PLEA EXPLANATION OF PREVIOUS CO-ACCUSED INADMISSIBLE HEARSAY EVIDENCE

Law Society of the Cape of Good Hope v Randell [2015] 4 All SA 173 (ECG)
Attorneys – Misconduct – Striking from roll – Test – Attorneys Act 53 of 1979 – Section 22(1)(d) – Court must decide whether the alleged offending conduct has been established on a preponderance of probabilities; and if so, whether in the discretion of the Court, the person is a fit and proper person to continue to practise as an attorney; and if not, whether the person in question is to be removed from the roll of attorneys, or whether an order suspending him from practice for a specified time will suffice – In casu, respondent was in a position of trust who owed a fiduciary duty to act in the best interests of the beneficiaries of the trust and he could not act to his own advantage at the cost of the beneficiaries.
Seeking an order that the respondent’s name be struck off the roll of attorneys, the applicant law society referred to criminal proceedings against the respondent and a co-accused. The latter’s plea explanation made reference to the respondent and incriminated the respondent in criminal activity. The applicant applied for leave to file a further affidavit in which the co-accused confirmed the correctness of the allegations in his plea explanation. As the co-accused was not in South Africa, the applicant contended that the hearsay evidence contained in the plea explanation should be admitted in evidence in terms of section 3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 on the basis that it would be in the interests of justice.
Held – Experience and common sense dictated that allegations in plea explanations are more often than not designed to shift blame to a co-accused or to underplay the accused’s own involvement and overemphasise the role played by others. The potential prejudice to the respondent if the relevant documents were admitted in evidence were clear. The documents were declared to be inadmissible hearsay evidence, and were excluded in their entirety.

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