IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION, MTHATHA

CASE NO: 931/2013

Date Heard: 13 March 2014

Date Delivered: 17 April 2014

REPORTABLE

In the matter between

NTSIKANE ZIM MICHAEL MTSHABE Applicant

And

THE LAW SOCIETY OF THE CAPE OF GOOD HOPE Respondent

JUDGMENT

GOOSEN, J.

[1] This is an application for the readmission of a former attorney to the roll of

attorneys. The applicant was admitted as attorney during 1995 and commenced

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practicing for his own account during January 1996. On 26 July 2006 he was

convicted in the High Court on charges of fraud. The offences were committed in

the period between March and June 1998. On 4 December 2006 the trial court

sentenced the applicant to a period of eight years imprisonment. The applicant

prosecuted an appeal against his sentence, which was dismissed on 20 November

2008 and he commenced serving his sentence on 1 December 2008. On 29 April

2008, the applicant’s name was struck off the roll of attorneys at the instance of the

respondent. After serving a period of three years and seven months imprisonment

the applicant was released on parole on 25 June 2012. His period of parole

extends until 30 May 2015. He now seeks his readmission as an attorney.

[2] The application is not opposed. Instead the respondent has filed an affidavit in

which it states that it abides the decision of this court. The affidavit contains the

following averment:

“The Law Society, respectively (sic) reminds this Court to take into consideration, when deciding whether the Applicant should be readmitted, that the Applicant is on parole and that he will remain on parole until 2015 when he would have served his full sentence.”

[3] It also notes that the decision not to oppose the application was taken

“notwithstanding that the Applicant is a parolee”. The respondent was not

represented at the hearing of the application. I shall deal hereunder with the stance

adopted by the respondent in these proceedings.

[4] An application for readmission of an attorney is regulated by the Attorneys

Admission Act, Act 53 of 1979. Section 15 (3) of the Act provides that:

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“A court may, on application made in accordance with this Act, re-admit and re-enroll any person who was previously admitted and enrolled as an attorney and has been removed from or struck off the roll, as an attorney, if – (a) such person, in the discretion of the court, is a fit and proper person to be so readmitted and re-enrolled; and (b) the court is satisfied that he has complied with the provisions of subsection (1) (b) (ii).”

[5] In terms of section 16 of the Act any person who applies to the court to be admitted

or re-admitted and enrolled as an attorney is obliged to satisfy the society of the

province where he so applies, inter-alia, that he is a fit and proper person to be so

admitted or re-admitted and enrolled. Section 18 (2) contains provisions identical to

section 15 (2) in respect of the readmission and re-enrolment of a practitioner as a

notary or conveyancer.

[6] The principles applicable in a case such as this have been authoritatively set out in

Swartzberg v The Law Society of the Northern Provinces 2008 (5) SA 322 (SCA)

where the court at paragraph 14 stated that:

Where a person who has previously been struck off the roll of attorneys on the ground that he was not a fit and proper person to continue to practice as an attorney applies for his readmission,

“the onus is on him to convince the Court on a balance of probabilities that there has been a genuine, complete and permanent reformation on his part; that the defect of character or attitude which led to his being adjudged not fit and proper no longer exists; and that, if he is readmitted he will in future conduct himself as an honourable member of the profession, and will be someone who can be trusted to carry out the duties of an attorney in a satisfactory way as far as members of the public are concerned.”

(Per Corbett JA in Law Society, Transvaal v Berhman 1981 (4) SA 538 (A) at 557B – C.)

[7] In considering whether the onus is been discharged a court is called upon to have

regard to the nature and degree of the conduct which occasioned his removal from

the roll, the explanation afforded by him for such conduct; his actions in regard to

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an enquiry into his conduct and proceedings consequent thereon, including the

proceedings to secure his removal; the lapse of time between his removal and his

application for reinstatement; his activities subsequent to removal, the expression

of contrition by him and it’s genuineness and his efforts at repairing the harm which

his conduct may have occasioned to others (see in this regard Kudo v The Cape

Law Society 1972 (4) SA 342 (C) at 345H – 346). At paragraph 22 the court in

Swartzberg said that:

The fundamental question to be answered in an application of this kind is whether there has been a genuine, complete and permanent reformation on the appellant’s part. This involves an enquiry as to whether the defect of character or attitude which led to him being adjudged not fit and proper no longer exists. (Aarons at 294H.) Allied to that is an assessment of the appellant’s character reformation and the chances of his successful conformation in the future to the exacting demands of the profession that he seeks to re-enter. It is thus crucial for a court confronted with an application of this kind to determine what the particular defect of character or attitude was. More importantly, it is for the appellant himself to first properly and correctly identify the defect of character or attitude involved, and thereafter to act in accordance with that appreciation. For, until and unless there is such a cognitive appreciation on the part of the appellant, is difficult to see how the defect can be cured or corrected. It seems to me that any true and lasting reformation of necessity depends upon such appreciation.”

[8] The court In Swartzberg noted (at paragraph 27) that the question that confronts a

court dealing with an application for readmission is not whether the applicant has

been sufficiently punished for his misdeeds. The question is rather whether the

applicant is a person who can be safely trusted to faithfully discharge all of the

duties and obligations relating to the provision of an attorney. That is so because a

court by granting an application for readmission, pronounces that the individual

concerned is a fit and proper person.

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[9] Swartzberg concerned an appeal against a decision to refuse an application for

readmission of a former attorney who had been convicted of theft. The court noted

(at para 32) that:

Where a person is struck off the roll for the kind of conduct encountered here, he must realise that his prospects of being readmitted to what, after all, is an honourable profession, will be very slim indeed. Only in the most exceptional circumstances, where he has worked to expiate the results of the conduct and to satisfy the court that he has changed completely, will a court consider readmission at all (Visser v Cape Law Society 1930 CPD 159 at 160).

[10] In this instance the applicant was convicted of fraud. The fraud consisted in

marking fees and claiming disbursements in respect of each of six separate but

identical matters in which he was instructed by the State Attorney to act on behalf

of the Minister of Defence. Thus, if the applicant had consulted a witness for an

hour, he would charge for that hour consultation in each of the six matters, thereby

not only duplicating the charges for work done but charging for work not done. As a

result of this fraudulent conduct the applicant had been paid fees in excess of

R485,000.00.

[11] The applicant’s defence at trial was, in essence, that he had not drafted the

statements of account which had been submitted to the State Attorney for

payment, but rather that these accounts were drafted by a candidate attorney in his

employment. He also maintained that his signature where it appeared on certain

statements of account had been forged by staff members, including the candidate

attorney in his employment. The trial court, per Chetty J, made damning findings

against the applicant’s credibility. The learned judge stated the following (at para

34) :

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The accused’s blatant untruthfulness, highlighted in the aforementioned examples, permeated every aspect of his evidence. He was not only a shocking witness with no regard for the truth but moreover he was an extremely evasive witness, whose answers during cross examination bore little relation to the questions asked.

[12] Later, at para 37 of the judgment, Chetty J said:

I have hitherto adverted to various unsatisfactory features in the accused’s evidence and am satisfied that its poor quality demonstrates quite unequivocally that his evidence is a complete and utter fabrication. He is a patently dishonest witness and I reject his evidence in its entirety.”

[13] In this application the accused admits that he lied during his evidence before the

trial court. It is clear from the trial court’s judgment that the applicant not only lied

he also sought to impute criminal conduct to a candidate attorney, a fellow member

of the legal profession.

[14] Having regard therefore to the nature of the offence for which the applicant was

convicted as well as the dishonest and lying nature of the defence he proffered at

trial, it is apparent that that this is a matter in which the applicant must of necessity

realise that his prospects of being readmitted to the profession of attorneys must

be very slim indeed. In order to gain any prospect of re-admission the applicant will

have to discharge a heavy onus to demonstrate by clear and convincing evidence

that he has indeed reformed and that he is now a fit and proper person.

[15] It is in the light of this that I turn to consideration of the evidence presented by the

applicant in this application.

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[16] The essence of the applicant’s case that he is now a fit and proper person to be

readmitted to the roll of attorneys is that he has, as a result of his incarceration,

come to appreciate that what he did was wrong and, as he describes it, sinful. He

states that:

It is my contention that the purpose of the court in sending me to incarceration was not to punish me per se, but to allow me to cool down, relax, consider my future, undergo corrective training in terms of character; and also to make sure that other attorneys operate above board.

[17] He goes on to state the following as being the basis upon which he seeks

readmission having reformed his character.

“Greed caused me to be lost in that I did not have regard for the society at the time of committing the offence. I am extremely sorry for having cheated South African taxpayers. I am very sorry for all that I have done. And this is not just lip service. Here, I am giving to you my unreserved apology and to the people of South Africa in general. There are no excuses for my greed. What I did was wrong. Duplicating claims and claiming abnormally more than the tariff, coupled with lying in court about my candidate attorney was extremely wrong. I was a man of the cloth [Lay Minister] even at the time of committing these offences. This means that I cheated even against my God; and as such I could not escape punishment, as I was expected to be the leading role model. I am asking for your forgiveness; and pleading for a second chance. I’ve done a terrible blunder, which is more than a mistake. I’m convinced that there is still more for me to do in the world outside there. I can still contribute effectively to the advancement of the legal profession by being involved in debates and speeches on character as it can be seen from the affidavits of Mr Velilo Tinto and Mr Hymie Zilwa attached herewith. My incarceration will surely assist other attorneys, as I’m convinced that should opportunities arise for me to address them on fraud and corruption I would be ever willing to do so. I know that forgiveness is an undeserved privilege, but I appeal and plead with the court to erase my sin and allow me to start afresh. You are the body which possesses the power to forgive me, so my sin can be erased and my guilt removed. Once granted readmission, I promise and undertake to be a responsible citizen. Some will learn from me and repent. My being forgiven will lead me to a proper integration back into the society. Your forgiveness of my sin will bring me back into the loving embrace of the law society. The law society used to love me dearly, and they still do, but it was I who let them down through greed. This will not happen again, and this is a promise.”

[18] Elsewhere in the affidavit the applicant describes his period of incarceration as a

sabbatical and as an opportunity to rediscover and reunite with his God.

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[19] He sets out in the affidavit that he engaged, whilst incarcerated, in ministering to

other inmates and that he sought to assist other inmates to come to the realisation

of the error of their ways. He was involved in a Prisoners’ Management

Committee. He also taught mathematics to other inmates and assisted them with

their studies. He undertook postgraduate studies and obtained a Master of Laws

degree from the University of South Africa which was conferred on him in 2011.

The applicant participated in a number of life skills and other programmes offered

by the Department of Correctional Services to inmates.

[20] On the basis of these activities and in particular on the basis that he is now a “born

again” Christian he considers that he is entirely reformed in his character and

accordingly that he is a fit and proper person to be readmitted to the roll of

attorneys.

[21] The applicant also states that whilst incarcerated he sought to reconcile with his

former candidate attorney, to whom he apologised for the hurt that he caused to

her by lying about her at his trial. A supporting affidavit deposed to by the former

candidate attorney confirms that he has apologised to her and that she has

accepted his apology.

[22] The applicant also filed supporting affidavits by, inter-alia, a former inmate who

served in prison with him to whom the applicant had offered assistance in securing

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employment once that inmate was released from prison. The supporting affidavits

also include affidavits deposed to by members of the African National Congress, of

which he is a member; the South African Democratic Teachers Union, of which he

is a former member and members of the Department of Correctional Services, who

confirmed that the applicant played a positive role whilst incarcerated.

[23] It is instructive however to consider how the applicant describes the offence for

which he was convicted. Although he does state in terms that he committed fraud

and that he lied during his criminal trial, he refers to his underlying actions as being

overcharging according to the tariff and that he overreached by duplicating fees for

work done. He also refers to having committed a “blunder that is more than a

mistake”. His use of these terms suggests that he does not fully appreciate the

nature of his misconduct and the particularly offensive conduct of which he was

found guilty. It is not without significance that applicant opposed the respondent’s

application to strike his name from the roll vehemently. As indicated in the

judgment of Jones J in that application (see Law Society of the Cape of Good Hope

v Ntsikane Zim Mtshabe ECHC Mthaha Case No.743/2007 unreported), the

applicant brought a counter application in which several points were taken

challenging the authority of the Law Society to bring the application and alleging

that his rights to procedural fairness had been infringed. Jones J found that the

counter application was without any merit and dismissed it. The learned judge said

the following (at p. 16) about the applicant’s insight into the nature of his conduct:

A reading of the respondent’s papers in this application reveals anything but recognition of the seriousness of the fraud which he committed, anything but a need for a complete change of character. His attitude, and that of some of his

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character witnesses, is that he is guilty of no more than “a blunder”; or “making a mistake”; or merely overcharging his clients; or an error of judgment for which he requires no more than a rap over the knuckles by way of sanction. He was even so misguided as to suggest that the Law Society is somehow to blame for his default: the notion is that, apparently, that he should have been taught to submit proper accounts to his clients. Is he really saying that the Law Society should train candidate attorneys how not to draw up fraudulent accounts? He refers in his documents to cases where forgiveness has publicly been given to prominent political personalities for serious offences, including offences of dishonesty. The terms in which he does so give rise to an inference that he does not appreciate that what he did is particularly offensive because he is an attorney and not a member of some other profession or organization. There is no evidence of soul-searching or of coming to terms over the past ten years with the seriousness of what he did. There is no factual basis upon which we can with conviction hold that what he did in the past should not preclude him from practice n the future. (emphasis added)

[24] Although we are here concerned with whether there is evidence of reformation of

character since he was struck off the roll it is striking that the applicant persists in

this application in characterizing his conduct in terms similar to those he employed

at the time of the striking off application. Here too he speaks of “overreaching” by

“charging beyond the tariff”. He has attached to his papers an affidavit submitted by

him in an application for a tax amnesty arising from his failure to properly account

for VAT. In that affidavit, deposed to on 19 February 2013, the applicant says:

7. I have been running a successful legal practice from 1996 until 2008 when I lost my legal battle with the Justice system resulting in me having to go to prison for 8 years. 10. My case of fraud involved overcharging a client, being the State, to an amount of R458 000 during and around June 1998. 12. I continued to pay the money until around October 2005 and by this time I had paid R235 000 to the State. The judgment above does have reference to this amount. The reason for me to stop paying was because it was common cause that not all the fraud money was due to the State as I had performed all the work associated with the fraud and the statements. 13. Whilst in prison I arranged restorative justice by way of telephoning the Asset Forfeiture Unit (AFU) so that we can reach an agreement on the money I must pay back to the State. My intentions were to close the matter so that when I come out of prison, I am not being saddled with arranging negotiations for settlement as I was still owing the State some money.

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14. I need to mention that not all the fraud money was due to the State as I had done the work for them, but I had only inflated the claims beyond the tariff.

[25] The applicant’s insistence that he had “only inflated the claims beyond the tariff”

reflects little or no understanding of the nature of his misconduct as an attorney.

[26] A reading of his papers in this application also shows his lack of appreciation of the

extent of his dishonesty – in particular that he resorted to a wholly dishonest and

fabricated defence in which he sought to apportion responsibility for his conduct to

other persons. He deals with his lying defence only cursorily by remarking that:

I also lied in court by saying that the statements were not done / drafted by me but by my candidate attorney. I went on to state that the signature on the statements was not mine and yet it was mine. I said this as I thought that lying would save me but instead it ditched me into the deep end of the ocean. For that matter lying has never helped anyone. I should have known better. As times went on, I then decided to approach Ms Majokweni, whom I have lied about and apologize to her. She accepted my apology and has completely and unreservedly forgiven me for having lied about her.

And further on in his affidavit:

As a responsible citizen and a grownup it is not right to lie about other people more so those who are under your supervision. May the Lord not punish me for this sin.

[27] These statements about such fundamental requirements of honesty and integrity

and trustworthiness that are necessary features of being a fit and proper person to

enter the legal profession are startlingly facile. They reflect a profound lack of

appreciation of the character defects that gave rise to him being struck off. There is

here no evidence of careful and considered soul-searching such as is required in

order to demonstrate that the defect in character has been addressed and that the

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applicant is indeed reformed (cf. Law Society of the Cape of Good Hope v Ntsikane

Zim Mtshabe (supra) p.15). In Ex parte Aarons 1985 (3) SA 286 (T) at 294H the

court said of this requirement,

It is equally important, I believe, to enquire whether the applicant himself properly and correctly identifies and appreciates the defect of character or attitude involved. Unless there is such proper and correct appreciation by the applicant, it is difficult to see how the defect can be corrected or cured or eradicated and how there can be true reformation which is reliable and lasting.

[28] His description of being “born again” and his resort to a stylized biblical rhetoric

capturing the image of the prodigal son returned does not provide a substantive

basis upon which a balance of probabilities can be determined. These

proceedings are not about “forgiveness” or about “pardoning” the “sins” of the

errant practitioner. The applicant is required to discharge a burden of proof. His

faith in his God and his sense of salvation based on that faith does not assist in

determining probabilities. It is his own case that he was a lay minister at the time

of the commission of these offences. From this it must be assumed that he was at

the time – at least outwardly – functioning in accordance with the tenets of the faith

that he now says will preclude him from any further transgressions. We have only

his word to go on. That word must be evaluated in the context of what is known

about the serious defects in his character which rendered him unfit to be an

attorney of this Court.

[29] Nor do the assessments of his faith-based character by external observers add

weight to his assertion of being reformed. Whilst their assessment may be founded

upon good faith and they may be entirely credible in their assertions, these

assertions provide no guarantee upon which this court can rely in discharging its

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duty to protect the public and ensure the proper administration of justice. As

observed by Jones J (supra p.15) “(a) long list of witnesses to good character is

ordinarily not enough … even if they establish that the attorney has outwardly

become a pillar of society” to prove a complete and genuine transformation of

character.

[30] We accept that the applicant has made considerable efforts both within prison and

subsequent to his release on parole to demonstrate his commitment to reform of

his character. We accept also that he has sought to maintain his interest in law and

has, it appears, kept abreast of legal developments. We are however not

persuaded that he has by clear and convincing evidence demonstrated that he has

indeed reformed his character and that he is now a fit and proper person to be re-

admitted and enrolled as an attorney.

[31] Quite apart from the lack of persuasive evidence that this is so, there is the

fundamental question as to whether a person who is presently on parole for a

serious offence for which he was sentenced to undergo eight years imprisonment

can be re-admitted and enrolled as an attorney.

[32] As far as we have been able to ascertain this question has not been considered or

decided by a Court in South Africa. We are aware that an application was launched

in the Kwa-Zulu Natal High Court for the re-admission of an attorney who was on

parole having been convicted of rape. As far as we have been able to ascertain

that matter was postponed and has not been finally adjudicated.

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[33] We were referred in argument to a judgment delivered by the Supreme Court of

Colorado in Michael T Miranda v The People of the State of Colorado (case no

10PDJ097, 17 April 2012 accessed at www.caselaw.findlaw.com/co-supreme-

court-disciplinary-judge/1608188.html) in which a legal practitioner was re-admitted

to practice whilst on parole. In that matter the applicant had been convicted of

driving his vehicle whilst intoxicated and causing the death of a person. He was

sentenced to eight years in prison followed by five years of mandatory parole. His

law license was suspended for two years. The facts in that matter, as set out in the

judgment, are wholly distinguishable from the present case. The court there found

that there was indeed clear and convincing evidence of the applicant’s

rehabilitation. He had for instance refrained from drinking since the motor vehicle

accident had occurred, had since then participated in programmes run by

Alcoholics Anonymous; had expressed remorse and demonstrated appreciation of

the nature of his conduct and its consequences.

[34] In dealing with the principle at stake in re-admitting a person whilst still on parole

the court said the following:

We are also cognizant that some members of the public might find unseemly the reinstatement of a newly-paroled felon to membership in the bar. As the People argue, “the privilege of practicing law should not be extended when doing so will directly undermine the very integrity of the legal system”. Petitioner, on the other hand, counters that allowing him to establish a legal practice as parolee will not be seen as a panoptic black mark on the profession. Rather, his status as parolee may simply inform individual clients’ perception of his character and their decision to hire him for their legal work. Further, he says, his reinstatement would rightfully bring to an end his disciplinary suspension – which was set at two years but has stretched to almost five – and signal the beginning of the restoration of his life in the legal community. As the People observe, this a matter of first impression: the Colorado Supreme Court has not addressed whether a parolee may properly be reinstated or readmitted to the practice of law. The people cite case law from sister

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jurisdictions rejecting parolees’ applications for reinstatement, but we find those decisions factually distinguishable, inasmuch as the gravity of the applicants’ criminal offenses in those cases reflects substantially more serious moral turpitude and thus represents a much larger hurdle to reinstatement. And even though some jurisdictions do apply a per se rule excluding parolees from the practice of law, the Hearing Board does not view Petitioner’s status as a parolee as an insuperable obstacle to his reinstatement. Instead, we conclude that the fact that Petitioner is serving a parole sentence ought to be considered as but one element in the totality of the circumstances in order to determine whether his resumption of legal practice will be injurious to the public. (Footnotes omitted)

[35] The court concluded that there was no risk of injury to the public and granted the

applicant’s reinstatement. The court nevertheless imposed conditions upon the

applicant in that matter including, significantly, an obligation to disclose in writing to

and to discuss with all prospective clients his status as parolee and that he obtain

written informed consent from such client confirming that he had disclosed his

status.

[36] The passages quoted referred to several decisions of the Supreme Courts of other

states of the United States in which a different approach was adopted. We were

unable to source all of these decisions.

[37] In the matter of In Re Lazcano, 222 P. 3d 896 (2010) (a decision referred to by the

Colorado Supreme Court) the Supreme Court of Arizona considered the question

whether a person who was on a Texas felony deferred adjudication1 may be

admitted to practice law in Arizona. The facts were that the applicant, whilst an

undergraduate student in Texas in 2002, had been arrested and indicted for

burglary and sexual assault. Under a plea agreement he pleaded no contest to a 1 A person on deferred adjudication is treated, in terms of the Texas Penal Code, as if the charge is still pending (see In re Lazcano fn 1).

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reduced charge of attempted sexual assault. The Texas court deferred adjudication

while the applicant completed a ten-year term of probation. After graduating from

law school he passed the Arizona bar examination and sought admission to

practice in 2008. The Arizona Committee on Character Fitness by majority

recommended admission. The matter came before the Supreme Court by way of

review and the court sought submissions on the question as to the effect of the

deferred adjudication on the applicant’s fitness to practice law.

[38] The court noted that the principles generally applicable to decisions regarding

admission to practice require that applicants must demonstrate that they possess

good moral character. In evaluating this courts consider past misconduct to see

what it reveals about the applicant’s present moral character. The court also

considers the lapse of time since the conduct and the evidence of rehabilitation.

The courts are at all times concerned with the protection of the public.

[39] The court in that matter stated that an applicant who seeks to establish his

rehabilitation must show “that he has both (1) accepted responsibility for his past

misconduct, and (2) identified and overcome the weakness that led to the unlawful

conduct”.

[40] In turning to the central issue before it the court said the following (at par 11):

Cases from across the country uniformly require individuals convicted of crimes to complete their court-ordered supervision before applying for admission or reinstatement. See, e.g., In re Culpepper, 770 F.Supp. 366, 373 (E.D. Mich. 1991) (reinstatement); Seide v. Comm. Of Bar Exam’rs, 49 Cal. 3d 933, 264 Cal. Rptr. 361, 782 P.2d 602, 607 (1989) (admission); In re Dortch, 860 A.2d 346, 362-63 (D.C. 2004) (admission); In re Pahules, 382 So. 2d 650, 651 (Fla. 1980) (reinstatement); In re Thompson, 365 N.W.2d 262, 265 (Minn. 1985)

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(reinstatement); In re Walgren, 104 Wash. 2d 557, 708 P.2d 380, 388 (1985) (reinstatement). These courts reason that because probationers typically behave well while on probation, admissions authorities cannot adequately evaluate rehabilitation until the applicant has successfully completed probation; application before completion of a probationary term is deemed premature. See, e.g., Seide, 264 Cal. Rptr. 361, 782 P.2d at 607. Most also require significant time to elapse following the end of probation so that the applicant can demonstrate sustained rehabilitation. e.g. id. at 605 (“It is not enough that petitioner kept out of trouble while being watched on probation; he must affirmatively demonstrate over a prolonged period his sincere regret and rehabilitation.”); see also In re Polin, 596 A.2d 50, 53-54 (D.C. 1981). These requirements comport with Arizona’s requirement that an applicant with a felony conviction must show by clear and convincing evidence that he has been rehabilitated. Cf. Arrotta, 208 Ariz. at 512 ¶ 12, 96 P. 3d at 216 (requiring clear and convincing evidence of rehabilitation).

[41] The judgment proceeds to deal with the question of public interest and says the

following at paragraphs 15 and 16:

¶ 15 In regulating attorney admissions, our primary responsibility is to protect the public. Arrotta, 208 Ariz. at 512 ¶¶ 11-12, 96 P. 3d at 216. We must determine whether an applicant for admission possess the necessary qualifications to fulfill his or her responsibilities to the court and the Arizona public. See In re Shannon, 179 Ariz. 52. 77. 876 P.2d 548, 573 (1994). The good moral character required for admission to the Bar “is something more than an absence of bad character”; it requires that the applicant has acted as a person ”of upright character ordinarily would, should, or does.” In re Walker, 112 Ariz. 134, 138, 539 P. 2d 891 (1975) (quoting In re Farmer, 191 N.C. 235, 131 S.E. 661, 663 (1926)). Because law is a self-regulating profession, we require attorneys to demonstrate exemplary moral character. ¶ 16 It would “ero[de] … public confidence in the legal profession and the administration of justice were we to admit an applicant who is still on parole for crimes as serious as those committed by [the applicant].” Dortch, 860 A. 2d at 348. We therefore conclude that admitting a felon currently serving deferred adjudication for a serious offense does not serve the interests of the public and legal community.

[42] The court accordingly denied the application for admission.

[43] The principles enunciated in Lazcano find expression also in our law and appear

not to be significantly at variance with the approach generally adopted in South

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African courts. In our law an applicant who seeks re-admission after being struck

off the roll of attorneys bears an onus appropriately described as a heavy onus. ( cf

Law Society, Transvaal v Berhman 1981 (4) SA 538 (A). Such applicant is required

to establish his or rehabilitation on the basis of clear and convincing evidence (see

Swartzberg (supra); Berhman (supra); Aarons (supra)). It is also necessary for the

applicant to establish that he / she has rehabilitated himself which requires a

demonstration that the applicant has recognised the character defect giving rise to

his misconduct and that he has demonstrably corrected it.

[44] Just as in the jurisdictions of the United States our courts too are primarily

concerned with the protection of the public and in protecting the proper

administration of justice. Public interest necessarily plays a critical role in the

decision to re-admit to practice a person previously struck off the roll of attorneys.

The protection of the public against unscrupulous legal practitioners goes hand in

hand with the courts’ obligation to protect the integrity of the courts and the legal

profession. Public confidence in the legal profession and in the courts is

necessarily undermined when the strict requirements for rehabilitation are diluted.

[45] In our view considerations of public policy and legal policy are critical in

determining whether as a matter of principle a parolee may be re-admitted to the

roll of attorneys.

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[46] A useful starting point is with the system of parole itself. Parole involves the

conditional release of a prisoner from prison. “Parole” is defined in the Correctional

Services Act 111 of 1998 to mean a form of community correction regulated by

Chapter VI of the Act. In terms of s 73(5) a sentenced prisoner may be placed

under correctional supervision, day parole, parole or medical parole on a date

determined by the Correctional Supervision and Parole Board. Such placement on

parole is subject to the provisions of Chapter VI. The objectives of the system of

community corrections are to enable sentenced offenders (a) to serve their

sentences in a non-custodial manner; (b) to lead socially responsible and crime

free lives during the period of parole and thereafter; (c) to be rehabilitated as an

integral part of society; and (d) to be fully integrated into society when they have

completed their sentences (see s 50 of the Act).

[47] Section 73(1) stipulates that, subject to the provisions of the Act, a sentenced

offender remains in a correctional centre for the full period of the sentence.

Subsection (2) states that a sentenced offender “must be released from a

correctional centre and from any form of community corrections imposed in lieu of

part of a sentence of incarceration when the term of incarceration imposed has

expired”.

[48] These provisions make it clear that parole is a form of correction which may be

imposed upon a sentenced prisoner in order to meet the broader objectives of

rehabilitating and reintegrating offenders into the community. Parole is a particular

form of correction utilized by the Department of Correctional Services as an adjunct

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to incarceration. Section 52 makes provision for the imposition of a range of

conditions and limitations which may be imposed upon an offender upon whom a

form of community correction has been imposed. Section 70, in turn, deals with

non-compliance with conditions imposed. It makes provision for a range of

measures to be taken by the National Commissioner, including the issuing of a

warrant for the arrest and detention of the person concerned. Where a person who

is on parole is arrested and detained, that person must be brought before a court

within 48 hours and the court must make an order as to the further detention of the

person and the referral of the matter to the Parole Board (see s 70(2)(b) of the Act).

[49] What emerges from consideration of the provisions relating to parole is that parole

is a mechanism by which an offender may be conditionally reintegrated into society

as part of the process of rehabilitation which correctional facilities seek to ensure.

[50] Central to the concept of parole is the idea that the offender is in the process of

being re-integrated into society. It implies that it is a conditional process which is

not at odds with the objects of incarceration. Importantly the sentence which has

been imposed is not discharged by release on parole. Hence, the conditional

nature of the release.

[51] Taking this into consideration it must be accepted that the status of a parolee is not

the equivalent of one who has been unconditionally released from prison as having

served his or her sentence of imprisonment.

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[52] When the status of a parolee is considered it seems to us wholly contrary to public

policy that a person in that position can be regarded as being a fit and proper

person to be admitted as a legal practitioner. Although it seems to us to be an

absolute bar to readmission we need not decide that it is so, mindful that there may

well be circumstances in which a person is on parole for an offence which does not

ipso facto render the person unfit to hold office as an attorney.

[53] In this instance, taking into account the nature of the offence for which the

applicant was convicted and the reasons for him having been struck off the roll of

attorneys we are of the view that his status as a parolee precludes his re-admission

as an attorney of this court.

[54] It was argued on behalf of the applicant that should we find that he is a fit and

proper person but for his status as a parolee this court should admit the applicant

but suspend him from practice for his own account until such time as the period of

parole has expired and impose upon him a condition similar to that imposed in the

Colorado matter.

[55] I have doubts about whether such an order would be competent in the light of the

nature of the proceedings for re-admission. I need not however decide the issue in

the light of the conclusions to which we have come regarding the applicant being a

fit and proper person to be re-admitted.

[56] What remains to be considered is the stance adopted by the respondent in these

proceedings. As already indicated the respondent did not oppose “notwithstanding

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that the applicant is a parolee”. As noted above, section 16 of the Act requires a

person who seeks his or her admission or readmission as an attorney to satisfy the

law society concerned that he or she is a fit and proper person to be admitted and

enrolled as an attorney.

[57] The statement made by the respondent, indicating that it does not oppose the

admission of the applicant must necessarily mean that the respondent was indeed

persuaded that the applicant is a fit and proper person to be admitted as an

attorney “notwithstanding that the applicant is a parolee”. In order to have adopted

this view of the application the respondent must have considered the fact that the

applicant is a parolee. Quite how the respondent could have considered that this

fact in itself does not disqualify the applicant in the light of the complete lack of

legal precedent relating to the effect that being on parole has upon an application

for readmission as an attorney defies explanation.

[58] Chapter 3 of the Act deals with the powers and functions of law societies. In terms

of section 57 every practitioner who practices in any province, whether for his own

account or otherwise, shall be obliged to be a member of the society of that

province. The objects of the Society are set out in section 58. That section

provides, inter-alia, that the objects of the society shall be:

(a) to maintain and enhance the prestige, status and dignity of the profession; (b) to regulate the exercise of the profession; (c) … (d), to deal with all matters relating to the interests of the profession and to protect those interests; (e) (f) (g) to provide for the effective control of the professional conduct of practitioners;

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(h) to promote uniform practice and discipline among practitioners; (i) (j) (k) to represent generally the views of the profession; and (l) in the interests of the profession in the Republic, to cooperate with such other societies or bodies of persons as it may deem fit.

[59] It is clear from these objects, and the several provisions relating to disciplinary

matters provided for in Chapter 3 of the Act, that a law society is required to

develop and maintain professional and ethical standards not only in the interests of

the profession as a whole, but also in the interests of the public.

[60] In relation to the public a law society is required to exercise disciplinary authority

over its members. In doing so it must act in the public interest as well as in the

interests of the profession as a whole. These obligations impose upon a law

society particular responsibilities. In the first instance, a law society is accountable

to the public at large in respect of the exercise of its disciplinary powers. Secondly,

it is obliged to ensure that its members maintain the highest standards of

professional ethics and conduct as are applicable to members of an honourable

profession. Thirdly, a law society is obliged to exercise its powers in relation to

disciplinary matters, whether or not those disciplinary proceedings are such as

provided for by the Act or the disciplinary proceedings which are sui generis, and in

respect of which the courts exercise jurisdiction.

[61] This latter obligation requires a law society to fulfill its responsibility as an

interested party in disciplinary proceedings which serve before the High Court.

Proceedings for the suspension or removal from the roll of attorneys of a

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practitioner are such proceedings. Ordinarily such proceedings are initiated by the

law society concerned and in those instances, the relevant law society functions as

a pro forma prosecutor in the disciplinary process before a court. In so acting a law

society, it has long been recognised, fulfills its obligation both to the profession and

to the public at large.

[62] Proceedings for the admission or re-admission of an attorney, although not strictly

disciplinary in nature, are likewise proceedings which necessarily require the

participation of a relevant law society. In such proceedings although the law society

concerned is a necessary party and is ordinarily cited as a respondent, the

particular role that it plays in relation to the court proceedings goes beyond that of

an ordinary party to legal proceedings. In such instances the law society also

stands as amicus curiae in relation to the court seized with the matter. This is so

because an application for admission or readmission cannot be made without

certain jurisdictional facts having been established. In the case of an admission the

law society is required to certify that the applicant has complied with all of the

formal requirements necessary for admission and that in its view there is no bar to

the admission of the practitioner concerned. In the case of an application for

readmission as an attorney the law society concerned is required to certify not only

that the formal requirements for admission have been met (namely those set out in

section 15 (1)) but also that it is satisfied that the applicant is a fit and proper

person to be readmitted. (See section 16 (1)).

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[63] In the light of these obligations and, in particular, in the light of the respondent’s

duty to protect both the interests of the profession and the public interest, it is

extraordinary that the respondent did not consider it necessary, notwithstanding its

decision not to oppose the application, to appear at the hearing of the matter and to

advance submissions in relation to the matter which would assist the court in the

exercise of its discretion. This is all the more astonishing in the light of the fact that

this application raised novel and potentially far-reaching and significant questions

of principle regarding the readmission of an attorney who is still on parole for a very

serious offence.

[64] In my view the law society failed in its statutory obligations, both to the public and

to this court, and its conduct in relation to this application is to be deprecated.

[65] Lest it be misunderstood: it is not suggested that the respondent was obliged to

oppose this application. The respondent is of course entitled to have taken a

decision not to oppose the application on the basis that it was satisfied that the

applicant is indeed a fit and proper person to be readmitted and enrolled. But then,

in the light of the particular circumstances of the matter, it was obliged to justify that

decision and to place before this court appropriate submissions regarding the re-

admission of the applicant notwithstanding that the he is a parolee. It did not do so

and in failing to do so it failed to comply with its statutory obligations.

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[66] In the light of the fact that the application is not opposed it is not necessary to make

any order as to costs. In the circumstances I would make the following order:

The application is dismissed.

G. GOOSEN JUDGE OF THE HIGH COURT GRIFFITHS, J. I agree. It is so ordered. R. GRIFFITHS JUDGE OF THE HIGH COURT Appearances: For the Applicant R. Quinn SC Instructed by X. M. Petse Inc