The appellant, an attorney practicing in Pietermaritzburg, was convicted of housebreaking with intent to trespass in the Regional Court in December 1994. The conviction arose from events in April 1993 when the appellant broke into the office of another attorney, Baboo Akoo, who had fled to London. The appellant removed a steel filing cabinet and files from Akoo's office after the Natal Law Society had taken control of the premises and changed the locks. When confronted at the scene by a consulting engineer (Mr Pienaar), the appellant's accomplice falsely claimed to be from "Special Security Services." At his criminal trial, the appellant raised a false alibi defense, testifying that he was elsewhere at the time hiring a truck with Yusuf Akoo. He called Yusuf Akoo as a witness to support this false alibi. The conviction was confirmed on appeal to the High Court and the Supreme Court of Appeal (S v Jasat 1997 (1) SACR 489 (SCA)). In the subsequent striking-off proceedings, the appellant admitted for the first time that he had lied under oath and had indeed entered Akoo's premises, but contended he believed he was entitled to retrieve his files which were stored there and that the forced lock created a wrong impression.
The appeal was dismissed with costs. The respondent's petition dated 24 June 1998 to supplement the appeal record with the criminal trial record was upheld with costs, including the cost of producing that record. The striking-off order of the Natal Provincial Division was confirmed.
An attorney who commits perjury in criminal proceedings and suborns another witness to give false evidence in support of a false alibi, and who persists in this dishonesty over an extended period, is not a fit and proper person to continue practising as an attorney and should be struck off the roll. The three-staged inquiry under section 22(1)(d) of the Attorneys Act requires: (1) proof of the conduct on a balance of probabilities; (2) a discretionary value judgment whether the conduct renders the person unfit to practice (subject to limited appellate interference); and (3) a discretionary determination of the appropriate sanction. While not every instance of untruthfulness will render an attorney unfit to practice, deliberate, sustained and aggravated dishonesty involving perjury and subornation in judicial proceedings demonstrates unfitness warranting removal from the roll. The profession of attorney is an honourable one demanding complete honesty, reliability and integrity from its members.
Scott JA observed (with Marais JA expressing some uncertainty on this point) that the court a quo's statement that "there can be absolutely no question but that an untruthful person is not a fit and proper person to practise as an attorney" was somewhat categorical and should not be interpreted to mean that any untruthfulness, however trifling, will automatically render an attorney unfit to practice. Each case must be examined in light of its own facts and circumstances. The Court noted that the court a quo had in fact distinguished the appellant's conduct from "the sudden impetuous telling of a lie" and had properly considered the sustained and aggravated nature of the dishonesty. The Court also made observations about the factors relevant to determining whether to strike off or suspend, including: the nature of the conduct, the extent to which it reflects on character or shows unworthiness to remain in an honourable profession, the likelihood of repetition, and the need to protect the public.
This case is significant in South African legal practice law as it clarifies the three-staged inquiry applicable to disciplinary proceedings under section 22(1)(d) of the Attorneys Act 53 of 1979 (now replaced by the Legal Practice Act). It emphasizes that while the legal profession demands complete honesty, reliability and integrity, each case must be examined on its own facts. The case demonstrates that perjury and subornation of perjury by an attorney in legal proceedings, particularly when part of a sustained and deliberate pattern of dishonesty rather than an impulsive lie, will ordinarily result in striking off rather than suspension. It reinforces that attorneys owe a fundamental duty of honesty to the courts and that breach of this duty strikes at the heart of their fitness to practice. The judgment also clarifies the limited basis on which appellate courts can interfere with disciplinary decisions involving the exercise of discretion by courts of first instance.