Law Society of the Northern Provinces v Viljoen; Law Society of the Northern Provinces v Dykes

The Law Society of the Northern Provinces and its Secretary refused to issue fidelity fund certificates for 2010 to several practising attorneys (Viljoen, Dykes and partners) on the basis of a council resolution adopted on 22 June 2009. The resolution provided that where the Law Society had resolved to apply for an attorney’s suspension or removal from the roll, a fidelity fund certificate should not be issued unless good reason existed. At the time of the applications, proceedings to strike the respondents’ names from the roll were pending, but no court order suspending them from practice existed. The respondents had applied in the prescribed form and complied with the ordinary statutory requirements. They successfully obtained mandamus orders in the North Gauteng High Court compelling the Secretary to issue the certificates. The Law Society appealed to the Supreme Court of Appeal.

Both appeals were dismissed with costs. The Secretary was obliged to issue fidelity fund certificates to the respondents.

The case clarifies the limits of a Law Society’s administrative powers in relation to fidelity fund certificates and affirms that disciplinary or striking-off proceedings do not, without a court order, justify preventing an attorney from practising. It reinforces the distinction between administrative regulation of trust accounts and judicial control over an attorney’s fitness to practise.