Ngwenya In Re: Ngwenya v Society of Advocates (Pretoria) and Another (3454/05), Ex parte [2005] ZAGPHC 2; 2006 (2) SA 88 (W) (14 October 2005)

IN THE HIGH COURT OFSOUTH AFRICA(WITWATERSRANDLOCAL DIVISION)CASE NUMBER:05/3454In theex parteapplication of:NGWENYA, BAFANA CECILIn re:NGWENYA,BAFANA CECIL ApplicantandTHESOCIETY OF ADVOCATES (PRETORIA) First RespondentTHESOCIETY OF ADVOCATES (WITWATERSRAND) Second Respondent______________________________________________________________JUDGMENT_____________________________________________________________SCHWARTZMAN J:1.Bafana Cecil Ngwenya, who holds a Bachelor of Law degree, wants to be admitted as an advocate. His application is opposed by theJohannesburgand Pretoria Bar Councils. The main ground of opposition is that on 8 May 2000, Ngwenya was convicted by a Bethlehem Regional Magistrate on two counts of theft, each involving an amount of R500 and one count of defeating the ends of justice.The offences were committed while Ngwenya was acting as a prosecutor in the Tseke Magistrate’s court. The Tseke district is a rural area close to Harrismith.On each of the theft countsNgwenyawas, in terms of Section 276 (1) (i)of the Criminal Procedure Act,sentenced to two years imprisonment. On the count of defeating the ends of justice he was, in terms ofthe same section,sentenced to one year in prison. An application for leave to appeal was dismissed. Ngwenya did not thereafter seek leave to appeal to the Free State Division of the High Court. After serving ten months of his sentencein prisonNgwenya was released under correctional supervision, during which he performed 530 hours of community service.2.A person wanting to be admitted as an advocate mustinter aliasatisfy the court that he or she is a fit and proper personto be admitted.It is the Bar Councils submission that because of his criminal convictions, Ngwenya is notsucha person. Ngwenya’s answer is that he was wrongly convicted and is therefore a fit and proper person to be admitted as anadvocate. The Bar’s rejoinder is that while the convictions stand he is not a fit and proper person.3.In the course of argument, three sets of Counseltold the court that there was noSouth African authority having to do with anapplication foradmissionas an advocatein which the Applicant asserts that heor shewas wrongly convicted of a crime that would otherwise barhis or heradmission.4.1A person who has been removed or struck from the rollof attorneys will only be readmitted if he or she demonstratesthat he or she is a fit and proper person for readmission – seeEx ParteAarons (Law Society, Transvaal Intervening)1985 (3) SA 286(T). The same rule applies in an application for readmission as an advocate (Ex ParteCaminsky1958 (3) SA 249(N)).4.2Where the person was struck off following an admitted criminal conviction he or she will only be readmitted to practice as an attorney or advocate on satisfying the court that he or she is a fit and proper person for readmission because he or she has genuinely, completely and permanently reformed him or herself of his or her criminal character –Kaplan v Incorporated Law Society of Transvaal1981 (2) SA 762(T)at page 790A to E,Ex ParteAarons1985 (3) SA 286(T)at page 294E to F andSwart v Society of Advocates, Natal1973 (4) SA 784(N)at page 787.4.3In Aarons case (supra) at page 294G to I, and in relation to an assessment of character reformation, the following is said: “It seems to me to be fundamental to this enquiry to determine what the particular defect of character or attitude was before one can begin to establish whether an applicant has reformed in respect thereof. Itisequally important, I believe, to enquire whether the applicant himself properly and correctly identifies and appreciates the defect of character or attitude involved.Unless there is such proper and correct appreciation by the applicant, it is difficult to see how the defect can be corrected or cured or eradicated, and how there can be true reformation which is reliable and lasting.” (My underlining).4.4Common sense requires that this rule of practice should also apply where a personwhoseeksadmission as an attorney or advocate has admitted acriminal conviction that would otherwise bar his or her admission.5.1There isa wealth of authority going back some 100 years dealing withapplications to strike offan attorneyor advocateon the ground that he or she is by reason of a criminal conviction no longer fit and proper to be on the roll.5.2What these authorities establish is arule of practice that the conviction “is prima facie proof that he committed that offence, and provided that offence is of a sufficiently serious nature” it is treated “as prima facie proof that he is unfit to be on the roll of attorneys, the onus being on the attorney either to show that he was wrongly convicted or to advance circumstances which would justify his remaining on the roll despite the conviction.” – seeIncorporated Law Society of Natal v Hassim1977 (2) SA 575Aat page 768A to B, where the followingdictumof Wessels CJ inSolomon v Law Society of the Cape of Good Hope1934 AD 401was cited with approval“All, therefore that the Law Society need do is bring to the notice of the Court that the attorney has been convicted. If nothing further is said, the Court will strike the attorney off the roll. It is, however, open to the attorney to bring to the notice of the Court such facts as will raise astrong presumptionthat he ought not to have been convicted. He may bring before the Court, as has been done in some cases, the evidence upon which he has been convicted, and ask the Court to say that such evidencedid not justify his conviction; or he may bring new facts to its notice which would throw such doubt on the correctness of his conviction as to justify the Court in hearing the whole matter afresh. Each case will depend on its own circumstances, and no general rule can be laid down which the courts must follow. The whole enquiry is of a disciplinary nature, and how the Court will conduct that enquiry will depend on the circumstances of the case.”(My emphasis)5.3Thedictumin Hassim’s case was cited with approval by a full court inSociety of Advocates ofSouth Africa(WitwatersrandDivision) v Rottenburg1984 (4) SA 35(T)at page 38G – an application involving the striking off of an advocate.6.1Counsel for the Bar Councils sought to persuade us that an applicant for admission as an advocate, who has a criminal conviction that would otherwise bar his or her admission as an advocate, cannot ask the court to find that he or she was wrongly convicted and is therefore a fit and proper person to be admitted as an advocate.6.2Their submission was that the rule of practice that allows a court to consider the correctness of a conviction in striking off application was based on the fact that in such applications the court is involved in asui generisinquisitorial disciplinary procedure of its officers. When it comes to the admission of an advocate it was submitted that the court performs a purely administrative act when it considers the application of an outsider to become an officer of the court. Such person, it was said, has no right to ask the court to consider whether the conviction was wrongful.6.3Even if the admission of an advocate by the court can be categorised as a pure administrative act, which I doubt, a court must, in terms of Section 33 of Constitution, act in a “lawful, reasonable and procedurally fair” manner. Procedural fairness would then at least entitle an applicant to show that notwithstanding a criminal conviction he or she is a fit and proper person to be admitted as an advocate.6.4In any event, and in principle, I can see no reason why a more stringent testthan showingthathe or she is a fit and proper personshould be introducedwhenconsideringan application for admission as an attorney or advocate.6.5Ithereforefind that an applicant for admission as an advocate, who admits a criminal convictionthat would otherwise bar his or her admission, has the right to rebut theprima facieproof created by the conviction by showing thathe or she was wrongfullyconvicted.7.Having dealt with the approach to be followed when the correctness of a conviction is placed in issue and when it is admitted, a person seeking admission cannot plead these approaches in the alternative, i.e. he or she cannot say that I was wrongfully convicted but in the alternative say that he or she is a fit and proper person to be admitted because I have reformed. This is because reformation can only begin when a person acknowledges that he or she has committed the wrongful act.8.The Applicant drafted hisfounding affidavit without the assistance ofanattorney or Counsel. He disclosed, but did not deal with his criminal convictions. On receipt of the Pretoria Bar Council’s answering affidavit in which it opposed the application on the ground that the Applicant had,inter alia, failed to deal at all with why in the light of his criminal convictionshe was a fit and proper person to be admitted as an advocate, the Applicant filed a supplementary affidavit that was apparently settled by Counsel. Attached to this affidavit is the record of evidence given at his criminal trial and the magistrate’s judgment delivered on 8 May 2000 in which he convicted the Applicant on two counts of theft and a count of attempting to defeat the ends of justice. This record is incomplete in that it does not include the exhibits handed in at the trial. The reason for this omission is that the exhibits have apparently been lost or destroyed. The record also contains the Applicant’s handwritten application for leave to appeal that the magistrate heard and dismissed on 31 May 2000.9.It is the Applicant’s case that he was wrongfully convicted on all three counts and that an appeal to theHigh Court would have succeeded. His reasons for not petitioning the Free State Division of the High Court for leave to appeal are that:9.1.He needed an attorney to represent him. He did not have the funds to instruct an attorney. A request for legal aid had been refused.9.2.After his application for leave to appeal had been refused by the magistrate, a prison officer in theBethlehemprison told him he would find out the procedure to be followed for a petition to the High Court. Having waited 21 days without getting a replythe Applicant decided,reluctantly,to abandon the petition and “serve my ten months in prison. In my consideration a successful appeal would have been academic if heard after a lapse of more than a year, a circumstance that is not uncommon. The prejudice I would have suffered by being in prison for ten months would not have been removed by a successful appeal. In the circumstances, I decided not to pursue the petition for leave to appeal but to serve my sentence”.10.In 2001 and having served ten months of his sentence in prison, the Applicant was released and put under correctional supervision for the rest of his sentence that expiredon 7 May 2005. Followinghis release from prison, the Applicant performed 530 hours of prescribed community service. He also involved himself in community service projects inSoweto. In particular, and following his meeting with FatherBongani Sithole,a Catholic Priest,he became active in what is called the Singakwenza Multi-Purpose Community Centre (MCCP) that provides legal advice, psycho-social counselling, IT training andanHIV/ AIDS programme. He also involved himself in establishing an old age home inSoweto. In this endeavour he was assisted byMs ThembiHadebe, a community worker. In 2003 the Applicant returned toFortHareUniversityto upgrade his B-Juris degree to an LLB that would qualify him to apply for admission as an advocate. He passed his final examinations at the end of 2004. The degree was awarded to him on 20 May 2005. On 17 January 2005, and having disclosed his convictions, the Applicant was admitted to pupilage at the Johannesburg Bar.11.As character references, the Applicant has attached to his supplementary affidavit the affidavit of Father Sithole and Ms Thembi Hadebe, who has known the Applicant since 2001 and who confirms the leading role he played in establishing the old age home.12.I quote the following paragraphs from Father Sithole’s affidavit:"4.My coming into contact with the applicant was in 2001 when I the applicant came to see me and consult me for spiritual advise.5.He related a story of having been a prosecutor in Qwaqwa and the troubles that befell him resulting in his incarceration. I am fully aware of the gravity and seriousness of the offence he was convicted of.6.I told him that as a servant of God, I would not Judge him but I would pray hard for him that God might help him. My role was not merely to receive a “confession” and absolve him of his sins. It was a process of helping him to rebuild himself as a new person. In this process, he proved himself to me with his honesty and integrity from the beginning and in the various ways referred to below.”After dealing with the Applicant’s significant involvement in and commitment to the MPCC centre over a number of years, he states that:"27.It is (sic in) these circumstances that I watched the applicant grow and mature and he would assist me with church duties. He had been honest, trustworthy and reliable.Had he still suffered from the character defect that led to his conviction, he would have had many opportunities to be dishonest with the monies that passed through his unit at the MPCC. He has at all times displayed utmost honesty.I believe that he is a changed person whose greatest wish is to prove to the world that he is not a criminal.28.I would without doubt, recommend the applicant to any organization orprofession, particularly the legal field.I have no doubt that he has overcome his past and is now a fit and proper person to be admitted into practice as a lawyer.”(My underlining)13.I quote the following extracts from Ms Hadebe’s affidavit:"2.I have known the applicant from 2001 when he was introduced by my priest at the time the applicant was volunteering his legal services at the Multi-Purpose Community Centre “MPCC”,DubeVillage,Soweto.”This introductory paragraph is followed by a description of theApplicant’s leadership and meaningful contribution to theestablishment of the old age homethat accommodates 51 people in a secure environment. He is presently chairman of the governing body.

In the concluding paragraphs of the affidavit, Ms Hadebestates that:"22.Having briefly said the above, though not exhausted everything, I have but the highest regard of the applicant. My impression of the applicant is that he is a person of integrity and upholds the highest of ethical standards. He is well-loved by all.I am convinced that his conviction on two counts of theft and an attempt to defeat the ends of justice in 2000, which was unfortunate, would never occur again.23.The applicant has served his community with distinction and I have no doubt recommending him in any position of trust and responsibility having known him for the past years.24.I have no doubt that his previous conviction whilst serving as a prosecutor would not deter him towards his new challenges.He is a young man determined to prove that he is not the person that was convicted of a crime of dishonesty.”(My underlining).14.The rest of the supplementary affidavit contains:14.1.An analysis of the evidence relied on by the magistrate in convicting the Applicant of the two counts of theft and the count of defeating the ends of justice.14.2.The Applicant’s reasons for submitting that on each count he was wrongfully convicted.15.The only inferencesI can draw from the affidavits of father Sithole and Ms Hadebearethat the Applicant had admitted his criminal conduct that resulted in his convictions; that he had identified the character defects that led to his misconduct and that his reformation over a period of some 30 months was true and lasting. These admissions cannot be reconciled with the stance taken by the Applicant in his supplementary founding affidavit in which he asserts that he was wrongfully convicted on all three counts. What this assertion means is that the Applicant cannot claim to have reformed because he has not come to terms with the character defect that led to his convictions.16.If what the Applicant told Father Sithole and Ms Hadebe is the truth, it means that his statement that he was wrongfully convicted is untrue, which means that the Applicant is not a fit and proper person to be admitted as an advocate.17.Having made these findings, no purpose will be served by dealing with the Applicant’s factual submissions that in all three instances he was wrongfully convicted.18.In the result, I would make the following order: “The Applicant’s application to be admitted as an advocate is dismissed”._________________________IW SCHWARTZMANJUDGE OF THE HIGH COURTI agree, and it is so ordered:_________________________L I GOLDBLATTJUDGE OF THE HIGH COURTAttorney for the Applicant: Sekonya AttorneysCounsel for the Applicant: J JReynekeSCP G MalindiAttorney for the First Respondent: Rooth & Wessels IncCounsel for the First Respondent: S Van der MerweAttorney for the Second Respondent: Deneys Reitz AttorneysCounsel for the Second Respondent: P FLouwSCD P De Villiers

IN THE HIGH COURT OF

SOUTH AFRICA

(

WITWATERSRAND

LOCAL DIVISION)

CASE NUMBER:05/3454

CASE NUMBER:

05/3454

In theex parteapplication of:NGWENYA, BAFANA CECILIn re:NGWENYA,BAFANA CECIL ApplicantandTHESOCIETY OF ADVOCATES (PRETORIA) First RespondentTHESOCIETY OF ADVOCATES (WITWATERSRAND) Second Respondent______________________________________________________________

In the

ex parte

application of:

NGWENYA, BAFANA CECIL

In re:

NGWENYA,

BAFANA CECIL Applicant

and

THE

SOCIETY OF ADVOCATES (

PRETORIA

) First Respondent

) Second Respondent______________________________________________________________

JUDGMENT

_____________________________________________________________SCHWARTZMAN J:1.

_____________________________________________________________

SCHWARTZMAN J:

1.

Bafana Cecil Ngwenya, who holds a Bachelor of Law degree, wants to be admitted as an advocate. His application is opposed by theJohannesburgand Pretoria Bar Councils. The main ground of opposition is that on 8 May 2000, Ngwenya was convicted by a Bethlehem Regional Magistrate on two counts of theft, each involving an amount of R500 and one count of defeating the ends of justice.The offences were committed while Ngwenya was acting as a prosecutor in the Tseke Magistrate’s court. The Tseke district is a rural area close to Harrismith.On each of the theft countsNgwenyawas, in terms of Section 276 (1) (i)of the Criminal Procedure Act,sentenced to two years imprisonment. On the count of defeating the ends of justice he was, in terms ofthe same section,sentenced to one year in prison. An application for leave to appeal was dismissed. Ngwenya did not thereafter seek leave to appeal to the Free State Division of the High Court. After serving ten months of his sentencein prisonNgwenya was released under correctional supervision, during which he performed 530 hours of community service.

Bafana Cecil Ngwenya, who holds a Bachelor of Law degree, wants to be admitted as an advocate. His application is opposed by the

Johannesburg

and Pretoria Bar Councils. The main ground of opposition is that on 8 May 2000, Ngwenya was convicted by a Bethlehem Regional Magistrate on two counts of theft, each involving an amount of R500 and one count of defeating the ends of justice.

The offences were committed while Ngwenya was acting as a prosecutor in the Tseke Magistrate’s court. The Tseke district is a rural area close to Harrismith.

On each of the theft counts

Ngwenya

was, in terms of Section 276 (1) (i)

of the Criminal Procedure Act,

sentenced to two years imprisonment. On the count of defeating the ends of justice he was, in terms of

the same s

ection

,

sentenced to one year in prison. An application for leave to appeal was dismissed. Ngwenya did not thereafter seek leave to appeal to the Free State Division of the High Court. After serving ten months of his sentence

in prison

Ngwenya was released under correctional supervision, during which he performed 530 hours of community service.

2.

A person wanting to be admitted as an advocate mustinter aliasatisfy the court that he or she is a fit and proper personto be admitted.It is the Bar Councils submission that because of his criminal convictions, Ngwenya is notsucha person. Ngwenya’s answer is that he was wrongly convicted and is therefore a fit and proper person to be admitted as anadvocate. The Bar’s rejoinder is that while the convictions stand he is not a fit and proper person.

A person wanting to be admitted as an advocate must

inter alia

satisfy the court that he or she is a fit and proper person

to be admitted.

It is the Bar Councils submission that because of his criminal convictions, Ngwenya is not

such

a person. Ngwenya’s answer is that he was wrongly convicted and is therefore a fit and proper person to be admitted as an

advocate. The Bar’

s rejoinder is that while the convictions stand he is not a fit and proper person.

3.

In the course of argument, three sets of Counseltold the court that there was noSouth African authority having to do with anapplication foradmissionas an advocatein which the Applicant asserts that heor shewas wrongly convicted of a crime that would otherwise barhis or heradmission.4.1

In the course of argument, three sets of Counsel

told the court that there was no

South African authority having to do with an

application for

admission

as an advocate

in which the Applicant asserts that he

or she

was wrongly convicted of a crime that would otherwise bar

his or her

admission.

4.1

A person who has been removed or struck from the rollof attorneys will only be readmitted if he or she demonstratesthat he or she is a fit and proper person for readmission – seeEx ParteAarons (Law Society, Transvaal Intervening)1985 (3) SA 286(T). The same rule applies in an application for readmission as an advocate (Ex ParteCaminsky1958 (3) SA 249(N)).

A per

son who has been removed or struck from the roll

of attorneys will only be readmitted if he or she demonstrates

that he or she is a fit and proper person for readmission – see

Ex Parte

Aarons (Law Society, Transvaal Intervening)1985 (3) SA 286(T)

1985 (3) SA 286

. The same rule applies in an application for readmission as an advocate (

Caminsky1958 (3) SA 249(N)

1958 (3) SA 249

).

4.2

Where the person was struck off following an admitted criminal conviction he or she will only be readmitted to practice as an attorney or advocate on satisfying the court that he or she is a fit and proper person for readmission because he or she has genuinely, completely and permanently reformed him or herself of his or her criminal character –Kaplan v Incorporated Law Society of Transvaal1981 (2) SA 762(T)at page 790A to E,Ex ParteAarons1985 (3) SA 286(T)at page 294E to F andSwart v Society of Advocates, Natal1973 (4) SA 784(N)at page 787.

Where the person was struck off following an admitted criminal conviction he or she will only be readmitted to practice as an attorney or advocate on satisfying the court that he or she is a fit and proper person for readmission because he or she has genuinely, completely and permanently reformed him or herself of his or her criminal character –

Kaplan v Incorporated Law Society of Transvaal1981 (2) SA 762(T)

1981 (2) SA 762

at page 790A to E,

Aarons1985 (3) SA 286(T)

at page 294E to F and

Swart v Society of Advocates, Natal1973 (4) SA 784(N)

1973 (4) SA 784

at page 787.

4.3

In Aarons case (supra) at page 294G to I, and in relation to an assessment of character reformation, the following is said: “It seems to me to be fundamental to this enquiry to determine what the particular defect of character or attitude was before one can begin to establish whether an applicant has reformed in respect thereof. Itisequally important, I believe, to enquire whether the applicant himself properly and correctly identifies and appreciates the defect of character or attitude involved.Unless there is such proper and correct appreciation by the applicant, it is difficult to see how the defect can be corrected or cured or eradicated, and how there can be true reformation which is reliable and lasting.” (My underlining).

In Aarons case (

supra

) at page 294G to I, and in relation to an assessment of character reformation, the following is said: “

It seems to me to be fundamental to this enquiry to determine what the particular defect of character or attitude was before one can begin to establish whether an applicant has reformed in respect thereof. It

is

equally important, I believe, to enquire whether the applicant himself properly and correctly identifies and appreciates the defect of character or attitude involved.

Unless there is such proper and correct appreciation by the applicant, it is difficult to see how the defect can be corrected or cured or eradicated, and how there can be true reformation which is reliable and lasting

.

” (My underlining).

4.4

Common sense requires that this rule of practice should also apply where a personwhoseeksadmission as an attorney or advocate has admitted acriminal conviction that would otherwise bar his or her admission.

C

ommon sense requires that this rule of practice should also apply where a person

who

seek

s

admission as an attorney or advocate has admitted a

criminal conviction that would otherwise bar his or her admission.

5.1

There isa wealth of authority going back some 100 years dealing withapplications to strike offan attorneyor advocateon the ground that he or she is by reason of a criminal conviction no longer fit and proper to be on the roll.

There is

a wealth of authority going back some 100 years dealing with

applications to strike off

an attorney

or advocate

on the ground that he or she is by reason of a criminal conviction no longer fit and proper to be on the roll

5.2

What these authorities establish is arule of practice that the conviction “is prima facie proof that he committed that offence, and provided that offence is of a sufficiently serious nature” it is treated “as prima facie proof that he is unfit to be on the roll of attorneys, the onus being on the attorney either to show that he was wrongly convicted or to advance circumstances which would justify his remaining on the roll despite the conviction.” – seeIncorporated Law Society of Natal v Hassim1977 (2) SA 575Aat page 768A to B, where the followingdictumof Wessels CJ inSolomon v Law Society of the Cape of Good Hope1934 AD 401was cited with approval“All, therefore that the Law Society need do is bring to the notice of the Court that the attorney has been convicted. If nothing further is said, the Court will strike the attorney off the roll. It is, however, open to the attorney to bring to the notice of the Court such facts as will raise astrong presumptionthat he ought not to have been convicted. He may bring before the Court, as has been done in some cases, the evidence upon which he has been convicted, and ask the Court to say that such evidencedid not justify his conviction; or he may bring new facts to its notice which would throw such doubt on the correctness of his conviction as to justify the Court in hearing the whole matter afresh. Each case will depend on its own circumstances, and no general rule can be laid down which the courts must follow. The whole enquiry is of a disciplinary nature, and how the Court will conduct that enquiry will depend on the circumstances of the case.”(My emphasis)

What these authorities establish is a

rule of practice that the conviction “

is prima facie proof that he committed that offence, and provided that offence is of a sufficiently serious nature

” it is treated “

as prima facie proof that he is unfit to be on the roll of attorneys, the onus being on the attorney either to show that he was wrongly convicted or to advance circumstances which would justify his remaining on the roll despite the conviction.

” – see

Incorporated Law Society of Natal v Hassim1977 (2) SA 575A

1977 (2) SA 575

at page 768A to B, where the following

dictum

of Wessels CJ in

Solomon v Law Society of the Cape of Good Hope1934 AD 401

1934 AD 401

was cited with approval

“

All, therefore that the Law Society need do is bring to the notice of the Court that the attorney has been convicted. If nothing further is said, the Court will strike the attorney off the roll. It is, however, open to the attorney to bring to the notice of the Court such facts as will raise a

strong presumption

that he ought not to have been convicted. He may bring before the Court, as has been done in some cases, the evidence upon which he has been convicted, and ask the Court to say that such evidence

did not justify his conviction

; or he may bring new facts to its notice which would throw such doubt on the correctness of his conviction as to justify the Court in hearing the whole matter afresh. Each case will depend on its own circumstances, and no general rule can be laid down which the courts must follow. The whole enquiry is of a disciplinary nature, and how the Court will conduct that enquiry will depend on the circumstances of the case.

”

(My emphasis)

5.3

Thedictumin Hassim’s case was cited with approval by a full court inSociety of Advocates ofSouth Africa(WitwatersrandDivision) v Rottenburg1984 (4) SA 35(T)at page 38G – an application involving the striking off of an advocate.

T

he

in Hassim’s case was cited with approval by a full court in

Society of Advocates of

South Africa

Witwatersrand

Division) v Rottenburg1984 (4) SA 35(T)

1984 (4) SA 35

at page 38G – an application involving the striking off of an advocate.

6.1

Counsel for the Bar Councils sought to persuade us that an applicant for admission as an advocate, who has a criminal conviction that would otherwise bar his or her admission as an advocate, cannot ask the court to find that he or she was wrongly convicted and is therefore a fit and proper person to be admitted as an advocate.6.2Their submission was that the rule of practice that allows a court to consider the correctness of a conviction in striking off application was based on the fact that in such applications the court is involved in asui generisinquisitorial disciplinary procedure of its officers. When it comes to the admission of an advocate it was submitted that the court performs a purely administrative act when it considers the application of an outsider to become an officer of the court. Such person, it was said, has no right to ask the court to consider whether the conviction was wrongful.

Counsel for the Bar Councils sought to persuade us that an applicant for admission as an advocate, who has a criminal conviction that would otherwise bar his or her admission as an advocate, cannot ask the court to find that he or she was wrongly convicted and is therefore a fit and proper person to be admitted as an advocate.

6.2

Their submission was that the rule of practice that allows a court to consider the correctness of a conviction in striking off application was based on the fact that in such applications the court is involved in a

sui generis

inquisitorial disciplinary procedure of its officers. When it comes to the admission of an advocate it was submitted that the court performs a purely administrative act when it considers the application of an outsider to become an officer of the court. Such person, it was said, has no right to ask the court to consider whether the conviction was wrongful

6.3

Even if the admission of an advocate by the court can be categorised as a pure administrative act, which I doubt, a court must, in terms of Section 33 of Constitution, act in a “lawful, reasonable and procedurally fair” manner. Procedural fairness would then at least entitle an applicant to show that notwithstanding a criminal conviction he or she is a fit and proper person to be admitted as an advocate.

Even if the admission of an advocate by the court can be categorised as a pure administrative act, which I doubt, a court must, in terms of Section 33 of Constitution, act in a “

lawful, reasonable and procedurally fair

” manner. Procedural fairness would then at least entitle an applicant to show that notwithstanding a criminal conviction he or she is a fit and proper person to be admitted as an advocate.

6.4

In any event, and in principle, I can see no reason why a more stringent testthan showingthathe or she is a fit and proper personshould be introducedwhenconsideringan application for admission as an attorney or advocate.

In any event, and in principle, I can see no reason why a more stringent test

than showing

that

he or she is a fit and proper person

should be introduced

when

considering

an application for admission as an attorney or advocate.

6.5

Ithereforefind that an applicant for admission as an advocate, who admits a criminal convictionthat would otherwise bar his or her admission, has the right to rebut theprima facieproof created by the conviction by showing thathe or she was wrongfullyconvicted.

I

therefore

find that an applicant for admission as an advocate, who admits a criminal conviction

that would otherwise bar his or her admission, ha

s the right to rebut the

prima facie

proof created by the conviction by showing that

he or she was wrongfully

convict

ed

7.

Having dealt with the approach to be followed when the correctness of a conviction is placed in issue and when it is admitted, a person seeking admission cannot plead these approaches in the alternative, i.e. he or she cannot say that I was wrongfully convicted but in the alternative say that he or she is a fit and proper person to be admitted because I have reformed. This is because reformation can only begin when a person acknowledges that he or she has committed the wrongful act.

H

aving dealt with the approach to be followed when the correctness of a conviction is placed in issue and when it is admitted, a person seeking admission cannot plead these approaches in the alternative, i.e. he or she cannot say that I was wrongfully convicted but in the alternative say that he or she is a fit and proper person to be admitted because I have reformed. This is because reformation can only begin when a person acknowledges that he or she has committed the wrongful act.

8.

The Applicant drafted hisfounding affidavit without the assistance ofanattorney or Counsel. He disclosed, but did not deal with his criminal convictions. On receipt of the Pretoria Bar Council’s answering affidavit in which it opposed the application on the ground that the Applicant had,inter alia, failed to deal at all with why in the light of his criminal convictionshe was a fit and proper person to be admitted as an advocate, the Applicant filed a supplementary affidavit that was apparently settled by Counsel. Attached to this affidavit is the record of evidence given at his criminal trial and the magistrate’s judgment delivered on 8 May 2000 in which he convicted the Applicant on two counts of theft and a count of attempting to defeat the ends of justice. This record is incomplete in that it does not include the exhibits handed in at the trial. The reason for this omission is that the exhibits have apparently been lost or destroyed. The record also contains the Applicant’s handwritten application for leave to appeal that the magistrate heard and dismissed on 31 May 2000.

The Applicant drafted his

founding affidavit without the assistance of

an

attorney or Counsel

. H

e disclosed, but did not deal with his criminal convictions. On receipt of the Pretoria Bar Council’s answering affidavit in which it opposed the application on the ground that the Applicant had,

, failed to deal at all with why in the light of his criminal conviction

he was a fit and proper person to be admitted as an advocate

, t

he Applicant filed a supplementary affidavit that was apparently settled by Counsel. Attached to this affidavit is the record of evidence given at his criminal trial and the magistrate’s judgment delivered on 8 May 2000 in which he convicted the Applicant on two counts of theft and a count of attempting to defeat the ends of justice. This record is incomplete in that it does not include the exhibits handed in at the trial. The reason for this omission is that the exhibits have apparently been lost or destroyed. The record also contains the Applicant’s handwritten application for leave to appeal that the magistrate heard and dismissed on 31 May 2000.

9.

It is the Applicant’s case that he was wrongfully convicted on all three counts and that an appeal to theHigh Court would have succeeded. His reasons for not petitioning the Free State Division of the High Court for leave to appeal are that:

It is the Applicant’s case that he was wrongfully convicted on all three counts and that a

n appeal to the

High Court would have succeeded. His reasons for not petitioning the Free State Division of the High Court for leave to appeal are that:

9.1.

He needed an attorney to represent him. He did not have the funds to instruct an attorney. A request for legal aid had been refused.

9.2.

After his application for leave to appeal had been refused by the magistrate, a prison officer in theBethlehemprison told him he would find out the procedure to be followed for a petition to the High Court. Having waited 21 days without getting a replythe Applicant decided,reluctantly,to abandon the petition and “serve my ten months in prison. In my consideration a successful appeal would have been academic if heard after a lapse of more than a year, a circumstance that is not uncommon. The prejudice I would have suffered by being in prison for ten months would not have been removed by a successful appeal. In the circumstances, I decided not to pursue the petition for leave to appeal but to serve my sentence”.

After his application for leave to appeal had been refused by the magistrate, a prison officer in the

Bethlehem

prison told him he would find out the procedure to be followed for a petition to the High Court. Having waited 21 days without getting a reply

the Applicant decided

reluctantly

to abandon the petition and “

serve my ten months in prison. In my consideration a successful appeal would have been academic if heard after a lapse of more than a year, a circumstance that is not uncommon. The prejudice I would have suffered by being in prison for ten months would not have been removed by a successful appeal. In the circumstances, I decided not to pursue the petition for leave to appeal but to serve my sentence

”.

10.

In 2001 and having served ten months of his sentence in prison, the Applicant was released and put under correctional supervision for the rest of his sentence that expiredon 7 May 2005. Followinghis release from prison, the Applicant performed 530 hours of prescribed community service. He also involved himself in community service projects inSoweto. In particular, and following his meeting with FatherBongani Sithole,a Catholic Priest,he became active in what is called the Singakwenza Multi-Purpose Community Centre (MCCP) that provides legal advice, psycho-social counselling, IT training andanHIV/ AIDS programme. He also involved himself in establishing an old age home inSoweto. In this endeavour he was assisted byMs ThembiHadebe, a community worker. In 2003 the Applicant returned toFortHareUniversityto upgrade his B-Juris degree to an LLB that would qualify him to apply for admission as an advocate. He passed his final examinations at the end of 2004. The degree was awarded to him on 20 May 2005. On 17 January 2005, and having disclosed his convictions, the Applicant was admitted to pupilage at the Johannesburg Bar.

In 2001 and having served ten months of his sentence in prison, the Applicant was released and put under correctional supervision for the rest of his sentence that expire

d

on 7 May 2005. F

ollowing

his release from prison, the Applicant performed 530 hours of prescribed community service. He also involved himself in community service projects in

Soweto

. In particular, and following his meeting with Father

Bon

gani Sithole,

a Catholic Priest,

he became active in what is called the Singakwenza Multi-Purpose Community Centre (MCCP) that provides legal advice, psycho-social counselling, IT training and

HIV

/ AIDS programme

. He also involved himself in establishing an old age home in

. In this endeavour he was assisted by

Ms Thembi

Hadebe

, a community worker. In 2003 the Applicant returned to

For

t

Hare

University

to upgrade his B-Juris degree to an LLB that would qualify him to apply for admission as an advocate. He passed his final examinations at the end of 2004. The degree was awarded to him on 20 May 2005. On 17 January 2005, and having disclosed his convictions, the Applicant was admitted to pupilage at the Johannesburg Bar

11.

As character references, the Applicant has attached to his supplementary affidavit the affidavit of Father Sithole and Ms Thembi Hadebe, who has known the Applicant since 2001 and who confirms the leading role he played in establishing the old age home.

12.

I quote the following paragraphs from Father Sithole’s affidavit:"4.

I quote the following paragraphs from Father Sithole’s affidavit:

"4.

My coming into contact with the applicant was in 2001 when I the applicant came to see me and consult me for spiritual advise.5.

My coming into contact with the applicant was in 2001 when I the applicant came to see me and consult me for spiritual advise.

5.

He related a story of having been a prosecutor in Qwaqwa and the troubles that befell him resulting in his incarceration. I am fully aware of the gravity and seriousness of the offence he was convicted of.6.I told him that as a servant of God, I would not Judge him but I would pray hard for him that God might help him. My role was not merely to receive a “confession” and absolve him of his sins. It was a process of helping him to rebuild himself as a new person. In this process, he proved himself to me with his honesty and integrity from the beginning and in the various ways referred to below.”

He related a story of having been a prosecutor in Qwaqwa and the troubles that befell him resulting in his incarceration. I am fully aware of the gravity and seriousness of the offence he was convicted of.

6.

I told him that as a servant of God, I would not Judge him but I would pray hard for him that God might help him. My role was not merely to receive a “confession” and absolve him of his sins. It was a process of helping him to rebuild himself as a new person. In this process, he proved himself to me with his honesty and integrity from the beginning and in the various ways referred to below

.”

After dealing with the Applicant’s significant involvement in and commitment to the MPCC centre over a number of years, he states that:

"27.

It is (sic in) these circumstances that I watched the applicant grow and mature and he would assist me with church duties. He had been honest, trustworthy and reliable.Had he still suffered from the character defect that led to his conviction, he would have had many opportunities to be dishonest with the monies that passed through his unit at the MPCC. He has at all times displayed utmost honesty.I believe that he is a changed person whose greatest wish is to prove to the world that he is not a criminal.28.

It is (sic in) these circumstances that I watched the applicant grow and mature and he would assist me with church duties. He had been honest, trustworthy and reliable.

Had he still suffered from the character defect that led to his conviction

, he would have had many opportunities to be dishonest with the monies that passed through his unit at the MPCC. He has at all times displayed utmost honesty.

I believe that he is a changed person whose greatest wish is to prove to the world that he is not a criminal

28.

I would without doubt, recommend the applicant to any organization orprofession, particularly the legal field.I have no doubt that he has overcome his past and is now a fit and proper person to be admitted into practice as a lawyer.”(My underlining)

I would without doubt, recommend the applicant to any organization or

profession, particularly the legal field.

I have no doubt that he has overcome his past and is now a fit and proper person to be admitted into practice as a lawyer

(My underlining)

13.

I quote the following extracts from Ms Hadebe’s affidavit:

"2.

I have known the applicant from 2001 when he was introduced by my priest at the time the applicant was volunteering his legal services at the Multi-Purpose Community Centre “MPCC”,DubeVillage,Soweto.”

I have known the applicant from 2001 when he was introduced by my priest at the time the applicant was volunteering his legal services at the Multi-Purpose Community Centre “MPCC”,

Dube

Village

This introductory paragraph is followed by a description of theApplicant’s leadership and meaningful contribution to theestablishment of the old age homethat accommodates 51 people in a secure environment. He is presently chairman of the governing body.

In the concluding paragraphs of the affidavit, Ms Hadebestates that:

This introductory paragraph is followed by a description of the

Applicant’s leadership and meaningful contribution to the

establishment of the old age home

that accommodates 51 people in a secure environment. He is presently chairman of the governing body.

In the concluding paragraphs of the affidavit, Ms Ha

debe

states that:

"22.

Having briefly said the above, though not exhausted everything, I have but the highest regard of the applicant. My impression of the applicant is that he is a person of integrity and upholds the highest of ethical standards. He is well-loved by all.I am convinced that his conviction on two counts of theft and an attempt to defeat the ends of justice in 2000, which was unfortunate, would never occur again.23.

Having briefly said the above, though not exhausted everything, I have but the highest regard of the applicant. My impression of the applicant is that he is a person of integrity and upholds the highest of ethical standards. He is well-loved by all.

I am convinced that his conviction on two counts of theft and an attempt to defeat the ends of justice in 2000, which was unfortunate, would never occur again

23.

The applicant has served his community with distinction and I have no doubt recommending him in any position of trust and responsibility having known him for the past years.24.I have no doubt that his previous conviction whilst serving as a prosecutor would not deter him towards his new challenges.He is a young man determined to prove that he is not the person that was convicted of a crime of dishonesty.”(My underlining).

The applicant has served his community with distinction and I have no doubt recommending him in any position of trust and responsibility having known him for the past years.

24.

I have no doubt that his previous conviction whilst serving as a prosecutor would not deter him towards his new challenges.

He is a young man determined to prove that he is not the person that was convicted of a crime of dishonesty.

(My underlining).

14.

The rest of the supplementary affidavit contains:

14.1.

An analysis of the evidence relied on by the magistrate in convicting the Applicant of the two counts of theft and the count of defeating the ends of justice.

14.2.

The Applicant’s reasons for submitting that on each count he was wrongfully convicted.

15.

The only inferencesI can draw from the affidavits of father Sithole and Ms Hadebearethat the Applicant had admitted his criminal conduct that resulted in his convictions; that he had identified the character defects that led to his misconduct and that his reformation over a period of some 30 months was true and lasting. These admissions cannot be reconciled with the stance taken by the Applicant in his supplementary founding affidavit in which he asserts that he was wrongfully convicted on all three counts. What this assertion means is that the Applicant cannot claim to have reformed because he has not come to terms with the character defect that led to his convictions.

The only inference

I can draw from the affidavits of father Sithole and Ms Hadebe

are

that the Applicant had admitted his criminal conduct that resulted in his convictions; that he had identified the character defects that led to his misconduct and that his reformation over a period of some 30 months was true and lasting. These admissions cannot be reconciled with the stance taken by the Applicant in his supplementary founding affidavit in which he asserts that he was wrongfully convicted on all three counts. What this assertion means is that the Applicant cannot claim to have reformed because he has not come to terms with the character defect that led to his convictions.

16.

If what the Applicant told Father Sithole and Ms Hadebe is the truth, it means that his statement that he was wrongfully convicted is untrue, which means that the Applicant is not a fit and proper person to be admitted as an advocate.

17.

Having made these findings, no purpose will be served by dealing with the Applicant’s factual submissions that in all three instances he was wrongfully convicted.

18.

In the result, I would make the following order: “The Applicant’s application to be admitted as an advocate is dismissed”.

In the result, I would make the following order: “

The Applicant’s application to be admitted as an advocate is dismissed

_________________________IW SCHWARTZMANJUDGE OF THE HIGH COURTI agree, and it is so ordered:_________________________L I GOLDBLATTJUDGE OF THE HIGH COURTAttorney for the Applicant: Sekonya AttorneysCounsel for the Applicant: J JReynekeSCP G MalindiAttorney for the First Respondent: Rooth & Wessels IncCounsel for the First Respondent: S Van der MerweAttorney for the Second Respondent: Deneys Reitz AttorneysCounsel for the Second Respondent: P FLouwSCD P De Villiers

_________________________I

W SCHWARTZMAN

JUDGE OF THE HIGH COURTI agree, and it is so ordered:_________________________L I GOLDBLATTJUDGE OF THE HIGH COURT

Attorney for the Applicant: Sekonya AttorneysCounsel for the Applicant: J J

Reyneke

SC

P G MalindiAttorney for the First Respondent: Rooth & Wessels IncCounsel for the First Respondent: S Van der MerweAttorney for the Second Respondent: Deneys Reitz AttorneysCounsel for the Second Respondent: P F

Louw

D P De Villiers