Grancy Property Ltd and Another v Law Society of the Cape of Good Hope and Others (17866/2011) [2012] ZAWCHC 174 (21 September 2012)

Grancy Property Ltd and Another v Law Society of the Cape of Good Hope and Others (17866/2011) [2012] ZAWCHC 174 (21 September 2012)

The Council of the Law Society failed to exercise its discretion to postpone the disciplinary enquiry lawfully under section 71(4) of the Attorneys Act. The Council did not consider all material facts, including the October 2010 letter and supplementary submissions, and relied on irrelevant considerations such as cost and alleged overlap of disputes. The subject matter of the civil proceedings was not the same as the disciplinary enquiry, and the postponement was not justified. The principles of natural justice were breached by denying complainants the opportunity to respond to Mr Koen's recommendation. There was no real prospect of applicants' rights being infringed by Mr Koen's...

Citation
[2012] ZAWCHC 174
Parties
Applicant: Grancy Property Limited; Respondent: Law Society of the Cape of Good Hope; Respondent: Mr Gihwala
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
21 September 2012
Case Number
17866/2011
Procedural Posture
Review Application / Judgment
Outcome
Application for review granted; decision to postpone disciplinary enquiry set aside; respondents directed to proceed with enquiry without delay; costs awarded to applicants including costs of two counsel.
Judges
LM Olivier
Legal Topics
Disciplinary Enquiry, Review of Administrative Action, Natural Justice, Failure to Account, Attorneys Act, Procedural Fairness
Administrative Law Civil Procedure Disciplinary Enquiry Review of Administrative Action Natural Justice Failure to Account Attorneys Act Procedural Fairness

Case Brief

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Parties

Grancy Property Limited

Applicant

Law Society of the Cape of Good Hope

Respondent

Mr Gihwala

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Council of the Law Society lawfully exercised its discretion to postpone the disciplinary enquiry under section 71(4) of the Attorneys Act.
  2. 2 Whether the postponement decision was made in accordance with principles of natural justice and procedural fairness.
  3. 3 Whether the subject matter of the civil proceedings overlapped with the disciplinary enquiry to justify postponement.

Ratio Decidendi

The Council of the Law Society failed to exercise its discretion to postpone the disciplinary enquiry lawfully under section 71(4) of the Attorneys Act. The Council did not consider all material facts, including the October 2010 letter and supplementary submissions, and relied on irrelevant considerations such as cost and alleged overlap of disputes. The subject matter of the civil proceedings was not the same as the disciplinary enquiry, and the postponement was not justified. The principles of natural justice were breached by denying complainants the opportunity to respond to Mr Koen's recommendation. There was no real prospect of applicants' rights being infringed by Mr Koen's...

Court Disposition

Application for review granted; decision to postpone disciplinary enquiry set aside; respondents directed to proceed with enquiry without delay; costs awarded to applicants including costs of two counsel.

Orders

  • The decision by the third respondent on 22 November 2010 to postpone the disciplinary enquiry is reviewed and set aside.
  • The first and third respondents are directed to proceed with the disciplinary enquiry under sections 71 and 72 of the Attorneys Act and rule 15 of the Rules of the Law Society of the Cape of Good Hope without delay.