Bothma and Another v Law Society of the Northern Provinces; In re: Law Society of the Northern Provinces v Bothma and Another (33739/2016) [2017] ZAGPPHC 208 (25 May 2017)

Bothma and Another v Law Society of the Northern Provinces; In re: Law Society of the Northern Provinces v Bothma and Another (33739/2016) [2017] ZAGPPHC 208 (25 May 2017)

The court held that the Law Society's resolution to launch an application for striking off does not require the prior exhaustion of disciplinary proceedings under the Attorneys Act. The authority to strike off or suspend an attorney rests solely with the court, which has inherent jurisdiction to determine fitness to practice. The Law Society's role is to bring relevant facts to the court's attention, not to adjudicate or remove attorneys itself. The applicants' argument that the resolution constituted administrative action under PAJA and was procedurally unfair was rejected, as the rules of court provide adequate safeguards for a fair hearing. The relief sought to review and set aside the...

Citation
[2017] ZAGPPHC 208
Parties
Applicant: Hermanus Johannes Wessels Bothma; Applicant: Bothma Incorporated; Respondent: Law Society of the Northern Provinces
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 May 2017
Case Number
33739/2016
Procedural Posture
Review Application / Interlocutory Application to Set Aside Law Society Council Resolution Prior to Main Application for Striking Off
Outcome
Interlocutory application dismissed; applicants granted extension to file answering affidavits; costs awarded against applicants on attorney and client scale.
Judges
Janse van Nieuwenhuizen, Molopa
Legal Topics
Promotion of Administrative Justice Act, Fit and Proper Attorney, Disciplinary Proceedings, Striking Off Roll, Procedural Fairness
Administrative Law Civil Procedure Promotion of Administrative Justice Act Fit and Proper Attorney Disciplinary Proceedings Striking Off Roll Procedural Fairness

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Parties

Hermanus Johannes Wessels Bothma

Applicant

Bothma Incorporated

Applicant

Law Society of the Northern Provinces

Respondent

Procedural Posture

Review Application / Interlocutory Application to Set Aside Law Society Council Resolution Prior to Main Application for Striking Off

Legal Issues

  1. 1 Whether the Law Society's resolution to launch an application for striking off constitutes administrative action under PAJA.
  2. 2 Whether the Law Society was required to exhaust disciplinary proceedings before approaching the court for striking off.
  3. 3 Whether the applicants were denied procedural fairness by not being afforded a disciplinary inquiry before the main application.

Ratio Decidendi

The court held that the Law Society's resolution to launch an application for striking off does not require the prior exhaustion of disciplinary proceedings under the Attorneys Act. The authority to strike off or suspend an attorney rests solely with the court, which has inherent jurisdiction to determine fitness to practice. The Law Society's role is to bring relevant facts to the court's attention, not to adjudicate or remove attorneys itself. The applicants' argument that the resolution constituted administrative action under PAJA and was procedurally unfair was rejected, as the rules of court provide adequate safeguards for a fair hearing. The relief sought to review and set aside the...

Court Disposition

Interlocutory application dismissed; applicants granted extension to file answering affidavits; costs awarded against applicants on attorney and client scale.

Orders

  • The interlocutory application is dismissed.
  • The non-compliance by respondents in the main application to file their answering affidavits timeously is condoned and the period for filing such affidavits is extended by 30 days from the date of this order.