A W F Middelberg v Die Prokureursorde van Transvaal

The Law Society of Transvaal (respondent) brought an application by way of notice of motion in terms of Rule 6 of the Uniform Court Rules in July 1997 in the Transvaal Provincial Division for the striking off of the appellant (an admitted attorney) from the roll of attorneys of that Division, and certain ancillary relief. After lengthy proceedings, the appellant was struck from the roll on 5 October 1998 by a court consisting of Van Coller and Combrinck JJ, and the additional relief was granted. On 19 October 1998, the appellant filed a notice of appeal purportedly in terms of section 21 of the Supreme Court Act 59 of 1959. No leave to appeal was sought or obtained beforehand. The notice of appeal was 19 pages long.

• Whether the striking off of an attorney from the roll constitutes 'civil proceedings' within the meaning of section 20(1) and (4) of the Supreme Court Act 59 of 1959
• Whether leave to appeal is required to appeal against an order striking an attorney from the roll
• Whether the Supreme Court of Appeal has jurisdiction to hear an appeal in the absence of leave to appeal

The case was struck from the roll. The appellant was ordered to pay the costs on a party-and-party basis (the respondent's request for attorney-and-client costs was refused).

Applications for the striking off of an attorney from the roll, although sui generis and disciplinary in nature, constitute 'civil proceedings' within the meaning of section 20(1) and (4) of the Supreme Court Act 59 of 1959. The term 'civil proceedings' in section 20 has a wide meaning and encompasses more than 'civil suits' or 'civil actions'. From a procedural perspective, striking-off applications possess all the characteristics of civil proceedings. Consequently, leave to appeal is required in terms of section 20(4) of the Act before an appeal can be brought to the Supreme Court of Appeal. Leave to appeal is a jurisdictional prerequisite, not merely a technical obstacle. The Supreme Court of Appeal has no jurisdiction to hear an appeal in the absence of leave to appeal, and cannot grant such leave unless it was first sought and refused in the court below.

Smalberger ADCJ observed that there is no principled reason or public interest consideration why striking-off applications should be exempted from the general rule requiring leave to appeal. The court noted that the legislative amendments to sections 20 and 21 of the Supreme Court Act were specifically designed to ensure that only cases with reasonable prospects of success reach the appellate court, thereby reducing its workload and preventing it from being burdened with insignificant appeals. The court expressed regret that a case which had already been long-delayed could not be finally disposed of, but noted that the appellant must bear responsibility for not following the decision in Louw's case, of which he (or his advisers) should have been aware.

This judgment conclusively established that applications to strike attorneys from the roll constitute 'civil proceedings' within the meaning of section 20(1) and (4) of the Supreme Court Act 59 of 1959, and that leave to appeal is therefore required in such matters. It resolved a conflict in the case law and overruled the contrary decision in Cape Law Society v Solomon and Jackson. The judgment clarifies the scope of 'civil proceedings' and reinforces the legislative policy that leave to appeal is required for all civil matters before the Supreme Court of Appeal. It is significant for legal practitioners facing disciplinary proceedings and confirms the procedural requirements for appealing such decisions.