THE
HIGH COURT OF SWAZILAND
CHARLES
CARL SNYMAN Petitioner
Civil
Case No. 1962/99
Coram
ANNANDALE ACJ MAPHALALAJ
For
the Petitioner; MR. V. DLAMINI
Amicus
Curae: MR. S. SIMELANE
JUDGMENT
(17/06/2004)
ANNANDALE
ACJ ET MAPHALALAJ
The
Petitioner has filed a petition in terms of the provisions of the
Legal Practitioner's Act for readmission and enrolment as an attorney
of the High Court of the Kingdom of Swaziland. The Petitioner was
admitted and enrolled as an attorney of this court on the 27th
November 1985 and was removed from the roll of attorneys on the 12th
June 1991 on the ground that he had conducted himself
unprofessionally and further contravened Section 13 (1) of the Legal
Practitioner's Amended Act 1988 in that he failed to furnish an audit
certificate as required by the aforesaid Act.
At
the commencement of the petition we invited amicus curae to assist us
in this matter.
In
support of his petition the petitioner states the following:
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"Your
petitioner has learnt through bitter experience and in future shall
not allow laxity to set in regarding his duties as an attorney.
Further, your petitioner has no intention to set up practice on his
own for the next five years but is intent on serving under the
supervision of attorneys ".
In
paragraph 14 of his petition he continues to aver as follows:
"In
consequence upon all the facts stated above your petitioner humbly
submits that he has rehabilitated and therefore now is a fit and
proper person to be re-admitted as an attorney of this court."
He
also annexed a certificate from the messenger of court in the
District of Manzini one Duncan Thring to the effect that he has known
the petitioner for a period of over fifteen years and that recently
the petitioner has assisted him in his duties and in his opinion he
is a fit and proper person to be re-admitted as an attorney of the
courts of Swaziland.
He
further annexed an affidavit of Mr. Titus Mdumo Mlangeni who is a
practising attorney of this court, who expresses the opinion that the
petitioner is a fit and proper person to be re-admitted as an
attorney of this court and that he certainly deserves a second
chance.
Initially
the petition was opposed by the Bar Council of the Law Society of
Swaziland in an opposing affidavit by the then President of the Law
Society of Swaziland. Various grounds were advanced for its
opposition and for present purposes it is not necessary to consider
them, as subsequently in an affidavit dated the 10th September 2003
by its current President Mr. S.M. Kubheka, the opposing affidavit was
withdrawn. He further states in the said affidavit that the Bar
Council of the Law Society of Swaziland has no objection to the
re-admission of the petitioner as an attorney of the High Court of
the Kingdom of Swaziland.
The
Attorney General has also filed his Certificate in terms of Section
30 of the Act signifying that he has no objection to the petitioner
being re-admitted and enrolled as an attorney of this court subject
to two conditions. Firstly, that the petitioner shall
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upon
re-admission practice as a professional assistant under the direct
and personal supervision of a senior attorney for a period not
exceeding five (5) years from date of re-admission, during which
period the petitioner shall not be eligible to practice for his own
account. Secondly, the agreement between the petitioner and the
senior attorney is to be communicated to the Attorney General and the
Registrar of the High Court.
It
is trite law that the issue as to whether a petitioner is a fit and
proper person to be re-admitted is a question of fact The petitioner
though bears the onus of proving on a balance of probabilities that
he has reformed himself. According to what was held in the case of
Nathan vs Natal Law Society and another 1999 (1) S.A. 706 (C) such
onus was no heavier in applications for re-admission than in the case
of ordinary applications for admission to the profession.
In
the Transvaal Provisional Division case of Kaplan vs Incorporated Law
Society, Transvaal 1981 (2) S.A. 762 (T) Boshoff JP when considering
a similar section in South Africa being Section 15 of the Attorneys
Act No. 53 of 1979 held inter alia that the section leaves with the
court a discretion to decide whether or not an Applicant is a fit and
proper person to be admitted as an attorney. In exercising its
discretion whether or not the Applicant is a fit and proper person to
be re-admitted as an attorney, the court will have to consider his
personal qualities and decide whether he is fit and proper in
relation to such matters as prestige, status and dignity of the
profession, and the integrity, standards of professional conduct and
responsibility of practitioners. In the case where an Applicant was
previously struck off the roll for . unprofessional, dishonourable or
disgraceful conduct it would at least be necessary for him to satisfy
the court that he has undergone a complete and permanent reformation
in respect of such conduct. In this regard the investigation of the
court would relate to (a) the nature and particulars of the conduct
that gave rise to the striking off, (b) the behaviour of the
Applicant after the conduct became known and (c) the question of
whether it could with complete confidence be accepted that the
Applicant is a fit and proper person to be re-admitted as an attorney
in relation to the matters mentioned above.
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In
the present case, it would appear to us that the petitioner has
indeed made a full disclosure of all the relevant facts giving rise
to his misdemeanour. It would also appear to us that the petitioner
has rehabilitated himself as evidenced by what has been stated by the
messenger of court in Manzini Mr. D. Thring. The affidavit of
attorney Mr. T. Mlangeni further lends more weight towards the
conclusion that the petitioner is now a fit and proper person to be
re-admitted. Furthermore, the Attorney General has also put his full
weight in favour of the re-admission of the petitioner. The Bar
Council of the Law Society of Swaziland also supports the petition.
Therefore the cumulative effect of all these facts leads us to
conclude that the petitioner has discharged his onus of proof that he
is a fit and proper person to be admitted. We are however, in
agreement with the Attorney General that such re-admission should be
accompanied by certain conditions and in this regard Mr. Simelane who
acted as amicus cunae agreed with us.
We
also wish to put it on record that we are indebted to the useful
submissions made by Mr. Simelane in his role as amicus cunae where he
went beyond the call of duty in assisting us.
In
the result, it is ordered that subject to compliance with the
following conditions, the petitioner is re-admitted to be enrolled
and to practice as an attorney of the High Court of Swaziland:
(1)
That the petitioner practises under the direct and personal
supervision of a senior attorney as a professional assistant for a
period of five years. During this period, the petitioner shall not be
permitted to practice for his own account. This period may be
ameliorated after the lapse of three years, by way of a substantively
motivated application to court, supported by the Law Society, the
Attorney General and the supervising senior attorney, whereby good
cause may be shown to dispense with the further supervising of the
petitioner.
(2)
All books of account inclusive of the Trust Account which relate to
the petitioner shall be audited by an independent certified auditor
every six months from the date that the petitioner commences to
practice as an attorney. Within a period of twenty one days after the
expiry of such
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period
at six months, the auditor's report shall be filed with the Registrar
of the High Court, the Attorney General and the Secretary of
the
Law Society, failing which the re-admission of the petitioner shall
be deemed to have lapsed, unless leave of court has been sought and
obtained to file such auditor's report within such further period as
ordered by court.
(3)
The supervising senior attorney, whose role shall be subject to prior
approval by the Attorney General, shall be obliged to certify the
good conduct of the petitioner every six months to the Registrar of
the High Court, the Attorney General and the Secretary of the Law
Society, within a period of fourteen days after the expiry of such
period of six months,
(4)
Proof of payment by the petitioner of his contribution to the
Fidelity Trust Fund shall be filed annually, not later than the
commencement of the High Court legal year, with the Registrar of the
High Court, the Attorney General and the Secretary of the Law
Society, failing which the re-admission of the petitioner shall be
deemed to have lapsed, unless leave of court has been sought and
obtained to file such proof of payment within such further period as
ordered by court.
JP
ANNANDANLE ACJ
S.B.
MAP HAL ALA J
Delivered
on......17th.........June 2004
