Senekal v Law Society of the Free State (1990/2018) [2018] ZAFSHC 101 (8 June 2018)

Senekal v Law Society of the Free State (1990/2018) [2018] ZAFSHC 101 (8 June 2018)

The court found that the respondent's council made decisions to proceed with disciplinary action against the applicant without affording him a prior opportunity to present his version, in contravention of the audi alteram partem principle and section 33 of the Constitution. The respondent's reliance on rule 50.6.2.2 did not justify bypassing a formal enquiry, especially given the far-reaching consequences for the applicant. The applicant established a prima facie right to just administrative action, a well-grounded apprehension of irreparable harm, and the absence of a satisfactory alternative remedy. The balance of convenience favoured granting interim relief. Accordingly, the applicant...

Citation
[2018] ZAFSHC 101
Parties
Applicant: Senekal FJ; Respondent: Law Society of the Free State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
8 June 2018
Case Number
1990/2018
Procedural Posture
Urgent Application / Interim Interdict Pending Review
Outcome
Interim interdict granted; respondent restrained from proceeding with disciplinary action pending review; costs awarded to applicant.
Judges
L. Pohl
Legal Topics
Interim Interdict, Just Administrative Action, Audi Alteram Partem, Disciplinary Proceedings, Attorneys Act, Promotion of Access to Information Act
Administrative Law Civil Procedure Interim Interdict Just Administrative Action Audi Alteram Partem Disciplinary Proceedings Attorneys Act Promotion of Access to Information Act

Case Brief

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Parties

Senekal FJ

Applicant

Law Society of the Free State

Respondent

Procedural Posture

Urgent Application / Interim Interdict Pending Review

Legal Issues

  1. 1 Whether the respondent's disciplinary proceedings against the applicant were procedurally and administratively fair.
  2. 2 Whether the applicant was entitled to an interim interdict restraining the respondent from proceeding with disciplinary action pending review.
  3. 3 Whether the applicant's right to be heard prior to the respondent's decision was violated.

Ratio Decidendi

The court found that the respondent's council made decisions to proceed with disciplinary action against the applicant without affording him a prior opportunity to present his version, in contravention of the audi alteram partem principle and section 33 of the Constitution. The respondent's reliance on rule 50.6.2.2 did not justify bypassing a formal enquiry, especially given the far-reaching consequences for the applicant. The applicant established a prima facie right to just administrative action, a well-grounded apprehension of irreparable harm, and the absence of a satisfactory alternative remedy. The balance of convenience favoured granting interim relief. Accordingly, the applicant...

Court Disposition

Interim interdict granted; respondent restrained from proceeding with disciplinary action pending review; costs awarded to applicant.

Orders

  • The respondent is interdicted and restrained from proceeding with the disciplinary proceedings against the applicant as set out in the notifications pending finalization of the review application under case number 1953/2018.
  • The respondent is ordered to pay the costs of this application, including the costs of two counsel where employed.