Case No 78/98

IN THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

In the matter between

FAROUK JASAT APPELLANT

and

NATAL LAW SOCIETY RESPONDENT

CORAM : F H GROSSKOPF, NIENABER, MARAIS, SCOTT et

ZULMAN JJA
HEARD : 20 MARCH 2000

DELIVERED : 28 MARCH 2000

Attorney committing perjury in criminal proceedings and suborning another

to do likewise - struck off roll.

JUDGMENT
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SCOTT JA/....

SCOTT JA:

[1] The appellant practises as an attorney in Pietermaritzburg. He appeals

to this Court against an order of the Natal Provincial Division striking his name off

the roll of attorneys.

[2] In July 1993 the appellant was charged with housebreaking with intent

to steal and theft. On 12 December 1994 he was convicted in the Regional Court

of housebreaking with intent to trespass and was sentenced to a fine of

R 3000. He appealed to the Natal Provincial Division. The appeal was dismissed

on 5 December 1995. On appeal to this Court the conviction was altered to

“housebreaking with the intent of contravening s 1(1)(a) of the Trespass Act, 1959,

and the contravention thereof”; the appeal was otherwise dismissed. The judgment,

which was delivered on 7 March 1997, has been reported - see S v Jasat 1997 (1)

SACR 489 (SCA).

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[3] Shortly thereafter the respondent launched the proceedings resulting

in the order against which the appellant now appeals. In its founding papers the

respondent relied not only on the appellant’s conviction but also on his conduct

at the criminal trial, viz the raising of what was described by the respondent’s chief

executive officer as “a specious alibi defence”.

[4] It is necessary to set out the facts of the criminal case. I shall do so

in brief as they appear more fully from the reported judgment of Nienaber JA in S

v Jasat, supra. On Friday 2 April 1993 an attorney, Mr Baboo Akoo who practised

from a suite of offices in Loop Street, Pietermaritzburg, fled the country for

London. On Sunday 4 April 1993 he telephoned his clerk, Mr Chutterpaul, to say

that he would not be returning to South Africa. He suggested that Chutterpaul help

himself to certain items in the office, including the law reports. The latter

commendably declined to do so and reported the matter to the Natal Law Society

instead. The following day, Monday 5 April 1993, Mr Rees, an executive officer of
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the respondent, took control of the premises. He had the lock to the front door

changed; he also had a duplicate key made for a filing cabinet which, according to

Chutterpaul, contained files relating to the appellant. On the same day the appellant

telephoned Rees; he told him that certain files in the office belonged to him and that

he was anxious to recover them. Rees’s attitude was that no files would be

released to the appellant until the Law Society had been appointed curator bonis

and the appellant had signed the usual form indemnifying the Law Society. The

following day, Tuesday 6 April 1993, was a public holiday. Mr Pienaar, a

consulting engineer who worked in the office next door to that of Akoo,

encountered two men at the entrance. The one was carrying a box of files, the

other, whom Pienaar later identified as the appellant, was busy wiping the aluminium

frame of the door to Akoo’s offices. When confronted, the man with the files said

that they were from “Special Security Services” and that they had been sent to

collect files. After they had gone Pienaar examined the lock. It had been forced. He
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thereupon telephoned the police. In the meantime, Mr Dlamini, a security guard on

duty in the building, had recorded the registration numbers of all motor vehicles

parked in the parking area. One of them was a vehicle which proved to be registered

in the name of a company of which the appellant was the sole director. Dlamini also

observed this vehicle being driven by a person whom he described as an “Indian

male”. On learning that a break-in had occurred, Rees arrived at the premises at

about 11 am. The first thing he noticed was that the filing cabinet for which he had

had a key made was missing. The appellant denied that he had broken into Akoo’s

office or arranged for someone else to do so. He testified that at the relevant time

he and Akoo’s cousin, Mr Yusuf Akoo, were busy hiring a truck for the purpose

of assisting Akoo’s wife to move house. Mr Yusuf Akoo gave evidence in support

of the appellant’s alibi.

[5] The Regional Court rejected the appellant’s alibi. Because, however,

the State had failed to establish that the filing cabinet and the missing files belonged
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to someone other than the appellant, he was convicted of housebreaking with intent

to trespass and trespass as opposed to housebreaking with intent to steal and theft.

As previously indicated the conviction was confirmed on appeal to the High Court

but altered in a minor respect on appeal to this Court.

[6] In his answering affidavit filed in the striking-off proceedings the

appellant admitted for the first time that he had lied under oath at the criminal trial.

He said that he had indeed entered Akoo’s premises and removed the steel filing

cabinet as well as other files and that he had been correctly identified by Mr Pienaar.

He contended, however, that by reason of his alibi defence all the facts relating to

his conduct had not emerged during the criminal proceedings and that he was not

guilty of the offence of which he had been convicted as he honestly believed that

he was entitled to enter Akoo’s premises when he did. In addition, he sought to

explain how it had came about that he had lied in court and contended that his

conduct and conviction notwithstanding, he remained a fit and proper person to

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continue practising as an attorney.

[7] In short, the appellant’s explanation, as amplified in evidence, was the

following. He said that he and his brother practised in partnership for many years

until the latter suffered a heart attack. For some years prior to the termination of

their partnership, the relationship between the two of them had been acrimonious.

In 1992, after his brother had removed confidential documents from his safe, the

appellant arranged with Akoo for the latter to accommodate a steel filing cabinet in

his office in which the appellant could keep certain confidential documents and

files. The cabinet was also to be used for storing Akoo’s own files which related

to matters in which Akoo acted for the appellant. The appellant paid for the cabinet

and both retained a key. On discovering that Akoo had fled, the appellant believed

it essential to recover his files and documents before their confidentiality was

compromised or before they fell into the hands of his brother. On Monday 5 April

1993 the appellant telephoned Rees to arrange for the urgent retrieval of his files.
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Rees was uncooperative and advised the appellant that he would have to wait until

a curator bonis had been appointed. The appellant said he then telephoned Akoo

in London who had no objection to the appellant removing his papers. The

appellant obtained the keys to the office from Mrs Akoo but found that the lock

had been changed. He said he then telephoned a Mr Myburgh who had links with

a security firm and arranged for the latter to meet him on Monday evening at

Akoo’s office. The appellant said he thought Myburgh would know of a locksmith

who would be able to open the door. On arriving at Akoo’s office he found

Myburgh and two other persons whom he assumed to be locksmiths waiting for

him. The door of the office was already open. The appellant explained that in his

haste he had forgotten his key to the steel filing cabinet. To save him the trouble of

going to fetch it, he simply removed the whole filing cabinet. He left Myburgh to

close up the office. On arriving home he discovered there were a number of his files

still in Akoo’s office. He accordingly arranged to meet Myburgh at Akoo’s office

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the next morning. He said that on his arrival he found Myburgh waiting for him. The

latter opened the door and the appellant retrieved the missing files. On leaving the

office, the appellant said, he observed that the lock had been forced the previous

day. While he was examining the lock they were confronted by Pienaar who wanted

to know what they were doing. Myburgh falsely said that they were from a security

company. The appellant explained that he was preoccupied with the lock and

admittedly said nothing to contradict Myburgh’s false explanation.

[8] Later, and upon reflection, he realised that the forced lock and false

explanation would create the wrong impression. He testified that as far as he was

concerned he had committed no crime. He had merely retrieved his own property

with Akoo’s permission. He contended that the Law Society had no right to change

the locks and take control of the premises until it had been appointed curator bonis.

In the event, the application for the appointment of a curator was only launched on

15 April 1993. The appellant decided, however, to do nothing and see what
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happened. In July 1993 he was suddenly approached by the police and arrested.

He was required to attend an identity parade where Pienaar pointed him out. He

explained that he “became panicky” and, fearing he would be disbelieved if he told

the truth, simply denied his presence at Akoo’s offices on the day in question. He

said that thereafter he “succumbed to the temptation” of perpetuating the lie.

[9] The Court a quo (Broome DJP and Mthiyane J) found it unnecessary

to consider whether on the facts disclosed by the appellant he was guilty of the

offence of which he was ultimately convicted. (It did, however, refer to certain

features of the appellant’s version which it considered improbable.) Instead, the

Court a quo came to the conclusion that the appellant’s conduct in advancing a

specious alibi defence, knowingly giving false evidence in support of it and calling

a witness to support his false evidence, had demonstrated that he was not a fit and

proper person to continue to practise as an attorney and that he should be struck

off the roll. In this Court counsel for the appellant contended that having regard to
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all the circumstances of the case the Court a quo had erred in not only holding that

the appellant was not a fit and proper person to continue to practise as an attorney

but also in striking him off the roll rather than suspending him from practise for a

limited period.

[10] The relevant provisions of s 22(1) of the Attorneys Act 53 of 1979

read as follows:

“22(1) 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.”

In Reyneke v Wetsgenootskap van die Kaap die Goeie Hoop 1994 (1) SA 359 (A)

at 369 D it was pointed out that the section requires a twofold inquiry. However,

before one gets to the two inquiries referred to, there is a preliminary question that

must be answered. Ultimately, therefore, what is contemplated is a three-staged

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inquiry. First, the court must decide whether the alleged offending conduct has

been established on a preponderance of probabilities. (See for eg Nyembezi v Law

Society, Natal 1981 (2) SA 752 (A) at 756 H - 758 A where the Court was

concerned with the equivalent section in the now repealed Attorneys, Notaries and

Conveyancers Admission Act 23 of 1934; see also Kekana v Society of Advocates

of South Africa 1998 (4) SA 649 (SCA) at 654 D in relation to s 7 of the Admission

of Advocates Act 74 of 1964.) The second inquiry is whether, as stated in s 22 (1)

(d), the person concerned “in the discretion of the Court” is not a fit and proper

person to continue to practise. The words italicised were inserted in 1984 (see Law

Society of the Cape of Good Hope v C 1986 (1) SA 616 (A) at 637 B - C). It would

seem clear, however, that in the context of the section, the exercise of the discretion

referred to involves in reality a weighing up of the conduct complained of against

the conduct expected of an attorney and, to this extent, a value judgment. The

discretion is that of the court of first instance. It is well established that a court of
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appeal has a limited power to interfere and will only do so on well recognised

grounds, viz where the court of first instance arrived at its conclusion capriciously,

or upon wrong principle, or where it has not brought its unbiased judgment to bear

on the question or where it has not acted for substantial reasons (Law Society of

the Cape of Good Hope v C, supra, at 637 D - H; Reyneke v Wetsgenootskap

van die Kaap die Goeie Hoop, supra, at 369 E - G; Vassen v Law Society of the

Cape of Good Hope 1998 (4) SA 532 (SCA) at 537 D - G.) The third inquiry is

whether in all the circumstances the person in question is to be removed from the

roll of attorneys or whether an order suspending him from practice for a specified

period will suffice. This is similarly a matter for the discretion of the court of first

instance and the power of a court of appeal to interfere is likewise limited. Whether

a court will adopt the one course or the other will depend upon such factors as the

nature of the conduct complained of, the extent to which it reflects upon the

person’s character or shows him to be unworthy to remain in the ranks of an

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honourable profession (Incorporated Law Society, Transvaal v Mandela 1954 (3)

SA 102 (T) at 108 D - E), the likelihood or otherwise of a repetition of such

conduct and the need to protect the public. Ultimately it is a question of degree.

[11] The conduct of the appellant on which the Court a quo based its

conclusion was not in dispute. However, it was submitted in this Court on behalf

of the appellant that the Court below had misdirected itself in regard to both the

second and third leg of the inquiry by over-emphasizing the importance of

truthfulness and concluding that

“[t]here can be absolutely no question but that an untruthful person is

not a fit and proper person to practise as an attorney”.

[12] This Court has in the past stressed that the profession of an attorney

is an honourable one and as such demands “complete honesty, reliability and

integrity from its members”. (Vassen v Law Society of the Cape of Good Hope,

supra, at 538 G). Similar statements have been made with regard to advocates. (See
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for eg Kekana v Society of Advocates of South Africa, supra, at 655 G - H.) But

this does not mean that any untruthfulness however trifling will render an attorney

unfit to practise and liable to be struck off the roll. As important as the requirements

of honesty, reliability and integrity are, each case must undoubtedly be examined

in the light of its own facts and circumstances.

[13] Despite the somewhat categorical statement (quoted above) in the

judgment of Broome DJP, who delivered the judgment of the Court a quo. I am far

from satisfied that the learned judge intended his comments to be interpreted to

mean that once it was found that the appellant had been untruthful that was the end

of the matter. On the contrary, the judge went to some length to distinguish the

appellant’s conduct from what he referred to as “the sudden impetuous telling of

a lie”. This is apparent from the following passage in the judgment.

“This just cannot be treated simply as the sudden impetuous telling of

a lie. The fact of the matter is that he was party to the lie that his
accomplice Myburgh told to Pienaar, and he was then, at the latest,
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aware of foul play in the sense that the door had been forced, and he
himself told a lie (when first approached by police). That may well
have been ill advised and something of which he did not foresee the
consequences. But that was only the beginning. He persisted in telling
lies thereafter. And this continued for a long time. He stood by these
lies from July 1993 non stop until he delivered his answering affidavit
on 31 July 1997. Not only that, but he set about embroidering his
untrue version, attempting to bolster it with the false evidence of
Yusuf Akoo, challenging the Applicant’s right to do what it had done,
and causing the reliability of the main State witnesses, Mr Dlamini and
Mr Pienaar to be impeached. This was indeed a protracted attempt
to deceive the courts. As he frankly conceded in evidence, had the
decision in the Supreme Court of Appeal gone his way, he would have
been content to have let it rest, that is to say let sleeping dogs lie and
stood by his lies. He added that it would have been on his
conscience.”

The above statement I think fairly reflects the appellant’s conduct. There is only

one aspect which I would emphasize; that is that not only did the appellant himself

commit perjury, but he suborned another to do so in order to lend credence to his

own false evidence. Even assuming there was a misdirection on the part of the

Court a quo in the respect alleged in par 11 above so that this Court would be free
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to interfere, the conduct of the appellant, seen in its totality, is such that in my

judgment there can be no doubt that it demonstrates him to be not a fit and proper

person to continue to practise as an attorney. Furthermore, I can see no proper

basis for an order merely suspending him from practice rather than an order striking

him from the roll of attorneys. It follows that in my view the appeal must fail.

[14] A further issue between parties in this Court concerned the record of

the evidence in the criminal proceedings. It was not included in the appeal record

prepared by the appellant. The respondent objected to its omission and furnished

six copies to the Registrar together with a petition to this Court to have the appeal

record supplemented by the addition of what I shall simply call the “criminal

record”. The respondent opposed the relief sought. The real issue between the

parties is who is to pay the costs of producing the criminal record.

[15] It is necessary to sketch briefly the background to the dispute. The

founding papers filed on behalf of the respondent contained an undertaking that the
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criminal record would be made available at the hearing. On this basis it was not

annexed as part of the record. In its replying affidavit the respondent took up a

different attitude. This appears from the following passage.

“Respondent [appellant in this appeal] has brought into issue the

correctness of his conviction for various reasons and it is now
essential to introduce into the record of this matter the transcript of the
Regional Court trial. This was referred to in my founding affidavit. A
copy of this record will be filed evenly with this affidavit and will be
referred to herein as “the Record”.

A copy of the criminal record was accordingly filed by the respondent together

with its replying affidavit. At a pre-trial conference the appellant was requested to

admit the correctness of the criminal record. He, or rather his legal representatives,

responded by indicating that the record would be covered by a paragraph of the

minutes of the pre-trial conference (par 4.3) in which it was recorded that the parties

would “consider the status of the documents when they are seen” and that the

provisions of Rule 35 (9) would be applicable. In response to a question by the

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Court a quo as to the status of the criminal record, counsel for the respondent

indicated in his opening address that in pursuance of par 4.3 of the minute the

criminal record was “admitted without challenge”. There is nothing in the appeal

record to suggest that the correctness of this statement was put in issue.

[16] On receipt of the appellant’s answering affidavit the respondent found

itself faced with a situation it could hardly have anticipated. It was not unreasonable

for it to require that the criminal record be placed before the Court a quo. The

record would have been relevant not only to test the appellant’s new allegations

regarding his admitted conduct against facts which emerged in the criminal trial, but

also to establish the full extent of the appellant’s dishonesty and the context in

which he had lied both before and during the criminal proceedings.

[17] The criminal record was before the Court a quo when it was called

upon to decide the application. In the absence of an agreement between the parties

or some other good cause I can seen no reason why it should not have been before
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this Court when deciding the appeal. Depending on the course of the argument it

may well have been necessary to consult the criminal record. The respondent

expressed concern in its petition that the absence of the criminal record might result

in an adjournment or delay in the hearing of the appeal. Its concern was not

unreasonable. It follows that in my view the petition must be allowed.

[18] In the result the following order is made.

(a) The appeal is dismissed with costs.

(b) The respondent’s petition dated 24 June 1998 is upheld with

costs, such costs to include the cost of the criminal record.

D G SCOTT
JUDGE OF APPEAL

F H GROSSKOPF JA)
NIENABER JA) - Concur
ZULMAN JA)
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THE SUPREME COURT OF APPEAL

OF SOUTH AFRICA

Case No: 78/98

In the matter between

FAROUK JASAT Appellant

and

NATAL LAW SOCIETY Respondent

CORAM: GROSSKOPF, NIENABER, MARAIS, SCOTT et ZULMAN JJA

DATE HEARD: 20 March 2000

DATE DELIVERED: 28 March 2000

JUDGMENT

MARAIS JA
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MARAIS JA:

For reasons which it is unnecessary to dwell upon I am not sure that there was no

misdirection involved in the court a quo’s exposition of what it considered to be

the appropriate point of departure when dealing with an attorney who has been

untruthful in a respect relevant to his calling. However I need come to no firm

conclusion in that regard because, for the reasons given by my brother Scott, I am

satisfied that, even if this court were at large in the matter, the result should be the

same. I agree with the orders made.

R M MARAIS
JUDGE OF APPEAL
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