Law Society of the Northern Provinces v Mogami
Sentrum vir Grondwetlike Regte
Law Society of the Northern Provinces v Mogami (588/08)[2009] ZASCA 107 (22 September 2009).
Although of limited constitutional bearing, the recent judgment by the Supreme Court of Appeal (SCA) in the disciplinary proceedings of two North West Province attorneys is important given the recent attacks on the integrity of the Judiciary and the effect on public confidence. For the rule of law to be upheld, both the judiciary and the profession itself have to conduct themselves in a manner which promotes public confidence. This judgment serves to restore some confidence. In a unanimous judgment in which Harms DP found that Mr TC Mogami and Mr NMD Mabuse (“the respondents”) had indeed conducted themselves in an ‘unlawful, unprofessional and unethical’ manner. The SCA also sharply criticised both the Bophuthatswana law society tasked with the internal discipline of these attorneys and the appeal decision of a full bench of the Bophuthatswana (North West) High Court which, despite having taken an ‘inexplicable’ seven months to hand down a one page judgment, still managed to fail to take into consideration important facts in the exercise of its judicial discretion, delaying the ends of justice.
The brief history of the appeal was that the application started off in two parts. ‘Part A was for an interim order suspending [the respondents] ...from practice as attorneys pending the determination of part B’ and ‘Part B’ of the application was for an order striking the respondents from the roll of attorneys. The North West High Court, per Hendricks J, granted Part A of the application, suspending the respondents for what became a ten month period. An appeal to a full bench of the same division (“the full bench”) refused to grant Part B and ‘permitted [the respondents] to recommence their practice’. The full bench further coupled this with an extraordinary order that the parties pay their own costs, despite the fact that precedent dictated that it is ‘[t]he general rule...that a law society is entitled to its costs, even if unsuccessful’.
In dealing with the merits of the appeal, the SCA reconfirmed the three questions involved in an application ‘for the suspension or removal from the roll’. The first question, ’a factual inquiry’, was ‘whether the alleged offending conduct ha[d] been established on a preponderance of probabilities’. The second question, ‘a value judgment’, was for the court to exercise its discretion in determining whether the respondents were ‘fit and proper person[s] to continue practise’. The third question was for the court to determine whether a mere suspension would suffice or whether full removal from the roll of attorneys was warranted. In this regard, one of the criticisms by the SCA of the full bench decision was that the court was required to consider the second question by ‘weighing up the conduct complained against the conduct expected of an attorney’, before the third question, in order to determine which punitive measure would be required in answering the third question. However, the SCA held that the full bench either overlooked or failed to assess the evidence in regard to the...allegations properly.’
The SCA then undertook its own three stage inquiry. As to the first question, the Court held that ‘on the respondents’ own version they ha[d]...failed to account fully and the accounting on the papers [was]...insufficient and incomplete’ and that the respondents were thus guilty of breaching both the internal accounting requirements of the appellant law society and the statutory requirements relating thereto, requiring an attorney to handle the monies of its clients in a honest and accountable manner. In so holding, the SCA strongly criticised the full bench decision, pointing out that the court had failed to properly consider the facts of the four complaints lodged against the respondents. Instead, the full bench incorrectly found that the respondents were not guilty of the complained conduct and dismissed the complaints per incuriam, or, at the very least, on seriously precarious legal grounds.
Another sub-issue tackled by the SCA, was that of the actions of the Bophuthatswana law society (“Bop society”). The Bop society had been joined as a party in the initial application. However, it did not appear as a party before the SCA. This sub-issue stemmed, inter alia, from the cooperation of the Bop society in attempting to oust the jurisdiction of the appellant (the Northern Provinces Law Society) by denying the unequivocal statutory incorporation of the Bop Society into the Northern Provinces Law Society as per the Attorney’s Act 53 of 1979 (as amended in 1998). The amendment to the Attorneys Act, particularly insofar as the provisions relating to fidelity certificates are concerned, had the effect that ‘attorneys practicing within the former Bophuthatswana [were]...deemed to be members of the appellant [who] obtained concurrent jurisdiction...in relation to disciplinary matters’. The SCA took the Bop society to task for deliberately seeking to ‘mislead the court’ by falsely asserting, inter alia, that the respondents had the required fidelity certificates, when on the facts, it was clear that this was not the case. In its condemnation, the SCA pointed out that
‘ it is bad enough for courts to deal with alleged unprofessional conduct of practitioners but it is a sad day for the legal profession in particular and justice in general if a professional body acts unprofessionally by ignoring the clear law and judgments of competent courts, and by presenting spurious evidence’.
The SCA further criticised the full bench’s lack of appropriate action in light of these improper actions, holding that ‘[t]he full bench...did not address the unacceptable and dishonest way in which the litigation was conducted by both the respondents and the Bophuthatswana society as if that were an irrelevant consideration. It is not....’
As to the second question, the SCA determined that because the full bench had completely omitted to conduct this stage of the inquiry, it was incumbent upon the Court to exercise its judicial discretion and conduct an inquiry into whether or not the respondents could be considered ‘fit and proper’ for the purposes of continuing in practise. The SCA held that ‘with reservations...the respondents are not unfit to continue practising as attorneys’ because the complaints, while indicating ‘incompetence, inattention or inability to do professional work ‘were not severe enough to warrant ‘disqualifying [the respondents]...from practising’. However, the SCA did hold that the respondents’ ‘dishonest conduct of the proceedings’ was ‘very serious’ and further stated that ‘this judgment must serve as a warning to legal practitioners that courts cannot countenance this strategy’. The SCA held further that ‘the problem is that the respondents’ professional body appears to have instigated their behaviour and aided and abetted them in making untruthful denials, ignoring laws and court judgments, and launching an attack on the appellant. Had it not been for the invidious role of their society I would have had little hesitation to find the respondents were not fit to continue practising’.
As to the third question of sanction, the SCA held that ‘[a]n appropriate sanction would have been suspension from practice for a substantial period’ but that the effect of the order of Hendricks J, a quo, had already resulted in the respondents’ ten month suspension from practise. The SCA thus issued a ‘serious reprimand’ coupled with an order ‘requiring the respondents to account properly to those clients and to report to the appellant’.
As to costs, the SCA reversed the ‘unusual order’ of the full bench and ordered that because of the statutory duty upon the appellant to approach a court, the general rule that ‘a law society is entitled to costs, even if unsuccessful’ should stand. Costs were awarded against the respondents on an attorney and client scale.
It is to be regretted that no disciplinary action was sought against the relevant members of the Bophutatswana Law Soc.
October 2009
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Published in: Sentrum vir Grondwetlike Regte