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Nel v Law Society of the Cape of Good Hope (CA 182/2009)  ZAECGHC 76; 2010 (6) SA 263 (ECG) (6 September 2010)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, GRAHAMSTOWN)
In the matter between: Case No: CA 182/2009
HEINRICH NEL Appellant
THE LAW SOCIETY OF THE CAPE OF GOOD HOPE Respondent
Coram: Chetty and Revelas JJ
Date Heard: 27 August 2010
Date Delivered: 6 September 2010
Summary: Attorney – Misconduct by – Law society disciplinary enquiry in terms of s 71 of Attorneys Act 53 of 1979 – Committee finding attorney guilty of unprofessional conduct by reason of his failure to warn a person accused of murder of his right to remain silent – Such finding made by Supreme Court of Appeal in judgment dismissing accused person’s appeal against murder conviction – Evidence – Admissibility – Whether disciplinary committee can have regard to judgment of Supreme Court of Appeal in finding not only that professional relationship existed but that warning of right to silence not given – Res judicata – Whether requirements fulfilled – Admissibility of Supreme Court of Appeal judgment – Rule of Hollington v F Hewthorn – Whether enquiry before committee civil proceedings – Appeal upheld – Judgment of Supreme Court of Appeal inadmissible as evidence against appellant
 The appellant practices as an attorney under the name and style, Nel Mentz, in Humansdorp and is a member of the respondent. It summoned him to appear before a disciplinary enquiry committee (the committee) constituted in terms of Rule 15.9 of its Rules1, to answer a charge, formulated in an annexure to the summons as:-
“The member is charged with unprofessional conduct in that on or about 23 January 2002 he advised one Dirk Hermanus Swanepoel, who was apprehended by the South African Police in a murder investigation and who had sought the advice of the member in this regard, that “it could never be said that it would be harmful in a bail application if a policeman could stand up in Court and confirm that he obtained the co-operation from the accused right from the outset”. This advice did, alternatively had, the potential to cause Swanepoel to act in ignorance of his right to remain silent to his prejudice or to his potential prejudice.
In so doing the member brought the attorneys’ profession into disrepute.”
 As a precursor to the formal enquiry conducted in accordance with the provisions of section 71 of the Attorneys Act2 (the Act), the respondent’s legal officer in its disciplinary department addressed a letter to the appellant and enclosed a copy of a complaint addressed to it, emanating from Mr. D.H Swanepoel (Swanepoel) concerning the appellant and invited a response thereto. In reply the appellant refuted the allegations leveled against him and denied any suggestion of him having violated any of the respondent’s rules of professional conduct.
 The respondent addressed a further communiqué to the appellant in which it, inter alia, stated:-
“Thank you for your letter dated 25 January 2008. We have noted the contents, and are calling upon the complainant to convert his letter of complaint into affidavit form. A copy of his affidavit will be forwarded to you as soon as it is received.
We are, however, concerned at your failure to deal in any way with the statements at page 9 of the SCA judgment that “the conclusion that a conflict of interest existed is unavoidable” and that “there was a conflict of interest and . . . Nel should have withdrawn from the case and should not have continued to act for the first appellant”. Please deal with these statements.”
The respondent concluded its correspondence to the appellant with a final letter in which it advised the appellant that Swanepoel’s complaint had now been submitted to it in the form of an affidavit. The appellant was further informed that:-
“The essence of the complaint is to be found at page 9 of the judgment of Mthiyane JA were he stated that the conclusion that a conflict of interest existed was unavoidable. He also stated that although you acted bona fide, there was a conflict of interest and you should have withdrawn from the case rather than continuing to act for the complainant. Please deal with these statements by the presiding judge, as well as the allegations contained in Mr Swanepoel’s complaint.
We must make is quite clear that we accept the Courts finding that you acted bona fide. What needs to be dealt with is the suggestion that you should not have assisted or represented the complainant in any way as you were representing the deceased’s family. At page 8 of its judgment, the Appeal Court stated that your version as to whether or not an attorney/client relationship existed between you and the complainant was not very convincing.”
 The missive exchange culminated in a memorandum submitted to the respondent in which the appellant presented a detailed response to the complaint lodged against him. Subsequent events indicate quite unequivocally that the appellant’s explanation was not accepted by the committee – the summons envisaged in section 71 (2) (a) was duly served on him.
 At the commencement of the disciplinary hearing, the pro forma prosecutor, Mr. Koen (Koen) with the concurrence of appellant’s counsel handed in a bundle of documents and forewarned the committee that it contained inadmissible material. His ipsissima verba were:-
“I should say to be perfectly fair and I have indicated this to my learned friend outside, that included in this bundle is evidence which is not admissible on any basis, so for example in regard to the Swanepoel complaint you will see Mr Swanepoel’s written complaint. That evidence is not tendered as proof of its content, it is simply put before you because it is what his complaint was, but it is not going to be tendered by me as proof of its content. However I will contend and I don’t suspect that there will be any dispute about this, that Mr Nel’s answer to the complaint is admissible in evidence against him and so when you go – when you have regard to this bundle of documentation you should disregard what is irrelevant, disregard what is inadmissible because it has not been tendered as proof of its content and have regard only to Mr Nel’s version in regard to the Swanepoel complaint . . . [portion of record removed] . . ., but here are the two bundles if I could hand them in.”
 Counsel for the appellant then, in answer to the committee’s chairperson’s invitation to specify what was admissible and what was not, submitted that the complaint by Swanepoel and the judgment of the Supreme Court of Appeal (the Judgment) in his unsuccessful appeal against his conviction for the murder of Mr. Groenewald (the deceased) was inadmissible as evidence against the appellant but that the remainder of the documentation was relevant and, a fortiori, admissible against him. Although the chairperson, during the exchange between himself and Mr. Pretorius, made the comment that the Judgment was a public document and hence admissible in evidence, the record shows that he, at the time, was constrained to acknowledge that the Judgment was inadmissible as factual evidence against the appellant. The prosecutor deferred to appellant’s counsel’s opinion concerning the inadmissibility issue and readily conceded that the judgment was inadmissible as evidence against the appellant, a view, apparently then acquiescenced in by the committee’s chairperson. The precise ambit of the admissible evidence was thus inter partes3 circumscribed, viz, whether the appellant’s “advice” to Swanepoel, now encapsulated in the annexure to the charge, constituted a contravention of Rule 14.3.14 of the respondent’s rules4. Counsel for the appellant and Mr. Koen then addressed the committee and the proceedings were adjourned for the committees deliberation. On resumption shortly thereafter, the committee found against the appellant but provided no reasons for its decision.
 Reasons for the committee’s decision were subsequently furnished. Although the reproduction of particular portions of those reasons will result in the prolixity of this judgment, it is unfortunately necessary to do so for they are in certain respects factually incorrect and premised on material which the committee had agreed was inadmissible as against the appellant. I interpolate to say that although the committee in fact initially seemed to agree that the judgment was inadmissible as evidence against the appellant, it was, as a matter of law, not bound by what was obviously an interlocutory matter.
 The committee inter alia found:-
“2. It was common cause at the disciplinary hearing that the member had in fact advised the accused in the murder case, one Swanepoel, to co-operate fully with the Police when by the time he knew that the accused was implicated or was being investigated in connection with the murder of L.A.P.J. Groenewald of Humansdorp.”
This finding is factually incorrect. Firstly the only common cause facts were that following the disappearance of the deceased, Groenewald, Mrs. Groenewald had engaged the appellant to cause an investigation to be conducted thereanent. The appellant hired a private detective to conduct the investigation and discovered that telephonic records revealed contact between the deceased’s cellular number and Swanepoel’s office. He telephonically contacted Swanepoel and summoned him to his office. Ex facie the admissible evidence, prior to Swanepoel arriving at his office, Nel, presciently believed that Swanepoel could shed light on the deceased’s disappearance. By that time the appellant’s investigations pointed to the involvement of two other persons in the deceased’s disappearance, but the appellant needed to verify certain information from Swanepoel which, much to his chagrin, he however deliberately suppressed. Swanepoel in fact emphatically denied any involvement in Groenewald’s disappearance. During the same interview, a policeman, one Jonck, arrived unannounced, arrested Swanepoel and escorted him out of the appellant’s office. Later that day one Inspector Pieterson telephoned the appellant with the request that Swanepoel wished to talk to him. Swanepoel asked him “whether it would assist him in a bail application if he gave his full cooperation to the police”. It is in that context viz whether it would assist in a bail application, that the advice was solicited and proffered. The appellant’s consistent version was that he at no stage considered himself to be Swanepoel’s attorney. It was certainly not common cause that, as the finding suggests, the appellant advised Swanepoel as an accused person.
 Secondly, there is no admission in the appellant’s memorandum that when Swanepoel solicited his advice he “he knew that the accused was implicated or was being investigated in connection with the murder . . .” In fact the contrary appears from the appellant’s statement. His firm belief was that Swanepoel’s arrest would provide a solution to the riddle of the two suspects’ alleged involvement in the deceased’s disappearance. What further emerges from the statement is that it was only during the telephonic conversation with Swanepoel, later that day, that he was apprised by Swanepoel that he had killed the deceased. In what follows, it will be gleaned that the committee’s aforestated factual findings are in fact derived exclusively from the Judgment and were clearly not common cause at the disciplinary hearing.
 It is apparent from the reasons and the formulation of the charge against the appellant, that the committee’s subsequent finding was based entirely on remarks made by Mthiyane JA in his judgment in the appeal by Swanepoel and Killian5 against their conviction for the murder of the deceased. The copious references in the respondent’s correspondence and in the committee’s reasons to passages of the Judgment, manifestly demonstrate that the charge was predicated thereon. As adumbrated hereinbefore, the inadmissibility of the Judgment as evidence against the appellant was pertinently raised by his counsel and, as alluded to earlier, coalesced in by Mr. Koen and the committee.
 In support of his submission that the Judgment was inadmissible as evidence against the appellant, his counsel sought to rely upon the decision in Yellow Star Properties 1020 (Pty) Ltd v Mec, Department of Development Planning and Local Government Gauteng6 and in particular, paragraphs  and , where Leach AJA said the following:-
It has been recognised though that the strict requirements of the
especially those relating to eadem res or
eadem petendi causa (the
same relief and the same cause of action), may be relaxed where
appropriate. Where a defendant raises as a defence that the
parties are bound by a previous judgment on the same issue (viz idem
actor and eadem
quaestio ), it has become commonplace to
refer to it as being a matter of so-called 'issue estoppel'. But that
is merely a phrase of convenience
adopted from English law, the
principles of which have not been subsumed into our law,
Smith v Porritt and Others 2008 (6) SA 303 (SCA) para 10; and Kommissaris van Binnelandse Inkomste v Absa Bank Bpk 1995 (1) SA 653 (A) at 669H - I and 670C - E. and the defence remains one of res judicata. Importantly when dealing with issue estoppel, it is necessary to stress not only that the parties must be the same but that the same issue of fact or law which was an essential element of the judgment on which reliance is placed must have arisen and must be regarded as having been determined in the earlier judgment.
 The applicant's argument that the validity of the sale was res judicata in case 4578/2002 faces insurmountable difficulties. As appears from what I have already said, in order for the applicant to succeed on this issue the case had to involve the same parties who had been in case 15278/2001 and had to turn on the same issue that had been finally determined in the judgment of Van der Walt J. For the reasons that follow, neither of those two requirements was fulfilled.”
 In argument before us, Mr. Pretorius submitted that the parties in the matter which served before the Supreme Court of Appeal i.e. the appellant and Swanepoel, and the issue between them which the court was called to decide upon, were the same as that before the committee and hence the matter was res judicata. Mr. Brooks, on the other hand sought to persuade us that Yellow Star is entirely distinguishable and of no application to the facts in casu. In my judgment Yellow Star does not assist the appellant, and any reliance thereon is entirely misplaced.
 None of the requirements for a successful plea of res judicata have been met. Although the court of appeal considered and evaluated the evidence of the appellant and Swanepoel, it was not a judgment given in an action or application between them. The appellant was a state witness called by the state in criminal proceedings against Swanepoel, ostensibly to prove that a pointing out made by Swanepoel was admissible as evidence against him. The trial court in fact held the evidence to be admissible. On appeal however, that evidence was found to be inadmissible, but the conviction was confirmed by reason of the cogency of the circumstantial evidence. In my view, it is spurious to suggest that the appeal and the disciplinary hearing involved the same parties – the appellant’s involvement was in my view merely peripheral. Furthermore, the two cases did not involve the same issue. The Supreme Court of Appeal as an appellate tribunal was called upon to determine whether the trial court’s conclusion that the state had discharged the onus of establishing Swanepoel’s guilt beyond a reasonable doubt was correct or not. A secondary issue concerned the admissibility of the pointing out, and although Swanepoel succeeded in having such evidence excluded on appeal, it ultimately had no bearing on the real issue before the Supreme Court of Appeal, viz, whether the evidence adduced by the stated established Swanepoel’s guilt beyond a reasonable doubt. It follows from the aforegoing that the requirements postulated in the authorities referred to hereinbefore, have not been met and the invocation of res judicata cannot be sustained.
 This finding does not however in my view render the Judgment admissible as evidence against the appellant. During argument counsel were invited to address the question whether the Judgment is in any event inadmissible regard being had to the rule enunciated in Hollington v F Hewthorn & Company Ltd7. Although this issue had not been considered in counsel’s heads of argument it was embraced with alacrity by Mr. Pretorius. Mr. Brooks on the other hand adroitly skirted the issue with the riposte that it was clear from the reasons that the committee had had no regard to the Judgment in finding against the appellant and that in any event, the only legitimate inference to be drawn from the appellant’s memorandum to the committee, was that he had not advised Swanepoel of his right to silence. The mere fact that the memorandum is silent in this respect does not justify the drawing of such an inference. The former argument expressly ignores the committee’s findings. In paragraph 5 of the reasons the committee quoted a passage from page 16 of the Judgment:-
“From page 17 of the bundle, page 9 of the Supreme Court of Appeal’s judgment, the following appears:
“Nel’s failure to advise the First Defendant of his rights on the Bill of Rights, such as the right to remain silent, in my view, left the First Defendant, who was facing serious charges, effectively without representation. Although Nel acted bona fide, the risk of admitting evidence preceded by such conduct could well have resulted in a failure of justice. Consequently I am prepared to assume in favour of the Appellant that there was a conflict of interest and that Nel should have withdrawn from the case and should not have continued to act for the First Appellant.”
Mr. Brooks sought to persuade us that notwithstanding the aforesaid passage, the Committee in fact had no regard to the Judgment in its deliberations. He submitted that although the phraseology employed in the formulation of the reasons may suggest that it had regard to the Judgment, it is clear that it had not. There is no merit in this submission. It is quite apparent form the reasons that the committee’s finding was sourced from the Judgment.
 Mr. Brooks then submitted that even on the assumption that the Judgment was inadmissible against the appellant the inference could legitimately be drawn from Swanepoel’s subsequent pointing out that the appellant had failed to advise him of his right to remain silent even if no attorney and client relationship existed between them. The submission is in my view untenable. A simple example will suffice. Suppose an attorney happens to encounter a former client being escorted into the court precincts by the police and in the passage he or she solicits the same advice from the attorney as Swanepoel did. If the same advice was proffered, could it ever be contended that the attorney contravened Rule 14.3.14. The answer is obvious – it could not. Furthermore, the fact mere that Swanepoel subsequently made a pointing out cannot justify the inference as the only reasonable one, that he did so by reason of the appellant’s failure to advise him of his right to remain silent. He could have been actuated by a gamut of reasons.
 The rule enunciated in Hollington v F Hewthorn was that a conviction in a criminal court is not admissible in subsequent civil proceedings as evidence that the accused committed the offence of which he was convicted. This flowed from the reasoning that the conviction was the opinion of another court. The ratio of the decision, as subsequent decisions show, also excludes adverse findings against witnesses who are subsequently summoned to answer charges emanating from findings made by a court in such prior proceedings. Despite strident criticism in South Africa, the rule remains part of our law. In Prophet v National Director of Public Prosecutions8, Nkabinde J, writing for the Constitutional Court and with reference to Hollington v Hewthorne stated the following9:-
“ The main
reason that the applicant wanted to have the transcript of the
proceedings in the magistrates' court admitted was
to persuade this
Court to accept that court's conclusion that the evidence gathered
during the search on the property should be
excluded, and its
conclusion that the applicant be found not guilty. It needs to
said that the provisions of Ch 6 are not conviction-based.
Section 50(4) provides that the validity of a forfeiture order 'is not affected by the outcome of criminal proceedings . . . in respect of an offence with which the property concerned is in some way associated'. See also  ZACC 9; 2002 (4) SA 843 (CC) (2002 (2) SACR 196; 2002 (9) BCLR 970) in para 16.
The findings of the magistrate as reflected in the transcript in a related criminal trial are, for the purpose of this judgment, irrelevant and may be described as 'superfluous' or 'supererogatory evidence' because they amount to an opinion on a matter in which a Judge might, in the forfeiture application, have to decide. In any event, on the record, the applicant has admitted what was found on the property and has not sought to withdraw those admissions. Accordingly, the transcript falls to be excluded.” (emphasis supplied)
 By a strange twist of fate, Pickering J, in a Full Court judgment10 in this division in a related matter involving Mrs. Groenewald and Swanepoel several years prior to the Constitutional Court’s judgment in Prophet11; reached a similar conclusion where the learned judge stated12:-
“Our Courts are constrained by s 42 of the Civil Proceedings Evidence Act 25 of 1965 to apply the law of evidence, as it was on 30 May 1961, to civil proceedings. That being the case, the rule in the well-known case of Hollington v F Hewthorn & Co Ltd  KB 587 (CA) ( 2 All ER 35) applies. The effect thereof is that proof of conviction in a criminal case is not admissible in subsequent civil proceedings as evidence that the person committed the offence.”
“The law of evidence including the law relating to the competency, compellability, examination and cross-examination of witnesses which was in force in respect of civil proceedings on the thirtieth day of May, 1961, shall apply in any case not provided for by this Act or any other law.”
 It follows from the aforegoing that for the rule in Hollington v F. Hewthorn to apply it is necessary to determine whether the disciplinary hearing amounted to civil proceedings. If they were, caedit questio – the judgment is irrelevant and, a fortiori, inadmissible as evidence against the appellant. From what follows I am satisfied that the disciplinary hearing was a civil proceeding. Various provisions of the Act explicitly say so. Section 71 of the Act contains a plethora of references equating the disciplinary hearing to civil court proceedings, e.g.
“2 (a) . . .
(b) A summons referred to in paragraph (a) shall be served in the same manner as a summons for the attendance of a witness at a civil trial in a magistrate's court. (emphasis supplied)
(c) In connection with the interrogation of any person who has been summoned under this section or the production by such person of any book, document, record or thing, the law relating to privilege as applicable to a witness summoned to give evidence or to produce a book, document, record or thing in a civil trial before a court of law shall apply. (emphasis supplied)
(d) (i) Any person who has been summoned in terms of this subsection or who has given evidence before a council shall be entitled to the same witness fees as if he had been summoned to attend or had given evidence at a civil trial in a magistrate's court held at the place where the enquiry is held. (emphasis supplied)
(ii) . . .”
Furthermore section 73 (4) provides as follows:-
“(4) An appeal in terms of subsection (1) shall be prosecuted as if it were an appeal from a judgment of a magistrate's court in a civil matter, and all rules applicable to such last-mentioned appeal in respect of the hearing thereof shall mutatis mutandis apply to an appeal under this section.”
 In the circumstances I am satisfied that the admissible evidential material before the committee was wholly insufficient to justify a finding that the appellant had contravened Rule 14.3.14 of the respondent’s Rules. In the result the following order will issue:-
The appeal is allowed. The committee’s finding that the appellant had contravened Rule 14.3.14 of the respondent’s rules and the punishment imposed in respect thereof are hereby set aside.
JUDGE OF THE HIGH COURT
JUDGE OF THE HIGH COURT
On behalf of the Appellant: Adv Pretorius
Instructed by Nettletons
118A High Court
On behalf of the Respondent: Adv Brooks
Instructed by Neville Borman and Botha
22 Hill Street
1 Framed in terms of section 21 (1) of the Law Societies Act No. 41 of 1979 as substituted by section 74 (1) of the Attorneys Act No. 53 of 1979 and promulgated in Government Gazette 5255 dated 20 August 1976, as amended by:-
7 July 1995
18 October 1996
24 April 1998
23 October 1998
31 October 2003
5 April 2007
2 Act No. 53 of 1979
3 The committee, Mr. Pretorius and Mr. Koen
4 Rule 14.3.14 provides as follows:
refrain from doing anything which could or might bring the attorneys’ profession into disrepute.”
5 His co-accused in the murder trial
9 At 187 para 42
11 At 729D-E
12 At 727E
13 Act No. 25 of 1965