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[2010] ZAWCHC 482
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Law Society of the Cape of Good Hope v Siebrits (4791/10) [2010] ZAWCHC 482 (28 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: 4791/10
In
the matter between:
THE
LAW SOCIETY OF THE CAPE OF GOOD HOPE
…..................................
Appellant
and
DANIEL
JACOBUS SIEBRITS
…....................................................................
Respondent
JUDGMENT
DELIVERED: TUESDAY 28 SEPTEMBER 2010
SALDANHA,
J
[1.]
This is an application for an order removing the name of the
respondent from the role of attorneys, notaries and conveyancers.
The respondent opposes the application principally on the ground
that an order of striking-off is not the only appropriate sanction
in the circumstances.
[2.]
On the 13
th
of
May 2004 an interdict was granted by Acting Judge Franks against the
respondent that, pending his obtaining a Fidelity Fund
certificate
for the period 1
st
January
2004 to 31 December 2004 as prescribed in terms of section 41 (1) of
the Attorneys Act 1979, he was prohibited from practising
as an
attorney, notary and conveyancer. Various ancillary relief was also
granted, similar to that which is sought in this application.
[3.]
This application was initially unopposed until it first came before
this court on the 4
th
of
June 2010. It was postponed at the request of the respondent who
sought
an opportunity of filing opposing papers for as he termed it
"to
place the correct facts and circumstances before the court".
[4.]
The respondent is a 66 year old attorney, notary and conveyancer who
prior to being interdicted had practised under the name
and style of
Siebrits and De Braal in Bellville. He was initially admitted as an
attorney of the Transvaal Provincial Division
(as it was then known)
on the 9
th
September
1974 and was admitted as a conveyancer in that division on the 12
th
of
July 1977. He was enrolled as an attorney and conveyancer of this
Court on the 3
rd
November
1978 and was admitted as a notary on the 19 November 1980. He
thereafter practised as a professional assistant with the
firm
Cloete & Partners in Cape Town until the 22
nd
April
1979 whereafter he practised as a professional assistant with the
firm Cohen & Co. in Bellville until the 29
th
of
February 1980. On the 1
st
of
March 1980
he began practising as a partner at the firm DJ Smit &
Siebrits in Bellville until the 28 February 1985 whereafter he
commenced
practice for his own account under the name and style DJ
Siebrits Attorneys also in Bellville until the 6
th
December
1987. He thereafter practised as a partner in the firm Kantor
Fialkov & Siebrits in Bellville until the 28
th
of
February 1989, whereafter he practised for his own account under the
name and style Danie Siebrits Attorneys in Bellville from
the 1
st
of
March 1989. On the 1
st
of
January 1991 he became a partner in the firm Siebrits & Vernooy
until the 1
st
of
March 1992 and from the 1
st
June
1996 he practised as a partner in the firm Siebrits & de Braal.
He also practised as a professional assistant at Venter
van Eeden
Incorporated in Bellville from the 1
st
of
October 1998.
|
[5.]
In 2001 the respondent was the subject of a resolution of the
council of the applicant to bring an application to interdict
him
from practising as an attorney, as a result of his failure to
timeously submit his annual audit report. The report which
had been
due by the 31
st
August
2000 was only received by the applicant on the 19
th
of
April 2001. The application was thereafter withdrawn by the
applicant.
[6.]
In 2003 the respondent was again the subject of a resolution to
interdict him from practice as a result of his failure to
submit an
annual audit report by the 31
st
August
2002.
[7.]
In 2004 the respondent was yet again the subject of a resolution to
interdict him from practising as an attorney and as a
result of his
failure to submit his annual audit report by the 31
st
of
August 2003 he was interdicted from practice on the 13
,h
May
2004.
[8.]
In this application the applicant has brought to the attention of
the court various allegations of serious misconduct on
the part of
the respondent relating to the misappropriation of trust funds. The
applicant has expressed a view that the most
appropriate sanction is
that of the removal of the respondent's name from the roll of
attorneys, notaries and conveyancers. The
applicant contends that
the grounds for the consideration for the for the removal of the
respondent's name from the roll are
inter
alia,
(i)
that the respondent misappropriated trust funds and in the process
made himself guilty of theft (ii) the respondent administered
his
trust accounts in a reckless and cavalier manner and without any
regard to his
duties
as an attorney, (iii) the respondent manifested a character defect
and a lack of integrity (iv) the respondent is guilty
of
unprofessional, dishonorable and unworthy conduct and that (iv) the
respondent has brought the attorneys profession into disrepute.
[9.]
The applicant claims that, in addition to the complaint of
misconduct which was the basis of the interdict application, the
application is also based on claims that had been submitted to the
Attorneys Fidelity Fund (the Fund) by some of the respondent's
former clients. In this regard the applicant attached a summary of
claims submitted to the Fund by Graham Howard Price and Rory
Trevor
Flanagan trading as PR Profiles CC in the amount R300 000.00;
Jacobus Christiaan De Wet Du Plessis trading as De Wet Du
Plessis
Inc. in the amount of R13 650.75; A P Theron on behalf of JR and PG
McEvilly in the amount of R200 000.00, Gilloway (E/L
WH Rivers), and
Jonathan David in the amount of R20 000.00 and Meynhardt (Meynhardt
& Kie) in the amount of R400 000.00.
The total amount of the
claims as at the 4
th
of
August 2009 was R933 650.75. Save for the amount of R20 000.00 in
respect of the Gilloway (Estate Late WH Rivers) claim which
the
respondent claimed he had settled directly, the remaining four
claims totaling R913 650.75 was paid by the Fund from monies
which
were paid in by the respondent.
[10.]
The details of each of these claims are briefly;
(i)
The
Graham Price Claim
This
claim arose out of deposits totaling an amount of R1 071 580.74
which had been paid into the trust account of Siebrits and
de Braal.
The deposits were to be held in trust and were to be paid to
contractors for the construction of a factory for the
Close
Corporation. The claimant submitted that of the total amount
deposited into the respondent's trust account only an amount
of R160
770.00 was paid out and a balance of R910 810.74 had remained with
the respondent.
(ii)
The
Jacobus Christiaan de Wet Du Plessis claim.
[11.]
The claimant, a partner in the firm of attorneys Bill Tolken
Hendrikse Inc. in Bellville claimed that an amount of R13 650.75
was
owed to him for work done on behalf of the respondent's firm. De Wet
Du Plessis claimed that the clients which he had assisted
had paid
over various amounts to the respondent to cover the fees but that
the respondent had failed to pay over the amounts
to him.
(iii)
The
Anthony Paul Theron claim.
[12.]
This claim arose out of instructions received by the respondent from
a Mr. McEvilly to attend to a property transaction.
Several amounts
were paid by McEvilly into the respondent's trust account. Upon
registration of transfer of the property on the
5
th
of
March 2004 an amount of R247 189.80 became due to McEvilly and which
was not paid over to him. The claim was lodged by Mr.
Anthony Paul
Theron an attorney with the firm Louw & Du Plessis in Somerset
West on behalf of McEvilly.
(iv)
The
Meynhardt & Co. claim
[13.]
Ms Christiana Meynhardt an attorney who practised for her own
account under the name and style of Meynhardt & Co. in
Tygervalley, claimed that she had from November 1992 been employed
as a professional assistant at the respondent's firm Danie
Siebrits
Attorneys which thereafter became Siebrits and de Braal. She mainly
ran the collections practice of the firm and in
May 2002 opened up
her own practice. Several clients of the respondent's firm migrated
to her new practice but many of them continued
to deposit money into
the account of Siebrits & de Braal. Such monies were meant to be
transferred into the account of Meynhardt
& Co. Meynhardt
claimed that as at the date of the interdict against the respondent
an amount of R456 744.29 was meant to
have been transferred into her
firm's account.
[14.]
In his opposing papers the respondent for his part admitted that he
had misappropriated the funds from his trust account.
He claimed
though that he had paid a total amount of R932 906.88 into the Fund
to cover the claims. The amount had come from
various sources such
as R96 688.07 from the trust account of his erstwhile practice, plus
an amount R796 218.81 which he had
raised from the sale of his and
his wife's house plus a further amount of R40 000.00 from his wife.
[15.]
The respondent claimed that as a result of negotiations which had
been held between the legal representative of the trust
creditors
and his legal representative, a final settlement of the claims was
reached in September 2007 and a written agreement
was entered into
between the parties. The details of the agreement were covered by a
confidentiality clause. It appears that
the amounts initially
claimed by the claimants were compromised and settled in the total
amount of R913 650.75.
[16.]
The applicant claimed that the respondent had failed to properly
account for the amounts claimed by the claimants. In response,
the
respondent claimed that as a result of the confidentiality clause in
the settlement agreement he was not at liberty to disclose
the
content of the settlement other than that the amounts settled were
agreed between the parties and were paid from the amount
which he
had paid into the Fund. The respondent also claimed that the
agreement carried the
'imprimatur'
of
the Fund and the applicant in so far as the claims were paid from
the amounts he had paid into the Fund.
[17.]
The claimants, Graham Price and attorney Jacobus Du Plessis, had
also indicated that their claims had been referred to the
South
African Police Services for investigation against the respondent.
[18.]
The respondent explained that during the course of the subsequent
criminal proceedings there were successful negotiations
with the
offices of the Deputy Director of Public Prosecutions (Specialized
Commercial Crime Unit-Western Cape) for the criminal
charges not to
be proceeded with, but that the respondent was rather to participate
in a diversion program in which he undertook
to do seven hundred
(700) hours of community service at the offices of the Black Sash
(Cape Town.) It appears that central to
this agreement with the
Deputy Director of Public Prosecutions was the respondent's stated
intention to emigrate to Portugal
together with his wife as soon as
his community service obligations had been completed. His daughter
and her husband, a Portuguese
citizen, who lived in Manchester,
England, had offered to support him and his wife and they had
offered them the permanent use
of a portion of their house in
Porta,
Portugal. In addition the respondent had accepted an offer of
employment as a farm manager near Porto with effect from
September
2012. The respondent claimed that he would initially seek to obtain
permanent residence whereafter he would seek Portuguese
citizenship.
In his negotiations with the Directorate of Prosecutions he claimed
that it was very likely that his application
for permanent residence
and citizenship in Portugal would be prejudiced in the event of him
been convicted of theft. The respondent
had also submitted to the
DDPP a report by a clinical psychologist Mr. Bernard Altman dated 30
October 2008 in support of his
representations that the criminal
charges not be proceeded with. Altman had recommended that the
respondent participate in the
diversion program and claimed, amongst
others, that the respondent had acknowledged his wrongdoings, that
he was openly contrite,
that he was ashamed of his actions and that
he had experienced deep regret and self reproach as a result of his
conduct.
[19.]
The respondent in his opposing affidavit further set out the
circumstances in which the misappropriation had occurred and
claimed
that he was not motivated by self enrichment but rather to have
extricated himself from bad financial decisions that
he had made in
respect of the conduct of his legal practice. He claimed that he had
also been under severe financial pressure
to continue with his
practice as a result of his wife having been diagnosed with cancer
and his son's condition of schizophrenia.
[20.]
He claimed that the amounts which he had misappropriated from his
trust account were used to pay for the monthly overheads
of his firm
which included the salaries of twelve staff members. In this regard
he explained that in 1994 he had employed Ms
Meynhardt as a
professional assistant and that she had developed a debt collection
practice. As it grew they decided to move
to larger premises on the
understanding that he would be responsible for the overheads of the
practice as a whole and in return
he would receive a share of the
fees derived from the collections. He claimed that his personal and
business resources had increasingly
been placed under strain as the
monthly expenses of the practice had increased without a
commensurate increase in income from
the collections practice. He
claimed that instead of extricating himself from the precipitous
financial disaster by closing the
firm and cancelling the leases he
did not have
"the
strength of character"
to
do so but rather used the trust funds to subsidize the considerable
monthly overheads.
[21.]
While admitting that his actions were reprehensible he claimed that
he was under extreme personal and financial pressure
at the time
that he committed the offences.
[22.]
He claimed that as a result of the interdict proceedings he had
fully cooperated with the applicant and surrendered
his
certificates of enrolment as an attorney, notary and conveyancer and
that he had co-operated with the curator who had been
appointed in
terms of the court order in 2004. He claimed that there was nothing
that remained of his practice and that he presently
worked as a
consultant and as a paralegal to various firms of attorneys and
conveyancers in the Western Cape for which he is
paid a fee. He has
the use of office facilities and a separate office which is situated
in close proximity to the Deeds and Masters
Offices from which he
collects documents on a daily basis. He claims that he has adhered
to the terms of the interdict and that
he does not intend applying
for a Fidelity Fund certificate in the future.
[23.]
He also claimed that as a result of his diminished earning capacity
and parlous financial circumstances he has had to sell
whatever
assets remained to cover his living and legal expenses. He struggles
each month to make ends meet and is in arrears
with several of his
creditors. Both he and his wife's lifestyle have been drastically
affected over the past six years and they
have had to curtail all
but their necessary expenses. As a result of their financial
position they are obliged to take up the
offer to live in Portugal
where he claims their expenses would be more affordable.
[24.]
The respondent also claimed that on 22 May 2009 he commenced with
the community service at the regional office of the Black
Sash in
Cape Town and that he had since served 285 hours. He also claimed
that prior thereto he had spent 157 hours on a voluntary
basis
assisting at the Black Sash. He attached a letter from the regional
director of the Black Sash, Ms Leonie Caroline, in
which she
confirmed that the respondent was participating in the diversion
program which was monitored by Nicro. She stated that
the respondent
had worked mostly on the drafting of publications, has assisted with
research and collating of information with
regard to the national
education system, refugee rights, child and social grants and
pension law as well as consumer protection
issues. Part of the
respondent's work included the analysis of key judgments of the
courts relating to these matters. His research
is used in the
publications of the Black Sash and also in learner guides and
pamphlets for distribution. She claimed that the
respondent has
performed his work in a highly satisfactory manner and that he has
been an asset to the office. She was impressed
with his
conscientiousness in the tasks allocated to him and his integrity.
She also claimed that the respondent was held in
high esteem by
members of the staff and their foreign interns.
[25.]
The respondent claimed that his experience of working at the Black
Sash had provided him with an opportunity to gain involvement
in the
wider community and it has afforded him the opportunity of gaining
insight into his failings and the opportunity of rehabilitating
himself. In support of his rehabilitation he also annexed letters
from a colleague Mr. Ben-Zion Surdut a practising attorney
and
conveyancer in Cape Town. Surdut claimed that he was aware of the
remorse that the respondent had suffered since being precluded
from
practising as an attorney and conveyancer. He claimed that the
events which led to the respondent being interdicted from
practice
were in his opinion contrary to the nature and make-up of the
respondent. In another letter, a Mr. E W Pienaar claimed
that he had
known the respondent since 1982 in his professional capacity and
that the respondent has been an inspiration to him
and had assisted
him with his conveyancing work. Pienaar also claimed that he was
aware of the respondent's remorse and expressed
the hope that the
respondent would not be struck from the roll.
[26.]
The respondent also claimed that it was "highly likely"
that he would be prejudiced in an application for permanent
residence or citizenship in Portugal in the event of him being
struck off the roll. He also claimed that an order of striking
off
would be unduly harsh and that since the initial application there
had been a substantial passage of time in which he has
reformed
himself and in which he has attempted to make amends for his
transgressions. He also claimed that a striking off would
have a
highly prejudicial effect on his future. The Fund, he claimed, had
not sustained any financial loss as a result of his
actions and that
no other creditor has pursued him. He also claimed that the
difficult financial circumstances which he has had
to endure over
the past several years will continue and should also be taken into
account. He requested that the application
be postponed
sine
die
and
that the interests of the applicant and the public would be
adequately protected by the interdict that prevented him from
practising as an attorney. He therefore consented to an order
whereby he would not apply for a Fidelity Fund certificate pending
his departure to reside permanently in Portugal.
The
applicable legal principles and the application thereof.
[27.]
This application has been brought in terms of section 22(1 )(d) of
the
Attorneys
Act 53 of 1979 which provides that;
"22
Any person who has been admitted and enrolled as an attorney may on
application by the society concerned be struck off
the role or
suspended from practice by the court....
(d)
If he, in the discretion of the court, is not fit and proper person
to
continue
to practice as an attorney."
The
inquiry which is threefold was instructively set out in
Jasat
v Natal Law Society
2000 (3) SA 44
(SCA);
2000 (2) All SA 310
at
para 10;
"First,
the court must decide whether the alleged offending conduct has been
established on a preponderance of probabilities,
which is a factual
inquiry.
Second,
it must consider whether the person concerned 'in the discretion of
the court' is not a fit and proper person to continue
to practise.
This involves a weighing up of the conduct complained of against the
conduct expected of an attorney and, to this
extent, is a value
judgment. And third, the court must inquire whether in all the
circumstances the person in question is to
be removed from the roll
of attorneys or whether an order of suspension from practice would
suffice."
[28.]
In respect of the first stage the court in effect conducts a factual
enquiry while in the second and third the court in
exercising a
judicial discretion does so by making a value judgment on the
conduct of the attorney concerned and also in respect
of an
appropriate sanction.
[29
] In the decision of
Malan
& Another v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
at
219 para 6,
Harms
ADP (as he then was) pointedly remarked as follows;
"As
pointed out in Jasat. the third leg is also a matter for the
discretion of the court of first instance, and whether a
court will
adopt the one course or the other depends upon such factors as the
nature of the conduct complained of, the extent
to which it reflects
upon the person's character or shows him to be unworthy to remain in
the ranks of an honourable profession,
the likelihood or otherwise
of a repetition of such conduct and the need to protect the public.
Ultimately it is a question of
degree. It is here where there
appears to be some misunderstanding."
[30.]
In considering the misunderstanding referred to, Harms ADP refers to
three aspects. Firstly; he emphasizes that whatever
course the court
follows it is not 'first and foremost' the imposition of a penalty
but that;
"The
main consideration is the protection of the public."
[para
7]
[31.]
Secondly Harms ADP reasoned that if it the court found that someone
was not a fit and proper person to continue to practice
as an
attorney that person must be removed from the roll. However he
continues at para 8;
"
the Act contemplates a suspension. This means that removal does
not
follow as a matter of course. If the court has grounds to assume
that after the period of suspension the person will be fit
to
practise as an attorney in the ordinary course of events it would
not remove him from the roll but order an appropriate suspension.
In
this regard the following must be borne in mind:
The
implications of an unconditional order removing an attorney from the
roll for misconduct are serious and far-reaching. Prima
facie . the
Court which makes such an order visualises that the offender will
never again be permitted to practise his profession
because
ordinarily such an order is not made unless the Court is of the
opinion that the misconduct in question is of so serious
a nature
that it manifests character defects and lack of integrity rendering
the person unfit to be on the roll. If such a person
should in later
years apply for re-admission, he will be required to satisfy the
Court that he is 'a completely reformed character"
(Ex parte
Wilcocks
1920 TPD 243
at 245) and that his 'reformation or
rehabilitation is, in all the known circumstances, of a permanent
nature' ( Ex parte Knox
1962
(1) SA 778
(N)
at
784). The very stringency of the test for re-admission is an index
to the degree of gravity of the misconduct which gave rise
to
disbarment."
[32.]
The third area of misunderstanding is that in the exercise of its
discretion the court 7s
not
bound by rules, and precedents consequently have a limited value.
All they do is to indicate how other courts have exercised
their
discretion in the circumstances of a particular case."
[para
9]
[33.]
In
Malan
(above)
the appellant had relied on the decision in
Summerley
v Law Society, Northern Provinces
2006 (5) SA 613
(SCA),
which
decision was also relied on by counsel for the respondent Mr. Le
Breton in submitting that the court should not order the
removal of
the respondent from the roll. However in
Summerley
(above)
no dishonesty on the part of the attorney was found and for that
reason,
inter
alia,
the
court considered the alternate option of a suspension from practice.
Harms ADP in
Malan
(above)
noted further at para 10 D;
"Obviously,
if a court finds dishonesty, the circumstances must be
exceptional
before a court will order a suspension instead of a
removal.
(Exceptional circumstances were found in Summerley and
in Law Society,
Cape of Good Hope v Peter [2006] IASCA 37 and the
court was able in
the formulation of its order in those cases to
cater for the problem by "
[34.]
At paragraph 11, he continues,
'[11]
As mentioned in Summerley (at para 15), the fact that a court finds
that an attorney is unable to administer and conduct
a trust account
does not mean that striking-off should follow as a matter of course.
The converse is. however, also correct:
it does not follow that
striking-off is not an appropriate order (compare Prokureursorde van
Transvaal v G Landsaat
1993
(4) SA 807
(T) ;
Law
Society of the Transvaal v Tloubatla
[1999] 4 All SA 59
(T)). To the
extent that the judgment in Law Society of the Cape of Good Hope v
King
1995
(2) SA 887
(C)
at
892G - 894C propagates an 'enlightened approach', requiring courts
to deal with misconduct which does not involve dishonesty
with (in
my words) kid gloves, I disagree. In order to stem an erosion of
professional ethical values a 'conservative approach'
is more
appropriate ( Incorporated Law Society. Transvaal v Goldberg
1964
(4) SA 301
(T)
at
304A - F)".
[35]
The respondent in this matter has admitted to the offending conduct,
namely the misappropriation of trust monies and therefore
the first
leg of the inquiry has been established.
[36]
Much of the facts and circumstances pertaining to the remaining legs
of the inquiry were to a large extent common cause and
Mr.
Le Breton
submitted
it was merely a question of the inferences to be drawn therefrom
that were in dispute. During the course of argument
the court raised
with Mr. Le Breton the concern about respondents failure to have
made a full accounting of the claims that he
had settled with three
of the trust creditors. Mr. Le Breton submitted that the respondent
was bound by the confidentiality clause
in the agreement with the
trust creditors which precluded any disclosure. It appears that the
actual claim made by all of the
trust creditors was in excess of
R1,5 00 000.00 was reduced in the settlement negotiations by
approximately R600 000.00. Notwithstanding
the respondent's claim
that he had fully disclosed to the Fund the contents of negotiations
and the settlement agreement, it
remained incumbent on the
respondent to have properly disclosed to the court the basis of the
settlement given the large amounts
involved. Moreover it would have
also been a clear demonstration of his taking the court into his
confidence in respect of the
compromise and the basis of some of the
claimants abandoning their right to have pursued criminal
proceedings against him.
[37.]
Mr. Le Breton submitted that while the defendant sought as a first
prize an indefinite postponement of these proceedings,
he urged the
court in the alternative to consider a lengthy suspension of the
respondent's right to practise as a attorney, notary
and conveyancer
together with an order that he not be allowed to practise for his
own account in future. In effect, Mr. Le Breton
submitted that while
the respondent was not seeking to practise as an attorney for his
own account in future, he may in the event
of his application for
permanent residence in Portugal been unsuccessful, contemplate
practising again as an attorney in South
Africa. Mr. Le Breton
submitted that there existed exceptional circumstances in favour of
the respondent that did not warrant
his striking off, such as the
difficult financial circumstances he faced when he misappropriated
the trust funds and his apparent
reformation or rehabilitation. The
court, Mr. Le
Breton
argued, should consider the factors appropriate for the re-admission
of an attorney after having been struck off the roll.
In this regard
he submitted that the expressions of contrition and repentance were
usually sound indicators of such reformation
and rehabilitation
(Swartberg
v Law Society Northern Provinces
[2008] ZASCA 36
;
(2008) (5) SA 322
(SCA).
He
also relied on the testimonials by Surdat and Pienaar with regard to
the remorse of the respondent and the letter of Ms Leonie
Caroline
with regard to the work that the respondent did at the Black Sash,
in respect of his reliability and integrity. Mr.
Le Breton submitted
that the respondent had indeed rehabilitated himself. He
acknowledged though that there was no evidence before
the court that
indicated that during the last 6 years the respondent had handled
money without supervision, or that he was subject
to any risk of a
repetition of his prior misconduct.
[38.]
It is apparent from the respondent's misconduct on the facts and
circumstances which have been set out with some detail,
that he is
not a fit and proper person to continue the practice of an attorney.
The question before the court in the exercise
of its discretion is
whether the respondent should be removed from the roll of attorneys
or whether he should merely be penalised
with an order of suspension
from practice.
[39.]
In the first instance the court is faced with a respondent who has
admitted guilt of a serious misconduct such as the misappropriation
of a large amount of trust money and which is compounded by his
failure to have complied with his obligations under the Attorneys
Act. The situation is therefore distinguishable from that of both
Summerley
(above)
and that of
Law
Society of Cape v Peter
2009
(2) SA 18
SCA
in
which there was no element of dishonesty by the respondents and
where the court made appropriate orders of suspension from
practice
on various conditions.
[40.]
The court is under an obligation to protect the interests of the
public when dealing not just with errant attorneys but
those who
have displayed dishonesty and who are in breach of the fundamental
tenants of integrity in dealing with the affairs
of their clients.
The misconduct which the respondent is guilty of took place over a
period of time and involved large amounts
of money. While the court
is mindful of the precarious financial circumstances the respondent
had placed himself in, he was a
senior and well experienced legal
practitioner who adopted the course of extricating himself from his
predicament by dishonestly
using the trust funds of his clients.
There is no indication by him that he sought any other measures to
ameliorate the circumstances
or that such efforts were unsuccessful
before he resorted to the use of his clients' money. On his own
admission he simply lacked
the 'strength of character' to do so. It
appears that he committed the acts of misappropriation both
consciously and systematically.
Moreover he failed to disclose it to
the applicant on his own despite the recurring problems in complying
with the annual audit
over successive years.
[41.]
The respondent has also enjoyed the benefit of not being criminally
prosecuted for the offences which he had committed.
He was able to
successfully negotiate a diversion of the criminal charges to that
of community service and appears to have persuaded
the Deputy
Director of Public Prosecutions to do so on the basis that he was to
emigrate to Portugal and with the favourable
motivation of his
clinical psychologist Mr. Altman who explained the remorse and the
personal pain that the respondent experienced.
The community service
that the respondent performs, albeit a large number of hours and
which is of great benefit to the poor
does not appear at all to be
an onerous or an exacting burden.
[42.]
The respondent has suffered severe personal and family hardship in
that his standard of living has obviously been affected
by his
inability to practise as an attorney. However he still enjoys the
confidence and support of his colleagues who give him
consultancy
work on a regular basis. The respondent has claimed that a striking
off will impact on his ability to successfully
apply for permanent
residence or citizenship in Portugal. While that consideration may
have been pertinent when the DDPP considered
his representations and
although it initially appeared to have been one of the more
important reasons for his plea to the court
not to strike him off,
Mr. Le Breton correctly conceded that it was no more than merely one
of several factors that the court
has to take into account when
exercising its discretion.
[43.]
It is also apparent that the respondent has displayed some insight
into his wrongdoing and as Mr. Le Breton has pointed
out the
respondent appears to be on the road to rehabilitation. However that
is also but only part of the considerations that
this court has to
take into account. More importantly and significantly is that of the
interests and protection of the public
as was emphasised by Harms
ADP in the
Malan
judgment
(above). This court would be failing in its duty to the public if it
did not use the protection of the public as the
appropriate beacon
in the exercise of its discretion under the Act. This is not an
instance in which a suspension from practice
will suffice as an
appropriate measure in protecting the public, coupled with an order
that the respondent not practise for his
own account. There is
nothing exceptional in the circumstances that the respondent has
placed before this court that would enable
it not to exercise its
discretion in favour of the applicant's recommendation. The
misappropriation and theft of trust funds
remains one of the most
serious offences an attorney is able to commit against his/her
client and it does not only offend against
the client and the public
but undermines the integrity of the attorneys profession and the
very oath of office that attorneys
pledge on admission to practice.
[44.]
In the result, having considered all the circumstances of the
respondent and not without a measure of regret, I would order
the
removal of the respondent's name from the roll of attorneys,
notaries and conveyancers. The ancillary orders prayed for by
the
applicant are no longer necessary as his practice has already been
wound up by the curator and whatever remained in his trust
account
has been paid over to him. The respondent is also liable for the
costs as prayed for by the applicant.
I
propose the following order:
(1)
The respondent's name is removed from the roll of attorneys,
notaries and conveyancers of this court
(2.)
The respondent is to pay the costs of and incidental to this
application on the scale as between attorney and client.
SALDANHA,
J
I
agree and it is so ordered.
FOURIE,
J