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[2016] ZAWCHC 131
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Obose v Cape Law Society (10699/2016) [2016] ZAWCHC 131 (6 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No.: 10699/2016
In
the matter between:
KHOLO
ASHLEY OBOSE
Applicant
and
THE
CAPE LAW SOCIETY
Respondent
Heard
on :
21 September 2016
Delivered on:
6 October 2016
JUDGMENT
SCHIPPERS
J:
[1]
This
is an application, in terms of s 15(3) of the Attorneys Act 53 of
1979 (“the Act”), for the applicant’s readmission
and re-enrolment as an attorney. He was struck from the roll in
2008. The respondent opposes the application essentially
on the
basis that the applicant is not a fit and proper person to be
readmitted to practise as an attorney.
[2]
The
applicant is 51 years old and appeared in person. He obtained
the B. Proc Degree from the University of the Western
Cape in
1999. He was admitted and enrolled as an attorney in the Ciskei
in 1991 and in Grahamstown in the Eastern Cape in
1992. He
practised for his own account in King William’s Town from 1992
to 1999 when he closed down his practice.
The founding
affidavit states that in 2000 the applicant worked part-time at
Vavevi-Ludick Inc, a law firm in Cape Town; that he
completed a LL.M
degree at the University of Cape Town in 2003 and a second LL.M
degree at the University of Stellenbosch in 2008;
that in 2004 he
unsuccessfully tried to establish a practice in Johannesburg; and
that in 2007 he voluntarily applied to the Grahamstown
High Court
under case number 1492/2007 for the removal of his name from the roll
of attorneys (“the 2007 application”).
[3]
In
the 2007 application, the respondent brought a counter-application
for an order striking the applicant’s name from the
roll of
attorneys. The court (Jones and Nepgen JJ) held that it was not
possible to conclude that the applicant was an attorney
in good
standing; and that he did not discharge the onus of proving that he
was entitled to an order removing his name from the
roll of
attorneys. The application was therefore postponed
sine
die
and the respondent was granted leave to file its opposing
affidavits. A day after the notice of opposition was delivered
the applicant withdrew the 2007 application.
The
striking off application
[4]
In
2008 the respondent, then known as the Law Society of the Cape of
Good Hope, launched an application in the Grahamstown High
Court
under case number 640/2008, to remove the applicant’s name from
the roll of attorneys (“the striking off application”).
The court (Schoeman and Kroon JJ) found that the applicant
misappropriated R162 761.23 which he received from Sanlam Insurance
on behalf of a client, Mrs Leve, and ordered that his name be struck
from the roll of attorneys.
[5]
The
applicant misappropriated R162 561.23 in the following
circumstances. Mrs Leve’s daughter died in an accident.
In 1995 Sanlam paid her the proceeds of certain life policies in the
sum of R162 561.23, as the guardian of the beneficiaries,
her
grandchildren. She invested that amount with Sanlam and
received interest monthly. Mrs Leve instructed the applicant
to
institute a MVA claim pursuant to her daughter’s passing.
During their consultations, the applicant asked Mrs Leve
about the
life insurance policies. She told him that the policies had
already been paid out and that R162 561.23 was
invested with
Sanlam. Despite this, he asked her to give him the policy
documents, which she did.
[6]
In
both the 2007 application and the striking off application it was
found that Sanlam had paid the amount of R162 561.23 twice:
once when
that amount was invested with Sanlam by Mrs Leve in December 1995;
and a second time on 18 July 1997, when a cheque from
Sanlam for R162
561.23 made out to Mrs Leve, was deposited into a call account of the
applicant’s firm held with Unibank.
Consequently Sanlam
retrieved the second payment from the investment account which Mrs
Leve had opened in 1995.
[7]
The
applicant did not dispute that Sanlam had paid out the policies to
Mrs Leve in 1995. He admitted that Sanlam paid R162
561.23 into
the call account at Unibank on his instructions; that the call
account was closed on 6 November 1997; and that an amount
of R163
084.52 was paid into his business account on 10 November 1997.
[8]
In
an affidavit to the attorneys’ Fidelity Fund, Mrs Leve said
that she did not instruct the applicant to institute any claim
against Sanlam; and that he had not paid her any money from the
amount which Sanlam had paid into the call account of his firm.
In 1999 she unsuccessfully tried to contact him but he had ceased
practising in King William’s Town. The Fidelity Fund
paid
Mrs Leve R162 561.23. The applicant did not deal with these
allegations in his opposing affidavit in the striking off
application. Instead, he referred to Mrs Leve’s claim as
a “
fairy
tale
”
which did not warrant a response.
[9]
The
applicant’s explanation as to what happened to the R162 561.23
paid to his firm by Sanlam is contained in his affidavit
to the
Fidelity Fund. In summary it is this. He acted for a Mrs
Leve, a teacher or a nurse, who lived in Ginsberg,
in two separate
cases: an estate claim in the Bhisho High Court dealing with the
Sanlam policies; and an MVA claim in the Umtata
High Court. The
case against Sanlam was settled, he discussed it with Mrs Leve and
they agreed that the money should be invested
with Unibank.
After some months she approached him and said that she needed money
and the investment in Unibank was withdrawn.
His firm paid Mrs
Leve R100 000 and retained approximately R62 000 for fees in the
Sanlam matter and the MVA case then pending
in the Umtata High
Court. Before the MVA case was finalised, Mrs Leve told him
that she needed all her money. He noticed
that she did not
trust him anymore. He wrote out a cheque to her for the
balance, less disbursements and attorney and client
costs.
[10]
In
an affidavit made in the 2007 application, which the applicant asked
be incorporated in the striking off application, he referred
to his
bank statement (despite his objection to the use of his bank
statements on the ground that they allegedly were illegally
obtained)
and said that R98 948.71 was paid out of his trust account on 18
January 1999. That amount, he submitted, was paid
to Mrs Leve,
and her claim that he did not pay her had no substance.
However, there was no indication as to who received
the amount of R98
948.71.
[11]
Mrs
Leve denied these allegations. She said that she never lived in
Ginsberg, was never a teacher or a nurse and had never
instructed the
applicant to institute a MVA claim for her husband, who died from
diabetes much later in 1999. The applicant
did not deal with
Mrs Leve’s allegations in rebuttal, in any of his affidavits.
[12]
In
short, Mrs Leve stated that the applicant had not paid her
R162 561.23 which Sanlam had paid over to him. The
applicant’s
version was that he paid Mrs Leve R100 000 and
retained the balance (about R62 000) for fees; and that
documentation showed
that he had paid her R98 948.71.
[13]
The
court found that the respondent had proved on a balance of
probabilities that the applicant misappropriated the money which
he
received from Sanlam. The reasons for this finding may be
summarised as follows. The applicant, in the 2007 application
and the striking off application, never denied Mrs Leve’s
allegation that she did not instruct him to institute a claim against
Sanlam. The relevant policies were paid out to Mrs Leve by
Sanlam in December 1995. It was far-fetched that in 1997,
after
summons had been issued and the case set down for trial, that Sanlam
would pay out money that it did not owe. It was
more probable
that Sanlam had paid the applicant R162 561.23 because policy
documents had been submitted for a second time.
Further, the
applicant failed to produce a case number, or any documentary
evidence from the court files to show that such an action
had indeed
been instituted. The applicant’s claim that he had
instituted an action on behalf of Mrs Leve against Sanlam
in the
Bhisho High Court, was thus false.
[14]
The
court accepted that the Mrs Leve referred to in the applicant’s
Fidelity Fund affidavit was the same person who had not
received the
money which Sanlam had paid into his call account at Unibank on 18
July 1997. The sum of R163 084.52 was transferred
from that
account and paid into the applicant’s business account on 10
November 1997. There was no indication by the
applicant when
and how this amount was transferred to his trust account, to explain
the transfer of R98 948.71 out of his
trust account. And
it was improbable that if Mrs Leve had insisted on payment of that
amount when it was allegedly invested
on her behalf with Unibank in
July 1997 that it would have been paid out to her only 14 months
later, in January 1999. The
court accordingly held that the
applicant’s version that he had paid Mrs Leve R100 000 out
of the funds which Sanlam
had paid him and retained the balance for
fees, likewise was false.
Is
the applicant a fit and proper person to be readmitted?
[15]
Section
15(3) of the Act provides that a court may readmit and re-enrol as an
attorney, any person previously struck off the roll
if, in the
discretion of the court, such person is a fit and proper person to be
readmitted and re-enrolled.
[1]
[16]
In
Behrman
,
[2]
Corbett
JA tersely described what a person seeking readmission as an attorney
must show:
“
Where
a person whose name has previously been struck off the roll of
attorneys on the ground that he was not a fit and proper person
to
continue to practise as an attorney applies for his re-admission, 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.”
[3]
[17]
In
considering whether the onus has been discharged, the court will have
regard to the following: the nature and degree of
the conduct
which resulted in the applicant’s removal from the roll and his
explanation therefor; his actions in relation
to proceedings to
secure his removal from the roll; the lapse of time between his
removal and his application for reinstatement;
his activities after
his removal; his expression of contrition and its genuineness; and
his efforts at repairing the harm which
his conduct has caused to
others. These considerations are not exhaustive and the weight
to be attached to them will vary
with the circumstances of the
case.
[4]
[18]
Before
dealing with the applicant’s grounds for readmission, there are
two troubling aspects of his conduct. The first
is his failure
to disclose material facts to the court; and the second, his lack of
candour.
[19]
The
applicant failed to disclose the following material facts. He
applied to the court which made the order striking him from
the roll
for leave to appeal, which was refused. He then applied for
leave to appeal to the Supreme Court of Appeal, which
was also
refused. Next, he applied to the Constitutional Court for leave
to appeal. That application was also refused.
When asked
why he did not disclose those facts in the founding affidavit, the
applicant could not explain it and said that the
respondent had
disclosed it in the answering affidavit. The applicant misses
the point. If the respondent had not opposed
the application,
this court would not have known that the applicant had applied for
leave to appeal to both the SCA and the Constitutional
Court.
[20]
The
applicant’s lack of candour and failure to disclose material
facts is underscored by the fact that he also failed to disclose
his
unsuccessful applications for leave to appeal, in his application for
readmission brought in this court on 30 October 2015
under case
number 20993/15 (“the 2015 readmission application”).
Worse, the applicant enrolled that application
on the unopposed
motion roll. Had the respondent not opposed the 2015
readmission application, it is probable that if it
had been heard,
the court would not have known of the applicant’s unsuccessful
applications for leave to appeal.
[21]
In
addition, the applicant failed to disclose the grounds upon which the
2015 readmission application was brought. They are
material,
because they differ from the grounds upon which he seeks readmission
in this application; and have a direct bearing on
the question
regarding the nature and extent of the conduct resulting in his
removal from the roll and his explanation therefor,
and whether he is
genuinely contrite.
[22]
I
have read the case file in the 2015 readmission application.
The grounds upon which the applicant sought readmission in
that
application were essentially that he was not given an opportunity to
defend himself in a disciplinary hearing and to exercise
his right to
cross-examine Mrs Leve; no audited books were presented to the court
as there were none; and the non-compliance with
the provisions of s
71 of the Act and the respondent’s rules were never justified
to the court (the applicant gave no details
of the rules with which
the respondent allegedly did not comply). In this application
there is a new explanation for the
applicant’s removal from the
roll: he paid the wrong client, which he attributes to “
improper
bookkeeping
.”
I revert to these aspects below.
[23]
Aside
from this, the applicant lacks judgment and insight. The order
and findings of the court in the striking off application
must stand:
they have not been set aside on appeal.
[5]
Despite this, the applicant, in the replying affidavit, states that
this court has a basis in law to reconsider the order
made by that
court. And in a further affidavit in the 2015 readmission
application made on 13 November 2015, he stated that
the finding of
the court in the striking off application was wrong because it was
not established that he had misappropriated funds;
and it had applied
the
Plascon-Evans
rule incorrectly.
[6]
[24]
I
turn now to consider whether the applicant has discharged the onus
resting on him. The nature and extent of the conduct
which
resulted in his removal from the roll of attorneys have been outlined
above. It suffices to say that misappropriation
of a client’s
money is serious and warranted removal, as is evidenced by the fact
that two appellate courts refused leave
to appeal against the order
striking him off the roll of attorneys.
[25]
As
to an attorney’s conduct regarding proceedings for his removal,
the SCA has affirmed that a striking off application is
sui
generis
and in the nature of disciplinary proceedings. Therefore, the
attorney is expected to co-operate and place the full facts
before
the court so that the case can be correctly and justly decided.
Bald denials, avoidance and obstructionism have no
place in such
proceedings.
[7]
In
Mogami
,
[8]
the SCA noted that it has become a common occurrence for persons
accused of wrongdoing not to confront the allegations against
them,
but to accuse the accuser and seek to break down the institution
involved.
[26]
The
applicant’s conduct in relation to his removal from the roll of
attorneys can only be described as adversarial and obstructive.
He took the point (wrongly) that in light of the 2007 application,
the issue concerning his failure to pay Mrs Leve was
res
judicata
.
As already stated, he referred to the claim by Mrs Leve, a pensioner
and former domestic worker, as a fairy tale. In
his opposing
affidavit he said that Mrs Leve, despite being admonished by the
court (in the 2007 application and which is not true),
“
to
come clean on the matter insists in not doing so
.”
He accused the respondent of trying to mislead the court, and its
deponents, of “
being
conservative with the truth
,”
perjuring themselves and “
telling
lies under oath
.”
He said that the application for his striking was “
based
on lies and perjury
.”
In the replying affidavit the applicant merely compounded his lack of
remorse and appreciation for the seriousness
of his conduct, which
led to his removal from the roll. He apologises for the
inappropriate language which he says he used,
“
in
the heat of the moment.
”
However, that cannot be correct. He used that language because,
as the applicant himself says, he saw the application
for his
striking off “
as
harassment.
”
[27]
I
come now to the applicant’s explanation for his conduct which
resulted in his removal from the roll. He says that
in June
2016 in East London, he met a lady who was his personal assistant
from 1997 to 1999. During their conversation he
raised the
issue of Mrs Leve and told her that he been struck off the roll of
attorneys. He asked her about her recollection
of the matter.
She told him that they had dealt with two different Leve claimants:
one lived in Ginsberg and the other, in
Middeldrift. She
remembered the details exactly as one of the Leve’s was her
paternal relative. The applicant
then says,
“
On
hearing these facts being stated by my former personal assistant who
I know to have a formidable memory of people and events
I was
shocked. It dawned on me there and then that my recollection was
faulty. The explanation given … about the matter
before the
Umtata High Court related to the other Leve and that (
sic
)
my explanation was confused and jumbled up.
The
truth struck me like the Biblical Saul being struck by lightning in
the plains of Damascus. I realised that I paid the wrong
client the
money. It was a gross violation of the trust which the client had
bestowed on me. I was as I recall upset with the (Umtata
court) Leve.
This negatively affected my judgement towards the matter greatly. I
remember just wanting to get rid of her. In the
process I made a
grave and very serious mistake of paying her somebody else’s
moneys. We had a “fight” in the
Umtata court after the
conclusion of the matter. I live with the guilt, and will do so for
the rest of my life. I established that
Mrs Leve passed on in 2012. I
was as such not able to speak to her and ask for an apology. The
Fidelity fund as stated above did
refund her the misappropriated
moneys.”
[28]
The
first difficulty with this explanation is that it is based on pure
hearsay and as such, inadmissible as evidence. The
applicant
has not even identified his personal assistant who allegedly told him
that there were two different Leve claimants, let
alone filed an
affidavit by her. And this when he is seeking readmission as an
attorney. The failure to identify the
assistant or file an
affidavit was drawn to the applicant’s attention in the
answering affidavit. His answer in reply
is startling. He
says,
“…
the
context is conveniently being ignored by the respondent. The
said lady was my employee about sixteen [16] years ago. She
owes me
no duty at this stage at all and I can make no demands on her …
Every employer or former employer, I wish to submit,
knows of
instances where an employee or junior gives information on a
confidential basis and seeks guarantees of anonymity …
Perhaps
if she was my Professional Assistant and therefore an officer of this
court had given me this information I would have
asked him or her for
an affidavit.”
[29]
Nowhere
in the founding affidavit does the applicant even suggest that the
information which his former personal assistant had given
him was
confidential. In any event, there can be nothing confidential
about the applicant having acted for two different
clients by the
name of Leve: he himself said that in his Fidelity Fund affidavit.
It is clear from the applicant’s
reply that he decided that he
was not going to identify his former personal assistant, or get an
affidavit from her.
[30]
When
asked by the court to explain his failure to identify his former
personal assistant or file her affidavit, his answer was simply
that
the court routinely accepts hearsay evidence.
[31]
The
applicant however is mistaken. The starting point is that
hearsay evidence is unreliable and therefore inadmissible.
[9]
However, the Law of Evidence Amendment Act 45 of 1988 (“the
Evidence Act”) permits hearsay evidence in both civil
and
criminal proceedings, subject to certain statutory
preconditions.
[10]
These
preconditions are designed to ensure that the evidence is received
only if the interests of justice justify its reception;
and a court
deciding whether it is in the interests of justice to admit hearsay
evidence must have regard to every factor that
must be taken into
account, more specifically those mentioned in s 3(1)(c) of the
Evidence Act. Hearsay evidence should be
admitted only if it is
in the interests of justice to do so, having regard to all those
factors cumulatively.
[11]
[32]
Applying
these principles to the facts of this case, these are proceedings for
the readmission of a person to a learned, respected
and honourable
profession in which the candidate pledges total and unquestionable
integrity to society, the courts and the profession.
[12]
The high watermark of the hearsay evidence is that the applicant was
told that there were two different Leve claimants.
The
applicant tenders the evidence to show that he paid the wrong
client. The applicant’s so-called explanation for
not
obtaining an affidavit from his former personal assistant, is
hopelessly inadequate. The evidence has no probative value:
it
is nothing more than a statement that the applicant acted for two
Leve claimants: a fact which he himself stated in his Fidelity
fund
affidavit. If the evidence were to be admitted to show that the
applicant paid the wrong claimant, the respondent plainly
would be
prejudiced.
[33]
For
these reasons, I have come to the conclusion that it is not in the
interests of justice to admit as evidence, the statements
conveyed to
the applicant by his former personal assistant.
[34]
Apart
from this, the applicant’s new version, comprising the most
cursory assertion - that he paid the wrong client - does
not
withstand scrutiny, and casts serious doubt on his honesty and
integrity.
[35]
To
begin with, the applicant now concedes that he did not pay Mrs Leve
and that the Fidelity Fund “
did
refund her the misappropriated moneys
.”
It follows that Mrs Nothandekile Leve’s version in her
affidavit made on 15 January 2008 (annexed to the 2015
readmission
application) outlined above, is correct, as found by the court in the
striking off application. What is clear
from her affidavit is
that she never instructed the applicant to lodge another claim
against Sanlam; there was no such case or
an MVA claim on her behalf
brought in the High Court; the applicant did not pay her a cent of
the R162 561.23 that Sanlam
had paid over to him; and she never
lived in Ginsberg Township, but Debe Marele Location, Debenek.
[36]
Save
for a bald statement in the founding affidavit that he “
did
not have a full and proper sequential recollection of the events
,”
the applicant has not explained why he attempted to mislead the court
in the striking off application, by stating that
he had instituted an
action against Sanlam on behalf of Mrs Leve in the Bhisho High Court;
and an MVA claim in the Umtata High
Court. Unsurprisingly, he did not
cite a case number or produce a single document or piece of paper to
show that those actions
were in fact instituted. This, when in
his Fidelity Fund affidavit he furnished details of both the
attorneys and counsel
who allegedly acted in those cases (that
affidavit was not annexed to the founding papers in this application,
but to the papers
in the 2015 readmission application).
Further, it is clear from Mrs Leve’s affidavit that she
instructed another firm
of attorneys, Mlonyeni and Lesele
Incorporated, who finalised her MVA claim. The applicant’s
version in his Fidelity
Fund affidavit that Mrs Leve’s MVA
claim was settled for less than the amount sued for; that she was
unhappy with the settlement;
and that monies due to her were paid out
in due course, is thus false.
[37]
In
addition, it is highly improbable firstly, that the applicant would
have forgotten about the Mrs Leve who supposedly was wrongly
paid,
when he made his Fidelity Fund affidavit: she was a difficult client
with whom he had fought and he wanted to get rid of
her.
Secondly, it is also improbable that the applicant would not have
consulted his former personal assistant regarding
Mrs Nothandekile
Leve’s claim. The applicant seems to have forgotten what
he said in his Fidelity Fund affidavit: that
his response to Mrs
Leve’s claim was based inter alia on “
assistance
from former employees.
”
And thirdly, in his Fidelity Fund affidavit the applicant portrayed
Mrs Nothandekile Leve as the difficult client:
she had put him under
pressure and called at his office 2-3 times per week, did not trust
his advice, their relationship became
“
decidedly
cold
”
and she was not happy with the settlement of the MVA claim and
counsel had to explain it to her.
[38]
In
these circumstances, it is improbable that the applicant could have
made a mistake concerning Mrs Leve, who was entitled to the
money
paid to him on her behalf by Sanlam; or that the applicant could have
paid the wrong client the money, particularly when
on his own version
in the Fidelity Fund affidavit, he had acted for more than one Leve.
[39]
Aside
from all of this, the applicant’s new explanation for his
conduct is hopelessly inconsistent with a number of affidavits
to
which he has deposed, and cannot be accepted.
[40]
In
his Fidelity Fund affidavit, the applicant said that he paid Mrs Leve
R100 000 in the Sanlam matter and retained about R62 000
for fees in
both that matter and the pending MVA matter in the Umtata High
Court. In an affidavit in the 2007 application,
the applicant
said that R98 948.71 had been paid out of his trust account, and
submitted that that amount had been paid to Mrs
Leve.
[13]
In his opposing affidavit in the striking off application he said
that Mrs Leve refused to come clean on the matter.
In his
affidavit of 13 November 2015 he says that documentary proof (a bank
statement showing that R98 948.71 was paid out
of his trust
account) was submitted to gainsay misappropriation of Mrs Leve’s
money. In the founding affidavit the
applicant now says that he
paid the wrong Mrs Leve.
[41]
So
there are two versions: the first is that the applicant paid Mrs Leve
all the money due to her from the funds paid over to him
by Sanlam;
and the second, that he did not pay her at all. In all his
affidavits, the applicant says that the facts to which
he deposes are
within his personal knowledge, and true and correct. Now in
these circumstances, can it be determined from
the applicant’s
say-so which version in his various affidavits is correct? I
think not.
[42]
What
is beyond question however, is the finding of the court in the
striking off application - the applicant misappropriated money
belonging to Mrs Leve.
[43]
This
brings me to the issue whether the applicant has genuinely reformed
and whether the defect of character which led to his removal
from the
roll of attorneys, no longer exists. The applicant himself must
properly and correctly identify the relevant defect
of character and
show that he has acted in accordance with that appreciation.
Without this there can be no true and lasting
reformation.
[14]
[44]
This
issue may be dealt with briefly. The applicant does not
appreciate that he misappropriated money belonging to a client,
a
vulnerable member of society. Instead, he sees his conduct as
“
improper
bookkeeping
.”
He says that his knowledge of bookkeeping was basic; that there were
errors made when trust monies were paid into his business
account;
that Mrs Leve’s money had been deposited into a wrong account,
which violated the respondent’s rules, “
and
is the basis for the judgment currently against [him]
”;
and that he accepts that he concentrated more on generating fees for
his firm than keeping proper books. Then, as
regards
rehabilitation, he says that when he studied at the University of
Stellenbosch, he worked part-time for a law firm in Bellville
for
about six months and was exposed to professional management and
running a law practice; that he is prepared to attend a practice
management course run by the respondent; that if readmitted, he
intends practising as a professional assistant or legal adviser
for a
number of years; and that getting to know the truth led to long and
sustained soul searching.
[45]
The
applicant also does not accept that misappropriation of money was
conclusively proved against him. He was not struck from
the
roll because Mrs Leve’s money was deposited into a wrong
account: that was
not
the basis for the judgment in the striking off application. The
applicant’s characterisation of the misappropriation
of funds
entrusted to him as improper bookkeeping, is untenable and
self-serving. It shows that he has not accepted responsibility
for his actions and that he does not truly and deeply accept that his
misconduct was wrong.
[46]
Moreover,
the applicant’s claim to sustained soul searching and
rehabilitation is false, in light of the facts. In his
affidavit of 13 November 2015, he reiterated the stance he has
adopted throughout: his removal from the roll was wrong and he was
treated unfairly. In the founding affidavit made on 21 June
2016, the applicant says that if he had kept his books of account
electronically, perhaps a paper trail showing how monies were
transferred back into his trust account, would have been provided.
The applicant however completely misses the point. The absence
of a paper trail was indicative of his dishonesty: not improper
bookkeeping. He latched on to a payment of R98 948.71 out
of his trust account (the recipient is unknown) and submitted
that it
had been paid to Mrs Leve. The court in the striking off
application rejected this version.
[47]
Further,
the applicant has not presented any evidence, let alone sufficiently
compelling evidence, to show genuine and enduring
rehabilitation on
his part. He has annexed an affidavit by Ms Sazi Phumezo
Mnyande, an attorney, who knows him since 1988
when they were
prosecutors. Ms Mnyande in summary, states the following.
She observed the growth of the applicant’s
practice in King
William’s Town from 1993 to 1998. When she got a
promotional post in Port Elizabeth, they lost contact
until they saw
each other in 2007. They had no further contact until Ms
Mnyande heard that the applicant was lecturing at
Fort Hare
University about five years ago. Recently the applicant visited
Ms Mnyande at her office in Port Elizabeth and
told her that he had
been struck from the roll. She is confident that he will not
falter again and bring the profession into
disrepute. She
believes that the applicant will add value to the profession, given
his qualifications.
[48]
No
reliance can however be placed on Ms Mnyande’s evidence.
She has not been associated with the applicant since his
striking
from the roll, either in practice as an attorney or otherwise.
In fact, her contact with the applicant has been
sporadic. In
addition, it does not appear from her affidavit that she is aware the
reasons for the applicant’s removal
from the roll, so as to
give informed and relevant evidence concerning his conduct and
attitude, since his removal, more specifically
whether he is
genuinely and permanently reformed; whether he is a person of good
character and can be trusted; and whether he is
in every way fit to
be readmitted as an attorney.
[49]
To
return to the onus in
Behrman
.
[15]
The facts show that the applicant has not been sincere, frank and
truthful in presenting and discussing the factors relating
both to
his removal from the roll of attorneys, and his readmission.
Although eight years have elapsed since his striking,
he has not
demonstrated, by his attitude and conduct, genuine remorse, or that
he has fully extricated and distanced himself from
the conduct and
circumstances that led to his removal from the roll. He has
taken no steps to reimburse the Fidelity Fund
for the loss it
sustained in paying out Mrs Leve, or to pay the respondent’s
costs incurred in the striking off application
and the abandoned
readmission applications, which according to the papers are
substantial. But fundamentally, he has not
shown that he is
someone in whom members of the public can have well-founded
confidence that he will be a person of unquestionable
integrity,
probity and trustworthiness.
[50]
It
follows that the applicant is not a fit and proper person to be
readmitted to the roll of attorneys, and the application must
therefore be dismissed.
Costs
[51]
Section
16 of the Act provides that any person who applies to the court to be
readmitted and enrolled as an attorney must satisfy
the law society
in the province in which he applies that he is a fit and proper
person to be readmitted and enrolled. Given
its duties under
the Act to maintain professional and ethical standards not only in
the interests of the profession, but also in
the public interest, and
the particular circumstances of this case, the respondent was
compelled to oppose the application.
Its opposition was both
proper and reasonable. Therefore, it should not be
mulcted with any costs.
[16]
[52]
In
any event, the usual order in applications of this kind where a law
society successfully opposes an application for the readmission
of an
attorney, is that the applicant pays costs on an attorney and client
scale.
[17]
[53]
I
would make the following order:
(a)
The
application is dismissed.
(b)
The
applicant shall pay the respondent’s costs on the scale as
between attorney and client.
SCHIPPERS
J
YEKISO
J:
[54]
I
agree. It is so ordered.
YEKISO
J
[1]
The
relevant provisions of Section 15(3) of the Act read:
“
A
court may, on application made in accordance with this Act, readmit
and re-enrol 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; …”
[2]
Law
Society, Transvaal v Behrman
1981 (4) SA 538
(A);
Swartzberg
v Law Society of the Northern Provinces
[2008] ZASCA 36
;
2008
(5) SA 322
(SCA) para 14.
[3]
Behrman
n
2 at 557B-C.
[4]
Kudo
v Cape Law Society
1972
(4) SA 342
(C) at 345H-346 A, approved in Behrman at 557E-F.
[5]
Bezuidenhout
v Patensie Sitrus Beherend BPK
2001
(2) SA 224
(E) at 229B-C;
Jacobs
v
Baumann NO
(126/08)
[2009] ZASCA 43
(8 May 2009) para 20.
[6]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 1984 (3) SA 623 (A).
[7]
Prokureursorde
van Transvaal v Kleynhans
1995 (1) SA 839
(T) at 853G-H, affirmed in Law
Society
of the Northern Provinces v Sonntag
2012 (1) SA 372
(SCA) para 17.
[8]
Law
Society, Northern Provinces v Mogami and Others
2010 (1) SA 186
(SCA) para 26.
[9]
Theron
v AA Life Assurance Association Ltd
[1995] ZASCA 61
;
1995 (4) SA 361
(A) at 369E-H.
[10]
Section
3(1)
of the
Law of Evidence Amendment Act reads
:
“
Subject
to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings,
unless-
(a)
each
party against whom the evidence is to be adduced agrees to the
admission of the hearsay evidence in such proceedings;
(b)
the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(c)
the
court, having regard to-
(i)
the
nature of the proceedings;
(ii)
the
nature of the evidence;
(iii)
the
purpose for which the evidence is tendered;
(iv)
the
probative value of the evidence;
(v)
the
reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any
prejudice to a party which the admission of such evidence might
entail; and
(vii)
any
other factor which should in the opinion of the court be taken into
account, is of the opinion that such evidence should be
admitted in
the interests of justice."
[11]
S v Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
(CC) para 35.
[12]
Law
Society, Transvaal v Matthews
1989 (4) SA 389
(T) at 395H-396C, affirmed in
Mafokate
v the Law Society of the Northern Provinces
(786/12)
[2013] ZASCA 125
(23 September 2013) para 22.
[13]
Judgment
in the striking off application paras 15 and 16.
[14]
Swartzberg
n
2 para 22.
[15]
Behrman
n 2 at 557E-F.
[16]
Swartzberg
n 2 para 48.
[17]
Van
Eeden v Die Prokureursorde van Noordelike Provinsies
[2009] 1 All SA 477
(SCA) para 18.