Rösemann v General Council of The Bar of South Africa (364/2002) [2003] ZASCA 96; [2003] 4 All SA 211 (SCA); 2004 (1) SA 568 (SCA) (26 September 2003)

Rösemann v General Council of The Bar of South Africa (364/2002) [2003] ZASCA 96; [2003] 4 All SA 211 (SCA); 2004 (1) SA 568 (SCA) (26 September 2003)

The Supreme Court of Appeal held that the appellant, an advocate, was guilty of professional misconduct for accepting instructions from an attorney to perform all administrative and preparatory work normally done by an attorney, including signing pleadings and notices of motion in magistrates' court proceedings and furnishing his own address for service. The referral rule, which requires advocates to act only on instructions from attorneys and not to perform work reserved for attorneys, is a fundamental aspect of the divided legal profession in South Africa and serves the public interest. The division between attorneys and advocates is neither arbitrary nor irrational and does not...

Citation
[2003] ZASCA 96
Parties
Appellant: Eckhard Rösemann; Respondent: The General Council of the Bar of South Africa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 September 2003
Case Number
364/2002
Procedural Posture
Civil Appeal / Appeal From Disciplinary Proceedings; Judgment on Merits and Penalty
Outcome
Appeal dismissed with costs; suspension order varied to commence on 1 November 2003.
Judges
Howie, Mpati, Streicher, Conradie, Heher
Legal Topics
Professional Misconduct, Division of Legal Professions, Referral Rule, Signing of Pleadings, Constitutional Right to Practice, Attorneys Act
Commercial and Corporate Civil Procedure Professional Misconduct Division of Legal Professions Referral Rule Signing of Pleadings Constitutional Right to Practice Attorneys Act

Case Brief

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Parties

Eckhard Rösemann

Appellant

The General Council of the Bar of South Africa

Respondent

Procedural Posture

Civil Appeal / Appeal From Disciplinary Proceedings; Judgment on Merits and Penalty

Legal Issues

  1. 1 Whether an advocate may accept instructions from an attorney to perform all administrative and preparatory work normally done by an attorney.
  2. 2 Whether an advocate may sign pleadings and notices of motion in magistrates' court proceedings.
  3. 3 Whether the appellant's conduct constituted professional misconduct.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant, an advocate, was guilty of professional misconduct for accepting instructions from an attorney to perform all administrative and preparatory work normally done by an attorney, including signing pleadings and notices of motion in magistrates' court proceedings and furnishing his own address for service. The referral rule, which requires advocates to act only on instructions from attorneys and not to perform work reserved for attorneys, is a fundamental aspect of the divided legal profession in South Africa and serves the public interest. The division between attorneys and advocates is neither arbitrary nor irrational and does not...

Court Disposition

Appeal dismissed with costs; suspension order varied to commence on 1 November 2003.

Orders

  • The appeal is dismissed with costs, including costs of the application for condonation and the application to adduce new evidence.
  • Paragraph 2 of the order of the court a quo is varied to provide that the suspension of the appellant from practising is to commence on 1 November 2003.