementary affidavit referred to above and the applicant’s
answer thereto had been filed. The effect of the alleged statement by
Mr Dyakugha is that, in spite of his affidavit (filed as part of the
applicant’s answer to the supplementary affidavit) confirming
that there had indeed been a meeting at which the sanction was
discussed, he indicated to the first respondent that he had no
recollection of such a meeting taking place. From the Murorua letter
it is also clear that he was not willing to depose to an affidavit to
this effect.







[11] As respects the first ground, Mr
Soni submitted that ‘there is no proper application before this
Court ‘and for that we rely on what is contained in the (first
respondent’s) supplementary affidavit ...;’ in particular
what the respondent ‘understands happened at the disciplinary
hearing (conducted by the applicant) relating to the sanction ...’
imposed by the applicant on the first respondent. As I understand the
tenor of the first respondent’s supplementary affidavit; the
first respondent questions the correctness of the minutes of the
meeting in question, and also questions what transpired at the
meeting. The first respondent wrote a letter to Mrs Van der Merwe (a
member of the applicant at the material time) and Ms Van der Merwe
responded that the minutes in question were not accurate, and she
explained why, in her opinion, the minutes were not accurate (in ‘the
Van der Merwe letter’). Thus, for the first respondent, in
virtue of the inaccuracies in the minutes, there have been
irregularities in the decision-making process in relation to the
disciplinary hearing of the first respondent. Indeed, in fairness to
the first respondent, this called for an explanation; and Mr Frank
did just that in an affidavit filed with the Court on 3 March 2010.
In that affidavit Mr Frank confirmed what Ms Van der Merwe had stated
in her letter and he goes on to explain extensively and clearly the
inaccuracies.







[12] In his affidavit, Mr Frank states
further categorically thus:







I
could not however be present for the entire meeting held over two
days. As is apparent from the minutes at page 3 thereof, it is stated
that my apologies were noted at the resumption of the meeting at
10h30 on 28 May 2008 (the second day). I wish to make it clear
however that during the deliberations concerning the sanction in
respect of the first respondent, I was present and chaired. So too
were Ms van der Merwe and Mr Dyakugha present. Mr Angula recused
himself. We reached the decision as is set out in my founding
affidavit and which is also confirmed in the minutes. This item in
the minutes at page 4 should however have appeared prior to the
adjournment on 27 May 2008. To that extent, the sequence of items is
incorrect. It was incorrect to include this item
after
I had apologised as this would indicate that I was absent. The
sequence of this item in the minutes is thus incorrect.







26.2.
Ms van der Merwe is entirely correct in her letter annexed as “SLMH7”
in stating that this item would have been discussed and decided on 27
May 2008 and not on 28 May 2008 in confirming her presence and that
Mr Angula had excluded himself from those deliberations. Her
explanation for the item being reflected as having taken place on 28
May 2008 may have been the fact that she had then formally asked Mr
Dyakugha as Secretary on 28 May 2008 to inform the first respondent
of the applicant’s decision on sanction. The contentions
advanced in paragraph 27 that the decision on sanction was taken by
two persons are not correct. The incorrect basis for the submissions
had in any event already been conveyed by Ms van der Merwe in her
letter. I further refer to her confirmatory affidavit and to that of
Mr Dyakugha.’







[13] In dealing with the point
presently under consideration, I express the following views and make
the following factual findings. The first respondent was not at the
meeting where sanctions were discussed and a decision thereon taken.
He relies solely on what is contained in the Van der Merwe letter;
but Mr Frank has given a full explanation thereanent – replete
with frankness (pardon the pun) and honesty. Indeed, as Mr Smuts
submitted, it is not out of the ordinary in human experience that
minutes of a meeting that stretches over two or more days may mix up
certain aspects relating to a particular day’s business and
incidental matters. Be that as it may, what is more, Ms Van der Merwe
has in a confirmatory affidavit confirmed what Mr Frank states, also
on oath, that relates to her.







[14] It follows that, in my opinion,
what is sufficient evidence that I accept is Ms Van der Merwe’s
affidavit which confirms in material respects what Mr Frank states in
his affidavit, in particular, the following relevant statements:







I
wish to make it clear however that during the deliberations
concerning the sanction in respect of the first respondent, I was
present and I chaired. So too were Ms Van der Merwe and Mr Dyakugha
present.’







[15] Mr Soni submitted that the
alleged indication by Mr Dyakugha is suggestive thereof that
everything is not in order with the procedure followed by the
applicant and the manner in which the meetings had been constituted
and conducted and that this provides support for the allegations to
this effect in the first respondent’s supplementary affidavit.
He submitted that this issue should be referred to oral evidence. In
my judgment, I do not, in virtue of the aforegoing analysis and
conclusions, see any reason why the matter of the said meeting and
the said decision on sanction in the light of Mr Frank’s
affidavit and the Van der Merwe letter should be referred to oral
evidence, seeing that I have been able to decide on the papers that
there was such a meeting and such decision properly so called in
terms of Part IV of the LPA.







[16] But that is not the end of the
matter. As I indicated previously, as respect the first ground for
opposing the application, Mr Soni hangs the respondent’s case
also on the Murorua letter, too; and so, it is the Murorua letter
that I now direct the enquiry. As I have said previously the Murorua
letter, according to Mr Murorua (the first respondent), records a
conversation he had had with Mr Dyakugha who, as I have stated supra,
was at all material times the secretary of the applicant. And, as the
reason for so saying will become apparent shortly, the secretary of
the applicant is a member of the applicant in terms of s. 34 of the
LPA; and so, I do not, with respect, see what legal point the first
respondent hopes to score by stating in his supplementary affidavit
that ‘the decision on sanction was taken by only two persons,
only one of whom was a legal practitioner, Ms Van der Merwe: Mr
Dyakugha is a secretary of the Disciplinary Committee’.







[17] With the greatest deference to Mr
Soni, I do not think the Murorua letter has any probative value: it
is not relevant. The placing of the Murorua letter before the Court
cannot therefore, take the first respondent case any further than
where it is: the letter cannot alter or replace Mr Dyakugha’s
confirmatory affidavit, confirming the above-quoted statements by Mr
Frank on oath. In this regard, it is worth noting that the Murorua
letter is, as I have intimated previously, not under the hand of Mr
Dyakugha, nor are the statements contained therein that are
attributed to Mr Dyakugha made on oath. Thus, what stands as
sufficient evidence, as respects Mr Dyakugha, is Mr Dyakugha’s
affidavit, which significantly, has to date not been withdrawn or
altered, confirming Mr Frank’s statement, also under oath,
concerning the meeting of the applicant and the applicant’s
decision on the sanction meted out against the first respondent in
terms of s. 35 of the LPA. And what is more, the contents of Mr
Dyakugha’s confirmatory affidavit are clear, unambiguous and
straight to the point.







[18] To argue – as Mr Soni
appears to do – that the Murorua letter in relation to Mr
Frank’s statements on oath has created a dispute of fact and so
the matter should be referred to oral evidence is to elevate, without
justification, the contents of the Murorua letter to the same level
as statements given on oath by Mr Dyakugha, confirming the statements
given on oath by Mr Frank. That, with respect, I cannot accept: it
will be wrong and unjudicial to accept such argument and refer the
matter to oral evidence.







[19] From what I found above, I accept
Mr Smuts’s submission that what is important for this Court in
these proceedings is for the Court to be satisfied as to what was
resolved by the applicant’s meeting held over a two-day
consecutive period, being 27–28 May 2008. I, therefore, on the
papers, hold that the decision on sanction was taken by three members
of the applicant at its aforementioned meeting, that is, Mr Frank,
Mrs Van der Merwe and Mr Dyakugha. It is worth noting that according
to s. 34(6) of the LPA, three members of the applicant form a quorum
at a meeting of the applicant. Accordingly, I find that the applicant
took the decision to bring the application to the Court in terms of
Part IV of the LPA; the majority of 2:1 in favour of the application
praying for an order to strike the first respondent’s name off
the roll, and the minority in favour of an order to suspend the first
respondent from practice for a period of two years. Having so
decided, I do not see any good reason in terms of rule 6(5)(g) of the
Rules to refer the matter to oral evidence. It is with firm
confidence that I respectfully reject Mr Soni’s application in
that regard.







[20] For aforegoing reasoning and
conclusions, I have not one iota of hesitation in holding that the
present application is properly before the Court in terms of Part IV
of the LPA. Having so found, it is my view that it is otiose to
consider the point that came up in oral submissions, which, as I
understand it, is whether the present application is in terms of the
Court’s inherent power of supervision of the legal profession
or the Court’s statutory power of supervision of the legal
profession in terms of the LPA.







[21] I now proceed to treat the other
ground which concerns the applicant finding the respondent guilty of
two of the charges he faced at the applicant’s disciplinary
hearing. The first respondent was charged with three charges at the
said disciplinary hearing conducted by the applicant and he pleaded
not guilty to all three charges. After the hearing, the applicant
acquitted the first respondent on the second charge but convicted him
of the first charge and the third charge, being charging a
contingency fee, and imposed a penalty of a fine, wholly suspended on
certain conditions. These two charges do not warrant any further
treatment in these proceedings. Only the first charge is relevant to
the present proceedings.







[22] The basis of the present
proceedings is the applicant finding the first respondent guilty of
the first charge and the applicant’s opinion that ‘the
unprofessional or dishonourable or unworthy conduct’ (within
the meaning of s. 33 of the LPA) of which the first respondent is
guilty justifies an application to the Court for an order to strike
the legal practitioner’s name from the Roll in terms of s.
35(9) of the LPA. Thus, in my view, in these proceedings what this
Court must set its eyes on is the interpretation and application of
the relevant provisions of Part IV of the LPA; and that is what I now
proceed to do.







[23] Filed of record in the present
proceedings is a judgment given in ‘the de bonis propriis
proceedings’ by the Court (per Manyarara AJ) in Aune
Ndapewa Abiator v Willem
Willy Abiatar Case No. I 945/2002
(judgment (‘the Manyarara judgment’) delivered on 29
September 2004). The de bonis propriis proceedings arose from
a matrimonial matter (‘the matrimonial proceedings’),
with the same citation and the same Case Number, where the first
respondent was the legal representative of the respondent and Ms
Angula the legal representative of the applicant.







[24] In the de bonis propriis
proceedings, after summarizing the facts of the case which he found
to be ‘common cause’ between the parties, Manyarara AJ
came to the following pithy and damning conclusion at p. 4 of the
Manyarara judgment:







There
can be no doubt that Mr Murorua not only lied to the applicant’s
legal representatives but he also misled the Court in the manner
disclosed by the transcript of the proceedings. Indeed, this Court
considered this matter to be so serious that the Court took the
unusual step of referring the matter to the Law Society (of Namibia).
The Court also requested the Registrar to investigate the filing of a
false return of service of the restitution order in this matter.’







[25] Indeed, the present application
arose from a chain of events having their source in the Court which
initiated an application, consequent upon the de bonis propriis
proceedings, to the Council of the second respondent in terms of s.
35(1) of the LPA. That is what Mr Smuts referred to in his
submissions in such graphic terms:







Indeed
this Court considered the matter to be so serious that the Court took
the [un] usual step of referring the matter to the Law Society (the
second respondent). That is the origin of this complaint. It is not
being driven by some (legal) practitioners or members of the
Committee (the first applicant). It comes from this Court.’







[26] Thus, as far as the Court (per
Manyarara AJ) is concerned, the conduct of the first respondent in
the Abiatar and Abiatar case (the matrimonial proceedings)
amounted to the first respondent not only lying to the applicant’s
legal representative, Ms Angula, but it also amounted to misleading
the Court based on – significantly – the transcript of
proceedings in the matrimonial proceedings which Manyarara AJ set out
at pp. 3–4 of the Manyarara judgment. Manyarara AJ set out the
aforementioned transcript to show that the first respondent was not
telling the truth in what he had stated in his opposing affidavit in
the de bonis propriis proceedings. The transcript reads:







Mr
Murorua:

May I please you My Lord. I appear for the Plaintiff in this matter.
The papers are in order My Lord and I move for a final order.







Court:
Has a return of service been filed?







Mr
Murorua:
Yes that is correct, My Lord. I’ve personally
inspected the file on Thursday My Lord there was (intervention).







Court:
When did you inspect the file?







Mr
Murorua:
Thursday.







Court:
Thursday.







Mr
Murorua:
Yes and there was an original return of service filed.











Court:
That’s when you filed the original?







Mr
Murorua:
Yes because that was the problem the previous week. And
then did personally inspect the file.







Court:
Yes, I wouldn’t know what
transpired in the previous week. I take your word for it. Order as
prayed.’







[27] As I see it, since, as I have
said previously, the Manyarara judgment initiated the Part IV (of the
LPA) process in terms of s. 35(1) of the LPA, the applicant framed
the first charge against the first respondent along the tenor of the
Manyarara judgment, taking into account s. 33 of the LPA which –
significantly – is entitled ‘Unprofessional or
dishonourable or unworthy conduct’. And I have no good reason
to fault the applicant for so doing. The charge reads:







FIRST
CHARGE







The
respondent is guilty of the contravention of Section 33 of the Legal
Practitioners Act, 1995 (Act 15 of 1995), and is guilty of
unprofessional or dishonourable or unworthy conduct. In that during
the period 22 July 2002 to 29 August 2002, in the matter of Abiatar
v Abiatar
, he contrary to an agreement with Ms Angula not to seek
a final order pending a application to rescind the restitution order,
secured a final order of divorce and in doing so;








  1. Misled
    the Court by:









  1. failing
    to disclose the existence of the rescission application – to
    the Court;









  1. Failing
    to disclose the agreement between him and Ms Angula to the Court;









  1. (i)
    lied to Ms Viljoen, Ms Angula’s Secretary;








(ii)
feigned ignorance as to what happened in Court by telling Ms Angula
that he was not aware that a final order had been granted, as he had
instructed Adv Pickering, whilst in fact he personally appeared in
Court on two occasions and personally obtained the final divorce
order, and







(iii)
requested his Secretary to perpetuate his lies to Ms Viljoen and Ms
Angula.’







And the chapeau of s. 33 reads:







(1)
For the purposes of this Act, unprofessional or dishonourable or
unworthy conduct on the part of a legal practitioner includes–‘







I shall return to the formulation of
s. 33 in due course.







[28] Mr Soni appears to hang the fate
of the first respondent (as far as the second ground of opposition is
concerned) on the following thread, which he was so much enamoured
with. According to Mr Soni the instances of conduct which the
Legislature says constitute unprofessional or dishonourable or
unworthy conduct are adumbrated in s. 33(1). In para (h) of s. 33(1)
the Legislature says, ‘wilfully misleading’ a court or a
tribunal or allowing it to be misled constitutes unprofessional or
dishonourable or unworthy conduct. And so, counsel concluded, ‘It
is insufficient to say that simply a misleading would in itself
constitute an unprofessional, unworthy or dishonourable conduct
merely because the South African Courts have said so’.







[29] The pith and marrow of Mr Soni’s
argument, as I understand it, is briefly as follows: According to s.
33(1)(h), what the LPA outlaws is ‘wilfully misleading a court
or tribunal, or allowing it to be misled’; and not merely
misleading a court or tribunal. The first respondent was charged with
having ‘misled the Court’; and that is the offence which
he faced at the disciplinary hearing and found guilty of. But it
cannot be said, counsel argues, that ‘wilfully misleading’
a court or tribunal means the same as having ‘misled’ a
court or tribunal. The first respondent was not found guilty of
‘wilfully misleading’ the Court but was found guilty of
having ‘mislead the Court’ as the charge-sheet reads, and
so, therefore, the conviction cannot stand, Mr Soni concluded.







[30] It seems to me superficially
attractive as counsel’s forceful argument may be in regard to
the fact that ‘wilfully misleading’ does not mean the
same as having ‘misled’. But the weakness and lack of
merit of counsel’s argument is, with respect, laid bare by the
interpretation and application of s. 33(1) and (2), read with s. 32,
of the LPA. Section 32 in material part provides:







(1)
The Court may, on application made to it in accordance with
subsection (2), order that the name of a legal practitioner be struck
off the Roll or that a legal practitioner be suspended from practice








  1. if
    he or she no longer conforms to any of the requirements of section
    4(1)(c); or









  1. if
    he or she is guilty of unprofessional or dishonourable or unworthy
    conduct of a nature or under circumstances which, in the opinion of
    the Court, show that he or she is not a fit and proper person to
    continue to be a legal practitioner.’








[31] Section 32(1)(b) is
unquestionably the first indispensable provision that must be read
with s. 33 in the interpretation and application of s. 33; for
without s. 32, s. 33 is naked and hollow. Section 32, particularly
para (b) of subsection (1) thereof is, in the present proceedings,
the first signpost to look at in the interpretation and application
of s. 33. Mr Soni missed that critical signpost; hence his journey
towards his misreading of s. 33(1)(h). Indeed, counsel did not refer
to subsection (1)(b) of s. 32 at all in his forceful argument. The
chapeau of s. 32(1) gives the Court the discretion, on an application
made to it in terms of subsection (2), to make an order to strike off
from the roll the name of a legal practitioner or to suspend a legal
practitioner from practice. This is not an absolute discretion, it is
a guided discretion; that is, guided by paras (a) and (b) of s.
32(1); that is to say, the Court may only exercise the discretion if
either para (a) or para (b) exists: those paragraphs are conditions
precedent. Paragraph (a) of subsection 1 is not relevant in these
proceedings. And so, as far as these proceedings are concerned, the
Court may only exercise the discretion under para (b) of subsection
(1) of s. 32 if the Court found the legal practitioner guilty of
unprofessional or dishonourable or unworthy conduct or if – and
this is significant – in the opinion of the Court the conduct
is ‘of a nature or under circumstance’ that goes to show
to the Court that the legal practitioner in question ‘is not a
fit and proper person to continue to be a legal practitioner’.







[32] Thus, as far as these proceedings
are concerned, the fulfilment (or realization) of the definition of
the proscription of misconduct (or offence) (see Snyman, Criminal
Law
, 3rd edn. 1995: pp 60-61), in terms of s. 32(1)(b)
is attained if a legal practitioner does anything stipulated in
33(1); but the list therein is not exhaustive; otherwise the word
‘means’ should have been used; a priori, since the
word ‘includes’ is used the expression of the acts
stipulated in the list that amount to unprofessional or dishonourable
or unworthy conduct on the part of a legal practitioner are
incomplete and a part only of such acts is expressed. (See G C
Thornton, Legislative Drafting, 1987: p 174-175). A
fortiori
, the LPA provides in s. 33 that – and this is
critical –







(2)
The provisions of subsection (1)
shall
not restrict

the power of the Court or the Disciplinary Committee to determine
that an act or omission not specified in subsection (1)
or
any other law
,
constitutes unprofessional or dishonourable or unworthy conduct on
the part of a legal practitioner.’







(Italicized for emphasis)







It is worth noting, as Mr Smuts
submitted, that Mr Soni did not even refer to this crucial provision
in his submission. Mr Soni missed this critical signpost, too,
leading him yet again to take a route towards his misreading s.
33(1).







[33] Having read s. 32(1)(b), s. 33(1)
and s. 33(2) intertextually, as I should perforce do, I am confident
in my view that Mr Soni’s argument that because the first
respondent was charged with, and found guilty of, having misled the
Court the conviction cannot stand is, with respect, without merit. In
my opinion misleading the Court by a legal practitioner is an
unprofessional conduct on the part of that legal practitioner within
the meaning of s. 33(1) of the LPA; so also is a legal practitioner
lying to another legal practitioner an unprofessional conduct on the
part of the first mentioned legal practitioner, so long as the
mendacity concerns ongoing proceedings before a court and the
untruthfulness is of such a nature that but for the untruthfulness
the decision of the court or tribunal might have gone a different
way.







[34] Accordingly, in my opinion, the
misleading of a court or tribunal by a legal practitioner or one
legal practitioner lying to another legal practitioner in ongoing
proceedings where but for the lie the decision of the court or
tribunal might have gone a different way is an unprofessional conduct
within the meaning of subsection (1), read with subsection (2), of s.
31 of the LPA, albeit a legal practitioner misleading a court or
tribunal and a legal practitioner lying to another legal practitioner
in ongoing proceedings is not expressly stipulated in subsection (1)
of s. 31 of the LPA. The conclusion I have reached is supported by
the literal meaning in context of the adjective ‘unprofessional’.
(See H N v Government of the Republic of Namibia 2009 (2) NR
75 at 758I-759A). And the literal meaning of ‘unprofessional’
is ‘below or contrary to the standards expected in a particular
profession’ (Concise Oxford Dictionary, 11 edn).







[35] The authorities also support the
conclusion I have reached. The standard of conduct expected of a
legal practitioner in his dealings with the Court is spelt out
succinctly in Toto v Special Investigating Unit and Others
2001 (1) SA 637 (E) at 683A-F as follows:







It
is trite that it is the duty of a litigating party’s legal
representative to inform the court of any matter which is material to
the issues before court and of which he is aware – see, for
example,
Schoeman
v Thompson

1927 WLD 282 at 283. This Court should always be able to accept and
act on the assurance of a legal representative in any matter it hears
and, in order to deserve this trust, legal representatives must act
with the utmost good faith towards the Court. A legal representative
who appears in court is not a mere agent for his client, but has a
duty towards the Judiciary to ensure the efficient and fair
administration of justice – see the remarks of De Villiers JP
in
Cape
Law Society v Vorster

1949 (3) SA 421 (C) at 425. As was observed by James JP in
Swain’s
case
supra
in a passage since followed,
inter
alia

in
Society
of Advocates of Natal and Another v Merret

1997 (4) SA 374 (N) at 383 and
Pienaar
v Pienaar en Andere

2000 (1) SA 231 (O) at 237, the proper administration of justice
could not easily survive if the professions were not scrupulous of
their dealings with the Court.’







It is also spelt out concisely in
State v Baleka and Others (4) 1988 (4) SA 688 (T) at 705E-F
thus:







The
administration of justice is founded upon the preservation of the
dignity of the Courts. It is the duty of counsel and attorneys to
assist in upholding it. They are not mere agents of the clients;
their duty to the Court overrides their obligations to their clients
(subject to their duty not to disclose the confidences of their
clients). The conduct of the defence team, when measured against the
high standards set for the professions, falls far short thereof.’







[36] Additionally, in England a
solicitor who failed to inform the court of all material matters
within his knowledge and about which the court should have been
informed is guilty of professional misconduct; so, too, is a
solicitor who failed to implement an undertaking given to another
solicitor and a solicitor who gave false information to another
solicitor guilty of professional misconduct. (Halsbury’s Law
of England
, Fourth edn: paras 299, 304). I do not see any good
reason why such acts of misconduct should not in terms of Part IV of
the LPA, be judged to be unprofessional conduct in Namibia (with its
unified legal profession) considering the interpretation and
application of s. 31, read with s. 32(1)(b), of the LPA which I
discussed previously. Furthermore, it is my view that the conduct of
a legal practitioner that is found to be unprofessional may also be
dishonourable or unworthy conduct.







[37] In casu, the summary of
substantial facts explaining the first charge has it that the first
respondent misled the Court by –







(1)
(i) failing to disclose to the Court the existence of the rescission
application.







(ii)
failing to disclose to the Court the agreement between him and Ms
Angula.







(2)
(i) lying to Ms Viljoen, Ms Angula’s Secretary;







(ii)
feigning ignorance as to what happened in Court by telling Ms Angula
that he was not aware that a final order had been granted, as he had
instructed Adv. Pickering, whilst in fact he personally appeared in
Court on two occasions and personally obtained the final divorce
order; and







(iii)
by requesting his Secretary to perpetuate his lies to Ms Viljoen and
Ms Angula.’







[38] Keeping in my mental spectacle
the aforegoing reasoning and conclusions respecting conduct on the
part of a legal practitioner that may be judged to be unprofessional,
or dishonourable or unworthy conduct in terms of the LPA, I have not
one grain of difficulty in holding that the series of conduct
described in the first charge, if proven, indubitably amounts to
unprofessional or dishonourable or unworthy conduct on the part of
the first respondent. Thus, the question that arises for
determination is indubitably this: was the evidence before the
applicant sufficient to satisfy the applicant that ‘the legal
practitioner is guilty of unprofessional or dishonourable or unworthy
conduct in the application (submitted by the second respondent to the
first applicant) or in respects other than those so alleged’ in
terms of s. 35(7)(b) of the LPA. In other words, is the evidence
sufficient upon which this Court should find that the legal
practitioner to whom the applicant’s application relates (i.e.
the first respondent) is guilty of unprofessional or dishonourable or
unworthy conduct in terms of s. 37 of the LPA?







[39] In determining this question, I
find it important to note that the first respondent’s counsel
agreed that the disciplinary hearing by the applicant could be
conducted and concluded on the basis of the affidavits contained in
the application made in terms of s. 35(1) of LPA, (as aforementioned)
by the Council of the second respondent and the first respondent’s
answers thereto (set out in the affidavits) without the need to call
any witnesses. The disciplinary hearing was accordingly conducted and
concluded upon that agreement, and the first respondent was found
guilty of the first charge (inter alia) without referring any such
matter to oral evidence – as agreed.







[40] Now, before this Court, Mr Soni
makes an application that certain matters (responding the first
respondent’s second ground for opposing the present
application) should be referred to oral evidence; and yet, the first
respondent’s counsel – counsel of standing, as Mr Smuts
reminded the Court – agreed at the disciplinary hearing that
the applicant could conduct and conclude the hearing without
referring any matters to oral evidence. The matters concern the
alleged agreement between the first respondent and Ms Angula, the
first respondent lying to Ms Viljoen, (Ms Angula’s Secretary)
and the first respondent suborning his own Secretary to perpetuate
the first respondent’s aforementioned lie for the benefit of Ms
Angula: all these matters are mentioned in the first charge.







[41] In my opinion, with the greatest
deference to Mr Soni, Mr Soni’s application appears to be an
attempt to have a second bite – undeservingly – at the
cherry. To start with, as I have said ad nauseam, the first
respondent’s counsel agreed that the hearing could proceed on
the basis of the papers; and what is more, the first respondent has
not challenged his acquittal respecting the second charge and his
conviction and imposition of sanction by the applicant in the
selfsame disciplinary hearing in respect of the other charges of
which he was also found guilty and fined. In any case, I can in terms
of rule 6(5)(g) of the Rules of Court decide the application on the
papers without referring any matter to oral evidence; and I now
proceed to do that. Mr Soni’s application is, therefore,
respectfully rejected.







[42] Now, to the question whether
there is sufficient evidence upon which this Court could find that
the first respondent is guilty of unprofessional or dishonourable or
unworthy conduct. The facts of the first charge appear from
affidavits filed in the Court in the de bonis propriis
proceedings and which the Court summarized at pages 1–4.







[43] I have carefully considered the
affidavits and the probabilities they raise; and having done so, I
come to the following reasonable and inevitable conclusions. As to
the issue of the so-called agreement between the first respondent and
Ms Angula; there may not have been an agreement in sensu
stricto
, but I find that the first respondent gave an undertaking
to Ms Angula in ongoing proceedings: the first respondent gave an
undertaking that he would not apply for a final order in virtue of
the pending rescission application launched by Ms Angula on behalf of
her client in the matrimonial matter. But the first respondent failed
to implement that undertaking. If, indeed, the first respondent had
not made any such undertaking which he knew he must implement he
would not have gone to extremely unconscionable lengths to give false
information to Ms Angula that he was not aware that a final order of
divorce had been obtained as Adv. Pickering had been briefed; which
was not true, and which he knew to be so. What is more, and to make
matters worse; the first respondent suborned his own secretary to
repeat, in his interest, the same lie to Ms Angula.







[44] From all this, I find that by
failing to implement the undertaking he had given to Ms Angula in an
ongoing proceeding and also by giving false information to Ms Angula,
the first respondent, on the authorities referred to supra, is guilty
of unprofessional or dishonourable or unworthy conduct within the
meaning of Part IV of the LPA.







[45] Furthermore, from the affidavits,
it is as plain as day that the first respondent did not disclose the
existence of the aforementioned rescission application to the Court;
and for his reason for so acting, he says, ‘ ... there was no
obligation on me to inform the Court on 12 August 2002 of the pending
application for the rescission of the restitution order ...’ It
seems to me clear that from the first respondent’s own
affidavit , the true reason was rather that he was prepared –
willy – nilly – to brush aside his duty to the Court in
order to satisfy his client by hook or by crook.







[46] The first respondent misses the
point about his supremely important duty in any proceeding to inform
the Court of all material matters within his knowledge and about
which the Court should have been informed. The first respondent had
knowledge of the pending rescission application and it was absolutely
necessary that the Court should have been informed about the pending
rescission application for the Court itself to decide whether, in the
circumstances of the case, it was in accordance with justice to grant
the final order of divorce. It was not the place of the first
respondent – none at all in any legal imagination – to
decide (as Mr Soni appears to contend in his submission) whether
‘that rescission application was a relevant fact which would
have persuaded this Honourable Court not to grant the final order’.
This is, with respect, speculative thought on the part of the first
respondent: it cannot assist him in not being found guilty, as I do
find him, of unprofessional or dishonourable or unworthy conduct
within the meaning of Part IV of the LPA for failing to inform the
Court of the material matter of the pending application for
rescission about which, as I have said, the Court should have been
informed.







[47] Thus, for the aforegoing
reasoning and conclusions I find that the first respondent is guilty
of unprofessional or dishonourable or unworthy conduct. The applicant
was entirely justified in finding him guilty of such conduct. I now
proceed to determine what appropriate order to grant in terms of s.
37 of the LPA, that is, as respects penalty.







[48] The applicant has made an
application in which it prays, going by the majority decision, the
Court for an order to strike the first respondent’s name off
the roll. It is to this prayer that I direct the rest of the enquiry
that now follows, keeping in firm view the power of the Court
according to s. 37 of the LPA. Under this head, I make the following
conclusions. First, it must be remembered that although this Court
has found the first respondent guilty of unprofessional or
dishonourable or unworthy conduct, unlike the applicant, the reason
of the guilty verdict pronounced by this Court is not based on the
first respondent wilfully misleading the Court but on the first
respondent’s failure to inform the Court of a material matter
that was within his knowledge and about which the Court should have
been informed. Second, unlike the applicant, this Court has found the
first respondent guilty of unprofessional or dishonourable or
unworthy conduct on the basis of his failure to implement an
undertaking given to Ms Angula and not on the basis of a breach of
agreement between the first respondent and Ms Angula. Wilfully
misleading the Court is a far cry from failure to place before the
Court a material matter which is in the knowledge of a legal
practitioner and about which the Court must be informed. Furthermore,
a breach of agreement is not the same as failure to implement an
undertaking.







[49] It is worth noting that the cases
referred to the Court by Mr Smuts where the name of the delinquent
attorney concerned was removed from the roll cannot be followed in
the present case; not least because the nature of misconduct that was
involved in many of those South African cases does not in terms of
its reprehensibility and deplorability come any way close to the
nature of unprofessional or dishonourable or unworthy conduct for
which the first respondent has been found guilty by this Court: the
misconduct in many of the South African cases do not contain the same
corpus delicti as in the unprofessional or dishonourable or
unworthy conduct that has been found to be proven in the present
proceedings. For instance, in Botha and Others v Law Society,
Northern Provinces
2009 (3) SA 329 (SCA) the misconduct involved
included books of accounts kept by the delinquent attorneys
reflecting a trust shortage in excess of a whopping R12, 000,000.00
and touting. An in Malan and Another v Law Society, Northern
Provinces
2009 (1) SA 216 (SCA) the misconduct involved included
conducting a Road Accident Fund practice that was the result of
active touting and ‘selling’ of claims by touts to the
delinquent attorneys’ firm, some of which turned out to be
fraudulent, overreaching, failure to account and failure to keep
proper books of account. By a parity of reasoning while in Society
of Advocates of Natal and Another v Merret
1997 (4) SA 374 (N)
the misconduct was the attorney deliberately misleading a Judge, in
the instant case the first respondent has been found guilty of
failure to inform the Court of a material matter within his knowledge
about which the Court should have been informed.







[50] Now comes the case of
Disciplinary Committee for Legal Practitioners v Berend Johannes
Viljoen and Law Society of Namibia
Case No. A 170/2008
(Unreported) which Mr Soni referred to the Court. There, the legal
practitioner involved was found guilty of unprofessional or
dishonourable or unworthy conduct in that –







(i)
during the year 2000 he backdated a letter to the MVA Fund concerning
an alleged agreement not to keep his client bound to a prescription
period in relation to a claim and that the contents of the letter was
factually incorrect; and in that (ii) he did not inform his client
timeously that the letter was backdated but that he did so on the
date of the commencement of the civil trial thereby misleading his
client to believe that the actual agreement he had was indeed reached
in the manner and at the time as indicated in the letter, while it
was not.’







[51] For these very serious proven
instances of unprofessional or dishonourable or unworthy conduct, the
applicant considered it fair and reasonable to apply to the Court for
an order to suspend the delinquent legal practitioner from practice
for only 12 months. The application was unopposed and came before Van
Niekerk, J in the first motion court on 25 July 2008. She made an
order in the following terms:







That
the first respondent is hereby suspended from practice for a period
of 12 months, calculated from 25 February 2008.’







This was after counsel for the
applicant moved for same on the basis that the legal practitioner
concerned had already formally agreed to the sanction proposed by the
applicant and in fact stopped practising on 25 February 2008.







[52] The acts that have been judged to
be unprofessional or dishonourable or unworthy conduct in the instant
case do not come anywhere near the acts judged to be professional
misconduct in either the Malan case or the Botha case;
or, indeed, on any pan of scale comparable to the acts committed by
the delinquent legal practitioner in the Viljoen case. The
legal practitioner deceived and/or misled his client. In this regard
it has been said that the main consideration in deciding whether to
strike the name of a legal practitioner from the roll is the
protection of the public (Malan and Another supra at [7]); and
yet such fate did not befall the legal practitioner concerned,
albeit, in my opinion he should have suffered that fate.







[53] I have dwelt on the Viljoen
case at some length because, to start with, it is a home-grown case
and also because it was referred to the Court by the first respondent
in his papers filed of record and Mr Soni took it up in his
submission. Moreover, I have done so to make a point, that is to say,
if the applicant thought it was fair and reasonable to apply for and
obtain an order (as it did) to suspend the legal practitioner
involved from practice for 12 months in the Viljoen case, I
really do not see the legal basis upon which the applicant now
applies in the instant case for an order to strike the name of the
first respondent off the roll.







[54] As respects the first respondent
in these proceedings; as Mr Soni submitted, the first respondent has
been practising for three years since he was found guilty by the
applicant; and there is no evidence before the Court that the first
respondent has acted in a manner from which the public must be
protected in that regard. This observation ought to count weightily
in favour of the first respondent – when all is said and done;
as it has been said and done supra.







[55] In all this, I take into
consideration the following apt and succinct counsel by Lord Denning
MR in his sterling work The Discipline of Law, 1979: p. 87:







Justice
must be rooted in confidence: and confidence is destroyed when
right-minded people go away thinking: “the judge was biased”.’







I think on the facts and circumstances
of the present case and comparing it, as I have done, not with not
only cases from other jurisdictions but with a case in this
jurisdiction, it would be unfair and unjust to strike the name of the
first respondent off the roll. If this Court did that, I am afraid,
right-minded people would go away thinking this Court was biased.







[56] For the avoidance of doubt, I
hasten to add to all this: I think the conduct of the first
respondent comes dangerously close to justifying his name being
struck off the roll. But I have great hesitancy in going that route
because I have grave doubt as to the fairness, justice and
reasonableness about making such an order for the aforegoing
conclusions and reasoning. It is, therefore, my view that an order
that the first respondent should be suspended from practice will meet
the justice of the present case.







[57] Whereupon, I make the following
order:








  1. The first respondent is suspended
    from practice for 12 months wholly suspended for three years on
    condition that the first respondent is not found guilty of
    unprofessional or dishonourable or unworthy conduct in terms of the
    Legal Practitioners Act, 1995 (Act No. 15 of 1995), committed during
    the period of suspension.









  1. The first respondent must pay the
    costs of the application.












_________________



PARKER J







I agree.











_________________



SIBOLEKA J











VAN NIEKERK, J: [1]
I am in respectful agreement with the judgment written by my brother
PARKER, J in many respects. In fact, I have made certain
contributions to the judgment which need not be specified. However,
there are certain material aspects on which I hold a different view
or on which I wish to place a certain perspective.







The application for referral to
oral evidence







[2] The first respondent’s
counsel applied that, inter alia (i) the issue of whether
there was an agreement between Ms Angula and the first respondent
that he would extend the rule nisi; and (ii) the issue of
whether was a duty on the first respondent to inform the Court about
the rescission application, be referred to oral evidence as there is
a material dispute of fact about these matters on the papers. In the
alternative, counsel requested the Court to apply the well known rule
in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A) at 634I-635D), namely to base its decision on
facts that are common cause or otherwise on the first respondent’s
version.







[3] I am in complete agreement with
the submissions by Mr Smuts that there is no merit in this
application. In deciding this issue I take into consideration that
the first respondent elected not to give oral evidence at the hearing
before the applicant, where he was represented by eminent and
experienced counsel and that there was agreement between the
applicant and the first respondent that the complaint be considered
on the basis of the affidavits filed in “the de bonis
propriis
proceedings”. In the first respondent’s
answering affidavit before this Court he relies again on what he
stated in those proceedings. In my view there is no bona fide
dispute of fact on the papers. It seems to me that if the second and
important leg of the Plascon-Evans rule is considered, this
Court is justified in rejecting the disputes raised merely on the
papers.







[4] In regard to the allegation that
there was an agreement the first respondent states:







Though
I have no specific recollection of discussion surrounding what I
always regarded as a separate application proceedings, I am prepared
to concede for the purposes hereof that I was personally amenable to
extending the return day of the restitution order subject to
directions by my client. I however deny ever having undertook
(sic)
to
extent
(sic)
the return day of the restitution order.”







[5] Firstly this paragraph commences
with the statement that he has no specific recollection about the
discussion, yet he denies giving an undertaking. He then makes a
concession “for purposes hereof” which supports the
version of an agreement to extend, just to deny it again. I agree
with Mr Smuts that this denial is equivocal.







[6] Later he states:







Subsequently
to the above developments I had consultation with applicant [i.e. his
client in the divorce matter] on 8 August 2002 when we settled the
opposing affidavit at which occasion he again impressed on me the
need for finalisation of the divorce action on the scheduled date.”
[my insertion]







Also:







I
was taken to task by my client over the matter [i.e. in not obtaining
a final order of divorce] on 14 August 2011 when he initially sought
to collect his final order of divorce, I at that occasion assured him
that I would secure the order on the 19
th
August 2002 and I did that, returning to office on Monday from my
study leave.” [my insertion]







[7] These two paragraphs read with the
previous one convey to my mind that that the first respondent had
agreed to extend the return date, but that he failed to act in
accordance with that agreement when his client insisted on a final
order. As the other facts show, he did not revert to Ms Angula to
inform her of his client’s stance, as he should have done. I
further am of the view that the first respondent’s subsequent
conduct by telling lies to Ms Angula and to her secretary, as well as
by influencing his secretary to perpetuate the deceit, is consistent
with there having been an undertaking to extend the rule. There is no
need to refer this matter to oral evidence.







[8] In regard to the second matter on
which Mr Soni applied for referral, it seems to me that it
does not concern a dispute of fact. What appears to be in issue is
whether there was a duty on the first respondent to disclose to the
Court the existence of the rescission application. In my view this is
not a factual issue but a legal one and may be argued. In so far as
there was a suggestion that the first respondent could orally explain
his understanding about the nature of the rescission proceedings and
that he could be cross-examined on this in order to test his
credibility, I do not think that is necessary. It is plain as
daylight that the rescission application was not separate or parallel
proceedings, which, as the applicant stated in its ruling, “struck
at the very heart of the relief that respondent sought as without a
restitution order there can be no final order”. The first
respondent’s attempts to convince not only MANYARARA AJ, but
also the applicant and this Court that he was under the impression
that it had no bearing on the divorce matter are farfetched and not
bona fide and may be rejected on the papers.







The consequences of the finding
that the first respondent is guilty of unprofessional or
dishonourable or unworthy conduct







[9] Fortunately striking-off
applications in this jurisdiction are rare. Apart from the Viljoen
matter which related to suspension, counsel did not refer us to any
Namibian authority. By way of introduction I state at this stage that
I intend relying on several South African cases by the Supreme Court
of Appeals, most of which were also relied upon by counsel for both
sides.







[10] Section 32(1)(b) of the LPA
states that the court may, on application made to it in accordance
with subsection (2), order that the name of a legal practitioner be
struck off the roll or that a legal practitioner be suspended from
practice if he or she is guilty of unprofessional or dishonourable or
unworthy conduct of a nature or under circumstances which, in the
opinion of the Court, show that he or she is not a fit and proper
person to continue to be a legal practitioner.



[11] In terms of section 37 the Court
may, if in the circumstances of the case it thinks fit so to do, and
instead of granting an order that the name of the legal practitioner
be struck off the roll or that he or she be suspended from practice,
(a) reprimand the legal practitioner; or (b) reprimand and order the
legal practitioner to pay a penalty not exceeding N$ 10 000; and may,
in either of these cases, make any order as to restitution in
relation to the case.







[12] The application under section 32
contemplates a three-stage enquiry:







First, the Court must decide whether
the alleged offending conduct has been established on a preponderance
of probabilities, which is a factual inquiry.







Second, it must consider whether the
person concerned ‘in the opinion of the court’ is not a
fit and proper person to continue to be a legal practitioner. This
involves a weighing up of the conduct complained of against the
conduct expected of a legal practitioner and to this extent, is a
value judgment.







Third, the Court must inquire whether
in all the circumstances the person in question is to be removed from
the roll of legal practitioners or whether an order of suspension
from practice would suffice.







(See Jasat v Natal Law Society
2000 (3) SA 44 (SCA) at para 10; Malan v Law Society, Northern
Provinces
2009 (1) SA 216 (SCA) at para [4].)



[13] For the reasons stated in PARKER,
J’s judgment it is clear that the first leg of the inquiry has
been concluded and that the first respondent is guilty of
unprofessional or dishonourable or unworthy conduct.







[14] As far as the second stage of the
inquiry is concerned, it is necessary to consider the nature of the
conduct which forms the basis of the conviction. The first respondent
failed to honour an undertaking about the way he would be dealing
with a matter before the Court which had grave consequences for the
opposing party. She was seeking to set aside the restitution order
and to defend the action for divorce. It is no use to attempt to
justify this conduct by saying, as the first respondent did, that the
opposing party also wanted a divorce and merely wanted to contest the
ancillary relief. The proposals she made about the ancillary relief
were contained in a letter by her lawyer, (p 60 of the record), and
were for purposes of settlement. While her lawyer relied on his
undertaking, the first respondent abused her trust by deliberately
and dishonestly moving for relief which undermined the whole purpose
of what she was intent upon achieving. It might be added that
although he may have thought that he served his client’s
interests, the first respondent did not, as ultimately the opposing
party applied successfully for the rescission of both the restitution
order and the final order as appears from the judgment of MANYARARA
AJ (at p2). In my view the fact that this matter was one concerning
the status of the parties is an aggravating feature of the first
respondent’s misconduct.



[15] Furthermore, when enquiries were
made by Ms Angula and her staff, the first respondent repeatedly lied
about what he had done while bringing Ms Angula under the false
impression that he had acted in accordance with his undertaking or
feigning ignorance about the true position. The respondent in his
affidavit seeks to excuse this conduct by stating:







I
admit having had a telephone conversation with an unknown female
person from Lorentz and Bone law firm concerning this matter. I was
however resolved at that stage not to bring the wrath of my client
onto me hence I needed a dilatory ploy which would have enabled me to
see off my client by securing a degree (
sic)
of
divorce as I knew at that stage that his departure was imminent. I do
not deny having told Ms Viljoen that the rule was extended but state
that I had to do it to honour the undertaking with my client.”







[16] He even falsely drew in a
completely innocent and respected member of the Bar, pretending that
he had instructed the latter to appear, while he appeared in person
on both occasions. He further involved another person in the web of
deceit, namely his secretary, who he requested to perpetuate his lies
to Ms Angula.







[17] As to his conduct before
MANYARARA, AJ when first respondent moved for a final order, I note
PARKER, J’s view that this conduct was not wilful and that the
misleading that took place was not wilful. I regrettably find myself
unable to agree with this view. In my respectful opinion a failure to
disclose, just like a misleading, may be wilful, or negligent or
innocent. The evidence in this case clearly establishes that the
non-disclosure whereby the Court was misled, was wilful and
deliberate. Whether he was charged with a wilful misleading before
the applicant is in my view not material, the fact is that the
evidence discloses wilful misleading. In this respect the first
respondent was not prejudiced in any way. He knew that this was the
allegation made in the affidavit on which the complaint was based.
The applicant’s ruling makes it clear that this is also the
basis on which it convicted the first respondent.







[18] Based on the nature of the
conduct set out above, I conclude that the first respondent is not a
fit and proper person to continue to be a legal practitioner.







[19] I now turn to the third stage of
the inquiry, and that is to consider what consequence should follow
upon the preceding finding. This is a matter which lies in the
discretion of the Court. In Malan’s case the Supreme
Court of Appeals dealt with the principles applicable to striking-off
applications and stated the following in the context of such an
application of an attorney (at 219H-221A):







...[W]hether
a court will adopt the one course or the other depends upon such
factors as the nature of the conduct complained of, the extent to
which it reflects upon the person's character or shows him to be
unworthy to remain in the ranks of an honourable profession, the
likelihood or otherwise of a repetition of such conduct and the need
to protect the public. Ultimately it is a question of degree......



[7]
First, in deciding on whichever course to follow the court is not
first and foremost imposing a penalty. The main consideration is the
protection of the public.







[8]
Second, logic dictates that if a court finds that someone is not a
fit and proper person to continue to practise as an attorney, that
person must be removed from the roll. However, the Act contemplates a
suspension. This means that removal does not follow as a matter of
course. If the court has grounds to assume that after the period of
suspension the person will be fit to practise as an attorney in the
ordinary course of events it would not remove him from the roll but
order an appropriate suspension. In this regard the following must be
borne in mind:







The
implications of an unconditional order removing an attorney from the
roll for misconduct are serious and far-reaching.
Prima
facie
,
the Court which makes such an order visualises that the offender will
never again be permitted to practise his profession because
ordinarily such an order is not made unless the Court is of the
opinion that the misconduct in question is of so serious a nature
that it manifests character defects and lack of integrity rendering
the person unfit to be on the roll. If such a person should in later
years apply for re-admission, he will be required to satisfy the
Court that he is 'a completely reformed character' (
Ex
parte Wilcocks

1920 TPD 243 at 245) and that his 'reformation or rehabilitation is,
in all the known circumstances, of a permanent nature' (
Ex
parte Knox

1962 (1) SA 778 (N) at 784). The very stringency of the test for
re-admission is an index to the degree of gravity of the misconduct
which gave rise to disbarment.’







(Incorporated
Law Society, Natal v Roux
1972 (3) SA 146 (N) at 150B - E quoted
with approval in Cirota and Another v Law Society, Transvaal 1979
(1) SA 172 (A) at 194B - D.) It is seldom, if ever, that a mere
suspension from practice for a given period in itself will transform
a person who is unfit to practise into one who is fit to practise.
Accordingly, as was noted in A v Law Society of the Cape of Good
Hope
1989 (1) SA 849 (A) at 852E - G, it is implicit in the Act
that any order of suspension must be conditional upon the cause of
unfitness being removed. For example, if an attorney is found to be
unfit of continuing to practise because of an inability to keep
proper books, the conditions of suspension must be such as to deal
with the inability. Otherwise the unfit person will return to
practice after the period of suspension with the same inability or
disability. In other words, the fact that a period of suspension of,
say, five years would be a sufficient penalty for the misconduct does
not mean that the order of suspension should be five years. It could
be more to cater for rehabilitation or, if the court is not satisfied
that the suspension will rehabilitate the attorney, the court ought
to strike him from the roll. An attorney, who is the subject of a
striking-off application and who wishes a court to consider this
lesser option, ought to place the court in the position of
formulating appropriate conditions of suspension.







[9]
Third, the exercise of this discretion is not bound by rules, and
precedents consequently have a limited value. All they do is to
indicate how other courts have exercised their discretion in the
circumstances of a particular case. Facts are never identical, and
the exercise of a discretion need not be the same in similar cases.
If a court were bound to follow a precedent in the exercise of its
discretion it would mean that the court has no real discretion. (See
Naylor and Another v Jansen 2007 (1) SA 16 (SCA) at para 21.)”







[20] It has been stated time and again
that if a court finds that a practitioner acted dishonestly, the
usual order is removal from the roll instead of a suspension. This
obviously is because a dishonest person is, generally speaking,
especially not a fit and proper person to practise law. In Summerley
v Law Society, Northern Provinces
2006 (5) SA 613 (SCA), the
following was said in this regard at par [21]:







The
further argument on behalf of the appellant was that, as a general
rule, striking-off is reserved for attorneys who have acted
dishonestly, while transgressions not involving dishonesty are
usually visited with the lesser penalty of suspension from practice.
Although this can obviously not be regarded as a rule of the Medes
and the Persians, since every case must ultimately be decided on its
own facts, the general approach contended for by the appellant does
appear to be supported by authority (see eg
A
v Law Society of the Cape of Good Hope

1989
(1) SA 849 (A);
Reyneke
v Wetsgenootskap van die Kaap die Goeie Hoop

1994
(1) SA 359 (A);
Law
Society of the Cape of Good Hope v King

1995
(2) SA 887 (C) at 892G - 894C;
Vassen
v Law Society of the Cape of Good Hope

1998
(4) SA 532 (SCA) at 538I - 539A;
Law
Society, Cape of Good Hope v Peter

[2006]
SCA 37 (RSA) in para [19]). This distinction is not difficult to
understand. The attorney's profession is an honourable profession,
which demands complete honesty and integrity from its members. In
consequence dishonesty is generally regarded as excluding the lesser
stricture of suspension from practice, while the same can usually not
be said of contraventions of a different kind.”











[21] Having quoted this passage from
Summerley, the court in Malan continued (at p221D-F):







Obviously,
if a court finds dishonesty, the circumstances must be exceptional
before a court will order a suspension instead of a removal.
(Exceptional circumstances were found in
Summerley
and
in
Law
Society, Cape of Good Hope v Peter

[2006] ZASCA 37 and the court was able in the formulation of its
order in those cases to cater for the problem by requiring that the
particular attorney had to satisfy the court in a future application
that he or she should be permitted to practise unconditionally.)
Where dishonesty has not been established the position is as set out
above, namely that a court has to exercise a discretion within the
parameters of the facts of the case without any preordained
limitations.”







[22] From these authorities it appears
that, while the Court has a discretion to decide on removal or
suspension, in the case of dishonesty the discretion of the Court is
limited by the consideration that removal is the usual consequence
for dishonesty and that suspension will only follow in exceptional
circumstances.







[23] Applying these principles there
are in my respectful view no exceptional circumstances requiring a
deviation from the norm. I do not intend embarking upon a comparison
of the facts of other cases. In this regard it is apposite to have
regard to the following passage from Law Society of the Northern
Provinces v Sonntag
2012 (1) SA 372 (SCA):







[16]
I am of the view that the court below materially misdirected itself
in ordering the suspension of the respondent and not her striking off
the roll of attorneys. It did so by comparing the matter
in
extenso

with
Malan's
case and deciding that, because the scale of wrongdoing in
Malan
was so much greater, a lesser penalty in this case was justified.
Comparisons are odious and, as was stated by Harms ADP in
Malan:







'Facts
are never identical, and the exercise of a discretion need not be the
same in similar cases. If a court were bound to follow a precedent in
the exercise of its discretion it would mean that the court has no
real discretion.'











The
question is not whether this case is as serious as Malan's but
whether, or, if appropriate, when, an attorney should be permitted to
continue in practice.”







[24] The first respondent relies on
the Viljoen matter which is dealt with in the judgment of
PARKER, J. As I sat on that matter I can state that it was heard on
the first motion roll on an unopposed basis. The matter was not
argued. If the same matter came before me now, I would, with
hindsight and having had the benefit of argument by full argument by
the parties in this case, probably deal with that matter differently.
If any errors were made in that matter it is regrettable, but they
should not be repeated or perpetuated for the sake of parity. On the
contrary, it is this court’s duty to deal with the matter as
legal principle and the facts of the case require. In other words,
the task before this Court is to apply its mind to the law and the
facts of this case and to decide independently from the applicant
what consequences should follow upon the Court’s conviction of
the first respondent. That is clear from the LPA and the authorities
already cited.







[25] In my view the first respondent’s
insistence throughout that there was no agreement; that his lies to
his colleague are to be seen in a lesser light because he acted on
directions of his client and the obstinate insistence that there was
no duty on him to disclose the fact of the rescission application to
the Court show a state of mind evincing a lack of integrity not to be
expected from a legal practitioner (cf. Sonntag 380H). Some of
these aspects also indicate a lack of insight into his misconduct
which contributes to the finding that he is not fit to continue to
practise.







[26] In Botha v Law Society,
Northern Provinces
2009 (3) SA 329 (SCA) the following was said:







[23]
The appellants have been dishonest, have shown a lack of integrity
and openness and have shown no insight into the extent of their
transgressions. An attorney should not have these character traits.
An order suspending them from practice would only be appropriate if
there were some way in which the court could expect them to overcome
these character traits during the time of their suspension. It is
simply impossible to look into the future and know that the public
would be adequately protected after a period of suspension. Hence the
logical and sensible approach must be that the appellants be
prevented from practising until they can convince a court that they
have in fact reformed to the point that they could be allowed to
practise again.”







[27] In considering the option of
suspension I find myself at a loss to think of any appropriate
condition upon which such a suspension may sensibly operate. In this
regard I may state respectfully that I found the discussion of the
relevant considerations in Law Society of the Cape of Good Hope v
Peter
2009 (2) SA 18 (SCA) very useful. Furthermore, the matter
should not be approached as if a sentence in a criminal case is to be
imposed (Botha v Law Society, Northern Provinces 2009 (3) SA
329 (SCA) 338B).







[28] Mr Soni submitted that the
conduct of the first respondent is not indicative of a flaw in
character as there are no further instances of this nature, which
would otherwise have come to light by now. The problem I have with
this submission is that the telling of lies and the failing to
disclose material matters where there is a contrary duty is
calculated to deceive and to hide the truth. When a legal
practitioner misleads a Court by wilfully failing to disclose
material facts, such conduct is, by its very nature, unlikely to be
picked up, unless there is, as in this case, another party who cries
foul. It cannot be said that such conduct would have come to the fore
by now. Viewed from a slightly different perspective, how often does
it not happen that the assurance of a legal practitioner is given in
circumstances where the Court would never know the true position if
the assurance were false? Such opportunities arise countless times
daily. In fact, every time a legal practitioner appears, a court is
counting thereon that any assurance given may be relied upon without
question or that any material matter which could have a bearing on
the matter will be disclosed. A failure to disclose is inherently
more difficult to detect. The functioning of our courts is vitally
dependent on the assumption that legal practitioners will act with
complete honesty and integrity. Without it the courts simply cannot
function.







[29] In this context it is apposite to
quote the following extract from Ex parte Swain 1973 (2) SA
427 (N) where at 434H James JP said:







Furthermore,
it is of vital importance that when the Court seeks an assurance from
an advocate that a certain set of facts exists the Court will be able
to rely implicitly on any assurance that may be given. The same
standard is required in relations between advocates and between
advocates and attorneys. The proper administration of justice could
not easily survive if the professions were not scrupulous of the
truth in their dealings with each other and with the Court. The
applicant has demonstrated that he is unable to measure up to the
required standard in this matter."







(See also Society of Advocates of
Natal v Merret
1997 (4) SA 374 (N)).







[30] The question ultimately arises,
if this legal practitioner appears in future, would a Court be
prepared to accept his word? In my view the answer should be “no”.







[31] To sum up, the conclusion reached
is that the striking-off application should succeed. As far as the
costs are concerned, it is usual that in matters such as this the
offending legal practitioner should pay the costs on an attorney and
client scale. I do not intend deviating from this approach.







[31] In my view the following order
should be made:








  1. That the first respondent’s
    name be struck from the roll of legal practitioners.









  1. The applicant is further granted the
    orders prayed in paragraphs 2 – 8 (as amended) of the notice
    of motion.









  1. The first respondent is ordered to
    pay the costs of the applicant on an attorney and client scale.




















_________________



VAN NIEKERK J























COUNSEL ON BEHALF OF APPLICANT:
Adv. D Smuts SC



Instructed by:
Etzold-Duvenhage











COUNSEL ON BEHALF OF RESPONDENTS:
Adv. V Soni SC



Instructed by: Murorua
& Associates