Advocates being struck off the roll

Advocates being struck off the roll is the subject of some debate at the moment, and the question generally comes down to whether the person is ‘fit and proper.’ That sounds vague, but because the courts have spent time defining it, there are definitely circumstances where an individual can be deemed to be not fit and proper.

In this case of Ex parte: Mdyogolo (55/15) [2016] ZAECGHC 118 (28 October 2016), a person applied to be admitted as an attorney, with a somewhat chequered past. He had been convicted of theft in 1991 for stealing a cassette tape from a shop. He was sentenced to two months imprisonment. He was also convicted in 2010 of driving a motor vehicle under the influence. Now, these are relatively minor offences.

But the real problem lay elsewhere. The court points out; “in between these two events, on 19 June 1994, the applicant committed a robbery with aggravating circumstances when he and at least one other person, armed with a semi-automatic rifle, robbed a petrol filling station in Fort Beaufort.” This sounds damning – but the applicant endeavoured to make out a case that it was in fact an act committed as part of the armed struggle.

In the judgement, the court went into some detail on what in fact amounts to a striking off offence:

That involves a holistic assessment of the conduct of the applicant in its proper context. It is important to bear in mind that the mere fact that a person has committed an offence is not a bar to his or her admission or a trigger for his or her name to be struck from the roll. Incorporated Law Society, Transvaal v Mandela is a good example. Despite Mr Mandela having been convicted of the offence of advocating and encouraging the disobeying of laws (such as the pass laws) during the Defiance Campaign, Ramsbottom J (with the concurrence of Roper J) dismissed an application for his name to be struck from the roll of attorneys. He held:

‘The sole question that the Court has to decide is whether the facts which have been put before us and on which the respondent was convicted show him to be of such character that he is not worthy to remain in the ranks of an honourable profession. To that question there can, in my opinion, be only one answer. Nothing has been put before us which suggests in the slightest degree that the respondent has been guilty of conduct of a dishonest, disgraceful, or dishonourable kind; nothing that he has done reflects upon his character or shows him to be unworthy to remain in the ranks of an honourable profession. In advocating the plan of action, the respondent was obviously motivated by a desire to serve his fellow non-Europeans. The intention was to bring about the repeal of certain laws which the respondent regarded as unjust. The method of producing that result which the respondent advocated is an unlawful one, and by advocating that method the respondent contravened the statute; for that offence he has been punished. But his offence was not of a “personally disgraceful character”, and there is nothing in his conduct which, in my judgment, renders him unfit to be an attorney.’

Unfortunately, in this case, the applicant gave three versions of the events that took place in Fort Beaufort, and did not get amnesty from the TRC. He was therefore refused the right of admission to the bar. The court admonished the Cape Law Society for supporting the application, pointing out that it could not have applied its mind. The judge contrasted their approach with that in:

Ex parte Moseneke [which is] instructive and exemplary. This was a case in which our esteemed and recently retired Deputy Chief Justice was considered by the Law Society, after thorough assessment, to be a fit and proper person to be admitted as an attorney, despite having been convicted of the statutory offence of sabotage and thereafter serving a sentence of imprisonment on Robben Island. Once it had satisfied itself of this, the Law Society briefed senior and junior counsel to appear and to support the application. This in turn, it seems to me, was important in making it possible for the court to find that the applicant was, indeed, a fit and proper person, and to admit him as an attorney.

So, a criminal offence is not a bar to being a fit and proper person. The key words when assessing whether or not someone is ‘fit and proper’ for the courts are: dishonest, disgraceful, or dishonourable. We shall see if this is a line of thinking the courts follow in the coming days.

Read the full judgement; Ex parte: Mdyogolo (55/15) [2016] ZAECGHC 118 (28 October 2016)

Read Legalbrief’s article: Law Society erred in backing dodgy attorney

Read Carmel Rickard’s article in the Financial Mail; In Good Faith: Truth be told

Read Tony Beamish’s article on Moneyweb: Bobroffs an embarrassment to the legal profession – judges

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