Legal Practice Council v Halles [2024] ZAGPPHC 624
PROFESSION – Striking off – Mental health impairment – Appropriate sanction
Major depressive disorder – Expert opinion – Impairment which rendered practitioner not currently fit to practice might be of temporary nature – Full recovery possible through guidance and balanced lifestyle – Did not commit any acts of dishonesty – Suspension, rather than striking off the more appropriate sanction under circumstances – Suspended until fit and proper person to practice.
Facts: Halles (respondent) took up the position as an Associate in Joubert Renier Francois Inc firm of Attorneys. As a director, she practised for the first time, for her own account. Her erstwhile employer/principal Mr AF Van Wyk referred her to a psychiatrist Dr Biagio Longano. Having assessed her psychological and emotional state, the psychiatrist made the diagnosis that she is suffering from a Major Depressive Disorder. Dr Longano asserts that at his first consultation with the respondent, the Major Depressive Disorder was self-evident. She exhibited classical features of anhedonia, anergia, low mood, a degree of impairment of executive functioning and obvious social and occupational dysfunction. He made the working hypothesis that she was majorly affected by her father’s premature death. He also expresses the view that her career path seems to have deviated from its intended trajectory due to the universal career-impeding effects of the Covid-19 pandemic. He explains that as her depression worsened, she became more and more detached from the reality of her work and of her own financial position, to the point of becoming bed bound.
Application: The application is two-fold. The first part was dealt with in 2023, when an interim order was granted suspending Halles from practice as a legal practitioner, pending the final determination of the second part of the application. This judgment centres on the second part of the application, for an order striking her name from the roll of legal practitioners.
Discussion: Dr Longano started Halles on antidepressant treatment and at the time of writing his report, he assessed modest improvement in her psychological condition. He is confident that Halles will make a full recovery and that she will be able to resume her profession in future, given guidance and a balanced lifestyle. It is his evidence that her condition should have been brought to psychiatric attention sooner, “as much of the catastrophe could have been averted”. A clinical and neuropsychologist, Ms Cramer, proposes that regard be had to her psychological condition when her ability to meet her responsibility as a legal practitioner is assessed. The proposed approach is advocated especially because Halles does not have a history of psychiatric illness, nor a history of disregard of rules or criminal intent, substance abuse or addictive behaviour. Halles has as far possible made efforts to remedy the infractions. She provided documentary proof that she brought her LPC membership fees up to date. It is not in issue that her client files and trust account bank details are in possession of the LPC. Although her non-compliance for a Fidelity Fund Certificate placed her clients’ interest at risks, there is no evidence on record that actual prejudice resulted.
Findings: Halles confessed her transgressions. She humbled herself before the court and the authority of the LPC and explained the breaches in a forthright manner. The conduct complained of has been established. Two psychology expert witnesses diagnosed Halles with major depressive disorder. Halles is currently undergoing pharmacotherapy and psychotherapy to address the illness. The body of evidence proves that Halles is currently not fit and proper to practice as a legal practitioner. Her occupational incapacity stems directly from her ill mental health. Halles holds good future prospects of regaining her psychological well-being and to return to a functional state in her personal and professional life. Halles demonstrates resilience as a positive character trait. As reported by the psychologist, she expressed an appreciation for her to submit to the recommended treatment. She has a desire to recover to her previous level of functioning. She took the court into her confidence and presented her case with a positive attitude, which makes her future recovery realistic. Within the parameters of the unique facts of the case and as correctly conceded by Counsel for the LPC, a suspension on relevant conditions is the most fitting sanction to issue.
Order: The first respondent is suspended from practice as a legal practioner until she satisfies the court that she is a fit and proper person to practice, with specific reference to her diagnosed mental health disorder, to the satisfaction of the LPC submits all past outstanding audit reports (if any), completes the Practice Management training course, in the event that she intends to practice for her own account, and complies with all other regulatory requirements not mentioned herein, to the satisfaction of the LPC.
MATTHYS AJ (DAVIS J concurring)
Dissenting: The majority holds that Halles’ conduct was not brought about by a character flaw, but an incapacity due to ill mental health. There is no analysis of the offensive conduct. There is also no showing how her “ill mental health” made her (1) practice without a Fidelity Fund Certificate (2) fail to pay professional fees (3) fail to submit auditors’ reports, or (4) start a law practice, “JM Halles Inc,” without informing the LPC that she had done so. Halles prejudiced her clients and the public. She practised without a Fidelity Fund Certificate and had a trust account. She did not contend being unaware that she had to have been issued a Fidelity Fund Certificate to practice as she did. She gave no explanation for practising without such a certificate. Practising without a Fidelity Fund Certificate is one of the more egregious conducts by a legal practitioner. The gravity of that conduct is reflected in the law in that non-compliance is an offence. Halles’ name should be struck from the roll of legal practitioners.
MOOKI J
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City of Cape Town v Human Rights Commission [2024] ZASCA 110
EVICTION – Land invasion – Counter-spoliation – Homeless people invaded unoccupied City land
Whether City had right to counter-spoliate – Must do so instanter, within narrow window period, during which counter-spoliation is legally permissible – Thereafter, City must not breach right to privacy enshrined in section 14(c) of Constitution – Appropriateness of time within which to counter-spoliate was left wholly within discretion of City’s employees and agents – This often capricious and arbitrary and cannot be legally countenanced.
Facts: In 2020, the City of Cape Town removed many homeless people who had invaded several pieces of its unoccupied land. The removals took place without an order of court. The City’s Anti-Land Invasion Unit (the ALIU) acting on behalf and on instructions of the City, demolished their homes, structures or dwellings, commonly referred to as shacks, consisting of corrugated iron sheets, and others made of plastic sheets, cardboard boxes and wooden pallets. It also destroyed some of their belongings found inside those structures. Some people were injured in the process, while others were treated in the most undignified and humiliating manner.
Appeal: The Human Rights Commission approached the High Court for urgent relief, on behalf of the homeless people. The City sought to justify its conduct with reliance on the common law remedy of counter-spoliation, which, in certain circumstances may permit a party, instanter, to follow up and retrieve possession of that which it has been despoiled of. The High Court found the conduct of the City regarding the demolitions and evictions to have been unlawful and unconstitutional. The High Court deemed it unnecessary to decide the issue of the constitutionality of counter-spoliation. Before this court, counsel agreed that the issue had been narrowed down to whether the City satisfied the requirements of counter-spoliation in the circumstances. The appeal proceeds on that basis.
Discussion: If a homeless person enters the unoccupied land of a municipality with the intention to occupy it, the municipality may counter-spoliate before the person has put up any poles, lines, corrugated iron sheets, or any similar structure with or without furniture, which point to effective physical control of the property occupied. If the municipality does not act immediately (instanter) before the stage of control with the required intention is achieved, then it cannot rely on counter-spoliation as it cannot take the law into its own hands. It will then have to seek relief from the court, for example by way of a mandament van spolie, an ordinary interdict, or pursue a remedy under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (PIE). Counsel for the City submitted that the City was justified to counter unlawful invasions by removing invaders without any order of court: (i) where persons are in the process of seeking to unlawfully occupy land and it takes action to prevent them from gaining access to the targeted land; (ii) where persons have gained access to the land unlawfully and are in the process of erecting or completing structures on the land and it takes action to prevent structures being erected or completed on the land; and (iii) completed structures have been erected on the land and it is clear that such structures are unoccupied, and it takes steps to prevent the structures from being occupied.
Findings: The person who seeks to counter-spoliate, in this case the City, must show two requirements: (a) the (homeless) person was not in effective physical control of the property (the possessory element); and (b) thus, did not have the intention to derive some benefit from the possession (the animus element). On the City’s own admission, there were structures already erected on the City’s land upon the AILU’s arrival on the land. They moved onto the land to demolish them. The demolition by the AILU staff followed upon mere visual impression, in the exercise of their subjective discretion, with no reference to any objective guidelines, or the guidance of superiors perhaps more sensitive to the socio-economic circumstances of marginalised people. Despite finding people occupying some of the structures put up on the City’s land, the ALIU staff still dismantled those structures. It is clear, as the High Court correctly held, that the problem lies with the application of the principles of counter-spoliation by the City in the context of land incursions/invasions. The appropriateness of the time within which to counter spoliate, is left wholly within the discretion of the City’s employees and agents. This is often capricious and arbitrary and cannot be legally countenanced.
* See para [38] for when a municipality might be able to successfully counter-spoliate.
Order: The appeal is dismissed with costs, including the costs of two counsel where so employed.
MOCUMIE JA (MOTHLE JA, MEYER JA, KOEN AJA and COPPIN AJA concurring)
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Nedbank v Altivex 15 (Pty) Ltd [2024] ZAGPPHC 597
CIVIL PROCEDURE – Commissioner of oaths – Remote commissioning
Affidavit in support of summary judgment – Use of remote commissioning by large institutions – Submission that court should “condone” virtual commissioning when there has been substantial compliance – Firstrand Bank v Briedenhann discussed and explained – Exercise of court’s discretion based on relevant factual matrix as explanation for non-compliance – Court has not been furnished with explanation for non-compliance – No basis for court to exercise its discretion on non-compliant affidavit – Justices of the Peace and Commissioners of Oaths Act 16 of 1963.
Facts: The facts of this matter echo those of countless summary judgment applications that serve before the court daily. Benade and Eksteen (respondents), being the directors of Altivex 15 (Pty) Ltd, bought a house in 2006 in the name of Altivex. For purposes of securing the home loan, the respondents signed a deed of surety for the debts of Altivex. It is common cause that Altivex fell in arrears with the repayments of the home loan amounts. Nedbank (applicant) has instituted action for the recovery of the total outstanding amount and has relied on the suretyship to obtain payment from the respondents.
Application: Subsequent to the respondents’ plea, this application for summary judgment, combined with an application in terms of Uniform Rule 46A, was launched and duly opposed by the respondents. With regards to the summary judgment application, the respondents have raised two points in limine relating to the affidavit in support of summary judgment and one substantive argument in terms of their purported bona fide defence. With regards to the Rule 46A application, the respondents allege that the applicant has not complied with the provisions of Rule 46A.
Firstrand v Briedenhann: The applicant has placed reliance on the judgment in Firstrand Bank v Briedenhann [2022] ZAECQBHC 6 as authority for its submission that this court should “condone” the virtual commissioning of the affidavit in support of summary judgment. It was submitted that this court should, on the basis of Briedenkann, exercise its discretion based primarily on considerations of substantial compliance with the provisions of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963. It has become almost par for the course for large institutions such as banks, in these types of applications, to have such affidavits commissioned remotely. The court disagrees with the submission that Briedenhann is authority for the position that as long as there has been substantial compliance, the non-compliance with the Justices of the Peace Act should be “condoned”. In Briedenhann, as well as the cases referred to therein, Goosen J made it abundantly clear that the exercise of the court’s discretion in that matter was based on the relevant factual matrix presented to him by the applicant as explanation for the non-compliance.
Findings: Contrary to the widely held opinion that substantial compliance trumps form, in Briedenhann the exact opposite was stated. Whilst it may equally be so that remote commissioning would be more expedient, the simple fact of the matter is that, since Briedenhann, no legislative changes have been made to the Justices of the Peace Act or the Regulations. If there are no facts placed before a court upon which to exercise its discretion, it cannot make a generalised finding on the commonly held views of litigants (or even the court itself) as to what is expedient and in keeping with the latest technological advancements. For a court to exercise its discretion in favour of applicants in each instance where virtual commissioning is used, regardless of a proper explanation for such non-compliance, would constitute impermissible judicial overreaching. Whilst in Briedenhann, Goosen J had the benefit of an explanation as to the reasons for non-compliance, in casu, the court has not been furnished with any. As a result, there is no basis for this court to exercise its discretion in favour of allowing the non-compliant affidavit in support of summary judgment to stand as an affidavit for purposes of compliance with the provisions of Rule 32. On this basis alone the application for summary judgment stands to be dismissed.
* See from para [24] on the Rule 46A application.
Order: The application for summary judgment is dismissed.
STRYDOM AJ
* See also LexisNexis South Africa v Minister of Justice [2024] ZAGPPHC 446.
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