- June 16, 2022
- |Concise Law Reports (CLR), Legal Practitioners
LEGAL PRACTIONERS – FAILURE TO DISCLOSE SUSPENSION FROM ROLL OF ATTORNEYS IN SOUTH AFRICA
The appellant applied to be admitted and enrolled as a legal practitioner of the High Court of Namibia which application was opposed by the Law Society of Namibia (the respondent). The opposition focused on the omission by the appellant to disclose his suspension and the facts surrounding it. The respondent claimed that the appellant was not a fit and proper person to be admitted and enrolled as a legal practitioner in Namibia and it further disputed that the appellant was on the roll of attorneys in South Africa when he made his application in Namibia.
The High Court found that the circumstances in which appellant failed to disclose the fact that he was suspended from the roll of attorneys in South Africa (and further, to establish that he was on the roll of attorneys in South Africa) did not persuade the court that he was a fit and proper person to be admitted and enrolled as a legal practitioner in Namibia and that he, in any event, did not establish that his name was on the roll of attorneys in South Africa. The court declined his application and he appealed against that decision of the court.,
FRANK AJA (ANGULA AJA and UEITELE AJA concurring) considered the appeal and held that:
- It is not necessary for the determination of this matter to rule on whether there was a duty on the appellant to inform the Board of his suspension, however the parties to this appeal interpreted section 5(1)(d) of the Legal Practitioners’ Act 15 of 1995 to mean that the Board had to be satisfied that appellant was on the roll of attorneys in South Africa for the purpose of considering his application for an exemption certificate.
- The appellant decided on the self-serving interpretation of the Act to avoid having to inform the Board about his suspension and hence not run the risk of his application not being considered. He thus placed a misleading picture before the Board so as to avoid any questions being asked with regard to his suspension.
- Appellant was at the time, in terms of the order of suspension ‘. . . interdicted and restrained from practising as an attorney and/or holding himself out as an Attorney’ in South Africa. He acted in defiance of this order when he applied for his Certificate of Exemption in Namibia on the basis that he was still so enrolled as an attorney in South Africa. In view of this interdict, any person acting honestly and with integrity would have informed the Board of the suspension so as to not act contrary to the terms of the interdict.
- The court a quo exercised a discretion essentially based on a value judgment by taking facts placed before it into consideration and it is not for the Supreme Court to simply reconsider the matter afresh and come to a decision and substitute the court a quo’s decision with its own if it does not agree with the decision of the court a quo.
- The court a quo was correct to be concerned as to the fitness of the appellant to join, what is referred to as an ‘honourable profession’. In terms of the test on appeal there is nothing to suggest that the judge a quo acted capriciously or upon a wrong principle, without substantial reasons or materially misdirected himself on the facts or the law. Nor was there bias on the part of the judge a quo. In the result, this court need not consider whether it would have come to a different conclusion had it been the court of first instance.
- It is doubtful that the appellant established that he is duly qualified to be admitted and enrolled as he must for this purpose establish that his name appeared on the roll of attorneys in South Africa when he moved the application a quo. As is evident from the order of the South African court that uplifted his suspension, that same court removed his name from the roll and there is no suggestion that this order was ever changed so as to place his name on the roll, albeit as a non-practising attorney.
As a result, the appeal was dismissed the appeal with costs.
Peter Watson v The Law Society of Namibia NASC (16 June 2022)