ATTORNEY-GENERAL v. GAREKWE 1996 BLR 554 (HC)

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Citation: 1996 BLR 554 (HC)
Court: High Court, Lobatse
Case No:
Judge: Levy Ag. J.
Judgment Date: June 11, 1996
Counsel:
Mrs. O. Sekgoma for the applicant. Respondent in person.
Flynote
Legal practitioner - Attorney - Admission - Omission in petition for admission to practise - Conviction of theft not disclosed - Whether deliberate omission of conviction for dishonesty constituted misconduct by wilful making of false declaration for purposes of admission to practise - Statutory Instrument No. 38 of 1970, subs. 3(b), Legal Practitioners Act, s. 29.

Legal practitioner - Attorney - Admission - Misconduct - Whether misconduct included misconduct which occurred prior to admission and enrolment as attorney - Legal Practitioners Act, subs. 28(1).

Legal practitioner - Attorney - Admission - Legal Practitioners Committee - Functions of - Committee probed into historical background prior to admission - Whether committee entitled to conduct such probe - Legal Practitioners Act, ss. 26 and 27.
Headnote
The applicant applied to have the respondent's name struck off the roll of attorneys on the ground that the  A  respondent had not disclosed to the court when he petitioned the High Court for admission as an attorney, that he had been convicted of the offence of theft by servant. The respondent had further asserted in his petition papers that he was of good character. The essence of the respondent's defence was that his conviction was some considerable time before his admission as attorney and that having been to university to study law, he was now a  B  reformed character. He further argued that he could only be struck off the roll in terms of the Legal Practitioners Act for misconduct as defined in section 28 of the Act. The respondent averred that the misconduct specified in section 28 constituted conduct which only a practising attorney could commit and he never practised after admission. It was also his contention that the Legal Practitioners Committee acted ultra vires its powers as its functions were also confined to legal practitioners and further, that it could not probe into the historical  C  background of persons prior to their admission. The respondent alleged that he had not referred to the conviction as the court knew of it. The court noted that the Chief Justice, in terms of section 29 of the Legal Practitioners Act had made and gazetted certain rules set out in Statutory Instrument No. 38 of 1970, declaring, in section 3(b), the wilful making of a false declaration for the purpose of his admission to practise, misconduct. 

Held: (1) The respondent's deliberate omission of mention of his conviction for dishonesty constituted the wilful making of a false declaration for the purposes of his admission to practise. His statement that he omitted to mention the conviction because the court knew of it carried no weight: assuming that the learned judge who heard respondent's petition for admission did know that someone with the same name had been convicted of  E  theft, there was no reason to believe that the judge would have known that the person convicted and the petitioner were one and the same person.

(2) Misconduct for the purposes of the Rules could also be misconduct which occurred prior to admission and enrolment as an attorney and included the misconduct of making a false declaration for the purposes of  F  admission.

(3) In considering whether a person should be removed from the roll, the court was not confined to misconduct as such. "Reasonable cause" to order removal of any person from the roll, as provided for in the Act, was wider than misconduct. 

(4) There was no substance in the respondent's contention that the Legal Practitioners Committee acted ultra vires. The committee was fully entitled to probe into the historical background of persons prior to their admission to practise to ascertain if reasonable cause to remove from the roll existed.

(5) The commission of the crime was not the respondent's only misconduct. He had wilfully and deliberately  H  omitted any reference to the conviction in his petition to be admitted as an attorney. A person with a conviction for theft of monies, which had not been repaid, was prima facie not a fit and proper person to practise as an attorney, nor was a person who wilfully made a false declaration for the purposes of his admission to practise. The commission of a crime involving dishonesty was extremely material and should be disclosed by a petitioner.
Case Information
Cases referred to:
    (1)    Ex parte Moseneke 1979 (4) S.A. 884 (T)  A
    (2)    Kudo v. Cape Law Society 1977 (4) S.A. 659 (A)
    (3)    Law Society of the Transvaal v. Behrman 1981 (4) S.A. 538 (A)
    (4)    Ex parte Cassim 1970 (4) S.A. 476
APPLICATION to have the respondent's name struck off the roll of attorneys. The facts are sufficiently stated in  B  the judgment.
Mrs. O. Sekgoma for the applicant.
Respondent in person.
Judgment
H. W. Levy AG. J.:  C
In this matter the Attorney-General is the applicant and is represented by Mrs. O. Sekgoma. The respondent appears in person.
On 13 April 1995, applicant, by way of notice of motion, applied to the High Court for the following orders:
    "1.    That the Respondent's name be struck off the roll of Attorneys of this Honourable Court;  D
    2.    That all courts be informed that the Respondent is not a fit and proper person to practise as an attorney and has no right to appear in court.
    3.    That the Respondent surrender and deliver to the Registrar of this Honourable Court his certificates of enrolment together with his certificate of Admission as an attorney of this Honourable Court;  E
    4.    That an officer of the above Honourable Court be appointed as a curator to administer and control the Trust Account (if any) or any monies that have been received by respondent whilst in practice;
    5.    That further and alternative relief be granted to the Applicant."  F
The Attorney-General supported his application with an affidavit wherein he said that on 31 January 1994, he had presided over a meeting of the Legal Practitioners Committee, a body established in terms of section 27 of the Legal Practitioners Act and convened to deal with the complaints that respondent had not disclosed to the High Court nor to the Attorney-General when he petitioned the High Court for admission as an attorney, that he had  G  been convicted of the offence of theft by servant by the magistrate's court in Gaborone, and further that respondent had pretended in his petition papers that he was of good character.
The Attorney-General said that respondent had been invited to attend the meeting of the Legal Practitioners Committee and respondent had replied that the matter was premature as he was to apply to the Court of Appeal  H  for condonation as to the lateness of his appeal against his conviction. He nevertheless appeared before the committee and asked that proceedings for his removal from the roll should be delayed until the Court of Appeal had come to a decision. The application for condonation and leave to prosecute the appeal was dismissed by the Court of Appeal and application for

1996 BLR p557
H W LEVY AG J
respondents removal from the roll of attorneys has accordingly been pursued.  A
The Attorney-General annexed to his affidavit the correspondence which had passed between the parties in respect of this application.
Respondent filed an opposing affidavit on 24 May 1995 which unfortunately was not in the court's file and nor could the filing thereof be traced in the registrar's office. Copy had, however, been served on the Attorney-General  B  and respondent faxed a copy to the court the day before the matter was heard.
The opposing affidavit was brief and its tone somewhat provocative.
In reply to the Attorney-General's allegations that respondent had failed to disclose to the High Court or the Attorney-General when he petitioned for his admission, his previous conviction for theft and had pretended to be  C  of good character, respondent said:
    "The case was and is well known to the Attorney-General and was the subject of appeal with the Attorney-General as respondent. That is why I honestly felt there was no need to disclose "
No reason whatsoever was given as to why he did not disclose his conviction to the High Court and nor was  D  there any reply in his affidavit to the allegation that he pretended in his petition for admission to be of good character when he knew that he had a conviction of theft. In reply to a question during argument posed by the court, respondent said he did not disclose his conviction in his petition because he thought the court knew of it.  E
In paragraph 5 of his affidavit, respondent says inter alia:
    "The acts which constituted the offence for which I was convicted were alleged to have been committed long before my admission to the university to read law."  F
In paragraph 8 of opposing affidavit he says inter alia:
    ". . . the committee (Legal Practitioners Committee) has power only in case of misconduct by a legal practitioner during the course of his practice and not by someone prior to admission. The committee is not to probe into the historical background of persons prior to their admissions."  G
In the penultimate paragraph respondent says:
    "The Attorney-General's argument does not disclose any misconduct as per section 28 LPA and therefore there is no sufficient cause shown in terms of section 27 LPA. The argument does not disclose a prima facie case of misconduct in that I have never practised law in order to be guilty of misconduct."  H
Applicant filed a replying affidavit, the essence whereof is an assertion that the Attorney-General and the Legal Practitioners Committee have acted within their powers and that the latter's conduct is not ultra vires.

1996 BLR p558
H W LEVY AG J
At the hearing hereof in reply to questions from the court, respondent said he was admitted to practice on 5  A  November 1993 but has not practised since his admission. He also said that the judgment in respect of his conviction and sentence was handed down by the magistrate in 1988, and that he was convicted for theft of approximately P50,000 from his employer and that he received a suspended sentence and that he was told by the magistrate he was to pay back to his employer the money stolen. The court could not ascertain with any  B  clarity and certainty from the respondent whether the sentence was suspended on condition that the stolen monies be repaid, but in any event, in the light of the decision at which I have arrived, the sentence and conditions of suspension are irrelevant. Respondent says that he has not paid back the money stolen because he has not earned sufficient to do so. He therefore still owes his former employer approximately P50,000, which he stole  C  from him.
The essence of respondent's defence to the application is that his conviction was some considerable time before his admission as an attorney of this court and that having been to university to study law, he is now a reformed character. He also says that in any event he can only be struck off the roll in terms of the Legal Practitioners Act for misconduct as defined in section 28. Respondent avers that the misconduct specified in section 28  D  constitutes conduct which only a practising attorney can commit. It is also his contention that the Legal Practitioners Committee acted ultra vires their powers as their functions are also confined only to "legal practitioners" and that the committee "cannot probe into the historical background" of persons prior to their admission.  E
In terms of section 29 of the Legal Practitioners Act, the Chief Justice may make "rules":
    "(a)    prescribing anything which in terms of this Act is to or may be prescribed;  F
    (b)    to prescribe the fees or charges which may be made by the Registrar in the performance of his functions under this Act;
    (c)    prescribing the fees or allowances payable to members of the Committee;
    (d)    regulating the conditions of service of, and the salaries payable to, articled clerks; and
    (e)    generally for the better carrying out of the provisions of this Act."  G
By virtue of this power, the Chief Justice made and gazetted certain rules set out in Statutory Instrument No. 38 of 1970, section 3(a) and (b) whereof provide as follows:  H
    "3.    The following acts are prescribed as misconduct on the part of an attorney, notary or conveyancer -
        (a)    wilfully misleading any Court of law or any officer of the court in relation to his duties;
        (b)    wilfully making a false declaration for the purpose of his admission to practise."

1996 BLR p559
H W LEVY AG J
Section 3 of the Legal Practitioners Act provides inter alia:  A
    "3. Any fit and proper person who possesses the qualifications hereafter prescribed may apply to the court upon written petition to be admitted and enrolled as an advocate, attorney and the court shall, unless cause to the contrary is shown to its satisfaction, admit and enroll such person . . ."  B
When respondent petitioned for his admission as an attorney of this court, he omitted to say in his petition that he had been convicted of theft by servant and asserted that he was a fit and proper person to be admitted to practise. His deliberate omission of a conviction for dishonesty constitutes the wilful making of a false declaration  C  for the purpose of his admission to practise. His statement to the court that he did not mention the conviction in his petition because he thought the court knew of it, carries no weight whatsoever. Assuming that the learned judge who heard respondent's petition for his admission, did know that someone with the same name as respondent had been convicted of theft, there was no reason to believe that the learned judge would have known  D  that the person convicted and the petitioner for admission as an attorney were one and the same person.
The aforesaid notwithstanding, it is also respondent's contention that an attorney once enrolled can only be struck off the roll for the commission of acts constituting misconduct as specified in section 28 of the Act and these acts according to respondent are acts which can only be committed by an attorney. Therefore misconduct committed  E  before admission is irrelevant.
Respondent's contention is not correct. Section 28(1) provides: "(1) Misconduct on the part of a legal practitioner  shall include, inter alia, the commission of any of the following acts: " (my emphasis).
The operative words are emphasised. Misconduct includes those acts set out in section 28. Misconduct therefore can also be misconduct which occurred prior to admission and enrolment as an attorney and certainly includes  F  the misconduct referred to in rule 3(b), that is the making of a false declaration for the purpose of admission.
Furthermore, section 27 of the Legal Practitioners Act provides:
    "(1)    The court may, on reasonable cause shown, order the suspension or removal of any person from the roll."  G
Therefore, in considering whether a person should be removed from the roll, the court is not confined to misconduct as such. "Reasonable cause" is wider than misconduct.
There is also no substance in respondent's contention that the legal practitioners committee acted ultra vires. Section 26 of the Act prescribes the functions of the legal practitioners committee and these include:  H
    "(a)    to investigate cases of misconduct by legal practitioners and to perform such other functions in connection therewith as prescribed in Part V1."

1996 BLR p560
H W LEVY AG J
Part VI of the Act contains the sections 27 and 28 referred to above. I have already quoted the provisions of  A  section 27 which provides for a person's removal from the roll on "reasonable cause". The committee is therefore fully entitled "to probe into historical background of persons prior to their admission" to ascertain if "reasonable cause" exists.
I have quoted above the paragraph in respondent's opposing affidavit wherein he stated that the theft whereof he was convicted had occurred several years before his petition to be admitted as an attorney, was presented to  B  court. He says that since his conviction, he attended university for five years and he believes that "as a graduate in law I had transformed myself to be a fit and proper person".
In Ex Parte Moseneke 1979 (4) S.A. 884 (T) at 887, Boshoff A.J.P. said:
    "In the case of Ex parte Krause 1905 T.S. 221 at 223 Innes C.J. stated the ground upon which the Court refuses to place  C  upon the roll of attorneys persons against whose names criminal convictions stand. It is not because a criminal conviction ipso acto (sic) disqualifies a man from admission to the ranks of the Bar or the Side Bar, nor is it a desire on the part of the court again to mark its sense of the enormity of the crime. That has been expiated by punishment as far as its actual commission is concerned. The learned Judge stated the real reason to be the following:  D
        '. . . in most cases the fact of the criminal conviction shows the man to be of such a character that he is not worthy to be admitted to the ranks of an honourable profession.' "
The authorities are, however, clear that a person who is not a fit and proper person to practise as an attorney  E  may, after a complete and permanent reformation, become a fit and proper person to practise as an attorney. The onus is on the applicant who applies for admission to establish this. (See Ex parte Moseneke supra p. 889; Kudo v. Cape Law Society 1977 (4) S.A. 659 (A) at 675/6; and Law Society of the Transvaal v. Behrman 1981 (4) S.A. 538 (A.D.) at 557B.)  F
In the present case respondent has certainly not satisfied this court that his crime has been expiated by his punishment nor has he satisfied this court that he has made a complete and permanent reformation. Respondent has not paid back to his employer the P50,000, he stole. He has not told the court what attempts he has made to do so.  G
The commission of the crime is, however, not his only misconduct. He wilfully and deliberately omitted any reference to this conviction in his petition to be admitted as an attorney.
In the correspondence preceding this application to strike him off, he did not advance any explanation for omitting to inform the court why he made no mention thereof. Furthermore, in his affidavit, although the Attorney-General  H  specifically stated this, he omitted to deal with it. In court, when this court questioned him, all that respondent said was that he believed that the court knew of the conviction. Section 3 of the Legal Practitioners Act, requires a petition from a person who is a "fit and proper person". A person with a conviction for theft of monies which has not been repaid, is prima facie not a fit and proper person to practise as an attorney nor is a person

1996 BLR p561
who wilfully makes a false declaration for the purpose of his admission to practise. In Ex parte Cassim 1970 (4) S.A.  A  476, the court held that a conviction for assault and defacing public property was a material factor which a petitioner for admission as an attorney should disclose. On a parity of reasoning the commission of a crime involving dishonesty is extremely material and should be disclosed by a petitioner. It is then for the court to decide whether the petitioner has reformed or not.  B
For all these reasons, it is this court's view that respondent should be struck off the roll of attorneys.
Accordingly the court orders:
    1.    The respondent's name is struck off the roll of attorneys of this honourable court;  C
    2.    All courts shall be informed that the respondent is not a fit and proper person to practise as an attorney and has no right to appear in court.
    3.    The respondent shall surrender and deliver to the Registrar of this Honourable Court his certificate of enrolment together with his certificate of admission as an attorney of this honourable court.
 
Application for striking off
granted.

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