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[2021] ZAWCHC 223
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Legal Practice Council v Van Wyk (3920/2013) [2021] ZAWCHC 223 (4 November 2021)
IN
THE HIGH COURT OF SOUTH AFRCA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case
no: 3920/2013
In
the matter between:
THE
LEGAL PRACTICE COUNCIL
Applicant
and
DANIEL
GERRIT SMIT VAN
WYK
Respondent
JUDGMENT
DELIVERED (VIA EMAIL) ON 4 NOVEMBER 2021
SHER,
J (BOZALEK J concurring):
1.
This
matter was launched as one of urgency in March 2013, some 8 years
ago, by the then Law Society of the Cape of Good Hope, which
at the
time was the statutory body which exercised control over
attorneys.
[1]
In
its original form it comprised an application to interdict the
respondent from practising as an attorney and authorising the
Director of the Law Society to take control of his trust accounts as
curator, pending an application to strike him from the roll
of
attorneys. Despite the launch of the application in circumstances of
alleged urgency it was not brought before the Court until
this year.
2.
In
October 2020 the application mutated, at the instance of the Legal
Practice Council (the entity which with effect from 1 November
2018
exercises jurisdiction and control over all legal practitioners
[2]
),
into one in which an order suspending the respondent from practice
for a period of 5 years, 3 years of which was to be suspended
for 5
years on certain conditions, was sought.
3.
That it has taken 8
years for the matter to come before the Court is because of a rank
failure on the part of the regulatory bodies
responsible for the
control and governance of the profession to properly carry out their
duties.
The facts
4.
The respondent is a 57
year old legal practitioner who was admitted to practice as an
attorney in the Orange Free State division
of the High Court on 13
February 1992. He was enrolled to practice in this division the
following year.
5.
The founding affidavit
which was filed in support of the application in 2013, some 10 years
after the respondent commenced his career
as an attorney, did not
provide any particulars as to the course of his practice from the
time of his admission. These were only
briefly set out in the
supplementary affidavit which was supplied at the request of the
Court, in May 2021.
6.
According to this
account the respondent entered into partnership with J von Ludwig in
March 1993. In February 1994 the firm amalgamated
with Hanekom and
partners, and it was incorporated the following year. By July 2001
the respondent was the last remaining director
of the firm. At the
time of the launch of the application in 2013 the respondent was in
practice for his own account as a sole
practitioner from premises in
Bellville, Cape Town.
7.
The respondent has
notched up a dismal record of disciplinary infractions which go back
some 23 years, to 1998. As at November 2012,
when the founding
affidavit was deposed to, he had been found guilty by the Law Society
of 42 acts of professional misconduct which
had been committed over a
period of 14 years, for which he had cumulatively been fined a total
of just short of R 400 000.
8.
These offences were
simply listed in chronological order in the founding affidavit, and
were elaborated upon in the member and professional
history reports
which were attached to the supplementary affidavit which was filed in
June 2021.
9.
With a view to
providing a conspectus of this history with reference to the nature
of the acts of misconduct concerned rather than
when they were
committed, I sought to group like offences together. The picture
which emerged from this exercise is as follows.
(i)
Failure to respond
to communications from clients and the Law Society and failure to
account to them
10.
The bulk of the
transgressions (in terms of number and sanction imposed), concern a
failure to respond to correspondence and communications
from clients
and the Law Society. Between 1998 and 2012 the respondent was found
guilty of 29 such instances for which he was cumulatively
fined a
total of some R 300 000. Lest it be thought that these were simply
petty non-responses, I point out that in a number of
instances
complaints were lodged with the Law Society by clients and colleagues
that the respondent had failed to account to them,
and the respondent
thereafter failed to respond to communications from the Society
seeking an answer in regard thereto, thereby
avoiding having to
account to the Society. In many of these instances the failure to
respond to communications occurred after the
respondent had failed to
execute the mandates of his clients or to carry out their
instructions. In some of these matters the respondent
had failed to
account to his clients in respect of monies he had received on their
behalf from third parties, or in respect of
monies he had received
from them in lieu of fees for work he was to perform.
11.
As these contraventions
increased over the years so the fines which were imposed increased
commensurately. For his first offence
in 1998 a fine of R 500 was
imposed. For subsequent offences committed between 1998 and 2002 that
doubled to a fine of R 1000 per
time. By 2008 the Law Society was
imposing fines of R 5000 per incident and by the beginning of 2010
this had more than doubled
again. In that year alone the respondent
was fined just short of R 100 000 for 9 separate contraventions. In
2011 he was cumulatively
fined approximately R 85 000 for 5 separate
contraventions, and in 2012 he was fined a similar amount.
12.
From this it is evident
that the increasing fines which were imposed had no deterrent effect
whatsoever. Neither did the imposition
in November 2008 of a fine
which was suspended on condition that the respondent was not again
found guilty of a similar contravention.
The respondent breached the
terms of the suspension three months later.
(ii)
Failure to execute
his duties as an attorney
13.
Between 2009 and 2012
the respondent was found guilty of a number of separate instances of
failing to properly attend to clients’
matters ‘competently,
diligently and timeously’. The first of such contraventions in
September 2009 involved a failure
to give the necessary attention to
a divorce matter, for which he was fined R 300. A few months later,
in February 2010, he was
fined R 6000 for having failed to give
proper attention to a damages claim since 2002.
14.
A month later he was
fined a similar amount for failing to enter an appearance to defend a
matter. Three months after that he was
fined R 9000 for failing to
issue a summons on behalf of a client, and in September 2010 he was
again found guilty of failing to
properly carry out a client’s
instructions, for which he was fined
R12 000, and failing to deliver client files after his mandate had
been terminated, for which he was fined R 3000. A year later
he was
fined R 6000 for a similar offence. In January 2012 he was fined R 15
000 for failing to give effect to a client’s
instructions and
failing to hand over the client’
s
file.
15.
Once
again, the magnitude of these transgressions must be properly
appreciated. As at 2011 the respondent’s professional history
record reflects that a total of 33 complaints were lodged against him
over a period of 13 years by clients and colleagues, and
as is
evident from the supplementary founding affidavit dated 16 October
2020 at least a further 2 such complaints
[3]
were
lodged against him subsequent thereto. (Although he was also found
guilty of these complaints the sanction which was imposed
in respect
thereof has not been disclosed).
16.
From the brief
particulars which have been furnished in regard to some of these
contraventions it appears that the respondent’s
failure, on
numerous occasions, to act in the best interests of his clients had
serious consequences for them.
17.
Thus, he failed to
ensure that maintenance was obtained for a woman who was in the
process of getting divorced, despite taking fees
from her to do so
(the Camphor complaint), failed to take steps to collect monies that
were outstanding (the Leon Rousseau Attorneys
complaint), failed to
register an antenuptial contract (the Van Greunen complaint), failed
to obtain rescission of a default judgment,
notwithstanding that it
had been agreed to by the plaintiff, resulting in a warrant of
execution being issued against the defendant
(the Bredenhann
complaint), failed to prosecute s 65 proceedings against a judgment
debtor and to account in respect of payments
made to him by the
debtor (the Vermaak & Dennis Attorneys complaint), failed to
issue summons on behalf of a client, presumably
because he lost the
original of a contract which had been provided to him for this
purpose (the Cloete complaint); and failed to
enter an appearance to
defend an action resulting in default judgment being granted against
his client, and then failed to attend
to the rescission thereof (the
Schmidt complaint).
(iii)
Offences pertaining
to honesty, integrity and probity
18.
The respondent has also
made himself guilty of a number of infractions which reflect
adversely on his honesty, integrity and professional
probity.
19.
In 2003 he was found
guilty of a misappropriation of funds, by failing to pay over staff
provident fund deductions to the Legal
Provident Fund, for which he
was fined R 5000.
20.
In June 2008 he failed
to account for monies received subsequent to the termination of a
mandate by a client, for which he was fined
R 3000. The offence was
coupled to a failure to respond to communications from the Law
Society for which he was also sanctioned.
21.
In September 2009 he
was found guilty of failing to account faithfully, accurately and
timeously to a complainant for funds he received
from her, for which
he was sanctioned with a fine of R 5000 after failing, once again, to
respond to various communications from
the Law Society.
22.
Seven months later, in
April 2010, he was fined R 8000 for similarly failing to properly
account for monies received from a client.
In August that year he was
found guilty of failing to pay over interest which had accrued on
monies which were held in trust, for
which he was fined R 2000.
23.
In May 2010 he was
found guilty of failing to submit his annual audit report timeously.
This followed a number of instances, from
2002 onwards, when he
failed (on a biennial basis it seems, which suggests a pattern of
behaviour) to qualify for the issue of
a fidelity fund certificate,
an essential requirement for the protection of members of the public
who deal with attorneys. Practitioners
commonly fail to qualify for
the issue of a fidelity fund certificate when their books of account
are not in good order and they
have consequently not obtained the
necessary audit clearance in respect of their trust accounts.
24.
In April/May 2004 the
respondent was interdicted from practising until he had rendered
himself compliant and had obtained the necessary
certificate. This
appears to have been a particularly serious breach as it transpires
that the interdict was only discharged two
years later in 2006, when
he again qualified for the issue of a fidelity fund certificate. In
May 2008 he was again interdicted
from practicing, for a number of
months, as he was not in possession of a fidelity fund certificate.
The same happened in April
2010 and February 2012.
25.
In July 2007 the Law
Society had to make application for an order compelling him to make
his accounting records available for inspection,
after he had
declined to do so. An order to this effect was finally granted on 21
April 2010. Why it took some 3 years to obtain
the order was not
explained. No doubt the delay was at least partly occasioned by the
respondent’s failure to concede to
the relief sought. This too
is a matter which weighs heavily on the respondent’s record. An
attorney who has nothing to hide
would hardly refuse to accede to a
request to make his records available to his regulatory body, and
would hardly require it to
go to Court for an order compelling him to
do so.
26.
To aggravate matters,
even after the order was served on him on 6 May 2010 the respondent
refused to allow an inspection. Once again,
an attorney whose records
are in the condition they should be would surely have no difficulty
complying with an order of court
that they be inspected. But for any
attorney, even one whose records are in disarray, not to comply with
an order of Court is a
serious reflection of a lack of integrity and
is fundamentally at odds with their hallowed position as officers of
the Court.
27.
As
a result, the Society was compelled to make application for him to be
held in contempt, although once again it does not appear
to have been
in any hurry to do so. It only obtained an order on 10 November
2011
[4]
holding
him to be in contempt, and imposing a sanction of 30 days’
imprisonment on him, which was suspended for 5 years on
certain
conditions. In addition, the respondent was ordered to pay the costs
of the application on the scale as between attorney
and client.
28.
Aside from this order,
during 2010 two orders compelling the respondent to account to his
clients also had to be obtained by the
Society. In one of them the
respondent gave notice that he intended to oppose the relief which
was sought, but he did not file
any opposing papers. The Society
claims that as it was unable to locate the respondent at the time,
the order was never served
on him or executed.
The law
29.
The
application was brought in terms of the provisions of s 22(1) of the
Attorneys Act,
[5]
which
provided that a person who had been admitted and enrolled as an
attorney could, on application by the regulatory body concerned,
be
struck off the roll or suspended from practice if, in the discretion
of the Court, he or she was not a fit and proper person
to continue
to practise as an attorney.
30.
It
is well-established that in applications of this nature a three-stage
process is envisaged. In the first place the Court is required
to
determine whether the conduct complained of has been established on a
balance of probabilities. If this is the case the Court
must then
determine, in the exercise of its discretion, whether the person
concerned is not a fit and proper person to continue
to practise.
This involves a value judgment which is arrived at after weighing the
offending conduct against the conduct expected
of an attorney.
Thereafter, the Court must similarly determine in the exercise of its
discretion whether, in the light of the circumstances
before it, the
practitioner must be removed from the roll of attorneys or whether an
order suspending him from practice for a specified
period will
suffice.
[6]
31.
Whether
a Court will impose the one or the other sanction depends on a
consideration of all the circumstances before it including
1) the
nature and seriousness of the misconduct in its totality and the
extent to which it reflects adversely upon the practitioner’s
character or shows him to be unworthy to remain in the ranks of what
is considered to be an honourable profession 2) the probability
of
such conduct being repeated and 3) the need to protect the public.
Ultimately it is said the question is one of ‘degree’.
[7]
In
deciding which course to follow the primary consideration is the
protection of the public, and the imposition of a sanction on
the
practitioner is secondary thereto.
[8]
32.
Therefore,
if a Court finds that, based on the facts before it the practitioner
is not a fit and proper person to continue to practise
it does not
necessarily follow that he/she must be removed from the roll as a
matter of course. The personal and professional implications
of
striking a practitioner from the roll are serious
[9]
and
a Court making such an order envisages that he/she should not be
permitted to practise again.
33.
If the Court has
sufficient and good reason to believe that a suspension will suffice
and that after a period of time the practitioner
will be able to
rehabilitate himself, it may impose such a sanction instead of an
order removing him from the roll.
34.
Although
it was said in
Summerley
[10]
in
2006, in a dictum which is commonly misinterpreted and misquoted,
that removal from the roll is ordinarily reserved for those
who have
acted dishonestly and those whose transgressions do not involve
dishonesty are usually visited with a lesser sanction
of suspension,
it is clear, both from what was said in that matter
[11]
and
in subsequent decisions of the Supreme Court of Appeal in
Botha
[12]
and
recently in
Hewetson,
[13]
that
this is neither an inviolate rule
[14]
nor
a
sine
qua non
and
each matter must be determined on its own facts; and a practitioner
may in appropriate instances be struck from the roll in
circumstances
where their acts of misconduct are not accompanied by any dishonesty.
35.
However,
where dishonesty is involved, it will require exceptional
circumstances before a suspension will be imposed instead of
an order
removing a practitioner from the roll.
[15]
36.
Finally,
inasmuch as the Court is required to exercise a discretion based on
the specific circumstances before it, no two cases
will ever be
identical and decisions in other matters consequently have limited
precedential value. They simply indicate how other
Courts have
exercised their discretion in a particular matter and do not bind or
compel a Court to exercise its discretion in the
same way.
[16]
An assessment
(i)
Ad the respondent’s
conduct
37.
When the matter first
came before us on 23 April 2021 we pointed out that the applicant was
still reflected as the Cape Law Society
even though it no longer
existed, having been dissolved together with the other provincial
statutory bodies which formerly regulated
attorneys and succeeded by
the Legal Practice Council (‘the LPC’) in 2018.
Consequently, we directed that the LPC should
file a notice in terms
of rule 15 of the uniform rules, formally substituting itself in the
place of the Society.
38.
We also directed that
the LPC should file a supplementary affidavit in which it provided an
explanation for why steps had not been
taken against the respondent
in the period between December 2013 and February 2021. In addition,
we requested that it furnish an
explanation as to why, contrary to
the position that had been adopted in 2013 by its
predecessor, it considered that
an order merely suspending the
respondent for an effective period of 2 years would constitute an
appropriate sanction. We directed
that the LPC should inform the
respondent, by formally serving the order on him, that the Court was
considering a more severe sanction
than that sought by the LPC, which
could include striking him from the roll of attorneys, and invited
him to file an affidavit
or affidavits in regard thereto or generally
in regard to the matter as a whole, and to make such oral or written
submissions as
to an appropriate sanction as he deemed fit, by 10 May
2021. In terms of the order the matter was postponed for hearing on
21 May
2021.
39.
The order was served on
the respondent personally by the sheriff, at his residence in Pearly
Beach, Gansbaai on 28 April 2021. Notwithstanding
the invitation that
was extended to him the respondent elected not to file any affidavits
or to make any written submissions.
40.
When the matter next
came before us on 21 May we were informed by the LPC’s attorney
that the respondent had contacted her
telephonically on 18 May at
which time he had requested that he be furnished with a full set of
the papers, which were duly emailed
to him, and the respondent had
also sent her an email that morning in which he informed her that he
was not able to be present
at Court and required a postponement of ‘a
month or so’ in order that he could instruct counsel to
represent him. Even
though the respondent had not approached the
Court to request a postponement we acceded to his request, and
accordingly postponed
the matter to 18 June 2021. We also gave the
respondent a further opportunity to file an affidavit, if any, by 14
June 2021. A
copy of the order which we made was served on the
respondent personally on 24 May 2021. Once again however the
respondent declined
the invitation which had been extended to him.
41.
On 18 June 2021 the LPC
was represented by counsel, who informed us that at about 09h30 that
morning his attorney had received a
Whatsapp message from the
respondent, in which he had again requested a postponement for a
month, in order that he could ‘settle’
the matter with
the LPC. The applicant’s attorney informed the respondent that
the matter was before the Court for determination
and could not be
settled, and if he required a postponement he should approach the
Court to request it, at which time the respondent
thanked her and
asked that he be informed of the outcome of the matter.
42.
In the circumstances we
directed that the matter should proceed, and when it was finally
argued before us the attitude which was
adopted by counsel for the
LPC was that its decision to seek a suspension rather than a removal
from the roll was wrong and ill-advised.
It had arrived at its
decision to ask for a suspension on the basis of an incorrect
understanding, which it shared with its predecessor,
that an order
removing a practitioner from the roll was reserved solely for cases
involving dishonesty, and because it was of the
view that it was
unable to ‘prove’ that the respondent had made himself
guilty of theft of trust monies or of any dishonesty
it had come to
the opinion that his misconduct did not warrant him being removed
from the roll of attorneys and a suspension would
suffice.
43.
As is apparent from our
discussion of the case law above, the applicant and its predecessor
were wrong in their understanding that
striking off is a sanction
which is reserved for a practitioner who has committed misconduct
which is accompanied by dishonesty.
They were also wrong in
their re-assessment of the respondent’s misconduct. They
clearly forgot or had no appreciation for
the fact that over the
years the respondent had indeed made himself guilty of a number of
transgressions which involved dishonesty
or which showed a serious
lack of probity and integrity, ranging from the misappropriation of
provident funds, repeated failures
to account to clients for monies
received from them or on their behalf, and a failure to comply with
an order of Court for which
he was found guilty of contempt and
sentenced to a suspended term of imprisonment. On this basis alone
the respondent’s conduct
clearly warranted an order removing
him from the roll.
44.
Aside from these
transgressions the respondent’s record of misconduct reflects
that over a period of more than 10 years he
repeatedly and
consistently failed to measure up to that standard of ethical
behaviour and conduct required of an attorney, by
not adhering to the
basic rules of the profession. He repeatedly and consistently failed
his clients, by not carrying out the mandate
or instructions he had
been given, and when called to account to them frequently ignored
them. When the Law Society sought explanations
for his behaviour he
often ignored it too. He consistently failed to get his books in
order and to ensure that he qualified for
the issue of a fidelity
fund certificate and had to be interdicted from practising in such
circumstances, on a number of occasions.
45.
These were accordingly
not isolated lapses or mistakes, of the kind sometimes made by a
young or inexperienced practitioner. The
respondent’s conduct
was indicative of a long-standing pattern of behaviour which
reflected not only a lack of insight and
respect for the profession
and a disregard for the interests of those he was meant to serve, but
a profound inability to take responsibility
for his actions and to
correct them. These are serious character defects, inconsistent with
what is required of an attorney.
46.
In
the same way that he avoided facing up to the errors of his ways by
not accounting to his clients and answering to the Law Society,
he
avoided answering to the Court for what he had done, notwithstanding
that he was required to deal with the allegations which
were made
against him and was required to assist the Court in arriving at a
just and fair determination of the matter, by placing
the relevant
facts and his explanation and personal circumstances before it.
[17]
47.
Because of the failure
by the Law Society and by the LPC to prosecute this matter as they
should have in 2013 and the years following,
the respondent was not
brought to book and was allowed to continue in practice as an
attorney, at least until 2015, the last time
when he was issued with
a fidelity fund certificate. Thereafter the Law Society was allegedly
unable to locate him for a period
of 2 years, because he left Cape
Town. In March 2018 he was traced to a residential address in Pearly
Beach, Gansbaai, but no attempts
were made by the Society or the LPC
(which took over the matter with effect from November 2018) to
investigate his circumstances,
with a view to establishing what he
was doing and whether he was still practising as an attorney.
48.
In August 2019 tracing
agents established that he was practising as an attorney in Gansbaai.
At the time he was not in possession
of a fidelity fund certificate
and was therefore exposing members of the public who were dealing
with him, to risk. Despite this,
the LPC failed to do what it was
supposed to. It only started taking steps to bring the matter to
Court at the end of the following
year, when it sought to file a
supplementary founding affidavit, and later filed an amended notice
of motion early in 2021.
49.
As a result of the
lackadaisical and haphazard fashion in which the matter was dealt
with, at the time when it came before us in
April 2021 it was not
apparent whether, some 2 years later, the respondent was still
practising as an attorney in Gansbaai or elsewhere
and we were
compelled to direct that the necessary enquiries be made. A
perfunctory attempt in this regard was only made in June
2021, when a
legal officer in the LPC’s disciplinary section was informed
during a telephone discussion with the respondent
that he was not
practising as an attorney but as a ‘legal consultant’.
What this entails is not clear. No attempt was
made by officials of
the LPC to visit the respondent in Gansbaai to check on his status.
50.
In the circumstances we
have approached the matter on the basis that the respondent is not
currently working as an attorney. However,
notwithstanding this we
are of the view that to permit the respondent to continue to remain
on the roll of attorneys would constitute
a danger to the public, and
would be irresponsible. We are further of the view that given the
magnitude and seriousness of the
respondent’s misconduct over a
period of 21 years i.e from 1998 to 2019, a suspension would not be
appropriate or sufficient
and would send out the wrong message to the
profession viz that an errant practitioner can avoid being held
accountable by simply
paying fines to his regulatory body as the
years go by.
51.
The respondent has
shown that the chances of his re-offending are highly likely if not
certain, and the lengthy period over which
the offences have been
committed and the repetitive nature thereof shows that,
notwithstanding the imposition of many, heavy fines
over the years,
the respondent has not been deterred and was unable to adjust his
behaviour. His chances of rehabilitation must
therefore be close to
non-existent. His failure to take responsibility for his
actions and to own up to them also demonstrates
that he has no
remorse or contrition for what he has done. In our view this is
consequently a matter where the only appropriate
and fit sanction to
impose is an order striking the respondent from the roll of
attorneys.
(ii)
Ad the conduct of
the regulatory bodies
52.
Before concluding it is
necessary to say something more about the conduct of the Law Society
and the LPC. We have already pointed
out that after the application
was filed in 2013, the Society sat on its hands for a number of
years. Despite our calling on its
successor to provide a full
explanation for this state of affairs it skirted the issue and sought
to blame the respondent, because
it said it had lost contact with him
in 2016 and had been unable to locate him.
53.
In this regard in her
supplementary founding affidavit dated 16 October 2020 Ms J Myburgh,
a member of the applicant’s Council,
acknowledged that a
significant period of time had elapsed since the application had been
issued in 2013. She indicated that the
decision to amend the relief
which was sought to an order suspending the respondent instead of
striking him from the roll, had
been taken in 2014. According to her
the delay in effecting the amendment was due to the fact that the
Society had been unable
to locate the respondent and it had only
received a successful trace report as to his whereabouts at the end
of 2019. But from
the contents of later affidavits which were filed
it appears that this explanation is not true, in a number of material
respects.
54.
In the first place it
is evident from the affidavit which Ms Myburgh subsequently deposed
to in May 2021 that the respondent was
in fact traced to an address
in Pearly Beach in March 2018, but the trace report was ‘overlooked’.
Ms Myburgh said
that from the applicant’s attorneys’
records it was ‘unclear’ why an attempt to serve the
papers was not
made at the Pearly Beach address at that time.
55.
In the second place, it
transpires that during 2013 the Society had decided that a
supplementary affidavit was necessary as further
complaints regarding
the respondent had been received, but the drafting of the affidavit
was delayed, allegedly, as more complaints
came in. It is greatly
concerning that, against this background, instead of immediately
enrolling the matter the Society twiddled
its thumbs.
56.
In September 2014 it
received an opinion from its attorneys that the sanction which was
sought should be amended to a suspension.
How and why the opinion was
provided was not explained. One must assume that the Society asked
for it. This is extraordinary, considering
that in its original
founding affidavit it adopted the position that the respondent’s
conduct was so bad that it demonstrated
that he suffered from
‘character defects’ and a lack of integrity which was
inconsistent with the standards of the
profession, and it was not in
the interests of the public and the profession that he be allowed to
continue to practise as an attorney
as he posed a risk to the public
and the administration of justice.
57.
One would have expected
that given these circumstances, in the light of the additional
complaints the Society would have approached
the Court as a matter of
urgency in 2014 for an order interdicting the respondent and removing
him from the roll. Yet it still
did nothing. It did not even take
steps to effect an amendment and to bring the matter to Court.
58.
As appears from the
supplementary affidavit it was only in July 2016 that the Society was
unable to serve papers on the respondent
in a separate application
which it had instituted against him, for his failure to be in
possession of the necessary fidelity fund
certificate. So, between
2013 and 2016 the Society was in a position to bring the matter
before the Court, if it wanted to. By
2016 the application was 3
years old, without yet having come before the Court. In her
supplementary affidavit Ms Myburgh acknowledged
that thereafter an
application for substituted service could have been brought, but it
was not. No explanation was provided for
the failure to do so.
59.
When the respondent
could not be found in July 2016 the Society was clearly in no
particular hurry to take steps to locate him,
as it only instructed
tracing agents in May the following year. And after it ‘overlooked’
the successful trace report
of March 2018 it continued to instruct
tracers to find the respondent, incurring further unnecessary
expense.
60.
On 26 August 2019
tracers established that the respondent was (still) living at the
address in Pearly Beach. They also established
that he was practising
as an attorney in Gansbaai. One would have thought that given that he
last held a fidelity fund certificate
in 2015 this would have set
alarm bells ringing, and given the risk to the public the LPC would
have immediately revived the application
to interdict the respondent,
pending further proceedings. But once again it was seemingly
nonplussed and it dilly-dallied till
October the following year, when
it filed a supplementary affidavit motivating why a suspension was
sought instead of an order
removing the respondent from the roll.
61.
Lest it be thought that
the attitude evinced by the Society and the LPC in their handling of
this application was an isolated aberration,
we note from the
respondent’s member history report that a number of the
complaints which were lodged against him and which
do not form part
of the subject of this application were only finalized more than 5
years after they were lodged.
62.
Even on the most
benevolent interpretation of events the conduct of the regulatory
bodies in this matter therefore cannot be described
as anything less
than woefully inadequate.
63.
The
former provincial law societies and now the LPC are the
custos
morum
of the legal profession, and the guardians of its values and
traditions. As such, in terms of their constitutions as expounded
on
in terms of the common law and now the Legal Practice Act, they were
and are seized with the duty of upholding the requisite
professional
and ethical norms and standards on which the profession is founded.
In giving effect to this duty the LPC must not
only regulate the
profession
[18]
by
maintaining the appropriate standards of professional practice and
ethical conduct of legal practitioners,
[19]
but
must enhance and maintain the integrity and status of the legal
profession.
[20]
64.
Amongst
the stated objectives of the Act and the LPC are to ‘ensure’
that the profession is held accountable and the
‘public
interest’ is protected and promoted.
[21]
To
this end the Act seeks to provide a legislative framework for the
legal profession that embraces the values underpinning the
Constitution, and which ensures that the rule of law is
upheld.
[22]
65.
These
laudable aims will remain little more than lofty ideals rather than
achievable goals if the necessary will and effort to give
effect to
them is not present amongst the administrators of the profession.
Having a code of conduct
[23]
which
sets out the fundamental rules by which an attorney is to practise
and which provides that they shall at all times maintain
the highest
standards of honesty and integrity
[24]
and
shall treat the interests of their clients as paramount,
[25]
is
all good and well, but it is worth very little unless it is enforced.
66.
As is demonstrated by
the facts in this matter, if those practitioners who contravene the
rules and standards of the profession
are not dealt with promptly and
effectively by those who have the statutory power and duty to
regulate the profession, then instead
of ensuring accountability and
upholding the integrity and status of the profession a culture of
impunity is fostered and the profession
is lowered in the eyes of the
public, and the values and principles which are essential to its
survival are debased.
67.
In
terms of the Act, the LPC must employ such officials or staff as may
be necessary to enable it to perform its functions ‘properly’
[26]
and
may delegate such powers and functions as may be necessary for it to
discharge its duties, to its provincial councils,
[27]
who
may in turn establish one or more committees to assist them in the
performance of their functions.
[28]
In
this regard the Act affords wide and far-ranging powers to
investigating and disciplinary committees,
[29]
which
include powers to compel the production of any book, document or
articles in the possession of an attorney, and the holding
of
hearings. Disciplinary committees have the power to impose a range of
sanctions and orders on those who are found guilty of
contravening
the rules of the profession, which include not only the imposition of
fines and orders directing that compensation
be paid, but which may
also include an order
[30]
temporarily
suspending the practitioner concerned pending the finalization of an
application to Court for an order suspending him/her
from practice.
Given the stance adopted by the applicant this appears to have been a
matter which at the very least called out
for the exercise of such
temporary, suspensionary power.
68.
The
Act clearly envisages that disciplinary proceedings are to be
conducted expeditiously, as it provides that in cases where a
disciplinary body is satisfied that a legal practitioner has made
themselves guilty of serious misconduct it must inform the Council
thereof, with a view to it instituting urgent legal proceedings in
the High Court to suspend the practitioner from practice,
[31]
and
it further provides that a finding as to whether a practitioner is
guilty or not of misconduct must be rendered by a disciplinary
committee within 30 days after the conclusion of a hearing,
[32]
and
an appeal against such a finding and the sanction imposed in respect
thereof must similarly be lodged within 30 days.
[33]
69.
Unfortunately, despite
these wide powers and the clear statutory injunction that
disciplinary proceedings against errant practitioners
are to be
instituted and held as soon as circumstances reasonably allow,
instances of tardiness and torpidity on the part
of the LPC
have become more frequent, the circumstances of the present matter
representing a particularly egregious example thereof.
70.
As a result, it has
unfortunately become necessary for the Court, in the exercise of its
powers in matter such as these to step
in to ensure that regulatory
bodies which do not discharge their duties in relation to the
profession are held to account, by making
the appropriate orders
against them when and if needs be, as we have attempted to do in this
matter. We hope and trust that the
LPC will take this both as a
warning and an opportunity to get its house in order.
71.
If
the reasons for the unacceptable state of affairs whereby this matter
took 8 years to come before the Court boil down to resource,
capacity
and financial constraints, then the applicant’s Council should
face and deal with them, and should properly capacitate
its
provincial councils and their investigating and disciplinary
committees. And if needs be, the applicant should advise and consult
the Minister in this regard, as the Act entitles it to do.
[34]
We
remind the Council that in order to achieve its statutory
objectives,
[35]
which
include the regulation of the profession and the enhancement and
maintenance of its integrity and status, and the protection
of the
public, it is statutorily enjoined to do all things necessary for the
proper and effective performance of its functions
and the exercise of
its powers.
[36]
Conclusion
72.
Although
because of the lengthy passage of time this is a case of waters long
having flowed under the proverbial bridge, we are
nonetheless of the
view that it is important that an attempt should be made to establish
why the systemic failures which occurred
happened, with a view to
remedying any deficiencies and ensuring that effective measures are
put in place to avoid future such
occurrences, and to hold those who
failed accountable.
[37]
73.
We
direct that a copy of the judgment is to be furnished to the
Chairperson of the LPC, for her comment and report-back as to the
causes and deficiencies responsible for the matter having taken 8
years to come before the Court, and the manner in which the matter
was dealt with, together with her report-back as to what steps have
been taken by the LPC to hold accountable those who were responsible
for what happened, and to ensure that effective measures are put in
place to ensure that the LPC gives effect to its statutory
obligations in terms of regulating the profession,
[38]
maintaining
standards of professional practice and ethical conduct
[39]
and
protecting the public,
[40]
by
ensuring that complaints against legal practitioners are dealt with
expeditiously.
74.
It is an accepted
practice in matters such as these to include an ancillary order
directing that the practitioner be liable for
the costs of the
application, on the attorney-client scale. The difficulty which
arises with this is that because the regulatory
body knows that its
costs will ultimately be borne by the unfortunate practitioner it has
no incentive to act expeditiously, and
it suffers no penalty if it
drags matters out.
75.
As the old aphorism has
it ‘justice delayed is justice denied’, and apart from
the interests of the public and the clients
which the respondent
failed, we must also have regard for his interests. Had the matter
been brought before the Court in 2013-2014
when it should have been,
the costs for which he would have been liable would have been
considerably less. In this regard for example
the initial order which
was sought at the time interdicting him from practising, pending a
striking-off application, provided for
the costs of the curator who
was to take over and administer his trust accounts at a rate of R 500
per hour, whereas in the draft
which was provided to us when the
matter was heard the tariff proposed had more than doubled to R 1100
per hour. We see no reason
why the respondent should be liable for
the unnecessary further costs which were incurred in relation to the
opinion which was
given pertaining to the amendment of the notice of
motion, and such amendment 6 years later, including the filing of the
supplementary
founding affidavit in relation thereto. The same holds
good for the unnecessary costs which were incurred in having to trace
the
respondent. Had the regulatory bodies done what they needed to do
the matter would have been before the Court and the respondent
would
have been dealt with in 2013-2014. In the circumstances the question
which arises is whether, given the conduct of the regulatory
bodies,
it would be fair and just to hold the respondent liable for costs
beyond 2013-2014.
76.
In our view where a
regulatory body has unduly delayed in bringing an errant practitioner
before the Court and has run up unnecessary
costs in doing so, the
Court should, in the exercise of its discretion, consider deviating
from the standard order, not only as
a mark of its displeasure but
also with a view to holding the body to account and ensuring that
justice is done.
77.
In the circumstances we
are of the view that the fair and proper order to make in this regard
is one directing that the respondent
shall only be liable for the
costs of the application, on the attorney-client scale, up to and
including the filing of his notice
of intention to oppose, on 12
April 2013. The unfortunate result of this is that the costs of the
application beyond those awarded
will be borne by the LPC and
therefore ultimately by those of the respondent’s colleagues,
who abide by the rules. Unfortunate
as this may be, perhaps this will
result in law-abiding members of the profession holding the
office-bearers of their regulatory
body to account for the due
discharge of their duties.
78.
Finally, although no
such relief was sought in terms of the amended notice of motion which
was served on the respondent, in the
draft order which was provided
to us the applicant seeks a range of orders whereby the Director of
its Western Cape office is appointed
as curator and the respondent is
directed to hand over his books of account, records and files to
him/her, and is interdicted from
operating any of his trust accounts.
As we indicated previously, the applicant was unable to establish
whether the respondent is
currently practising as an attorney, and a
legal officer in its employ was in fact informed by the respondent
that he is not practising
in that capacity but as a legal consultant.
In the circumstances it would not be appropriate and would be
premature to grant such
orders at this stage. In the event that it
becomes necessary to do so the applicant may approach us in this
regard.
79.
In the result we make
the following Order:
79.1.
the respondent’s
name is struck off the roll of attorneys of this Court;
79.2.
the respondent shall
surrender and deliver to the Registrar of this Court his certificate
of enrolment as an attorney within 10
days from the date of the
service of this order on him, failing which the Sheriff of the
district in which such certificate of
enrolment may be found is
authorised and directed to take possession thereof and deliver same
to the Registrar of this Court;
79.3.
the respondent shall be
liable for the costs of the application on the scale as between
attorney and client, as taxed or agreed,
up to and including 12 April
2013;
79.4.
in the event that it is
necessary for a curator to be appointed to take custody of the
respondent’s books of account, records
and client files and/or
to administer any monies received or held by the respondent for on
account of any person, or to administer
any monies held in trust
and/or invested by the respondent in terms of ss 78(2) and/or 78(2A)
of the Attorneys Act 53 of 1979 and/or
ss 86(3)
and
86
(4) of the
Legal Practice Act 28 of 2014
, or to administer any estate of a
deceased person or any insolvent estate or estate under curatorship,
of which the respondent
is an executor, trustee or curator, or which
he is otherwise administering, the applicant may approach the Court
on the same papers,
duly supplemented, for the necessary relief in
this regard.
79.5.
a copy of the judgment
and this order is to be furnished to the Chairperson of the LPC by
the Registrar of this Court within 5 days
from date hereof, for her
comment and report-back to this Court (or one differently constituted
if needs be) within 3 months from
date of this order, as to the
causes and deficiencies responsible for the matter having taken 8
years to come before the Court,
and the manner in which the matter
was dealt with, as well as her report as to what steps have been
taken or will be taken by the
LPC to hold accountable those who were
responsible for what happened, and what steps have been or will be
taken to ensure that
effective measures are put in place to ensure
that the LPC gives effect to its statutory obligations in terms of
regulating the
profession, maintaining standards of professional
practice and ethical conduct and protecting the public, by ensuring
that complaints
against legal practitioners are dealt with
expeditiously.
M
SHER
Judge
of the High Court
I agree.
pp
L BOZALEK
Judge
of the High Court
Attendances
:
Applicant’s
counsel: Adv JH Robbertze
Applicant’s
attorneys: Bisset Boehmke McBlain (Cape Town)
(No
appearance for the respondent).
[1]
In
terms of the Attorneys Act 53 of 1979.
[2]
In
terms of the
Legal Practice Act 28 of 2014
.
[3]
The
Bredenhann and Lottering complaints.
[4]
Per
Davis J.
[5]
Note
1.
[6]
Jasat
v Natal Law Society
2000 (3) SA 44
(SCA) para 10;
Malan
& Ano v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) para 4.
[7]
Prokureursorde
van Transvaal v Kleynhans
1995
(1) SA 839
(T) at 865B-C;
Jasat
para 10;
Malan
para 6.
[8]
Malan
n 6 para 7;
Van
der Berg v General Council of the Bar of South Africa
[2007] 2 All SA 499 (SCA).
[9]
Malan
n 6 para 8.
[10]
Summerley
v Law Society, Northern Provinces
2006
(5) SA 613
(SCA) para 21.
[11]
Id.
As stated by Brand JA ‘this can obviously not be regarded as a
rule of the Medes and the Persians, since every case must
ultimately
be decided on its own facts’.
[12]
Botha
v Law Society of the Northern Provinces
[2008] ZASCA 106
;
2009 (1) SA 227
(SCA) para 3.
[13]
Hewetson
v Law Society of the Free State
2020
(5) SA 86
(SCA) para 50. Thus, as Leach JA has pointed out,
attorneys have been struck from the roll for failing to respond to
communications
from clients or their regulatory body, on the basis
that this reflects a lack of integrity.
[14]
Summerley
n 10.
[15]
Hewetson
n 13 para 48.
[16]
Malan
n 6 para 10.
[17]
Kleynhans
n 7 at 853G,
Law
Society, Cape of Good Hope v Berrange
2005 (5) SA 160
(C) at 167F,
Botha
n 12 para 10.
[18]
Section
5(d) of the Act.
[19]
Id
,
s 5(g).
[20]
Section
5(f).
[21]
Vide
the preamble to and ss 3(d) and 5(c) of the Act.
[22]
Section
3(a).
[23]
The
final Code of Conduct for Legal Practitioners was promulgated in
terms of s 36(1) of the Act, on 29 March 2019.
[24]
Clause
3.1 of the Code.
[25]
Id, cl
3.3.
[26]
Section
6(2)(a).
[27]
Section
23(1).
[28]
Section
23(6).
[29]
As
established in terms of ss 37(1) and 37(4).
[30]
In
terms of s 40(3)(a)(iii)-(iv).
[31]
Section
43.
[32]
Section
40(1)(a).
[33]
Section
41(1)(a).
[34]
Section
6(1)(b)(ii).
[35]
As set
out in s 5.
[36]
Section
6(1)(b)(iii).
[37]
In
terms of ss 48(6)(a)-(c).
[38]
Section
5(d).
[39]
Section
5(g).
[40]
Section
5(c).