Divorce Lawyers Queenstown

South Africa: A Matter of Justice

By Carmel Rickard

Two naughty lawyers in two neighbouring countries. Two legal bodies that wanted them struck from the roll. Then, to the alarm of the courts, two extraordinary stories of delay in acting to have the relevant attorneys removed - 11 months in one case, and 16 years in the other.

And finally, two different approaches by the courts involved to the delays and the fate of the lawyers concerned.

The first to arrive on my desk was a decision of Namibia's highest court, written, with the unanimous agreement of her two colleagues, by retired South African Constitutional Court Justice Kate O'Regan, now acting on Namibia's Supreme Court. The case concerned Lucius Murorua, an attorney acting for a client in a divorce, who blatantly lied to the court and to the attorney appearing for the other party in the divorce: He lied to the other attorney about the dates for court hearings so that his client would get the divorce without the other side being able to prevent it, and he lied to the court by not informing the judge about an application by the other side that he knew was pending. Here's how he explained himself later:

'I was, however, resolved at that stage not to bring the wrath of my client onto me, hence I needed a dilatory ploy which would have enabled me to see off my client by securing a decree of divorce.'

He said he couldn't deny having lied about the dates but added that he 'had to do it to honour the undertaking with my client'. When the other attorney realised that the divorce had already been granted she called to ask what was going on. He 'feigned ignorance and stated that he was on study leave and had instructed counsel to appear' on behalf on his client. He also said he was not aware that the court had granted a divorce.

Trying afterwards to explain this conversation with its multitude of lies he said 'I did not call back. Too bad, but I had lots of really important matters to attend to next to my studies hence I was not about to be sucked into a nasty office situation which I felt could wait till I return.'

In March 2009 the disciplinary committee of his law society found him guilty of misleading the court and misleading a colleague. Four months later, in July 2008, the disciplinary committee brought an application in the High Court for him to be struck off. The High Court's subsequent decision is remarkable in two ways. First, it took four years, until June 2012, to deliver judgment. Second, the court was divided: the majority ordered him suspended from practice for 12 months, but suspended his suspension for three years; the minority held that he should be struck from the roll.

The disciplinary committee wanted to appeal to the Supreme Court against the High Court's decision and in terms of the rules of court had to note an appeal by the end of July 2012. And indeed an appeal was noted on that date. The problem was that the committee realised that its decision to appeal had not been properly authorised. A series of attempts followed to fix the error. But it was only on 29 July 2013 that a fresh notice of appeal was lodged - a full year out of time.

Ironically, this put Murorua in the position of being able to argue that the Supreme Court should not condone the delay. The disciplinary committee was supposed to 'uphold the standards of the legal profession' and should therefore have complied with the rules of court.

O'Regan agreed that the conduct of the disciplinary committee showed 'woeful shortcomings'; its explanations showed a lack of care and diligence, with 'no excuse for (its) slipshod performance'; there was a 'worrying absence of attention' to the rules and a 'flagrant lack of urgency'.

Usually a court would consider the prospects of success in a case when faced with an application for condonation of lateness. But when non-compliance with the rules was 'flagrant', a court might not even consider this issue. This was such a case, held O'Regan. If the court overlooked the delay 'it might encourage' similar non-compliance by others and this would be 'harmful to the administration of justice in the long term.'

Though the judges decided not to hear the appeal, leaving Murorua with a punishment that amounted to nothing at all, they added an important footnote from which you could conclude that Murorua might have had a tough time if the appeal had been heard by the Supreme Court. Even though they did not consider the prospects of success in the case, said O'Regan, lawyers should remember that they had a special ethical responsibility to behave honestly. 'Where legal practitioners do not act honestly, they will be guilty of unprofessional and dishonourable conduct unworthy of a legal practitioner and risk being struck off.

Nothing in this judgment should be construed to suggest otherwise.'

For outsiders reading about this judgment there's another factor to consider: O'Regan and her colleagues cannot be unaware of the ongoing scandal about delayed judgments in Namibia. The High Court decision in Murorua's case that was four years in the making is an example. And then there's the Chief Justice himself, a byword for delayed decisions, some up to 10 years late. Perhaps the court in the Murorua case was trying to draw some lines in the sand, or sending a message to their esteemed colleague?

The second judgment, by Judge Jeremy Pickering sitting in the South African High Court, Grahamstown, was argued on 3 December, with judgment being delivered the following day.

Queenstown attorney Macvicar Qaqambile Klaas was investigated by the law society in 1999. The inquiry showed he had stolen about R200 000 from his trust fund which the law society concluded was 'extremely serious'.

The society brought an application for his immediate suspension and, with his consent, he was interdicted from practising as an attorney in December 1999, while the law society prepared a second application, this time for him to be struck off the roll.

Strange to tell, however, that striking off application never materialised. The present committee says it cannot explain how 'the matter came to be overlooked'. They can get no answers because all the officials involved at the time have left, with no explanation being found in any of the files. Finally in May 2014 Klaas himself took action, bringing an application for his suspension to be lifted so he could once again practice as an attorney. The law society, embarrassed at their own inaction, at first said they would not oppose Klaas' action on condition he completed a practical management court. Then they discovered a recent judgment in which the courts said law societies had a duty to oppose applications such as that by Klaas, and so they brought a counter-application for him to be struck from the roll - 16 years later.

Klaas claimed the society was 'not genuine and honest' and that their not having brought a striking-off action for all these years actually showed the society had no problem with him practising as an attorney.

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