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Case No 78/98
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter
between
FAROUK JASAT
APPELLANT
and
NATAL LAW
SOCIETY RESPONDENT
CORAM : F H GROSSKOPF,
NIENABER, MARAIS, SCOTT et
ZULMAN
JJA
HEARD : 20 MARCH 2000
DELIVERED : 28 MARCH
2000
Attorney committing perjury in criminal proceedings
and suborning another to do likewise - struck off roll.
J U D G M E N T
SCOTT JA/....
SCOTT
JA:
[1] The appellant practises as an attorney in
Pietermaritzburg. He appeals to this Court against an order of the Natal
Provincial Division
striking his name off the roll of attorneys.
[2] In July
1993 the appellant was charged with housebreaking with intent to steal and
theft. On 12 December 1994 he was convicted
in the Regional Court of
housebreaking with intent to trespass and was sentenced to a fine of
R
3000. He appealed to the Natal Provincial Division. The appeal was dismissed on
5 December 1995. On appeal to this Court the conviction
was altered to
“housebreaking with the intent of contravening s 1(1)(a) of the Trespass
Act, 1959, and the contravention thereof”;
the appeal was otherwise
dismissed. The judgment, which was delivered on 7 March 1997, has been reported
- see S v Jasat 1997 (1) SACR 489 (SCA).
[3] Shortly thereafter the
respondent launched the proceedings resulting in the order against which the
appellant now appeals. In
its founding papers the respondent relied not only on
the appellant’s conviction but also on his conduct at the criminal trial,
viz the raising of what was described by the respondent’s chief
executive officer as “a specious alibi defence”.
[4] It is
necessary to set out the facts of the criminal case. I shall do so in brief as
they appear more fully from the reported
judgment of Nienaber JA in S v
Jasat, supra. On Friday 2 April 1993 an attorney, Mr Baboo Akoo who
practised from a suite of offices in Loop Street, Pietermaritzburg, fled the
country for London. On Sunday 4 April 1993 he telephoned his clerk, Mr
Chutterpaul, to say that he would not be returning to South
Africa. He
suggested that Chutterpaul help himself to certain items in the office,
including the law reports. The latter commendably
declined to do so and reported
the matter to the Natal Law Society instead. The following day, Monday 5 April
1993, Mr Rees, an executive
officer of the respondent, took control of the
premises. He had the lock to the front door changed; he also had a duplicate key
made
for a filing cabinet which, according to Chutterpaul, contained files
relating to the appellant. On the same day the appellant telephoned
Rees; he
told him that certain files in the office belonged to him and that he was
anxious to recover them. Rees’s attitude
was that no files would be
released to the appellant until the Law Society had been appointed
curator bonis and the appellant had signed the usual form indemnifying the Law
Society. The following day, Tuesday
6 April 1993, was a public holiday. Mr
Pienaar, a consulting engineer who worked in the office next door to that of
Akoo, encountered
two men at the entrance. The one was carrying a box of files,
the other, whom Pienaar later identified as the appellant, was busy
wiping the
aluminium frame of the door to Akoo’s offices. When confronted, the man
with the files said that they were from
“Special Security Services”
and that they had been sent to collect files. After they had gone Pienaar
examined the lock.
It had been forced. He thereupon telephoned the police. In
the meantime, Mr Dlamini, a security guard on duty in the building, had
recorded
the registration numbers of all motor vehicles parked in the parking area. One
of them was a vehicle which proved to be
registered in the name of a company of
which the appellant was the sole director. Dlamini also observed this vehicle
being driven
by a person whom he described as an “Indian male”. On
learning that a break-in had occurred, Rees arrived at the premises
at about 11
am. The first thing he noticed was that the filing cabinet for which he had had
a key made was missing. The appellant
denied that he had broken into
Akoo’s office or arranged for someone else to do so. He testified that at
the relevant time
he and Akoo’s cousin, Mr Yusuf Akoo, were busy hiring a
truck for the purpose of assisting Akoo’s wife to move house. Mr
Yusuf Akoo gave evidence in support of the appellant’s alibi.
[5] The
Regional Court rejected the appellant’s alibi. Because, however, the State
had failed to establish that the filing
cabinet and the missing files belonged
to someone other than the appellant, he was convicted of housebreaking with
intent to trespass
and trespass as opposed to housebreaking with intent to steal
and theft. As previously indicated the conviction was confirmed on
appeal to the
High Court but altered in a minor respect on appeal to this Court.
[6] In
his answering affidavit filed in the striking-off proceedings the appellant
admitted for the first time that he had lied under
oath at the criminal trial.
He said that he had indeed entered Akoo’s premises and removed the steel
filing cabinet as well
as other files and that he had been correctly identified
by Mr Pienaar. He contended, however, that by reason of his alibi defence
all
the facts relating to his conduct had not emerged during the criminal
proceedings and that he was not guilty of the offence of
which he had been
convicted as he honestly believed that he was entitled to enter Akoo’s
premises when he did. In addition,
he sought to explain how it had came about
that he had lied in court and contended that his conduct and conviction
notwithstanding,
he remained a fit and proper person to continue practising as
an attorney.
[7] In short, the appellant’s explanation, as amplified
in evidence, was the following. He said that he and his brother practised
in
partnership for many years until the latter suffered a heart attack. For some
years prior to the termination of their partnership,
the relationship between
the two of them had been acrimonious. In 1992, after his brother had removed
confidential documents from
his safe, the appellant arranged with Akoo for the
latter to accommodate a steel filing cabinet in his office in which the
appellant
could keep certain confidential documents and files. The cabinet was
also to be used for storing Akoo’s own files which related
to matters in
which Akoo acted for the appellant. The appellant paid for the cabinet and both
retained a key. On discovering that
Akoo had fled, the appellant believed it
essential to recover his files and documents before their confidentiality was
compromised
or before they fell into the hands of his brother. On Monday 5
April 1993 the appellant telephoned Rees to arrange for the urgent
retrieval of
his files. Rees was uncooperative and advised the appellant that he would have
to wait until a curator bonis had been
appointed. The appellant said he then
telephoned Akoo in London who had no objection to the appellant removing his
papers. The appellant
obtained the keys to the office from Mrs Akoo but found
that the lock had been changed. He said he then telephoned a Mr Myburgh who
had
links with a security firm and arranged for the latter to meet him on Monday
evening at Akoo’s office. The appellant said
he thought Myburgh would know
of a locksmith who would be able to open the door. On arriving at Akoo’s
office he found Myburgh
and two other persons whom he assumed to be locksmiths
waiting for him. The door of the office was already open. The appellant
explained
that in his haste he had forgotten his key to the steel filing
cabinet. To save him the trouble of going to fetch it, he simply removed
the
whole filing cabinet. He left Myburgh to close up the office. On arriving home
he discovered there were a number of his files
still in Akoo’s office. He
accordingly arranged to meet Myburgh at Akoo’s office the next morning. He
said that on his
arrival he found Myburgh waiting for him. The latter opened the
door and the appellant retrieved the missing files. On leaving the
office, the
appellant said, he observed that the lock had been forced the previous day.
While he was examining the lock they were
confronted by Pienaar who wanted to
know what they were doing. Myburgh falsely said that they were from a security
company. The
appellant explained that he was preoccupied with the lock and
admittedly said nothing to contradict Myburgh’s false
explanation.
[8] Later, and upon reflection, he realised that the forced
lock and false explanation would create the wrong impression. He testified
that as far as he was concerned he had committed no crime. He had merely
retrieved his own property with Akoo’s permission.
He contended that the
Law Society had no right to change the locks and take control of the premises
until it had been appointed curator
bonis. In the event, the application for the
appointment of a curator was only launched on 15 April 1993. The appellant
decided,
however, to do nothing and see what happened. In July 1993 he was
suddenly approached by the police and arrested. He was required
to attend an
identity parade where Pienaar pointed him out. He explained that he
“became panicky” and, fearing he would
be disbelieved if he told the
truth, simply denied his presence at Akoo’s offices on the day in
question. He said that thereafter
he “succumbed to the temptation”
of perpetuating the lie.
[9] The Court a quo (Broome DJP and Mthiyane
J) found it unnecessary to consider whether on the facts disclosed by the
appellant he was guilty of the
offence of which he was ultimately convicted. (It
did, however, refer to certain features of the appellant’s version which
it considered improbable.) Instead, the Court a quo came to the
conclusion that the appellant’s conduct in advancing a specious alibi
defence, knowingly giving false evidence
in support of it and calling a witness
to support his false evidence, had demonstrated that he was not a fit and
proper person to
continue to practise as an attorney and that he should be
struck off the roll. In this Court counsel for the appellant contended
that
having regard to all the circumstances of the case the Court a quo had
erred in not only holding that the appellant was not a fit and proper person to
continue to practise as an attorney but also
in striking him off the roll rather
than suspending him from practise for a limited period.
[10] The relevant
provisions of s 22(1) of the Attorneys Act 53 of 1979 read as follows:
“22(1) Any person who has been admitted and enrolled as an attorney may on application by the society concerned be struck off the roll or suspended from practice by the court within the jurisdiction of which he practises -
.....
(d) if he, in the discretion of the court, is not a
fit and proper person to continue to practise as an attorney.”
In
Reyneke v Wetsgenootskap van die Kaap die Goeie Hoop 1994 (1) SA 359 (A)
at 369 D it was pointed out that the section requires a twofold inquiry.
However, before one gets to the two
inquiries referred to, there is a
preliminary question that must be answered. Ultimately, therefore, what is
contemplated is a
three-staged inquiry. First, the court must decide whether the
alleged offending conduct has been established on a preponderance
of
probabilities. (See for eg Nyembezi v Law Society, Natal 1981 (2) SA
752 (A) at 756 H - 758 A where the Court was concerned with the equivalent
section in the now repealed Attorneys, Notaries
and Conveyancers Admission Act
23 of 1934; see also Kekana v Society of Advocates of South Africa 1998
(4) SA 649 (SCA) at 654 D in relation to s 7 of the Admission of Advocates Act
74 of 1964.) The second inquiry is whether,
as stated in s 22 (1) (d), the
person concerned “in the discretion of the Court” is not a
fit and proper person to continue to practise. The words italicised were
inserted in 1984 (see Law Society of the Cape of Good Hope v C 1986 (1)
SA 616 (A) at 637 B - C). It would seem clear, however, that in the context of
the section, the exercise of the discretion
referred to involves in reality a
weighing up of the conduct complained of against the conduct expected of an
attorney and, to this
extent, a value judgment. The discretion is that of the
court of first instance. It is well established that a court of appeal has
a
limited power to interfere and will only do so on well recognised grounds,
viz where the court of first instance arrived at its conclusion
capriciously, or upon wrong principle, or where it has not brought its
unbiased
judgment to bear on the question or where it has not acted for substantial
reasons (Law Society of the Cape of Good Hope v C, supra, at 637 D - H;
Reyneke v Wetsgenootskap van die Kaap die Goeie Hoop, supra, at 369 E -
G; Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA) at
537 D - G.) The third inquiry is whether in all the circumstances the person in
question is to be removed
from the roll of attorneys or whether an order
suspending him from practice for a specified period will suffice. This is
similarly
a matter for the discretion of the court of first instance and the
power of a court of appeal to interfere is likewise limited. Whether
a court
will adopt the one course or the other will depend upon such factors as the
nature of the conduct complained of, the extent
to which it reflects upon the
person’s character or shows him to be unworthy to remain in the ranks of
an honourable profession
(Incorporated Law Society, Transvaal v Mandela
1954 (3) SA 102 (T) at 108 D - E), the likelihood or otherwise of a repetition
of such conduct and the need to protect the public.
Ultimately it is a question
of degree.
[11] The conduct of the appellant on which the Court a quo
based its conclusion was not in dispute. However, it was submitted in this Court
on behalf of the appellant that the Court below
had misdirected itself in regard
to both the second and third leg of the inquiry by over-emphasizing the
importance of truthfulness
and concluding that
“[t]here can be absolutely no question but that an untruthful person is not a fit and proper person to practise as an attorney”.
[12] This Court has in the past stressed
that the profession of an attorney is an honourable one and as such demands
“complete
honesty, reliability and integrity from its members”.
(Vassen v Law Society of the Cape of Good Hope, supra, at 538 G).
Similar statements have been made with regard to advocates. (See for eg
Kekana v Society of Advocates of South Africa, supra, at 655 G - H.) But
this does not mean that any untruthfulness however trifling will render an
attorney unfit to practise and liable
to be struck off the roll. As important as
the requirements of honesty, reliability and integrity are, each case must
undoubtedly
be examined in the light of its own facts and
circumstances.
[13] Despite the somewhat categorical statement (quoted
above) in the judgment of Broome DJP, who delivered the judgment of the Court
a quo. I am far from satisfied that the learned judge intended his
comments to be interpreted to mean that once it was found that the appellant
had
been untruthful that was the end of the matter. On the contrary, the judge
went to some length to distinguish the appellant’s
conduct from what he
referred to as “the sudden impetuous telling of a lie”. This is
apparent from the following passage
in the judgment.
“This just cannot be treated simply as the sudden impetuous telling of a lie. The fact of the matter is that he was party to the lie that his accomplice Myburgh told to Pienaar, and he was then, at the latest, aware of foul play in the sense that the door had been forced, and he himself told a lie (when first approached by police). That may well have been ill advised and something of which he did not foresee the consequences. But that was only the beginning. He persisted in telling lies thereafter. And this continued for a long time. He stood by these lies from July 1993 non stop until he delivered his answering affidavit on 31 July 1997. Not only that, but he set about embroidering his untrue version, attempting to bolster it with the false evidence of Yusuf Akoo, challenging the Applicant’s right to do what it had done, and causing the reliability of the main State witnesses, Mr Dlamini and Mr Pienaar to be impeached. This was indeed a protracted attempt to deceive the courts. As he frankly conceded in evidence, had the decision in the Supreme Court of Appeal gone his way, he would have been content to have let it rest, that is to say let sleeping dogs lie and stood by his lies. He added that it would have been on his conscience.”
The above statement I think fairly
reflects the appellant’s conduct. There is only one aspect which I would
emphasize; that
is that not only did the appellant himself commit perjury, but
he suborned another to do so in order to lend credence to his own
false
evidence. Even assuming there was a misdirection on the part of the Court a
quo in the respect alleged in par 11 above so that this Court would be free
to interfere, the conduct of the appellant, seen in its totality,
is such that
in my judgment there can be no doubt that it demonstrates him to be not a fit
and proper person to continue to practise
as an attorney. Furthermore, I can see
no proper basis for an order merely suspending him from practice rather than an
order striking
him from the roll of attorneys. It follows that in my view the
appeal must fail.
[14] A further issue between parties in this Court
concerned the record of the evidence in the criminal proceedings. It was not
included
in the appeal record prepared by the appellant. The respondent
objected to its omission and furnished six copies to the Registrar
together with
a petition to this Court to have the appeal record supplemented by the addition
of what I shall simply call the “criminal
record”. The
respondent opposed the relief sought. The real issue between the
parties is who is to pay the costs of producing the criminal record.
[15] It
is necessary to sketch briefly the background to the dispute. The founding
papers filed on behalf of the respondent contained
an undertaking that the
criminal record would be made available at the hearing. On this basis it was not
annexed as part of the record.
In its replying affidavit the respondent took up
a different attitude. This appears from the following passage.
“Respondent [appellant in this appeal] has brought into issue the correctness of his conviction for various reasons and it is now essential to introduce into the record of this matter the transcript of the Regional Court trial. This was referred to in my founding affidavit. A copy of this record will be filed evenly with this affidavit and will be referred to herein as “the Record”.
A copy of the criminal record was
accordingly filed by the respondent together with its replying affidavit. At a
pre-trial conference
the appellant was requested to admit the correctness of the
criminal record. He, or rather his legal representatives, responded by
indicating that the record would be covered by a paragraph of the minutes of the
pre-trial conference (par 4.3) in which it was recorded
that the parties would
“consider the status of the documents when they are seen” and that
the provisions of Rule 35 (9)
would be applicable. In response to a question by
the Court a quo as to the status of the criminal record, counsel for the
respondent
indicated in his opening address that in pursuance of par 4.3 of the
minute the criminal record was “admitted without challenge”.
There
is nothing in the appeal record to suggest that the correctness of this
statement was put in issue.
[16] On receipt of the appellant’s
answering affidavit the respondent found itself faced with a situation it could
hardly have
anticipated. It was not unreasonable for it to require that the
criminal record be placed before the Court a quo. The record would have
been relevant not only to test the appellant’s new allegations regarding
his admitted conduct against
facts which emerged in the criminal trial, but also
to establish the full extent of the appellant’s dishonesty and the context
in which he had lied both before and during the criminal
proceedings.
[17] The criminal record was before the Court a
quo when it was called upon to decide the application. In the absence of an
agreement between the parties or some other good cause I
can seen no reason why
it should not have been before this Court when deciding the appeal. Depending on
the course of the argument
it may well have been necessary to consult the
criminal record. The respondent expressed concern in its petition that the
absence
of the criminal record might result in an adjournment or delay in the
hearing of the appeal. Its concern was not unreasonable. It
follows that in my
view the petition must be allowed.
[18] In the result the following order
is made.
(a) The appeal is dismissed with costs.
(b) The
respondent’s petition dated 24 June 1998 is upheld with
costs, such costs to include the cost of the criminal
record.
D G SCOTT
JUDGE OF
APPEAL
F H GROSSKOPF JA)
NIENABER JA) -
Concur
ZULMAN JA)
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