General Council of the Bar of South Africa v Rösemann 2002 (1) SA 235 (C)In the case of Rösemann, an application was brought to the Cape Provincial Division, in terms of s 7(1)(d) of the Admission of Advocates Act 74 of 1964 for an order that the name of advocate, Eckhard Rösemann, be struck off the roll of advocates on the ground of professional misconduct, or for alternative relief, and for costs on the scale as between attorney and client.
According to the court application the applicant complained that the respondent –
‘(a) … on two occasions … signed on behalf of the plaintiffs concerned, his clients, and caused to be issued out of a magistrate’s court two summonses, in one of which he gave his own address as the address at which process in the action could be served on the plaintiff;
(b) … on two other occasions he signed two notices of motion in a magistrate’s court on behalf of the applicant concerned, his client, over words “applicant/prokureur vir applikant”’.
The court pointed out that the applicant contended that actions by the respondent were professionally improper, as the work was usually performed by an attorney. The court said that the respondent’s conduct in that regard was not denied by him. The court added that the respondent averred that the attorney in Pretoria gave him specific instructions to perform each item of work being complained about by the applicant. The court said the respondent adopted the attitude that, as long as he was performing the work as her agent, properly instructed by her, he was not acting unprofessionally.
The court added that the respondent pointed out that, in the case of the two summonses, his name and signature were followed by the ‘per opdraggewende prokureur Louanda Fourie Ingelyf’. As for the two notices of motion, the respondent conceded that they contain no reference to an instructing attorney, however, he put it down to a computer error. According to the respondent he acted throughout as the agent of his instructing attorney.
The respondent contended that it is not improper for an advocate, provided he is instructed by an attorney, to sign pleadings in the magistrates’ court, including summonses and notices of motion, as he had done. The respondent submitted that there is no prohibition against such a practice to be found in the Magistrates’ Courts Act 32 of 1944 or in the Magistrates’ Court Rules and he relied on certain provisions in the enactments sanction therefor. The court added that the respondent denied that he had undertaken work normally performed by an attorney.
Before the court handed down the judgment, Thring J explained – in summary – the functions of an attorney when instructed by a client. The court said that there is certain work, which is properly within exclusive ambit of the functions of the attorney who has been instructed by their client to act for them. The court added that such work is usually done best, and most cost-effectively, by the attorney or their clerk and not by counsel. The court pointed out that the advocate’s profession is a referral profession. That the advocate is the specialist in forensic skills and in giving expert advice on legal matters (In re Rome 1991 (3) SA 291 (A) at 306B).
The court explained that the attorney on the other hand, takes care of matters such as the investigation of the facts, the issuing and service of process, the discovery and inspection of documents, the procuring of evidence and attendance of witnesses, the execution of judgments, and the like (De Freitas and Another v Society of Advocates of Natal and Another 2001 (3) SA 750 (SCA) at 757C – D). The court further said that, it is not proper for an attorney to shuffle off such functions onto the shoulders on an advocate by simply briefing the latter to attend to them on their own, nor can it be proper for counsel to accept such a brief. The court noted that there is no objection to counsel being briefed to advise an attorney on how to deal with a specific problem, which may have arisen in a particular matter, for example, in connection with discovery, or the service of process, or execution of an order, or to assist an attorney in drafting a particular document or settle its terms.
The court pointed out that in the first two affidavits the respondent said that in any event if it was improper for him to perform the functions he did, he held the bona fide belief at the time that it was not improper, having made inquiries in various quarters and not having been given any clear indication to the contrary. He, therefore, denied that he had at any time acted in deliberate breach of the order against him. The court referred to two other cases. The first was General Council of the Bar of South Africa v Van der Spuy 1999 (1) SA 577 (T) in which judgment was handed down on 23 March 1998. An application for leave to appeal in the matter was dismissed with costs by the Supreme Court of Appeal (SCA) on 19 September 2001. The second matter was the Society of Advocates Natal v De Freitas and Another (Natal Law Society Intervening) 1997 (4) SA 1134 (N), in which the judgment of the Full Bench of the Natal Provincial Division was delivered on 25 September 1997.
An application for leave to appeal then went to the SCA, which handed down judgment on 9 March 2001 sub nom De Freitas and Another v Society of Advocates of Natal and Another 2001 (3) SA 750 (SCA). The application for leave to appeal was dismissed with costs. Thring J said that the respondent’s attention was drawn by the Cape Bar Council to the decisions in the Van der Spuy case and the De Freitas (in the Natal Provincial Division) case as long ago as September 1998. The respondent’s written response dated 18 September 1998.
The court added that it was important to point out that during January and February 2000, when the conduct of the respondent that was being complained about was committed, the respondent was fully aware of the Van de Spuy and De Freitas cases. The court said one would not expect otherwise from a practising advocate, especially as the decisions impinged directly on him and his style of practising.
The court said that the mere fact that the respondent had instructions from an attorney to act as he did was insufficient to render his conduct necessarily proper, instead it depended on the work he was ‘briefed’ to do. The court found that signing and issuing summonses and notices of motion in the magistrate’s court and furnishing an address for the service of process is work normally performed by and is part of normal functions of an attorney. The court also had regard to the attorney’s averment that he had at all times acted bona fide and had been unaware of the impropriety of his conduct.
The court as it had explained said the respondent’s explanation should be rejected, as he could not have been labouring under any misapprehension as to what the notices of motion said, nor indeed, does he say that he laboured under any such misapprehension. It follows that he could not have bona fide believed that he was acting properly. That he must have known that his conduct in furnishing his address as address service of process was improper and that it had been clearly held to be so as long ago as 1965 in the Beyers v Pretoria Balieraad 1966 (2) SA 593 (A).
The court pointed out that it found it extremely difficult to accept the respondent’s bona fides when there were several reported decisions available to him, given in various divisions of the court, to guide him, especially in the Van der Spuy case and the De Freitas case in the Natal Provincial Division. The court added that the respondent adopted the attitude that signing and issuing pleadings in the magistrate’s court is not dealt with in those cases. ‘He is mistaken, as appears from what I have said above (see Van der Spuy case 611A and the De Freitas case in the Natal Provincial Division at 1173G),’ Thring J said. The court pointed out that had the respondent read those judgments properly he would have known that his conduct was improper.
The court made the following order:
‘1. The application was granted in part. It was held that the respondent was guilty of professional misconduct in the respects set out in the judgment.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2021 (March) DR 30.
