Case No: 220/98
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter between:
GARETH ANVER PRINCE
Appellant
and
THE PRESIDENT OF THE LAW SOCIETY
OF THE CAPE OF GOOD HOPE
1st  Respondent
THE LAW SOCIETY OF THE
CAPE OF GOOD HOPE
2nd Respondent
THE SECRETARY OF THE LAW SOCIETY
OF THE CAPE OF GOOD HOPE
3rd Respondent
THE MINISTER OF JUSTICE
4th Respondent
THE ATTORNEY GENERAL OF THE
CAPE OF GOOD HOPE
5th Respondent
CORAM:
HEFER, VIVIER, OLIVIER, ZULMAN JJA and
MTHIYANE AJA
DATE OF HEARING:
17 FEBRUARY 2000
DELIVERY DATE: 25 May 2000
Candidate attorney - contract of community service - Whether applicant for
registration is a fit and proper person if he persists in using cannabis in the
observance of his Rastafarian religion - General prohibition in s 4 (b) of Act 140 of
1992 and s 22A (10) of Act 101 of 1065 not unconstitutional.
JUDGMENT
HEFER JA

HEFER JA
[1] Section 4A of the Attorneys Act 53 of 1979 (“the Attorneys Act”) requires
a candidate attorney who intends to perform community service as part of his
training,  to submit his contract of service to the secretary of the relevant Law
Society and to prove to the satisfaction of the Society that he is “a fit and proper
person.”   If the council of the Society has no objection and all the other
requirements have been met, the secretary registers the contract and the candidate
may begin his service.
[2] On 15 February 1997 the appellant submitted his contract of community
service to the secretary of the Law Society of the Cape of Good Hope together
with an affidavit to prove his fitness.   It appeared from the affidavit that he had
twice been convicted under s 4(b) of the Drugs and Drug Trafficking Act  140 of
1992 (“the Drugs Act”) for the unlawful   possession of cannabis sativa (cannabis).
The affidavit made it clear moreover that the appellant intended to continue using
the drug.   His explanation that he is a Rastafarian and that he uses cannabis in the
observance of his religion failed to persuade the council of his fitness.   The council

objected to the registration of the contract and the secretary refused to register it.
[3] The appellant then applied in the Cape Provincial Division for an order
reviewing and setting aside the council’s decision and directing the secretary of the
Society to register the contract.   Friedman JP (with Brand and Hlophe JJ
concurring) dismissed the application but granted the appellant leave to appeal to
this Court.
[4] At the outset it is necessary to record the following:
(a)
Initially the sole ground of review was that the refusal to register his contract
violated the appellant’s constitutional freedom of religion and other constitutionally
protected rights.   The Law Society and its president were cited as the only
respondents and its secretary was joined later.   (In this judgment the Law Society,
the president and the secretary will be referred to collectively as the Society unless
it becomes necessary to refer to any one of them separately.)   Still later, when  it
emerged from the appellant’s heads of argument  that it would be argued that s 4(b)
of the Drugs Act was unconstitutional, the application was served on the Minister
of Justice, the Minister of Health and the Attorney-General of the Cape of Good

Hope.   The  Minister of Justice and the Attorney-General applied for and were
granted leave to intervene in the proceedings and both of them opposed a
declaration that s 4(b) is unconstitutional.
(b)
In his papers the Attorney-General drew attention to s 22A(10) of the
Medicines and Related Substances Control Act 101 of 1965 (“the Medicines Act”)
which also contains a prohibition against the possession and use of cannabis.
(c)
The appellant did not complain in his application or in the court a quo or in
his heads of argument in this court about the way in which the council’s decision
was reached.  But shortly before the hearing of the appeal, and after he had engaged
a new legal team, we received additional written submissions in which it was
contended for the first time that the council had  not properly exercised its
discretion.   This was an entirely new ground of review not covered by the
allegations in the appellant’s founding affidavit but, since counsel for the Society
consented to its introduction, we agreed to consider it.   It is obvious however that,
in the absence of suitable factual averments,  we can only deal with points which
emerge with sufficient clarity from all the papers.

(d)
To formalize the attack on the Drugs Act and the Medicines Act we granted
an application for the amendment of  the Notice of Motion by the insertion of the
following prayer:
.
“4
(a)  Declaring section 4(b) of the Drugs and Drug Trafficking Act, No
140 of 1992 (as amended) (“the Drugs Act”) and section 22A(10) of
the Medicines and Related Substances Control Act, No 101 of 1965
(“the Medicines Act”) to be inconsistent with the Constitution of the
Republic of South Africa, Act 108 of 1996 (“the Constitution”) and
accordingly invalid.
ALTERNATIVELY, declaring section 4(b) of the Drugs Act and
section 22A(10) of the Medicines Act to be inconsistent with the
Constitution, to the extent that they fail to provide an exemption
applicable to the use, possession and transportation of cannabis sativa
by a Rastafarian for a bona fide religious purpose, and accordingly
invalid.
(b)  Suspending the aforesaid declarations of invalidity for a period of
twelve (12) months from the date of confirmation of this order by the
Constitutional Court to enable Parliament to correct the inconsistencies
which have resulted in the declarations of invalidity.”
(e)
After the amendment appellant’s counsel proceeded to argue the appeal on
the grounds  that the application for the registration of the contract was not
properly considered, and  that s 4(b) of the Drugs Act and s 22A(10) of the

Medicines Act are inconsistent with the Constitution and accordingly invalid. They
declined to address us on the constitutionality of the council’s decision (although
the point was raised in the original heads of argument).   Counsel for the Society
in turn declined to address us on the constitutionality of the prohibitions. His
clients, we were told,  do not wish to become involved in what they regard to be
a dispute between the appellant and the State.
(f)
After the noting of the appeal the Minister of Justice informed the registrar
that he would not oppose it and would abide the decision of the court.   The
Attorney-General however persists in his opposition.
The facts
[5] The appellant was informed of the council’s decision on 25 February 1997.
On 27 February 1997 he met with two members of the council, Messrs Pauw and
Ntsebeza. He reaffirmed his intention to continue using cannabis in practising his

religion and sought to justify  this by claiming that the criminalisation of the use and
possession of the drug violated his freedom of  religion.  Although Mr Ntsebeza
observed at the meeting that the council “may very well be wrong in its decision,”
but “was of the view that it should rather err on the side of caution” the appellant’s
case was reconsidered on  24 March 1997.   The council confirmed its previous
decision and, by letter dated 25 March 1997, the secretary informed the appellant
in the following terms of the reasons:
“The Council’s reasons for this decision, as outlined to you by Messrs Pauw and
Ntsebeza may be confirmed as follows:
1.
It is common cause that the possession and use of cannabis sativa are
presently prohibited by law and that you have breached the law as it stands.
It was noted that you stated in your affidavit that the burning of cannabis is a
fundamental tenet of your religion and that you gave no indication that you were
intending to depart from this practice.
2.
Although the Council has noted your contentions that the law is incorrect and
that it impedes your constitutional right to practise your religion, it has not by
reason thereof been persuaded that it should reverse its decision.
3.
It is the view of the Council that a person who states his intention to break the
law, and actually continues to do so, cannot be regarded as a fit and proper
person to have his contract of service registered because his conduct may bring
the profession into disrepute.
4.
The Council wishes to place on record that in reaching this decision it is not

seeking in any way to discriminate against you on racial, moral or religious
grounds. Its view is based purely on legal principles.”
[6] The Society’s stance is explained as follows in the answering affidavit
deposed to by its secretary:
“10.
At its meeting of 24 February 1997 the ... council concluded that it was clear
from the said ‘affidavit’ that the applicant ‘would continue, as part of his
religion, to use cannabis’ ... and consequently that ‘he could not be viewed as
a fit and proper person, until such time as the use of cannabis was
decriminalised’.
11.
During a meeting held on 27 February 1997 ... the applicant confirmed that he
would continue to use and possess cannabis in the future. ...
16.
The [Law Society] is aware that there is currently a debate about the
decriminalisation of the use of cannabis and its possession for personal use ...
It is by no means clear, however, that Parliament intends to decriminalise the
use of cannabis and its possession for personal use. In South Africa the matter
is controversial ...
18.
The [council’s] rejection of the applicant’s application for the registration of his
contract of service was informed by the following considerations:
18.1
the question whether the use of cannabis and its possession for
personal use should be a criminal offence is a matter to be
decided by Parliament and, if needs be, by the Constitutional
Court;
18.2
the criminal prohibition represents Parliament’s judgment that
the use and possession of cannabis is inherently harmful and
dangerous;
18.3
the criminal prohibition is not obviously unconstitutional; and
18.4
the [Law Society’s] duty to act in a manner which advances

respect for and compliance with the law.
19.
Accordingly, unless and until Parliament repeals the criminal prohibition, or the
Constitutional Court declares it to be unconstitutional and invalid, the [Law
Society] considers itself to be duty bound to adopt the attitude that an
applicant who has stated and repeated in unequivocal terms that he or she
intends contravening the provisions of the Drugs and Drug Trafficking Act
relating to the possession and use of cannabis, does not meet the ‘fit and
proper’ requirement imposed by section 4A(b)(i) of the Attorneys Act. In the
[Law Society’s] view, conduct of that sort reflects adversely upon an
applicant’s character, is inconsistent with the duties and obligations of members
of the profession and is contrary to the standards of behaviour expected of
officers of the Court.”
Paragraph 4 of the letter [of 25 March 1997] was intended to convey nothing
more than that the [council’s] decision to object to the registration of the
applicant’s contract of service was based solely on his previous convictions for
possession of cannabis and his stated intention to continue the use of cannabis
in spite of the fact that it is a criminal offence to do  so.”

The Constitutional validity of the legislation
[7] Cannabis is classified in the Drugs Act as an undesirable dependence-
producing substance which, in terms of s 4(b), no person shall use or have in his
possession.    In the Medicines Act it is classified as a Schedule 8 substance which,
in terms of s 22A(10),  no person shall acquire, use, have in his possession,
manufacture or import.   Both prohibitions are subject to certain exceptions not

presently relevant save to the extent mentioned in paragraph [11] infra.
[8] In the court a quo the appellant relied for his attack on ss 4(b) and 22A(10)
on violations of his freedom to practise his religion, his right to choose his
profession, his right to human dignity, and the proscription of unfair discrimination
in the Constitution.  The court found that the prohibitions do indeed limit
Rastafarians’ freedom to practise their religion and presumably also discriminate
unfairly against them and impair  their choice of a profession, but that all this is
justified under s 36(1) of the Constitution.
[9] It is not necessary to deal with all the submissions in this court because, as
the argument developed, it became clear that the appellant does not seek a
declaration of total invalidity of the prohibitions and that his exclusive aim is  an
order in terms of the alternative prayer 4(a) in the amended Notice of Motion.   The
question whether there should be an exemption for the use of cannabis by
Rastafarians for bona fide religious observance eventually became the only issue.

[10] Briefly stated the appellant’s argument is as follows: In terms of s 36(1)(e)
of the Constitution account must be taken of less restrictive means to achieve the
purpose of the prohibitions; a prohibition on the possession and use of cannabis
advances the purpose of the legislation, but a general proscription is unnecessary;
a limited number of persons who only use cannabis in the practice of their religion
may and should be exempted because in that way society will remain adequately
protected without the fundamental rights and freedoms of members of the group
being affected.
[11] The first problem with this approach is that, although in form the alternative
prayer 4(a) asks for the limitation of allegedly  overbroad prohibitions,  in effect it
seeks to create an exemption through the application of s 36(1)(e) of the
Constitution.   The Drugs Act and the Medicines Act each has its own exemptions
and what the appellant is trying to achieve, is the introduction of an additional one.
In S v Lawrence; S v Negal; S v Solberg 1997(4) SA 1176 (CC) par [80]

Chaskalson P had this to say about the powers of the courts:
“[T]he appellant has approached the Court for an order that the scope of the exception
made by ss 87 and 88 be enlarged.   In effect what the appellant has asked this Court
to do is amend the Liquor Act so as to make provision for a ‘grocer’s wine, beer and
cider licence’ as an exception to the prohibition imposed by s 40 of the Act. A Court
can strike down legislation that is unconstitutional and can sever or read down
provisions of legislation that are inconsistent with the Constitution because they are
overbroad.   It may have to fashion orders to give effect to the rights protected by the
Constitution, but what it cannot do is legislate.”
I respectfully agree.   The only difference between that case and the present one is
that in this case the appellant has attacked the prohibitions; but his claim in the
alternative prayer is for an order declaring the relevant provisions inconsistent with
the Constitution “to the extent that they fail to provide an exemption applicable to
the use, possession and transportation of cannabis sativa by a Rastafarian for a
bona fide religious purpose”.   This, it seems to me, is but another way of claiming
an exemption not provided for in the legislation and which a court of law cannot
provide. It may well be that on this ground alone the prayer cannot be granted but,
in view of what follows, it is not necessary to come to a firm decision.

[12] The appellant’s case turns entirely on the submission that a general ban on
the use and possession of cannabis is unnecessary since  the abuse of illegal drugs
can be equally effectively suppressed without banning the use of cannabis by
Rastafarians for  the observance of their religion. This  is plainly wrong. Legalizing
the use of a forbidden substance by one section of the community for a particular
purpose  cannot possibly prevent its abuse within that section. On the evidence
cannabis is harmful, particularly when used in large doses and, if its use is limited
as to purpose only, Rastafarians will be at liberty to use it as often and in such
doses as they like, provided only that they do so for the right purpose. This will
leave the door wide open for abuse. Indeed, taking account of

Dr Zabow’s uncontested evidence that the  use of cannabis has
already caused the referral of Rastafarians to a mental institution
for behavioral problems;

the  likelihood of an  influx of neophytes attracted to the Rastafarian
faith by the prospect of the practically unfettered use of the
prohibited drug, and

the evidence that cannabis is often the stepping stone to the use, and

---eventually to the abuse of and dependence on other more harmful
drugs,
one shudders at the thought of the consequences of lifting the ban to Rastafarians
themselves and, more importantly, to  society generally. We must not forget that
drug abuse is a social problem. As Dr Zabow points out,
“[t]he harm to society from the use of cannabis rests in the economic consequences of
the impairment of the individual’s social functioning and his enhanced proneness to
asocial and antisocial behaviours.”
And there are other socially harmful consequences, so notorious, that we need not
dwell on them. The prevention of drug abuse is plainly a legitimate governmental
aim and an effective prohibition thereof a  pressing social purpose (S v Bhulwana;
S v Gwadiso 1996 (1) SA 388 (CC) at 396B-C). It is beyond doubt that  the  ban
on the use and possession of cannabis in both Acts was imposed to protect society
as a whole. (Cf  Administrator,  Cape v Raats Röntgen and Vermeulen (Pty) Ltd
1992 (1) SA 245 (A) at 254B quoted with approval in Mistry v Interim National
Medical and Dental Council of South Africa 1998 (7) BCLR 880 (CC) par [10].)
Lifting it partially to allow its uncontrolled use by one section of the community
cannot leave society unaffected and adequately protected.

[13] This conclusion renders it unnecessary to consider all the other objections
raised by the Attorney-General (eg that a partial ban will constitute unfair
discrimination against other members of the community).   One last point should
however be made.   The Attorney-General correctly submits that it will be
impossible to police an order in terms of the alternative prayer 4(a).   Consider the
dilemma of a  policeman who finds cannabis in the possession of a person who
claims to be a Rastafarian.   How can he be sure that the claim is valid? The
appellant’s suggestion that Rastafarians be issued with permits is manifestly
impractical.   Apart from other conceivable complications, how can a  policeman
who is presented with a permit be sure that the holder will use the cannabis in his
possession for the right purpose? However, it is not merely a question of
impossibility of enforcement, but a question about the feasibility of the order
sought.   The appellant tells us that Rastafarians use the drug for spiritual,
inspirational, medicinal and culinary purposes.   We do not know whether it forms
part of their religious observance when it is used to cure or prevent  disease or as
an additive to food or for inspirational purposes (whatever the last term may
denote).   The alternative prayer cannot be granted in its present form and the

available evidence does not enable us to fashion a suitable order with adequate
precision.
[14] It follows that the attack on the constitutional validity of the prohibitions must
fail.
The alleged improper consideration of the application
[15] The appellant’s case is that the council did not properly exercise its
discretion in that it  (1) erred in adopting an over-cautious approach, (2) was bound
to consider the appellant’s fitness by reference to his honesty, integrity and
reliability but failed to do so, and (3) failed to consider the constitutionality of its
decision.
[16] The first submission arises from Mr Ntsebeza’s remark mentioned in
paragraph [5] supra.   It is to the effect that, when making a “threshold
determination” in what appellant’s counsel  refer  to as “hard” cases, the council
should not adopt an over-cautious approach and should defer to the ultimate
discretion of the admitting court rather than excluding the court from ever exercising
its discretion.   What this means in plain language is that the council should simply

have registered the appellant’s contract, leaving it to the court to decide on his
fitness as an attorney  when he eventually applied for his admission.  This is not
correct.   Section  4A(b)(i) of the Attorneys Act requires a candidate attorney to
prove to the satisfaction of the Society that he is a fit and proper person; and in
terms of s 5(1) the council has the right to object to the registration of his contract.
It is the council’s right, and indeed its duty, to determine his fitness to be permitted
to perform community service.
[17] The submission that the council was bound to consider the appellant’s
fitness by reference exclusively to his honesty, integrity and reliability is also devoid
of substance.   We were referred to several cases in which the fitness of attorneys
and advocates (to be admitted to or remain in the ranks of their professions) was
discussed and I accept the relevance of the judgments in these cases.   Unlike s 15
of the Attorneys Act which requires an applicant for admission as  an  attorney  to
be  a  “fit and proper person to be so admitted and enrolled”,   s 4A(b)(i) requires

proof to the satisfaction of the Law Society that a candidate attorney is “a fit and
proper person.”   In context this can only mean that the council must be satisfied
that the candidate is a fit and proper person to be permitted to perform that kind
of service.   But the purpose of the service is to instruct the candidate in the skills
which an attorney requires and to prepare him generally for eventual admission to
an honourable profession.   Bearing in mind further that s 8 allows candidate
attorneys with the prescribed academic qualifications to appear in certain courts and
before any board, tribunal or similar institution immediately upon the registration of
their contracts, the determination of their fitness must proceed along lines broadly
similar to those applicable to attorneys.   For this very reason they ought to be, not
only honest and reliable, but  “fit and proper” persons in every respect.   If there
is a question about a candidate’s honesty, integrity or reliability, the council will
obviously object to the registration of his contract;  but if there is not, it does not
follow that he or she qualifies automatically.   Indeed, if the council were to fail to

raise a valid objection of any other kind of which it is aware, it would undoubtedly
shirk its duty.
One of the cases to which we were referred is In Re Chikweche 1995(4) SA
284 (ZSC) in which (at 291H-J) Gubbay CJ said (in regard to the admission of an
attorney in terms of comparable legislation):
“Construed in context, the words ‘a fit and proper person’ allude, in my view, to the
personal qualities of an applicant - that he is a person of honesty and reliability. See S
v Mkhise; S v Mosia; S v Jones; S v Le Roux 1988(2) SA 868 (A) at 875D”.
The judgment in Mkise’s case must not be misunderstood or applied out of context.
One of the questions in that case was whether the skills and proficiency of the
person who had never been admitted as an advocate played any part in determining
whether his appearance for the accused constituted a fatal irregularity.   It is in this
context that it was said (at 875C-E) that
“it would be wholly impracticable to attempt to determine ex post facto ... whether
counsel concerned was ‘a fit and proper person’  in the sense that this term is applied
and understood in the [Admission of Advocates Act], ie whether he is generally a
person of integrity and reliability. (Cf Kaplan v Incorporated Law Society, Transvaal
1981(2) SA 762 (T) at 782H-783H.) ”

In an earlier passage (874D-G) the requirement of “unquestionable honesty and
integrity” on the part of an advocate was emphasized and this is probably the
reason for the reference in the quotation to the same qualities.   (In Kaplan’s case
the reference is merely to an attorney’s “personal qualities”, not to his honesty or
reliability.)   Be that as it may, the judgment does not hold that other traits of
character are to be ignored or may not in suitable cases  override honesty, integrity
and reliability;   nor does any of the other cases to which we were referred support
that proposition.
Appellant’s counsel also rely on the following passage in the judgment (in an
application for the removal from an attorney’s name from the roll) in Incorporated
Law Society, Transvaal v Mandela 1954 (3) SA 102 (T) at 108D-F:
“Nothing has been put before us which suggests in the slightest degree that the
respondent has been guilty of conduct of a dishonest, disgraceful, or dishonourable
kind; nothing that he has done reflects upon his character or shows him to be unworthy
to remain in the ranks of an honourable profession.  In advocating the plan of action,
the respondent was obviously motivated by a desire to serve his fellow non-Europeans.
The intention was to bring about the repeal of certain laws which the respondent

regarded as unjust.  The method of producing that result which the respondent
advocated is an unlawful one, and by advocating that method the respondent
contravened the statute; for that offence he has been punished.  But this offence was
not of a ‘personally disgraceful character’, and there is nothing in his conduct which,
in my judgement, renders him unfit to be an attorney.”
None of these remarks assist the appellant. What the council found objectionable
in the present case was not merely his convictions in the past, but also (and
particularly) his avowed intention of contravening the law in future. Its view, as
stated in paragraph 3 of the letter of 25 March 1997, was that
“a person who states his intention to break the law, and actually continues to do so,
cannot be regarded as a fit and proper person to have his contract of service registered
because his conduct may bring the profession into disrepute.”
[18] I turn to the final submission.  As mentioned earlier appellant’s counsel did
not address the point originally made in the founding affidavit that the decision was
unconstitutional for violating the appellant’s entrenched rights.   Instead they
submitted that the council did not take the constitutionality of its decision into
account.   I cannot understand their stance; for, if the decision is found to be

unconstitutional, there is an end to the matter;  if it is found to be constitutional, it
can plainly not be disturbed merely because the council did not consider its
constitutionality.   Be that as it may, the simple fact of the matter is that the
allegations  in the appellant’s founding affidavit (and even in his additional and
replying affidavits) do not cover the point, and the opposing affidavit (particularly
in paragraph 19) contains strong indications that the constitutional validity of the
decision was indeed considered.
[19] For the sake of completeness it should be mentioned that the contention that
the refusal to register the appellant’s contract was invalid for breaching his
constitutional rights is not properly before us.   Although it was initially the sole
ground on which the review proceedings were brought, the point was not argued
in the court a quo; it was not mentioned in the court’s judgment or in the
application for leave to appeal.
[20] The appeal can accordingly not succeed.   The Attorney-General has not

asked for an order of costs but the Society did,  and I can find no reason for
deviating from the ordinary rule that costs should follow the result.
The appeal is dismissed. The appellant is ordered to pay the first,
second and third respondents’ costs.

__________________
JJF HEFER
JUDGE OF APPEAL
CONCURRED:
Vivier JA
Olivier JA
Zulman JA
MTHIYANE AJA:
[1] I have had the benefit of reading the judgment of Hefer JA and
respectfully agree with the reasons given and the conclusions to which he
has come.  I however wish to add the following in relation to the ‘fit and
proper’ requirement referred to in s 4A(b)(i) of the Attorneys Act 53 of
1979 (‘the Attorneys Act’) and the argument advanced on the appellant’s
behalf in that regard.  Counsel for the appellant submitted that the Law
Society failed to take into account that the appellant’s previous
convictions and his stated intention to use cannabis in the future did not
adversely reflect on his honesty, integrity and reliability, and therefore on
his fitness to be a member of the attorneys’ profession.  He urged us to
adopt, as the correct test to be applied, the remarks of Ramsbottom J in
Incorporated Law Society, Transvaal v Mandela 1954 (3) SA 102 (T)

at 108 C-H (‘the Mandela case’), where the learned judge said the
following:
‘The sole question that the Court has to decide is whether
the facts which have been put before us and on which the
respondent was convicted show him to be of such character
that he is not worthy to remain in the ranks of an honourable
profession.  To that question there can, in my opinion, be
only one answer.  Nothing has been put before us which
suggests in the slightest degree that the respondent has been
guilty of conduct of a dishonest, disgraceful, or
dishonourable kind; nothing that he has done reflects upon
his character or shows him to be unworthy to remain in the
ranks of an honourable profession.  In advocating the plan
of action, the respondent was obviously motivated by a
desire to serve his fellow non-Europeans.  The intention was
to bring about the repeal of certain laws which the
respondent regarded as unjust.  The method of producing
that result which the respondent advocated is an unlawful
one, and by advocating that method the respondent
contravened the statute; for that offence he has been
punished.  But this offence was not of a “personally
disgraceful character”, and there is nothing in his conduct
which, in my judgement, renders him unfit to be an attorney.
Mr O’Hagan contended that the test of whether the Court
should take disciplinary action against the respondent is

whether the conduct is “a matter of indifference to the
Court”.  As the authorities I have quoted show, that is not
the test.  The respondent’s conduct is not a matter of
indifference to the Court; he has been tried, convicted and
punished.  He must not be punished again by being struck
off the roll or suspended.  That action will only be taken if
what he had done shows that he is unworthy to remain in the
ranks of an honourable profession.’
I also agree that the above remarks do not assist the appellant.
[2] I do not have a problem with due weight being given to the said
remarks provided that sight is not lost of the context in which they were
made.  On a proper reading of the judgment as a whole I do not think that
Ramsbottom J is to be understood as saying that ‘character’ is the sole
criterion to be considered when making the ‘fit and proper’
determination. To place such a construction on what was said, as the
appellant seeks to do, is with respect, fallacious.  There are indeed

passages in the rest of the judgment which indicate that other criteria are
just as important.  For example, when dealing with the taking of the oath
of office, the learned judge says the following:
‘Every attorney in the Union must take an oath of allegiance
when he is admitted to practice.  It is an implied condition
of his right to continue in practice that he shall continue to
give true allegiance.  If he repudiates his allegiance he
breaches a condition of his right to practice.  In addition,
the violation of an oath, solemnly taken, by an attorney
undoubtedly reflects upon his fitness to remain in the
profession.’  (See p. 109 A).
[3] The Mandela case is distinguishable on the facts from the present
matter.  What was before Ramsbottom J was the case of a person who
it was sought to strike off the roll on the basis of a previous conviction
and not because of an avowed intention to continue to break the law.
But, what is perhaps of importance, and relevant to the present matter, is

what the learned judge says concerning the oath of allegiance.  He
describes it as an implied condition of an attorney’s right to continue in
practice and says that a violation of that oath reflects upon an attorney’s
fitness to remain in the profession.  In the present matter one is of course
dealing with an appellant who is not an admitted attorney, but who, if he
wishes ultimately to enter the attorneys’ profession, would be required to
take such an oath of office.  The current form of oath taken by persons
who wish to become  advocates, attorneys, notaries and conveyancers
reads as follows:
‘ADMISSIONS
Your full names and surname please
Do you have any objections to taking the oath?
Do you consider the oath to be binding on your
conscience?
Do you swear (do you affirm and/or declare) that you will
truly & honestly demean yourself in the practice of

Advocate, Attorney, Notary, Conveyancer
according to the best of your knowledge and liability and
further that you will be faithful to the Republic of South
Africa?
Say then: ‘So help me God’ (I do)’
[4] Like any other candidate attorney the appellant would at his
admission be required to take what is referred to in the Mandela case as
a solemn oath of allegiance.  He would be required to swear or affirm
and/or declare that he will truly and honestly demean himself in the
practice of an attorney and that he will be faithful to the Republic of
South Africa.
[5] In The Concise Oxford Dictionary, 8th ed at p. 421, the word
‘faithful’ is given, inter alia, the following meanings:  ‘showing faith,
loyal, trustworthy, constant’.  In s 1(c) of the Constitution the ‘Republic
of South Africa’ is described as a sovereign, democratic state whose

foundational values are the constitution and the rule of law.
[6] In this context the Republic of South Africa is, in my view, not to
be seen as a lifeless or immutable institution divorced from its system of
laws and legal principles operating within the constitution.  The Drugs and
Drug Trafficking Act 140 of 1992 (‘the Drugs Act’) and the Medicines
and Related Substances Control Act 101 of 1965 (‘the Medicines Act’)
form part of those laws of the Republic whose foundational values are
the constitution and the rule of law.  It therefore seems to me that any
person who wishes to be a member of the attorneys’ profession and
takes the oath  or makes an affirmation in the manner described above,
also swears or affirms loyalty to the laws of the Republic of which the
Drugs Act and the Medicines Act are a part.  If the appellant declares that
he will defy any of the laws of the Republic, it is difficult to see how he

can be considered to be a fit and proper person as is envisaged in the
Attorneys Act.  His conduct seems to me to amount to a repudiation of
the oath or affirmation of allegiance even before he takes it.
_________________
K K MTHIYANE
ACTING JUDGE OF APPEAL

ZULMAN JA)agrees