Asherson v Law Society of Cape of Good Hope (613/87) [1988] ZASCA 147; [1989] 4 All SA 361 (AD) (24 November 1988)

Asherson v Law Society of Cape of Good Hope (613/87) [1988] ZASCA 147; [1989] 4 All SA 361 (AD) (24 November 1988)

The Supreme Court of Appeal held that the appellant's misconduct, though attributable to a personality disorder, rendered him unfit to practise as an attorney. However, the court a quo misdirected itself by treating suspension as impermissible due to practical difficulties in imposing an indefinite suspension. The appellate court found that the Attorneys Act permits suspension conditional upon the removal of the cause of unfitness, and such an order is equitable given the medical evidence that the appellant's disorder is treatable. The order of removal was therefore replaced with an order of suspension until the appellant satisfies the court that he is fit to resume practice. The...

Citation
[1988] ZASCA 147
Parties
Appellant: Roger Jeffrey Asherson; Respondent: The Law Society of the Cape of Good Hope
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 November 1988
Case Number
613/87
Procedural Posture
Civil Appeal / Appeal From Order Striking Attorney Off the Roll; Appeal Granted on Petition to Chief Justice
Outcome
Appeal succeeds in part; order of removal replaced with suspension conditional upon proof of fitness to practise; costs of appeal awarded against appellant.
Judges
Rabie, Botha, Kumleben
Legal Topics
Attorneys Act, Fit and Proper Person, Professional Misconduct, Mental Disorder and Professional Status, Court Discretion in Sanctions
Civil Procedure Commercial and Corporate Attorneys Act Fit and Proper Person Professional Misconduct Mental Disorder and Professional Status Court Discretion in Sanctions

Case Brief

Summary, issues, holding and outcome

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Parties

Roger Jeffrey Asherson

Appellant

The Law Society of the Cape of Good Hope

Respondent

Procedural Posture

Civil Appeal / Appeal From Order Striking Attorney Off the Roll; Appeal Granted on Petition to Chief Justice

Legal Issues

  1. 1 Whether the appellant is a fit and proper person to continue practising as an attorney under section 22(1) of the Attorneys Act.
  2. 2 Whether the sanction imposed should be removal from the roll or suspension from practice.
  3. 3 Whether the court a quo misdirected itself in exercising its discretion regarding the appropriate sanction.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant's misconduct, though attributable to a personality disorder, rendered him unfit to practise as an attorney. However, the court a quo misdirected itself by treating suspension as impermissible due to practical difficulties in imposing an indefinite suspension. The appellate court found that the Attorneys Act permits suspension conditional upon the removal of the cause of unfitness, and such an order is equitable given the medical evidence that the appellant's disorder is treatable. The order of removal was therefore replaced with an order of suspension until the appellant satisfies the court that he is fit to resume practice. The...

Court Disposition

Appeal succeeds in part; order of removal replaced with suspension conditional upon proof of fitness to practise; costs of appeal awarded against appellant.

Orders

  • The respondent is suspended from practice until such time as he satisfies the court that he is a fit and proper person to resume practice as an attorney.
  • Paragraphs 2, 3 and 4 of the order of the court a quo are confirmed.