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[2016] ZAWCHC 38
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Cape Law Society v Skibbe (24730/2015) [2016] ZAWCHC 38 (4 March 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NUMBER: 24730/2015
DATE: 4 MARCH 2016
In the matter between:
THE CAPE LAW
SOCIETY
....................................................................................................
Applicant
And
ARTHUR
SKIBBE
................................................................................................................
Respondent
J U D G M E N T
GAMBLE, J:
[1] The respondent, a 57 year old male,
was admitted as an attorney in the Eastern Cape High Court,
Grahamstown on 14 August 1986.
After practising in that division for
a couple of years he was enrolled as an attorney in this Court on 8
December 1988 and has
since practised in this division. Initially
the respondent practised as a professional assistant with various
firms in the Peninsula
before opening up his own practice in Table
View on 1 May 2006. It seems to have been mainly a criminal
practice.
[2] In May 2015 a client of the
respondent’s practice lodged a complaint with the applicant
regarding misconduct on the part
of the respondent; it being alleged
that he had misappropriated trust funds belonging to the client. I
shall deal with this complaint
in more detail shortly but point out
that pursuant thereto the applicant commenced a disciplinary enquiry
on 2 June 2015 by informing
the respondent of the complaint. The
respondent admitted the substance of the complaint and advised the
applicant that he no longer
practised as an attorney.
[3] Once the applicant’s
officials had conducted the necessary assessment of the respondent’s
bank accounts and in
particular his trust bank statements, the
applicant resolved to approach this Court for the removal of the
respondent from the
roll of attorneys. The application was launched
on 24 December 2015 and personal service thereof was affected on the
respondent
on 8 January 2016. The respondent does not oppose the
application.
[4] The approach in a matter such as
this is now settled law. In Summerley v Law Society, Northern
Provinces,
2006 (5) SA 613
(SCA) it was noted that in considering
such an application the Court is required to apply the provisions of
section 22(1)(d) of
the Attorneys Act 53 of 1979 (“The Act”).
Application of that section said Brand, JA involves a threefold
enquiry
by the Court. Firstly, the Court must determine whether the
Law Society has established the alleged misconduct complained of on
a
balance of probabilities. Secondly, the Court must be satisfied in
the light of the misconduct so established, that the attorney
concerned is not a fit and proper person to continue practising as
such. This determination requires the Court to exercise a
discretion.
Finally, the Court must exercise a
further discretion, namely, whether the person, who has been found
not to be fit and proper to
practise as an attorney, should face the
ultimate sanction of being struck from the roll of attorneys or
whether an order of suspension
from practice or some other sanction
will suffice.
[5] Turning to the first enquiry, the
facts are fairly straightforward. In 2013 a certain Mr Hoffman
instructed the respondent
to represent him in a dispute in which he
was engaged with Engen Petroleum. In anticipation of having to pay a
sum of money to
Engen, Mr Hoffman deposited the sum of R740 169.63 in
the attorney’s trust account on 2 October 2013. The dispute
was resolved
on 17 May 2015 and Mr Hoffman requested the respondent
to release the funds which had been deposited into his trust account.
In
an affidavit placed before the Court Mr Hoffman said that the
respondent informed him that he did not have the entire amount in
his
trust account any longer claiming that he had been “irresponsible
with his trust account”.
[6] The respondent immediately
deposited the amount of R502 988.26 into Mr Hoffman’s bank
account leaving a shortfall of
R237 181.37 plus interest. Mr Hoffman
laid a charge of theft with the Table View police on 22 May 2015 in
respect of this amount.
[7] On 19 May 2015 the respondent
communicated with Mr Hoffman by email. He informed him of the
shortfall in his trust account
and apologised profusely for what he
had done, saying that he would pay back the balance due if it was the
last thing he did on
earth. The respondent informed Mr Hoffman that
because his trust account was in a mess he was obliged to close his
practice immediately.
He went on to say that he did not have the
heart to speak face to face but that he would meet Mr Hoffman within
a day or two to
discuss how he was going to repay the outstanding
amount.
[8] In July 2015 officials from the
applicant endeavoured to meet with the respondent to verify the facts
arising from the complaint.
Having initially agreed to meet the
respondent then proceeded to give the officials the run-around and
only went so far as dropping
copies of bank statements (trust and
business accounts) with the applicant. The applicant has referred
the Court to the relevant
entries in those accounts which reflect the
movement of money back and forth. The shortfall complaint by Mr
Hoffman is evident
from the applicant’s analysis of the trust
account.
[9] In the circumstances, I am
satisfied that the applicant has established on a balance of
probabilities the misconduct complained
of namely, the
misappropriation of trust monies.
[10] The Court must now ask itself
whether that conduct on the part of the respondent is such that he
should no longer be regarded
as a fit and proper person to practise
as an attorney. In Summerley Brand, JA observed at para 21 that:
“The attorneys’ profession
is an honourable profession which demands complete honesty and
integrity from its members.”
His Lordship went on to agree with the
submission made on behalf of the Law Society in that matter that as a
general rule the striking
off of an attorney is reserved for those
members of the profession who have acted dishonestly. After all, one
must not lose sight
of the fact that the misappropriation of trust
monies is tantamount to theft (Law Society Cape v Koch
1985 (4) SA
379
(C) at 382D). By immediately closing his practise when the
complaint by Mr Hoffman surfaced, the respondent has in effect
acknowledged
the consequences of his misconduct.
[11] In contextualising his conduct the
applicant says that he has a gambling addiction, coupled with a
drinking problem. He says
that the latter fuels the former and he
suggests that the bulk of the misappropriated money (95%) was spent
on horseracing and
slot machines. The remainder says the respondent
was “applied towards general expenses including the purchase of
alcohol”.
The respondent is to be commended for his frankness
and honesty in acknowledging his shortcomings. He has done the right
thing
by admitting his misconduct by immediately closing his practise
(thereby eliminating the potential exposure of other clients to
the
consequences of his addictions) and by undertaking to repay Mr
Hoffman, but in light of the fact that his misconduct is in
the form
of dishonesty of the most serious kind, there cannot be any debate as
to the respondent’s unsuitability to practise
as an attorney
any longer. In Law Society of the Cape of Good Hope v Budricks
2003
(2) SA 582
at 587d-e Hefer, AP described the misappropriation of
trust funds as “about the worst professional sin that an
attorney can
commit”. There is concern too on the part of this
Court that the respondent, while acknowledging his addictions, has
evidently
taken no steps to enter into rehabilitation. Having regard
to all of these circumstances I am satisfied that the respondent is
no longer a fit and proper person to practise as an attorney.
[12] Ordinarily as Brand, JA pointed
out in Summerley, the consequences of such a finding in the context
of conduct rooted in dishonesty
or that such a person is likely to be
struck off the roll of practitioners, while in Cape Law Society v
Parker
2000 (1) SA 58
2 (C) at 587E King, JP observed that:
“It is clear on authority that
the usual penalty for misappropriation of trust monies is striking
off and this is understandably
so. The proper administration of
monies entrusted to an attorney by his client is perhaps the most
fundamental and important of
the duties of an attorney and anything
less than complete observation of those duties will not be tolerated
by the Courts.”
[13] To be sure that sanction is harsh
not only does the individual suffer the ignominy of being struck off
the roll of professional
practitioners, he will also be precluded
from pursuing his chosen profession for a substantial period of time
and so when considering
such a severe penalty, the Court must be
satisfied that the lesser stricture of suspension from practise or a
direction that the
attorney in question should practise under
supervision will not achieve the objectives of this Court’s
supervisory powers
over the conduct of attorneys. The object of the
Court’s sanction is twofold – errant attorneys must be
disciplined
and punished but equally important is the consideration
the public must enjoy full protection against unscrupulous
practitioners
where trust monies are involved.
[14] In this manner the respondent has
not approached the Court for any lesser form of sanction. Rather, he
has acknowledged that
he should not be in practise any longer. While
the absence of any request for a lesser sanction and striking off is
a factor for
overall consideration in relation to the third criteria
for an order of striking off under the Act, it does not absolve the
Court
hearing the matter from considering whether a lesser sanction
might be imposed. On that score what weighs heavily against the
respondent in this matter is the very core of his problem –
addiction, given that he has a compulsive condition which has
to be
funded with substantial sums of money and given that that condition
persists, the Court would be erring in its duty towards
the public if
it did not make an order which would effectively keep the respondent
well away from access to any such funds. Further,
regard must be had
to the fact that the sum misappropriated is not insubstantial and
that no proposal for its repayment has been
forthcoming from the
respondent.
[15] In the circumstances I am of the
view that a proper case has been made out for the name of the
respondent to be struck from
the roll of attorneys. As to costs, it
is customary in matters of this sort to ensure that the voluntary
association which is
applied for the striking off in the public
interest is not out of pocket and for that reason costs are usually
awarded on the attorney
and client scale. Accordingly, the following
order is made:
(a) THE NAME OF ARTHUR SKIBBE IS TO BE
STRUCK OFF THE ROLL OF ATTORNEYS OF THIS COURT.
(b) IT IS FURTHER ORDERED IN TERMS OF
PARAGRAPHS 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 AND 13 OF THE NOTICE OF
MOTION.
GAMBLE, J