IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
CASE NO.: 5232/2005
In the matter between:
THE LAW SOCIETY OF THE NORTHERN PROVINCE
(INCORPORATED AS THE LAW SOCIETY OF THE TRANSVAAL)
MAFISA (NHLABATHI), ALICE MAMELLO
REASONS FOR JUDGMENT
After hearing arguments in this matter on the 8 May 2006, I issued an order
dismissing the application with costs, such cost to be paid on the scale as
between attorney-and own client. I intimated that my reasons would follow later.
These are my reasons for the order made on 8 May 2006.
1.1 The applicant herein is an incorporated law society which has
authority and power to regulate and control the exercise of the
profession of attorneys, notaries and conveyancers in the areas of
Gauteng, Mpumalanga, Limpopo and the North-West Provinces.
1.2 The respondent was, until, she had her name voluntarily removed
from the roll of practising attorneys on 30 April 2003, an attorney
practising within the jurisdiction of this court, having been duly
admitted as such on 7 December 1997.
1.3 She practiced for her own account in various partnerships from
December1998 until 30 October 2002.
1.4 On or about 30 September 2003, the respondent was duly admitted
under case number 21488/2003 as an advocate of this court.
1.5 The respondent is presently employed by the Department of Social
Development in Pretoria.
The applicant issued a hydra-headed application against the respondent on
17 February 2005 in terms whereof it sought the following relief:
2.1 "That the order granted by this court on 30 September 2003 enrolling the
name of Alice Mamello Mafisa (Nhlabathi) on the roll of advocates, is
2.2 That the name Alice Mamello Mafisa (Nhlabathi) is removed from the roll
2.3 That the order granted by this court on 22 April 2003 removing the name
of Alice Mamello Mafisa (Nhlabathi) from the roll of attorneys, is hereby
2.4 That the name of Alice Mamello Mafisa (Nhlabathi) be re-enrolled on the
roll of attorneys.
2.5 Payment of costs on the attorney and client scale;
2.6 Further and/or alternative relief".
I interpose to state that the application was vigorously opposed by the
In support of its prayers, the applicant relied on the affidavit of one Henry
Muzikayise Selby Msimang ("Msimang") who describes himself as the
president of the applicant. Msimang stated that he had the requisite authority
to bring this application on behalf of the applicant.
Simply stated, the thrust of this application, inter alia, is to rescind;
5.1 the court order removing the respondent's name from the roll of
practising attorneys; and
5.2 the court order enrolling her as an advocate of this court; and
5.3 thereafter to have her re-enrolled as an attorney of this court.
In aid of what, and for what reasons? I ask myself. It appears to me that the real
purpose and intention of this application is to found or confirm
jurisdiction (ad fundandam vel ad confirmandam jurisdictionem) on the part of
the applicant against the respondent, as clearly set out in paragraph
13.3. of Msimang's affidavit.
For its case, the applicant avers that in applying for her removal of her name
from the roll under case number 7935/2003, the respondent falsely stated in
her affidavit that, she had no knowledge of any pending or expected
proceedings to remove her name from the roll of attorneys. However, the
applicant concedes that at the material time of this application, it did not
oppose such application as it had no indication, in its record that the
respondent was not in good standing with the applicant. As a result the
respondent's name was removed, on her own initiative, on 22 April 2003,
without any opposition by the applicant.
It appears from the applicant's founding affidavit that as far back as July 2002,
applicant had received a complaint of some unprofessional conduct in respect
of Mafisa-Koto Attorneys, where the respondent was a partner. However, for
reasons which are not clear to me, the applicant elected to investigate the
conduct of Attorney Koto and not the applicant. This investigation was
conducted by one V. J. Farris, CA (SA), Public Accountant and Auditor.
According to Msimang, the report by Farris provided evidence that the firm of
Mafisa & Mkombo Attorneys, Mafisa & Koto Attorneys and Koto Attorneys had
contravened number of provisions of the Attorneys Act, in particular section
78(1),78(4), 78(6)(d); rule 680.1, rule 68.5, rule 68.7, rule 68.9, and rule 69.6.1,
which prima facie, amounts to unprofessional, dishonourable or unworthy
conduct on the part of respondent and her erstwhile partners.
Msimang further alleges that the applicant desires, and in fact has a
statutory duty, to investigate these serious findings by Farris. The applicant
intends to institute an enquiry against the respondent, similarly, as it has
done so against Attorneys Koto. However, as the applicant has removed
her name from the roll of Attorneys, so the argument goes, it is virtually
impossible for the applicant to launch such an enquiry as it has no
jurisdiction over the applicant. This is the main reason why the applicant
wishes to have the respondent re-enrolled so as to enable them to take
disciplinary action against her.
As I indicated earlier in my judgment, this matter is vigorously opposed by the
respondent. The respondent avers that her application for removal was
properly served on the applicant as required by the rules. This gave the
applicant ample opportunity to investigate and consider the application. Having
considered the application, the applicant issued a certificate to
confirm that there are no pending or intended disciplinary proceedings
Furthermore, the respondent avers that the applicant had already commenced
investigations into the affairs of Mafisa & Koto Attorneys, as early as 2002.
Accordingly respondent denies that she misled the applicant and contends that
as her name has been properly removed from the roll of attorneys, that the
applicant has no jurisdiction over her.
Regarding the prayer to have her name removed from the roll of
advocates, the respondent contends inter alia that;
13.1 the applicant has no right nor locus standi to apply for her removal; and
13.2 the applicant has not cited any misconduct on her part which justifies
such a drastic step.
13.3 the applicant's prayers is untenable as it has the deleterious effect of
unduly interfering with her constitutionally protected right to choose and
pursue her career or profession freely.
In so far as the allegations of fraud and/or theft of trust monies, whilst she was
still an attorney, are concerned, the respondent contends that such serious
allegations could and should be referred for proper investigation and possible
prosecution to members of the South African Police Services ("SAPS") and/or
National Prosecuting Authority. Of even great significance is the averment by
the respondent that after the disciplinary action was taken against her former
partner Ms Koto, she(the respondent) offered to co-operate with the applicant in
order to resolve the matters raised in the report by Farris. However, despite her
repeated request, she alleges that the applicant, without any justification,
refused to place her in possession of the Rule 101 report by Farris which forms
the basis of the intended enquiry against her.
Counsel appearing for the applicant argued that it is imperative, in order to
enable the applicant to institute an enquiry into the conduct of the respondent,
that the respondent be removed from the roll of advocates and re-enrolled as
an attorney. This will clothe the applicant with the requisite authority over the
respondent, so the argument continues. Quite clearly counsel was hard
pressed and unable to proffer any good reasons to justify the removal of the
respondent from the roll of advocates.
On the other hand Mr. Seabi appearing on behalf of the respondent submitted
vigorously that the whole of the applicant's application was illconceived and
flawed in material respect. He zealously and spiritedly submitted that the
allegation that respondent misled the applicant when she applied for her name
to be removed from the roll of attorneys is without any basis or substance. On
the contrary, so he argued, the applicant is to blame for its inexcusable failure to
make proper and diligent enquiries before it issued the respondent with a
Certificate of Good standing.
Mr. Seabi argued further, that the court was justified to rely on the Certificate
of Good Standing issued by the applicant as the applicant was the sole
custodian of the records of its members. Logically, he argued that there is no
basis or reason in law why the order to remove the respondent from the roll of
practising attorney should, be rescinded.
Concerning the order to admit and enroll the respondent as an advocate, Mr.
Seabi submitted that the respondent was legally entitled to be admitted as an
advocate as she is fit and proper to be so admitted, and qualifies and fulfills the
requirements of the Advocates Act, 1964 (Act no. 74 of 1964), as amended.
In conclusion, he submitted further that the respondent's name could only be
removed from the roll of advocates if there is clear proof that she is not a fit and
proper person to practice as an advocate, let alone for the mere
purpose of assisting the applicant to institute disciplinary proceedings against
the respondent. Finally it was contended on behalf of the respondent, that in
the unlikely event of the applicant being in possession of any evidence which
could prove that the respondent was not fit and proper to be admitted and/or
practice as an advocate of this court, applicant was free to refer such
information to the relevant constituent Bar Council and/or General Council of
the Bar ("GCB") where the respondent is a member for appropriate
investigation and action.
It is clear from the affidavits filed that at the time when the respondent
applied for the removal of her name from the roll of attorneys, the applicant
did not issue any negative report about her. In fact, the applicant issued a
certificate to the effect that there were no pending disciplinary proceedings
against her. This report issued by the applicant is very crucial when one
bears in mind that the applicant is in possession of all the records of all
attorneys, conveyancers and notaries operating within its area of
jurisdiction. The applicant as the custos morum of the attorney's profession
has a duty and responsibility to ensure that whatever reports they issue in
respect of the character of a particular member is accurate. This is so, as the
applicant knows fully well that the court and the general public are likely to
accept without hesitation, any certificate concerning a legal practitioner which
emanates from it
In casu, the applicant has not offered any explanation why, when it initiated the
investigations against Mafisa & Koto Attorneys during 2002, it concentrated
exclusively on Ms Koto only and not the respondent, particularly as it is clear
that they, operated in a partnership. The enquiry against Ms Koto was finalised
in 2005. The applicant failed to explain why it had to wait until late 2003 before it
could decide to take action against the respondent. It is common cause that in
the interim, the respondent had herself enrolled as an advocate. It is clear from
the papers that she is currently employed by the Department of Social
Development. It is clear that the relief prayed for by the applicant is likely to
have a serious, far-reaching and disruptive effect on the life and employment of
I am not satisfied from the papers that the applicant has made out a case
entitling it to the relief which it seeks. In my view, the order to remove the
respondent from the roll of attorneys at her own request was properly granted
on the papers before the court as there was no evidence of fraud or willful
suppression or distortion of material information by the respondent.
Regarding the admission and enrolment of respondent as an advocate, there
is no averment or scintilla of acceptable evidence to the effect that she
misrepresented facts or lied in her application to the court. In my view the
respondent was properly admitted and enrolled as an advocate of this court.
In so far as the application to have her name removed from the roll of advocates
is concerned, the main reason advanced by the applicant is that it is important to
remove her so that the applicant can have her re-enrolled as an attorney to
enable the applicant to take disciplinary action against her (see Replying
applicant p.86 Para 7). I take it to be a truism that a person can only be
legitimately removed from the roll of advocates if proper grounds have been
advanced therefore. Understandably, such grounds may be myriad. In this
matter, one would naturally have expected the applicant to make clear
allegations that the respondent has ceased to be a fit and proper person to
remain on the roll of advocates and serve such application on the relevant
constituent Bar Council and/or the GCB.
I do not think that the reasons advanced by the applicant for the removal of
the respondent from the roll of advocates are sound and legitimate. Much
as I appreciate the onerous responsibilities of the applicant to rid the
profession of unworthy persons, I do not think that, in casu the applicant
adopted the correct procedure. After much cogitation, I am inclined to agree
with Mr. Seabi that this whole application appears to be ill-conceived. In
fact, it appears to me that the applicant is motivated more by a desire to
discipline the respondent rather than to rid the profession of unworthy
characters in the interests of the public. It is not without regret that I come to
this conclusion, as my sympathies are entirely with the applicant and the
enormous responsibility it bears in this regard.
I say so because it is clear from the papers that the respondent is no longer
practising as an attorney. As a result she poses no danger to members of the
public in that capacity. For that reason and that reason alone, there is no way
in which she can still bring the attorney's profession into disrepute. By her own
volition she ceased to be an attorney. Why would the applicant force her,
against her wishes to be re-enrolled as an attorney? Surely there are various
alternative measures which are less drastic and invasive which the applicant
can resort to, to bring the respondent to book without embarking on such a
draconian and expensive route.
Even if I am wrong in my aforestated findings, I am of the view that the
applicant failed to make out a case for rescission of judgment in terms of the
common law. The applicant failed to prove the existence of any fraud, iustus
error or that there are new documents which have been discovered which
might have a material effect on its case. It should be borne in mind that what
applicant requested is to be clothed with the authority to investigate the
respondent to ascertain if the applicant has evidence to charge her or not. In
my view, the applicant is not entitled to approach the matter on the basis that
a mere possibility of untruth might exist or that there exist a possibility of fraud
perpetrated by the respondent.
One important aspect which I feel duty bound to comment on is the
unreasonably long delay which took place before the applicant decided to
take action against the respondent. According to the papers the applicant first
decided to investigate the affairs of Mafisa & Koto Attorneys during 2002. On
the 22 April 2003, the respondent had her name voluntarily
removed from the roll of attorneys. This occurred with full knowledge of the
I find the above quotation to be both apposite and instructive.
applicant who elected not to oppose the application.
Having considered this matter carefully, I find that that the applicant in casu did
In fact, on the contrary, the applicant issued the respondent with a "clearance"
not act fairly and with the necessary compassion towards the respondent. In
certificate to the effect that there were no disciplinary actions contemplated or
fact I am persuaded to find that the applicant acted more out of a sense of
pending against her. Following here upon, the respondent was duly admitted
vengeance than its duty to protect its reputation and the general public against
and enrolled as an advocate of this court on 30 September 2003. The
the respondent. As I indicated already I fail to understand why the applicant
respondent is now gainfully employed by the Department of Social
elected to embark on this course whilst there are other alternative remedies
which the applicant could have resorted to. I also cannot understand why the
applicant took so long before it could take action. In all the circumstances I find
that the applicant acted unreasonably and frivolously in launching this applicant.
These are the reason why I made the order which I made on 8 May 2006.
The application to have the respondent's name removed from the roll of
advocates and re-enrolled as an attorney was issued by the registrar of this
court on 16 February 2005. This is notwithstanding the fact that the Farris report
was sent to the applicant on 23 May 2003. It is clear from the papers that
between 22 April 2003 and 16 February 2005, the respondent had obtained
alternative employment and reorganised her life accordingly.
Self evidently the ultimate effect of the applicant's action would be disruptive of
and seriously affect the respondent's life adversely. I am of the view that the
applicant has failed itself, the profession and the public and is guilty of
dereliction of duty in the manner in which it dealt with this matter. The least said
about this the better. It is in this context that I find the remarks of Coetzee J in
Vereniging van Advokate van SA v Theunissen 1979(2) SA 218 (T) of 222H to
be opposite, wherein the learned judge stated thus:
"In hierdie opsig is daar 'n verdere aspek wat nie uitAJ oog verloor moet word
ACTING JUDGE OF THE HIGH COURT
nie. Wanneer 'n liggaam soos die Balieraad of die Ingelyfde Wetsgenootsap
optree teen 'n lid dan moet hy ook verantwoordelik optree uit die oogpunt van
I agree and it is so ordered.
daardie lid se belange en moet daar met die nodige deernis en omsigtigheid te
werk gegaan word. Ons insiens grens dit aan die onmenslike om 'n persoon,
JUDGE OF THE HIGH COURT
soos in hierdie geval, te laat voortgaan vir drie jaar om sy beroep waarvoor hy
gekwalifiseerd is te beoefen sonder om enigeiets te doen en dan skielik die
valbyl oor sy kop te los."