PROFESSION – Legal Practice Council – Misconduct complaints – Investigation of complaints of misconduct against legal practitioners – Committee has extensive investigative powers – Must exercise these powers and no onus on complainant – Complainant simply has to bring conduct to the attention of the committee – Failure to investigate complaint unlawful, invalid and unconstitutional – Decision to dismiss complaint reviewed and set aside – Legal Practice Act 28 of 2014, s 37(3).
Facts: Mr Geffen and Mr Joseph (applicants) together with Mr Louw, who is also the applicants’ attorney of record, lodged a complaint with the the LPC against Mr Ramulifho. The complaint concerned Mr Ramulifho’s conduct in an application for an interdict aginst GroundUp. The complaint was dismissed and the LPC advised the complainants that no appeal would be possible because an appeal tribunal had not yet been established.
Application: The applicants seek to review the dismissal of the complaint.
Discussion: That Mr Ramulifho is an attorney who featured negatively in a series of articles written by Mr Joseph about a recipient of grants from the National Lotteries Commission; that the complaint to the LPC was based on allegations that Mr Ramulifho, in prosecuting the interdict application, falsified documents and forged signatures on affidavits; that the decision of the “committee” was to dismiss the complaint on the basis that he had “given a reasonable explanation to the allegations made against him” and that there was no reasonable prospect of a charge of misconduct against him succeeding; and that the “committee” was made up of one person, Mr Mayet.
Findings: The committee has extensive investigative powers, which are set out in Rule 40 of the LPC Rules. It chose, incomprehensively, not to exercise them. It is required to do so. There is no onus on a complainant. A complainant simply has to bring conduct to the attention of the committee. Any other interpretation would be prejudicial to the public interest. To expect a member of the public complaining about the conduct of a legal practitioner to bring a complete case would make a mockery of the what the LPA seeks to achieve. By misconstruing its role, the investigating committee committed an error of law.
Order: The failure to investigate the complaint against Mr Ramulifho is unlawful, invalid and unconstitutional. The decision to dismiss the complaint is reviewed and set aside. The matter is remitted to the LPC to convene an investigative committee to investigate the complaint afresh and conduct a proper investigation into the complaint. Mr Mayet shall in no way be involved in the fresh investigation.
CIVIL LAW – Defamation – Apology – Facebook post – Respondent apologised twice in writing to applicant and posted apology on Facebook page where she made defamatory statements – Applicant himself guilty of offensive comments and of publishing personal information of person feeding homeless people – Damages not awarded – Apologies adequate compensation for injury to dignity and reputation.
Facts: The feeding of homeless people by good Samaritans during the covid hard lockdown caused division among the residents of the Atlantic Seaboard which spilled over on to Facebook. Mr Wagenaar prepared meals from his home and his vehicle ended up being torched. Respondent wrote a post on her Facebook page about the incident and applicant sought an interim protection order, averring that respondent accused him of a hateful crime that he had not committed and of spreading rumours about him on social media. Respondent apologized and applicant withdrew the application for the protection order.
Application: Applicant contends that the apology was insincere and launched this application in which he seeks an interdict restraining the respondent from publishing defamatory statements against him and damages of R250,000.
Discussion: How the applicant and respondent presented oral evidence; the views on the homeless people during the pandemic; that applicant contends that respondent contacted every conceivable media house on the allegations that he was involved in torching Mr Wagenaar’s vehicle; that he acknowledged that he thanked respondent on social media for posting an apology; that he posted the personal particulars of Mr Wagenaar on social media and a few weeks later his vehicle was burnt; the respondent’s testimony about the Facebook groups; and the contention that applicant was the author of his own misfortune by publishing Mr Wagenaar’s personal details when the community had been divided.
Findings: Respondent apologised twice in writing to applicant and posted the apology to her Facebook page where she made the defamatory statements. Applicant’s incessant misgivings and discontent with respondent’s apology are unjustified. The applicant has himself made comments amounting to hate speech about Julius Malema and Muslims. He published sensitive personal information of Mr Wagenaar on social media in violation of the Protection of Personal Information Act 4 of 2013, which in all probability, led to the torching of Mr Wagenaar’s vehicle. This was not a case where damages are to be ordered. The apologies that the respondent tendered are adequate in the circumstances to compensate the applicant for the injury to his dignity and reputation.
Order: The applicant’s claim for damages is dismissed, with each party to pay its own costs.
PROFESSION – Commissioner of oaths – Interest in matter – Bank panel attorneys – default judgment applications – Commissioning affidavits of clients but not in matters where representing them – Case law and nature of interest discussed – Attorney does not have pecuniary interest or an interest in a proprietary right or an interest by which the legal rights or liabilities of the commissioner of oaths were affected – Justices of the Peace and Commissioner of Oaths Act 16 of 1963, s 10 and reg 7(1).
Facts: Sitting in the unopposed motion court the judge was faced with various applications for default judgment where the applicants were banks and the affidavits in support of such applications were commissioned by attorneys of firms of attorneys who acted for such banks in other applications for default judgment. Attorneys would be the attorneys of record for a bank in one matter and then in another application for default judgment they would be the commissioner of oaths of the very same bank.
Issue: Whether affidavits commissioned by attorneys under these circumstances (who were clearly on the panel of the banks and thus commissioning the affidavits of their clients, albeit not in the same matters in which they represented them) complied with Regulation 7(1) of the Regulations governing the administering of an oath or affirmation made in terms of section 10 of the Justices of the Peace and Commissioner of Oaths Act 16 of 1963 which provides that: “A commissioner of oaths shall not administer an oath or affirmation relating to matter in which he has interest.”
Discussion: The Royal Hotel case where Caney J held that a commissioner of oaths is required to be impartial and unbiased in relation to the subject matter of the affidavit and that, if he is otherwise, he has an interest in the matter; that the peremptory requirement of Regulation 7(1) is a matter for the legislature and executive (who is empowered to promulgate regulations) and should not be encroached upon by the courts; and the case of S v Van Schalkwyk where the Full Bench of the Transvaal Provincial Division found that the “interest” referenced in Regulation 7(1) necessitated a pecuniary interest or an interest in a proprietary right or an interest by which the legal rights or liabilities of the commissioner of oaths were affected.
Conclusion: The court is bound by the decision of Van Schalkwyk to the effect that the interest of an attorney (acting as commissioner of oaths) of a client in litigation, where that commissioner of oaths is not the attorney of record in the matter in which the affidavit is commissioned, does not have pecuniary interest or an interest in a proprietary right or an interest by which the legal rights or liabilities of the commissioner of oaths were affected.
Order: Default judgment is granted and the immovable property is declared executable.
VAN NIEUWENHUIZEN AJ
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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