Dykes and Others v Law Society of The Northern Provinces and Others (77720/09) [2010] ZAGPPHC 309 (30 April 2010)

Dykes and Others v Law Society of The Northern Provinces and Others (77720/09) [2010] ZAGPPHC 309 (30 April 2010)

The court held that the Secretary of the Law Society is statutorily obliged to issue fidelity fund certificates to practitioners who have discharged all liabilities and complied with lawful requirements under section 42 of the Attorneys Act. The Society's internal resolution to withhold certificates pending disciplinary proceedings does not constitute a lawful requirement under the Act and cannot override the Secretary's statutory duty. There was no evidence that the applicants had failed to comply with any lawful requirement or that the Secretary was personally dissatisfied. The pending application for removal from the roll is not a lawful requirement for the purposes of section 42. The...

Citation
[2010] ZAGPPHC 309
Parties
Applicant: Peter Arthur Dykes; Applicant: Cheryl Ramsamy; Applicant: Phasudi Doctor Segogoba; Applicant: Johan van Heerden; Respondent: Law Society of the Northern Provinces; Respondent: The Attorneys Fidelity Fund Board of Control; Respondent: The Secretary of the Law Society of the Northern Provinces
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 April 2010
Case Number
77720/09
Procedural Posture
Urgent Application / Application for Mandamus to Compel Issue of Fidelity Certificates
Outcome
Application granted; Secretary ordered to issue fidelity fund certificates to applicants forthwith; costs awarded to applicants.
Judges
S W Sapire
Legal Topics
Mandamus, Fidelity Fund Certificate, Attorneys Act Section 42, Urgent Interdict
Administrative Law Civil Procedure Mandamus Fidelity Fund Certificate Attorneys Act Section 42 Urgent Interdict

Case Brief

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Parties

Peter Arthur Dykes

Applicant

Cheryl Ramsamy

Applicant

Phasudi Doctor Segogoba

Applicant

Johan van Heerden

Applicant

Law Society of the Northern Provinces

Respondent

The Attorneys Fidelity Fund Board of Control

Respondent

The Secretary of the Law Society of the Northern Provinces

Respondent

Procedural Posture

Urgent Application / Application for Mandamus to Compel Issue of Fidelity Certificates

Legal Issues

  1. 1 Whether the Secretary of the Law Society was lawfully entitled to refuse issuing fidelity fund certificates to the applicants while proceedings for their removal from the roll were pending.
  2. 2 Whether the Society's internal resolution could override the statutory requirements for issuing fidelity fund certificates under section 42 of the Attorneys Act.
  3. 3 Whether the applicants had complied with all lawful requirements for the issue of fidelity fund certificates.

Ratio Decidendi

The court held that the Secretary of the Law Society is statutorily obliged to issue fidelity fund certificates to practitioners who have discharged all liabilities and complied with lawful requirements under section 42 of the Attorneys Act. The Society's internal resolution to withhold certificates pending disciplinary proceedings does not constitute a lawful requirement under the Act and cannot override the Secretary's statutory duty. There was no evidence that the applicants had failed to comply with any lawful requirement or that the Secretary was personally dissatisfied. The pending application for removal from the roll is not a lawful requirement for the purposes of section 42. The...

Court Disposition

Application granted; Secretary ordered to issue fidelity fund certificates to applicants forthwith; costs awarded to applicants.

Orders

  • The Secretary of the Law Society of the Northern Provinces is ordered to issue fidelity fund certificates to each applicant forthwith.
  • The respondents are ordered to pay the costs of the application.