The Law Society of the Northern Provinces v Mutshutshu Wilson Mamatho

The respondent was admitted as an attorney in the Transvaal Provincial Division (TPD) on 25 November 1986 and practised there until 2 July 1996. On that date, Swart J granted an order suspending him from practising within the TPD jurisdiction, excluding the area formerly known as Venda. From 2 July 1996, the respondent ceased practising in the TPD and instead practiced at Thohoyandou within the jurisdiction of the Venda High Court. The Law Society of the Northern Provinces (formerly the Law Society of the Transvaal) brought an application to strike the respondent off the roll of attorneys on grounds that he failed to submit an audit certificate for the year ending February 1999 and was practising without a fidelity fund certificate as required by s 42(3) of the Attorneys Act 53 of 1979. The respondent raised a point in limine that the TPD lacked jurisdiction because he was no longer practising within its jurisdiction at the time the application was launched.

• Whether the Transvaal Provincial Division had jurisdiction under s 22(1)(d) of the Attorneys Act 53 of 1979 to strike off an attorney who was admitted in that Division but was now practising in a different jurisdiction
• Whether the word 'practises' in s 22(1)(d) of the Act should be interpreted to include 'has practised'
• Whether the court's inherent jurisdiction to discipline attorneys was excluded by s 22(1)(d) of the Attorneys Act

The appeal was upheld with costs. The order of the court a quo was set aside and the matter was referred back to the court a quo for determination of the merits of the application to strike the respondent off the roll of attorneys.

The word 'practises' in s 22(1)(d) of the Attorneys Act 53 of 1979 must be construed as meaning 'practises or has practised'. A court therefore has jurisdiction under s 22(1)(d) to strike off or suspend an attorney who previously practised within its jurisdiction, even if that attorney has since ceased to practise within that jurisdiction and is now practising elsewhere. This interpretation is necessary to give effect to s 22(2) of the Act and to prevent the anomalous situation where an attorney could evade disciplinary proceedings by ceasing to practise in anticipation of such proceedings.

In Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA), Eksteen JA stated that s 22(1)(d) may also apply to an attorney who has been admitted and enrolled but has not yet commenced practising. Scott JA noted this was obiter as the Court in Vassen was only concerned with an attorney who had ceased to practise. Scott JA also observed that there can be little doubt that the court which admitted an attorney would have jurisdiction to strike him or her off the roll on grounds of not being a fit and proper person, even if such attorney had not commenced practising, but left open whether this would be under s 22(1) (requiring 'practises' to include 'entitled to practise') or under the court's inherent jurisdiction. The Court also noted that s 22 has been construed as not limiting the inherent power of a court to discipline its practitioners, and courts have on occasion exercised discipline in manners not falling within the ambit of s 22.

This case is significant for establishing the proper interpretation of s 22(1)(d) of the Attorneys Act 53 of 1979 regarding territorial jurisdiction. It clarifies that a court retains jurisdiction to strike off an attorney who was admitted and practised in its jurisdiction, even if that attorney subsequently moved to practice in a different jurisdiction. The case prevents attorneys from evading disciplinary proceedings simply by relocating their practice to another area. It is important for understanding the ongoing relationship between an attorney and the court of admission, and for the regulatory framework governing legal practitioners in South Africa across different territorial divisions.