Law Society of the Northern Provinces and Another v Law Society of Bophuthatswana (520/09) [2009] ZANWHC 15 (21 May 2009)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH WEST, MAFIKENG)

CASE NO: 520/09

In the matter between:

THE LAW SOCIETY OF THE NORTHERN APPLICANT

PROVINCE & ANOTHER

Vs

THE LAW SOCIETY OF BOPHUTHATSWANA RESPONDENT

CIVIL MATTERS

____________________________________________________________________________

JUDGMENT

KGOELE AJ.

[A] INTRODUCTION

[1] On the 10 March 2009 First and Second Applicants brought an urgent application in terms of which it sought a rule nisi calling upon the Respondent to give reasons why it should not be interdicted from sending out notices or any other form of communication to courts and all other attorneys practising in the North West Province following a letter written by the Respondent dated 17 February 2009 to the first Applicant, and further that any notices or written communication already dispatched be declared ultra

vires, null and void and be set aside.

[2] The application was heard and the rule nisi returnable on the 30th April 2009 was granted on an urgent basis. The Applicants now seek a confirmation of the rule nisi. The Respondent opposes the confirmation application.

[B] MERITS

[3] On the 17 February 2009 Respondent addressed and forwarded a letter to second Applicant. The said letter was annexed as Annexure 1 to the 1st Applicant’s founding affidavit. Similar letters as annexure 1 were sent to all attorneys practising for their own account in the area of the North West Province.

[4] The fact that such letters were dispatched by Respondent to attorneys practising in the North West Province came to the attention of the Council of the first Applicant during the first week of March 2009.

[5] Attorneys were in terms of the letter/notice requested to furnish the Respondent with proof that they have been issued with a fidelity fund certificates on or before 10 March 2009. Should they fail to provide such proof, it will be presumed by the Respondent that they are practising without such fidelity fund certificates and that a notice will be sent to courts advising the courts that such attorneys are practising without fidelity fund certificates and therefore they should not be permitted to appear in the courts.

[6] Applicant’s counsel, Advocate Lamey submissions’ can be summarised as follows:

There are approximately three hundred and fifty five (355) attorneys who are members of first Applicant who either practise as partners or directors or for their own account as sole practitioners in the North West Province and who normally apply to the first Applicant for the issuing of fidelity fund certificates.

Second Applicant is one of the attorneys who possesses a fidelity fund certificate for 2009 and who practices at Lichtenburg, North West Province. She is a member of first Applicant. She is not a member of Respondent.

It is submitted that not only was the letter (annexure 1) potentially prejudicial to all attorneys practising in the North West Province and second Applicant (including those that practise in the territory of the former Republic of Bophuthatswana), but was Ultra vires the scope of the powers of the Respondent. The letters we also inappropriate, unacceptable and unreasonable in terms of the

procedure adopted by Respondent.

The basis for the submission that Respondent acted ultra vires is found in the applicable statutes, i.e Act no. 29 of 1984 (Bophuthatswana) read with the Constitution of 1996, and Act no.

115 of 1998 (Attorneys and Matters Relating to Rules of Court Amendment Act) and the Attorneys Act no. 53 of 1979 (“the Attorneys Act”).

[7] Advocate Mabando on behalf of the Respondent submitted on the contrary that the Applicants have not made out a proper case to support the granting of the orders as prayed for. He based his arguments in support of his submission that the application should be dismissed on the following points:-

That the Respondent, in terms of the Act by which Respondents was Established, being Act 29 of 1984, which in terms of the provisions

of Schedule 6 of the Republic of South Africa Constitution Act of 1996 is still operational in the former territory which was

formerly known as Bophuthatswana is vested with the authority as well as a corresponding duty to oversee the activities of attorneys appearing in courts falling within its area of jurisdiction for which it was established, which is the territory formerly known as Bophuthatswana, has the duty to establish that all attorneys appearing is these courts are properly admitted to practice in this area and that they conform and comply with the legal requirements to appear in these courts as attorneys. One such requirements is that the attorneys appearing in these courts should possess a Fidelity Fund which enables them to appear in courts falling within the area of jurisdiction of the Respondent.

That the Respondent has a legal duty to protect the society, especially members of the community domiciled within its area of jurisdiction against persons acting as attorneys who are not entitled to appear as such in courts falling within the area of jurisdiction of the Respondent.

That the Applicants herein stand to suffer no prejudice by second Applicant producing the required Fidelity Fund certificate to show that she in entitled to appear in courts falling within the area of jurisdiction of the Respondent.

That the actions of the Respondent requesting second Applicant to produce the Fidelity Fund certificate is not intended to prejudice

her and there is no malice intended but is an exercise of the statutory duty resting on the Respondent of ensuring that second

Applicant is properly appearing within the court falling within the area of jurisdiction of the Respondent.

Lastly, that the deletion of chapter 2 of the Bophuthatswana Attorneys Act which catered for all the aspects relating to fidelity fund matters, the control and the issuing of fidelity fund certificates by the Law Society of Bophuthatswana by the inactment of sec 6(4) of Act 115 of 1998 read with the schedule thereto, created a lacuna in the law.

[C] JURISDICTION OF THE LAW SOCIETY OF BOPHUTHATSWANA IN RESPECT OF FIDELITY FUND RELATED MATTERS

[8] In order for this court to determine whether the Respondent acted ultra vires the scope of its powers or not, the question as to whether the Respondent has jurisdiction as regards fidelity fund matters has to be answered. The provisions of the relevant legislation as enumerated above by the Applicants’ counsel have to be considered

in order to answer this question.

[9] This honourable Court had the opportunity in the matter of The Law Society Northern Provinces v Maseka and another 2005 (6) SA 372 (BHC) to consider the aforesaid provisions and amendments. Landman J found inter alia the following at 378 D-G:

“Respondent does not have jurisdiction as regards fidelity fund matters by virtue of the fact that chapter 2 of the Bop Attorneys Act has been repealed.

First Applicant and Respondent exercise concurrent jurisdiction over an attorney practising in the territory of the former Bophuthatswana

regarding the matters listed in section 84A of the Attorneys Act”.

See also: Law Society of the Northern Provinces v Mamatho, 2003 (6) SA 467 at 471 G-I.

See also: Madzivhandila v Law Society, Northern Provinces, [2008] ZASCA 101; [2009] All SA 124 (SCA) at paragraphs [15] – [16].

[10] Clearly, by virtue of the interpretation of the aforesaid provisions and the effect thereof, coupled with the decision in the Maseka matter, the Respondent does not have jurisdiction to deal with fidelity fund matters.

[11] The submission by the counsel for the Respondent that the legislature has created a lacuna in the law by the deletion of chapter 2 of the Bophuthatswana Attorneys Act equally has no merits. The pre-amble of the Attorneys

and Matters relating to Rules of Court Amendment Act, 1998 inter alia read thus:-

“to extend the jurisdiction of the Attorney Fidelity Fund to practitioners in the areas of the former Republics of Bophuthatswana

and Vend;….

“and to empower the Law Society of the Transvaal to exercise certain powers in respect of practitioners practising in the areas of the former Republics of Bophuthatswana and Venda”.

[12] I fully agree with the submissions made by the Applicant’s counsel that:

The first Applicant exercises all powers, duties and responsibilities in respect of all matters falling under chapter 2 of the Attorneys Act, also in respect of practitioners falling and practising in the former territory of Bophuthatswana.

As such it administers applications for fidelity fund certificates and the issuing thereof and for this purposes also keep the necessary records. It follows that it will be the duty and responsibility of first Applicant by virtue of its powers in terms of chapters 2 and the administration of fidelity fund matters to act against practitioners falling under the jurisdiction including the former territory of Bophuthatswana and to take the necessary steps should it come to their attention that they practice without such fidelity fund certificates.

[13] Consequently I come to the conclusion that the Respondent acted ultra vires and beyond the scope and extent of its powers by sending the notices to the 2nd Applicant, and to all attorneys practising in the North West Province including also those practising in the former territory of

Bophuthatswana. Had the Respondent any reasons to be concerned that any practitioner either practising in the North West Province or even within its own territory in Bophuthatswana, was practising without a fidelity fund certificate, the prudent, proper and simple way to address the problem would have been to make enquiries with the first Applicant. To embark on the action in the manner which Respondent did, in casu, is not in the interest of the profession and the members of the profession, and the courts.

[14] I am satisfied that the requirements for the final relief (interdict) has been met by the Applicants. The potential harm and prejudice that could have followed from the letter dated 17 February 2009 speaks for itself. Should any attorney for whatever reason not respond to the letter in time, such attorney will be presumed by Respondent to practice without a fidelity fund certificate and the courts in the North West Province informed accordingly. Such notification is likely to cause embarrassment and prejudice to the good name and reputation of attorney representing clients in courts and could probably lead to a postponement and delay of pending cases which in turn would adversely affect the proper administration of justice.

[15] From the founding affidavit it is clear that attempts were made through communication with Respondent to resolve the issue. Applicants had no choice but to approach this court after the communication was not satisfactorily addressed by the Respondent. Respondent’s response to this was to steadfastly persist with its intended actions and perceived the Applicant’s approach to the court, as undermining its authority.

[D] ORDER

[16] Consequently the following order is made.

16.1 The rule nisi inclusive of the costs order granted on the 10 March 2009 is hereby confirmed.

_____________

A.M. KGOELE

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 26 FEBRUARY 2009

DATE OF JUDGEMENT : 21 MAY 2009

COUNSEL FOR APPLICANT : ADV LAMEY

COUNSEL FOR RESPONDENTS : ADV MABANDO

ATTORNEYS FOR APPLICANT : MINCHIN & KELLY INCORPORATED

ATTORNEYS FOR RESPONDENTS : MOTLHABANI ATTORNEYS