THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case no: 435/02
Reportable

In the matter between:

THE LAW SOCIETY OF THE
NORTHERN PROVINCES

Appellant

and

MUTSHUTSHU WILSON MAMATHO

Respondent

_____________________________________________________

Coram:
SCOTT, FARLAM, CONRADIE JJA, VAN
HEERDEN et  MOTATA AJJA

Date of hearing: 22 AUGUST 2003

Date of delivery:  16 SEPTEMBER 2003

Summary:   Attorney – admitted in the TPD but practising in Venda
– jurisdiction of the TPD to strike him off the roll of attorneys

_____________________________________________________

JUDGMENT

_____________________________________________________

SCOTT JA/…

SCOTT JA:
[1] The appellant, which was formerly known as the Law Society
of the Transvaal, instituted motion proceedings in the Transvaal
Provincial Division for an order striking the respondent off the roll
of attorneys together with the usual ancillary relief. The principal
grounds relied upon for the relief sought were that the respondent
had failed to submit an audit certificate for the year ending
February 1999 and was practising as an attorney without a fidelity
fund certificate issued in terms of s 42(3) of the Attorneys Act 53 of
1979 (‘the Act’). An audit certificate is a requirement for the issue
of a fidelity fund certificate. Practising without the latter is a
criminal offence and a serious breach of an attorney’s duty.
[2] Previously,  on 2 July 1996, the appellant had brought an
urgent application in the same court for an order suspending the
respondent from practising as an attorney. A rule nisi was granted
by Swart J calling on the respondent to show cause why a final
order should not be made:
‘That the respondent be suspended from practising as an attorney within the
jurisdiction of this honourable court, but excluding the area formerly known as
Venda, for an indefinite period, pending the institution of an application at the
instance of either applicant or respondent to discharge this order.’

It is not apparent from the record in this appeal why Swart J
expressly excluded ‘the area formerly known as Venda’ from the
operation of the order. In the event, the order in that form was
made final on 6 February 1997.
[3] Prior to 2 July 1996 the respondent practised within the
jurisdiction of the Transvaal Provincial Division. From that date he
ceased to do so and has since practised as an attorney at
Thohoyandou within the jurisdiction of the Venda High Court.
[4] Three points in limine were taken in the Court a quo. The first
was
abandoned
in
that
Court
and
requires
no
further
consideration. The second was that the appellant had no locus
standi. The point failed in the Court a quo and, for reasons which
will become apparent, was correctly not pursued in this Court. The
third point was that by reason of the provisions of s 22(1)(d)) of the
Act, the Court a quo had no jurisdiction to hear the application
because at the time the application was launched the respondent
was no longer practising within its jurisdiction. Section 22(1)(d)
reads:
‘Any person who has been admitted and enrolled as an attorney may on
application by the society concerned be struck off the roll or suspended from
practice by the court within the jurisdiction of which he practises –
…

(d)
if he, in the discretion of the court, is not a fit and proper person
to continue to practise as an attorney’
(emphasis added).
The latter point was upheld by the Court a quo. Its reasoning, in so
far as is relevant for the purposes of the present appeal, appears
from the following passage in the judgment of Mynhardt J (with
whom Moseneke J concurred):
‘… I do not think that it is correct to say that merely because the respondent is
an attorney and merely because he is before this court this morning,  that this
court is entitled to exercise its inherent jurisdiction over him. It is clear from
the provisions of the Attorneys Act 1979, as I have already indicated, that
there are different high courts exercising jurisdiction in different territorial
areas. By virtue of section 56 of the Attorneys Act 1979, there are different
law societies having jurisdiction in different territorial areas. It must follow
therefore, that this court cannot merely because a person is an attorney,
exercise jurisdiction over him by virtue of the inherent powers that the court
has. That would make a mockery of the provisions of the Attorneys Act, 1979,
which I think has been drawn meticulously to provide for the different law
societies to exercise jurisdiction over practitioners practising within their
respective areas over which they have control and also the different High
Courts which exercise jurisdiction over different territorial areas.’
The application was accordingly dismissed with costs by the Court
a quo without considering the merits of the matter and simply on
the ground that the Court had no jurisdiction to entertain it. The

appellant contends that the Court a quo does have jurisdiction,
hence the appeal.
[5] It is clear that in the absence of any statutory provision
excluding the jurisdiction of the Transvaal Provincial Division that
court would have jurisdiction at common law to strike the
respondent from the roll of attorneys. In this regard, the
respondent was admitted as an attorney in the Transvaal
Provincial Division on 25 November 1986. In terms of s 21(1) of
the Act the registrar would have enrolled his name on the register
of all attorneys admitted by that Court. The respondent thereafter
practised in that Division until 2 July 1996. His name remains on
the register and subject to his suspension he remains entitled to
practise in that Division. Moreover, in terms of s 6 of the Attorneys
and Matters relating to Rules of Court Amendment Act 115 of
1998, the respondent, being an attorney practising within the
former Republic of Venda, became obliged within 21 days of the
commencement of that Act (15 January 1999) and subject to the
rules of the Law Society of the Transvaal (the appellant) to apply
for the issue of a fidelity fund certificate in terms of s 42(3) of the
Attorneys Act. Section 84A of the Act (inserted by s 5 of Act 115 of
1998) specifically affords to the appellant the power, in respect of
an attorney practising in Venda, to perform any function which is

similar to a function assigned to it by inter alia s 22(1)(d) of the Act.
The effect of these provisions is therefore to place attorneys
practising in the area of the former Republic of Venda under the
jurisdiction of the appellant in so far as matters relating to the
fidelity fund are concerned.
[6] The question in issue is whether s 22(1)(d) of the Act is to be
construed as excluding the jurisdiction of the Transvaal Provincial
Division in the circumstances outlined above. The present Act
repealed the Attorneys, Notaries and Conveyancers Admission Act
23 of 1934, which was the first post-Union statute regulating the
admission of attorneys. Initially the 1934 Act contained no
provisions dealing with the striking off or suspension of attorneys
but in 1964 that Act was amended by the insertion of s 28bis. This
section was similar to the present s 22 but differed in that it
provided for an application to strike off or suspend to be ‘at the
instance of any law society concerned’. Section 28bis and
subsequently s 22 of the 1979 Act have been construed as not
limiting the inherent power of a court to discipline its practitioners
and the courts on occasion have done so in a manner or in
circumstances not falling within the ambit of s 28bis and
subsequently s 22 of the 1979 Act. See eg Incorporated Law

Society, Transvaal v G 1953 (4) SA 150 (T) at 160E-H;  Law
Society  of  the  Cape  of  Good  Hope  v  C 1986 (1) SA 616 (A) at
638C-639F; see also Hurter and Another v Hough 1987 (1) SA 380
(C) at 381H-382C;  Prokureursorde van Transvaal v Kleynhans
1995 (1) SA 839 (T) at 851E-H.
[7] Against this background counsel for the appellant submitted
that the Court a quo ought to have exercised its inherent
jurisdiction to entertain the application to strike the respondent off
the roll of attorneys. However, as interesting as the question may
be, I prefer to decide the issue on another basis and that involves
the proper construction of s 22 of the Act.
[8] Quite clearly s 22(1) must not be read in isolation but in the
context of the section as a whole. Section 22(2) is significant. It
reads as follows:
‘2(a) If it appears to the court that a person in respect of whom a society
intends making an application under subsection (1), has left the Republic and
that he probably does not intend to return to the Republic and that his
whereabouts are unknown, the court may order that service on that person of
any process in connection with such application may be affected by the
publication of such process in an Afrikaans and an English newspaper
circulating in the district in which the said person’s last known business
address, as entered in the records of the society concerned, is situated.

(b) Any such process may, if the court so orders, be so published in a form as
near as may be in accordance with Form 1 (Edictal Citation) of the First
Schedule to the Supreme Court Rules.
(c) Any process referred to in paragraph (b), shall before publication thereof
be approved and signed by the registrar concerned.’
If, of course, an attorney has left the Republic ‘and probably does
not intend to return’ it could be said that he or she no longer
practises within  the  jurisdiction of  a  court  in  South  Africa.  But
s 22(2) contemplates that such an attorney would fall within the
ambit of s 22(1). The word ‘practises’ in s 22(1) must therefore be
construed as meaning ‘practises or has practised’. A contrary
construction would render s 22(2) meaningless. It would also result
in the anomalous situation that s 22(1) would not include an
attorney who had ceased to practise in anticipation of process
being served upon him or her.
[9] In Vassen v Law Society of the Cape of Good Hope 1998 (4)
SA 532 (SCA) the attorney in question had previously practised in
the jurisdiction of the Cape Provincial Division but by the time the
application for his removal from the roll was launched he no longer
practised and was employed by the Department of Foreign Affairs
in Pretoria. It was not contended that the Cape Provincial Division
lacked jurisdiction. Instead, it was argued that by virtue of the

wording of s 22(1) the appellant could not be struck from the roll as
he had ceased to practise and therefore was beyond the purview
of the section. In disposing of this contention Eksteen JA said at
537B-D:
‘Such a person should not be allowed to remain on the roll of attorneys so as
to be entitled to practise in the future, as he may have done in the past.
Indeed it seems to me that anyone who has been admitted and enrolled as an
attorney but has not yet commenced practising may be subject to being struck
off the roll in terms of this section [s 22(1)(d)] where he has committed such a
misdemeanour as to show that he is not a fit and proper person to remain on
the roll. The Act itself seems to contemplate such an eventuality if one has
regard to the provisions of ss 57(1), 71(1) and 72 (and more particularly s
72(6)).’
In the passage quoted the learned judge goes somewhat further
than in effect construing the word ‘practise’ in s 22(1) as including
‘has practised’. The section is stated also to apply to an attorney
who has been admitted and enrolled but who has not yet
commenced practising. But the Court was concerned only with the
case of an attorney who had ceased to practise. The statement
regarding an attorney who has not yet commenced to practise is
therefore obiter. There can be little doubt that the court which
admitted an attorney would have jurisdiction to strike him or her off
the roll on the grounds of not being a fit and proper person, even

although such attorney had not commenced practising. But
whether in such circumstances the court would be acting in terms
of s 22(1) (in which event the word ‘practises’ would have to be
read as including ‘entitled to practise’) or whether it would be
acting in the exercise of its inherent jurisdiction, need not be
decided.
[10] It is common cause that the respondent in the present case
previously practised within the jurisdiction of the Transvaal
Provincial Division. The Court a quo accordingly erred in holding
that it did not have jurisdiction to entertain the application to strike
him off the roll of attorneys.
[11] The appeal is upheld with costs. The order of the Court a
quo is set aside and the matter is referred back to the Court a quo
for determination of the merits of the application.

D G SCOTT

JUDGE OF APPEAL

CONCUR:

FARLAM

JA
CONRADIE
JA
VAN HEERDEN AJA
MOTATA
AJA