Where an attorney had acted in two litigation matters whilst not holding a fidelity fund certificate that is compulsory for all practising attorneys, it was held that the litigation was not a nullity. The Attorneys Act (in force at the time) prescribed the consequences of not having a certificate as disentitlement to a fee for the work done and a criminal conviction.
In the circumstances, the breach of law did not invalidate the cases that had been conducted by the attorney.
The maxim is ‘many things are forbidden in law to be done which yet, when done, hold good’.
This is particularly so where great inconvenience and impropriety would result from undoing what was done.
Things done contrary to law are only void if the law says so, or if someone else’s ability to perform an act has been restricted, or if what was done results in some unremitting impropriety.
In the present case the legislature had no intention other than of punishing the attorney who did not comply with the requirement for a fidelity fund certificate. The litigation conducted by the attorney could not be set aside on that ground.
Whether something will be set aside as void when done contrary to the law will depend on a proper construction of the legislation in question. The question is always whether the legislation intends this consequence, having regard to the words used, the penalty provided for and the purpose and context of the law.
The case is NW Civil Contractors CC v Anton Ramaano Inc.
