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De Freitas and another v Society of Advocates of Natal and another (1) (120/99) [2001] ZASCA 9 (9 March 2001)

The Republic of South Africa

THE SUPREME COURT OF APPEAL

reportable
Case no: 120/99

In the matter between



JOAQUIM AUGUSTO DE FREITAS First Applicant

INDEPENDENT ASSOCIATION OF
ADVOCATES OF SOUTH AFRICA Second Applicant

and

SOCIETY OF ADVOCATES OF NATAL First Respondent

NATAL LAW SOCIETY Second Respondent

Coram: HEFER ACJ, SMALBERGER ADCJ, NIENABER, CAMERON, MPATI JJA

Date of Hearing: 15 February 2001

Date Delivered: 9 March 2001

Advocate - unprofessional conduct - accepting instructions without intervention of attorney - whether the Bar is a referral profession and, if so, whether change is required.

JUDGMENT

HEFER ACJ

HEFER ACJ:
[1] Legal practitioners in South Africa are either advocates or attorneys. As Corbett CJ observed in In re Rome 1991(3) SA 291 (A) at 305I - 306A,

“[h]ere we have what has been described as ‘the divided Bar’ (see Joubert (ed) Law of South Africa vol 14 para 246). It is a legacy from Holland, and also from England. Legal practitioners thus fall into one or other of the two groups, the advocates and the attorneys.”

[2] Mr De Freitas, the first applicant in this application for leave to appeal, is an advocate. He practises in KwaZulu-Natal as a member of the second applicant, the Independent Association of Advocates of South Africa (“IAASA”). IAASA functions side by side and, in a sense, in competition with the constituent Bars of the General Council of the Bar of South Africa (“the GCB”). The constituent Bars have been in existence for the last century or more at the seats of the various Divisions of the High Court. Each of them has its own rules regulating the professional conduct of its members. One rule that they all have in common is that, with minor exceptions, members do not accept instructions from clients without the intervention of attorneys. IAASA was founded during 1994 by a group of advocates who were and are averse to this and certain other rules. Its constitution permits its members to accept instructions directly from the public.
[3] Mr De Freitas has accepted instructions in this manner. He has also performed functions allegedly reserved for attorneys. His conduct led to an application by the Society of Advocates of Natal (“the Society of Advocates”) to have his name struck from the roll. IAASA and the Natal Law Society (“the Law Society”) intervened in the proceedings and eventually, in a judgment reported as Society of Advocates of Natal v De Freitas and Another (Natal Law Society Intervening) 1997(4) SA 1134 (N), the Full Court of the Natal Provincial Division of the High Court

(a) found Mr De Freitas guilty of unprofessional conduct and suspended him from practice for a period of six months, and
(b) dismissed a counter-application by IAASA for an order declaring that any advocate has, alternatively, advocates who are members of IAASA have, the right to accept instructions from any person with or without the intervention of an attorney, to perform any of the functions of an advocate.
[4] After unsuccessfully seeking the leave of the Court a quo the applicants have now applied to the Chief Justice for leave to appeal. Their application has been referred to the Court for argument. It is opposed by the Society of Advocates and the Law Society on the ground that there are no reasonable prospects of a successful appeal.
[5] At the outset it is necessary to remind oneself of the role of the courts in matters of this kind. Since Mr De Freitas is not a member of the Society of Advocates he is neither bound by the latter’s rules nor subject to its internal disciplinary jurisdiction. But it is trite that the courts have inherent disciplinary powers over practitioners in cases of misconduct or unprofessional conduct (De Villiers and Another v McIntyre NO 1921 AD 425 at 435; Society of Advocates of Natal and Another v Knox and Others 1954(2) SA 246 (N) at 247G ad fin). In De Villiers at 456 Innes CJ said :

“The interference of the Court is clearly justified where there has been gross non-discharge or mis-discharge of professional duty. So also where the conduct proved, whether criminal or not, is so morally reprehensible that the person guilty of it is clearly unfit to become or remain a member of the profession. But when we leave the area of criminality, immorality or actual misconduct, the enquiry becomes more complicated ...”

In the latter type of case interference by the court is ultimately a matter of judicial discretion (De Villiers at 432; Beyers v Pretoria Balieraad 1966(2) SA 593 (A) at 605D-E). In other words, it is for the court to consider the propriety of the conduct proved and, if it is found to be unprofessional, what the penalty should be. In doing so it must take account of all the circumstances of the case with due regard to the demands of the proper administration of justice, and the interests of the profession and the public.
[6] In the present case the main charge against Mr De Freitas is that he has accepted instructions from clients without the intervention of attorneys. That he has done so on several occasions is not disputed. In their written heads of argument the applicants sought to counter the Society of Advocates’ case by denying that the Bar in our country is a referral profession which does not generally permit advocates to accept instructions directly from clients. This was in line with their stance in the Court a quo. However, in his oral argument in this Court Mr Van der Spuy, senior counsel for the applicants, conceded that there indeed existed a referral practice until 1994. He then sought to meet the case against Mr De Freitas with an argument that a referral practice is no longer suitable in view of events during 1994 and thereafter.
[7] Let me say before I deal with this argument that I have no doubt that the concession was correctly made. Admittedly, the Court a quo could find no clear indication in the old authorities that advocates practising in Holland before the reception of Roman-Dutch law in South Africa only acted on instructions from attorneys. But, after examining subsequent developments in South Africa and the influence of the English practice, the Court concluded that the Bar in this country is a referral profession. This, to my mind, is plainly correct in view particularly of the remarks in Rome’s case which will be quoted later, and the judgment in Beyers v Pretoria Balieraad supra in which this Court found an advocate guilty of unprofessional conduct inter alia for having accepted instructions without the intervention of an attorney.
[8] The referral practice that we know in this country is not that advocates may not under any circumstances accept instructions directly from clients. Various exceptions are allowed, one of which is that counsel may be instructed directly by the Legal Aid Board. In other matters the rules of the various Bars do not correspond in all respects. Advocates in the Western Cape may, for example, take direct instructions for opinions, from a restricted list of clients, which members of other Bars may not do.
[9] The practice clearly serves the best interests of the professions and the public in litigious as well as non-litigious matters. As Corbett CJ said in In re Rome supra at 306B-D,

“[t]he advocate is, broadly speaking, the specialist in forensic skills and in giving expert advice on legal matters, whereas the attorney has more general skills and is often, in addition, qualified in conveyancing and notarial practice. The attorney has direct links (often of a permanent or long-standing nature) with the lay client seeking legal assistance or advice and, where necessary or expedient, the attorney briefs an advocate on behalf of his client. The advocate has no direct links or long-standing relationship with the lay client: he only acts for the client on brief in a particular matter ... ”

In litigious matters the benefits to the client arising from this relationship are manifest. Although some attorneys have precisely the same academic qualifications as advocates their practical schooling is markedly different since it is aimed at the acquisition of special skills to do different types of work. This in turn is so because advocates and attorneys occupy themselves with different kinds of litigious work. It is the advocate who generally prepares pleadings and presents clients’ cases to the courts, whereas it is the attorney who takes care of matters such as the investigation of the facts, the issuing and service of process, the discovery and inspection of documents, the procuring of evidence and the attendance of witnesses, the execution of judgments, and the like. In this way each of them applies his own skills for the benefit of the client. It is quite clear that, where an advocate is not briefed by an attorney, he will of necessity have to do some of the work which his attorney would otherwise have done. That part of the work cannot, as Mr Van der Spuy suggested, simply be left to the client. After all what does a lay client know about these matters? There are only two possibilities if an attorney is not employed: counsel will either have to do the work himself or the client, at the very least, will require counsel’s guidance in matters of which the latter himself usually knows very little.
[10] It is not without reason that Corbett CJ mentioned the absence of direct and possibly long-standing links between an advocate and his client. It is of the utmost importance that there should be some distance between them in order to ensure and preserve the advocate’s independence. In this regard (and also to emphasize what I have already said) I can do no better than to quote from a speech by Lord Benson who chaired the Royal Commission on Legal Services in the United Kingdom between 1976 and 1979. (The speech was delivered in Cape Town during 1988 and has been reported in 1988 (105) SALJ 421-433.) Speaking on the subject of the possible fusion of the professions of advocates and attorneys he said at 422-429:

“We [the Commission] based our conclusion [that there should not be a fusion] on three separate principles. First, any rule made by or privilege granted to a profession must be designed not for the private benefit of the members of the profession but to protect the interest of, or to enhance the level of service to, the public. Second, in every walk of life, particularly in the professions, there is a growing need to specialize in each of the many different types of work and activity. This is a duty which every profession owes to the public it serves. Third, one of the privileges and duties conferred upon a professional man is the ability to express an independent and impartial opinion in respect of his client’s affairs .... The evidence put before us was overwhelmingly opposed to fusion. The Bar and the majority of the solicitors opposed it. Nearly all the witnesses, including the judges, said that it would diminish the specialist services provided by the bar. In particular it would lead to a serious fall in the quality of advocacy and, because of the nature of court proceedings, in the quality of judicial decisions. This would damage not only the interests of litigants but the administration of justice itself ...

Let us look at the practical issues. A mass of work is brought into solicitors’ offices by clients every day of the week. Many of the matters arising can be and are dealt with by the skill of the solicitor himself, but no solicitor is competent to deal with every matter brought before him. For example, large sums of money and property may be involved which require the advice of specialists in property and in taxation. Complex legal issues emerge which demand experience in the particular branch of the law. Advocacy of a high order may be needed to avoid a custodial sentence which imperils a client’s freedom. The solicitor may be too close as a friend or advisor of long standing or be so involved with the detail as to prevent him from taking a detached view. In these many situations the solicitor and the client are not content unless they can obtain the independent services of a specialist with the necessary skills at his command. It would be foolish, if not negligent, to do otherwise ... The Commission was satisfied that the independent view which is brought to bear by counsel often has the effect of defining and limiting the issues or bringing about a settlement, which represents important savings in time and cost. ”

These remarks reveal the symbiotic relationship between the two professions and highlight the inherent dangers of an attorney acting without an advocate in deserving cases or of an advocate acting without an attorney and trying to do the latter’s work.
[11] There is, moreover, a more obvious reason why an advocate should not perform the functions of an attorney. It is that, unlike attorneys, advocates are not required to keep trust accounts. In terms of the Attorneys Act 53 of 1979 every attorney shall open and keep a separate trust banking account and deposit therein money held or received by him on account of any person. No amount standing to the credit of such an account shall be regarded as forming part of the assets of the practitioner or may be attached on behalf of any or his creditors; and, equally importantly, any shortfall in the account may, in proper circumstances, be recovered from the Fidelity Fund. A client who does not employ an attorney and instructs an advocate directly does not have the same protection or any protection at all. In the present case, for example, Mr De Freitas on one occasion acted without an attorney on behalf of a client who was in the process of a divorce. The parties were married in community of property and the assets had to be divided. With this in mind Mr De Freitas wrote to his client’s employer requesting it to pay half of a pension payable to the client into his (De Freitas’s) “business account”. Had the money been paid the client would have had no protection whatsoever in the event of his advocate’s insolvency or against the attachment of the money in the account by the latter’s creditors. Such a state of affairs is plainly not in the public interest.
[12] Bearing all this in mind I turn now to consider the argument that events that have occurred since 1994 call for a change. Under this rubric Mr Van der Spuy listed (1) the coming into effect of the Interim Constitution (Act 200 of 1993); (2) the formation of IAASA; and (3) the grant to attorneys of the right to appear in superior courts by the Right of Appearance in Courts Act 62 of 1995. I will deal with each of these in turn.

[13] The Interim Constitution.

The Interim Constitution which took effect on 27 April 1994 is applicable because the conduct proved occurred during 1996 before the current Constitution came into operation.

The right of every detained person to consult with, and the right of every accused person to be represented by a legal practitioner of his or her choice are entrenched by ss 25(1)(c) and 25(3)(e) respectively.

I am unable to accept Mr Van der Spuy’s submission that these provisions per se afford a detained person and an accused in a criminal case the right to engage an advocate of his or her choice without the intervention of an attorney. This is not what the sub-sections say; nor is there any indication of an intention to do away with a firmly established and well-known practice.

Nor do I regard the existence of these provisions sufficiently cogent to persuade me that a change is called for. Detainees and accused persons are not (by the operation of the referral practice) precluded from access to counsel of their choice. All that is required is that they go through the right channels. If they do not have the financial means to engage counsel there are many competent attorneys who would represent them. They would therefore not be denied legal representation.

Sec 26(1) which has also been called in aid entrenches the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory. But this does not entail that a trade, industry or profession cannot be regulated in a manner which does not in effect deny the right. The continuation of the referral practice would not have this effect.

Mr Klein, junior counsel for the applicants who presented part of the argument on their behalf, stressed the fact that the Interim Constitution introduced a new social order in which, he submitted, there should be greater access to the man in the street to a lawyer of his choice. Whilst I support the underlying philosophy of the submission I cannot agree that a practice which has hitherto been regarded as in the public interest should be forthwith abandoned.

[14] The formation of IAASA.
Mr Van der Spuy did not reveal to us the relevance of the formation of an association which does not support the referral practice. All that it tells us is that the practice is not favoured by every admitted advocate in the country.

[15] The attorneys’ right of appearance in the High Court, this Court and the Constitutional Court.
Until the passing of Act 62 of 1995 attorneys did not generally have the right to appear in these courts; but those who have certain prescribed academic and practical qualifications may now be admitted to do so in terms of s 3 read with s 4 of the Act. Mr Van der Spuy pointed out that attorneys who have been so admitted now practise in direct competition with advocates and submitted (1) that counsel’s right to accept instructions directly from members of the public is the necessary corollary of the attorneys’ right to appear in the courts which used to be the exclusive domain of advocates and (2) that a situation where members of the Bar are dependent on their competitors for their livelihood cannot be tolerated. That some attorneys now practise in competition with advocates is correct but the first submission is plainly untenable. I say no more. As for the second submission I agree that the situation is undesirable but members of the public who wish to procure the services of advocates may still do so. Weighed as a matter of public interest against the benefits of the referral practice, it seems to me that the new right of appearance does not afford sufficient reason to do away with the established practice or to change it.
[16] In any event I want to say this about change. The referral practice was not conceived by the legislature or devised by the courts. It came to us through centuries of experience and development first in the United Kingdom and later in our own country. It exists in one form or the other in several other Commonwealth countries where there are divided Bars. One’s general impression of the position in countries such as England, Wales, Ireland, Scotland, New Zealand and various Australian states is that direct access by lay clients to advocates is strictly regulated. One cannot, as IAASA requests us to do in its counter-application, simply put a pen through the Bars’ referral rules even though one may feel that changes in certain areas may be justified. It is not for us to take such a bold step. Nor, I venture to suggest would it be appropriate for the legislature to do so. The rules have been designed by the Bars for practice in a divided profession in what is plainly the public interest. Experienced members of the Bars are much more aware than we are of the problems in, and the needs of, the profession and of the available facilities to overcome them. It should be left to them to consider in what respects and to what extent change is required. I say this despite the fact that the courts will be the final arbiters of the validity of any changes that may be effected in so far as they may reflect on the propriety of advocates’ conduct. It would be foolish for us to interfere in the way in which IAASA asks us to do knowing full well that, by doing so, we will force South Africa out of step with comparable Commonwealth countries and bring an end to a practice which clearly serves the interests of the public.
[17] From this it follows that the refusal of the declaratory order sought by IAASA cannot be disturbed.
[18] It also follows that the Court a quo’s finding that Mr De Freitas is guilty of unprofessional conduct for having accepted instructions without the intervention of attorneys cannot be disturbed either.
[19] I do not intend to deal with the finding that he had performed the functions of an attorney. Despite a half-hearted attempt by Mr Van der Spuy to persuade us to the contrary it is quite clear that the finding is well founded.
[20] Mr Van der Spuy argued in conclusion that the suspension for six months and the order of costs granted against the applicants by the Court a quo are unreasonable. Whilst I have some sympathy with Mr De Freitas because he has been suspended for having acted in accordance with IAASA’s constitution whereas his colleagues have not been penalized, there is no reason why we should interfere with the way in which the Court a quo exercised its discretion both in regard to the penalty and in regard to the costs.

Failing reasonable prospects of a successful appeal the application is dismissed with costs including, in the case of the first respondent, the costs of two counsel.

JJF HEFER

Acting Chief Justice
Concur:
Smalberger ADCJ
Nienaber JA
Mpati JA