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REPORTABLE
CASE NO: 364/2002
In the matter between :
ECKHARD RÖSEMANN Appellant
and
THE GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA Respondent
_________________________________________________________________________
Before: HOWIE, MPATI, STREICHER, CONRADIE & HEHER JJA
Heard: 2 SEPTEMBER 2003
Delivered: 26 SEPTEMBER 2003
Summary: Advocate – professional misconduct – instruction by an attorney to do all the administrative and preparatory work normally done by an attorney should not be accepted by an advocate – advocates may not sign pleadings and notices of motion in magistrate's court proceedings.
_________________________________________________________________________
J U D G M E N T
_________________________________________________________________________
STREICHER JA
STREICHER JA:
[1] I have read the judgment of Heher JA and agree that the appeal should be dismissed.
[2] The court a quo found –
2.1 that, in signing the two notices of motion as ‘Applikant/Prokureur vir die Applikant’ knowing that his capacity was falsely described therein, the appellant was guilty of misconduct;
2.2 that it is not proper for an attorney to ‘shuffle off’ certain functions onto the shoulders of an advocate by simply briefing the latter to attend to them on his own and that it cannot be proper for counsel to accept such a brief;
2.3 that the furnishing by the appellant of an address for the service of process was improper;
2.4 that the appellant’s ignorance (which was a possibility that could not be excluded) that he could not sign the summonses and notices, in itself constituted professional misconduct.
[3] The appellant tried to justify his conduct on the basis that he had been instructed by an attorney. In this regard the court a quo found –
3.1 that the court order made by King JP cannot have the effect of permitting the respondent to do what the law prohibits and that the order must accordingly be restrictively interpreted;
3.2 that the appellant could nevertheless not be found guilty of having breached the terms of the order as the order was ambiguous in that it could be interpreted as sanctioning ‘the undertaking by the respondent of work normally performed by an attorney, provided that he is instructed to do so by an attorney’.
[4] The appellant received the instructions on which he relied in Cape Town from an attorney in Pretoria. In the one case, involving one of the summonses signed by the appellant, the instruction, dated 18 January 2000, reads as follows:
‘Ek het bogemelde kliënt na jou verwys vir konsultasie en advies rakende geld wat sy aan `n ene Wayne Right geleen het en wat hy toe versuim het om op die vervaldatum te betaal.
Help haar asseblief en reik ook dagvaarding uit indien nodig. Aangesien sy in die Kaap is, moet jy ook maar verder met die litigasie aangaan en alles doen om die saak tot finaliteit te bring want ek weet nie wanneer ek weer `n draai in die Kaap sal kan maak nie.
Hou my net asseblief op hoogte.’
[5] In the other case, involving the other summons signed by the appellant, the instruction, dated 24 January 2000, reads as follows:
‘Ons verwys na bogemelde en die telefoon gesprek tussen uself en skrywer vandag.
Hiermee word u opdrag gegee om namens ons kliënt Mnr B Ramsauer dagvaarding vir die bedrag van R100 000.00 uit te reik teen Michael Wurbach synde 'n mondelinge ooreenkoms.
Soos bespreek bevestig ons graag dat u fooie direk met die kliënt ooreengekom sal word.
Geliewe ons op hoogte te hou van die vordering en ook versoek ons insae in alle pleitstukke en korrespondensie.’
[6] In the two applications the instructions read as follows:
6.1 ‘Hiermee word u opdrag gegee om voort te gaan om aansoek te doen om summiere vonnis namens ons teen M Wurbach en stel die nodige beëdigde verklaring op vir Mnr Ramsauer in hierdie verband.’
6.2 ‘Hiermee word u opdrag gegee om voort te gaan met die opstel van `n ex-parte aansoek teen Mnr Wurbach en Overberg Duikers-vereniging (beslagskuldenaar), beëdigdeverklaring, en toe te sien tot liassering. Geliewe ook die verskyning hierin waar te neem.’
[7] Our law recognises a divided profession coupled with the referral system (see Commissioner, Competition Commission v General Council of the Bar of South Africa and Others 2002 (6) 606 (SCA) at 620C-D). In terms of the referral system an advocate may, save in certain exceptional circumstances, not presently relevant, only accept instructions from an attorney. In the Commissioner, Competition Commission-case (loc. cit.) Hefer AP said in regard to a refusal by the Competitions Commission to exempt the referral rule of the members of the General Council of the Bar of South Africa from the provisions of the Competition Act 89 of 1998:
‘This is the law of the land and the Commission was not entitled to “bend” it.’
[8] In De Freitas and Another v Society of Advocates of Natal and Another 2001 (3) SA 750 (SCA) at 763G Cameron JA said:
‘[I]t is in the public interest that there should be a vigorous and independent Bar serving the public, which, subject to judicial supervision, is self-regulated, whose members are in principle available to all, and who in general do not perform administrative and preparatory work in litigation but concentrate their skills on the craft of forensic practice.’
[9] There can in my view be no doubt that one of the objects of the referral practice is to ensure that administrative and preparatory work in litigation is handled by attorneys who are trained and organised to do so, thereby enabling advocates to concentrate their skills on the craft of forensic practice. It follows that a proper use of the referral practice serves the public interest. It follows, furthermore, on the other hand, that to allow advocates to accept instructions by attorneys to conduct litigation on behalf of a client from beginning to end i.e. to do all the administrative and preparatory work in respect of litigation would not serve the public interest and would constitute an abuse of the referral practice.
[10] The instructions relied upon by the appellant were to do all the administrative and preparatory work normally done by an attorney. I, therefore, agree with the court a quo that the instructions were not proper instructions and that they should not have been accepted by the appellant. Like the Competition Commission, attorneys and advocates are not entitled to ‘bend’ the referral rule. By accepting the instructions the appellant acted contrary to the interests of his profession and contrary to the public interest.
[11] There is no merit in the appellant’s contention that a finding against him would be contrary to the provisions of s 22 of the Constitution. In terms of the section citizens have the right to choose their professions freely. There has been no interference with the appellant’s freedom to choose his profession. He chose to be an advocate not an attorney. Section 22 provides, furthermore, that the practice of a profession may be regulated by law. As pointed out above the referral practice is neither arbitrary nor irrational as contended by the appellant, relying on the statement by Cameron JA in De Freitas at 763A that '[r]egulation of professional practice will certainly have to be rational and non-arbitrary to pass constitutional scrutiny'.
[12] I agree with the court a quo that the order made by King JP should not be interpreted so as to authorise the appellant to do all work normally performed by an attorney as long as he is instructed by an attorney. There is certain work normally done by an attorney which can be done by an advocate if instructed by an attorney to do so. In my view on a proper interpretation of the order it prohibits the appellant from doing such work without having been instructed by an attorney. The order does not purport to authorise the appellant to do anything, it only prohibits him from doing certain things. Furthermore, it is so well established that certain work normally done only by attorneys should not be done by advocates that it could not have been the intention of King JP to authorise the appellant to do such work provided he was briefed by an attorney. There is, therefore, no room for interpreting the order so as to, by implication, grant permission to the appellant to do all work normally done by an attorney provided he is instructed by an attorney.
[13] The appellant applied for the admission of new evidence to the effect that, relying on the court order, he believed that he was authorised to undertake all work normally performed by an attorney if instructed by an attorney. However, it appears from the appellant’s answering affidavits that he was, like the respondent, under the impression that the draft order annexed to the respondent’s founding affidavit had been made an order of court i.e. that he was not even aware that the court order differed from the draft order. His explanation for not having denied the respondent’s allegations as to the terms of the court order and for not having raised the defence he now wishes to raise is unconvincing. I, therefore, agree that the appellant’s application to lead new evidence should be dismissed.
[14] Like Heher JA I fully agree with the judgment of a full court of the Natal Provincial Division in Society of Advocates of Natal v De Freitas and Another (Natal Law Society Intervening) 1997 (4) SA 1134 (N) at 1174-1176 to the effect that, in terms of the magistrates' courts rules, an advocate may not sign pleadings in magistrates' courts proceedings. The reasoning in that judgment applies with equal force to the signing of notices of motion which, in terms of the prescribed form, require a signature by the applicant or his attorney. The judgment could not be ignored by the appellant. His alleged ignorance that he could not sign the summonses and notices of motion itself constituted professional misconduct.
[15] It follows that I agree with the court a quo's findings set out in paragraphs 2.2 to 2.4 above.
[16] For these reasons I agree with Heher JA that the appellant was properly found guilty of unprofessional conduct. I also agree that there are no grounds upon which this court can interfere with the punishment imposed by the court a quo. I, therefore, agree with the order proposed by Heher JA.
_________________
STREICHER JA
HOWIE P)
MPATI AP) CONCUR
CONRADIE JA)
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.RTF of original document