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[2012] ZASCA 175
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General Council of the Bar of South Africa v Geach and Others, Pillay and Others v Pretoria Society of Advocates and Another, Bezuidenthout v Pretoria Society of Advocates (277/12, 273/12, 274/12, 275/12, 278/12, 280/12, 281/12) [2012] ZASCA 175; [2013] 1 All SA 393 (SCA); 2013 (2) SA 52 (SCA) (29 November 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 277/12
Reportable
In the matter between:
THE GENERAL COUNCIL OF THE BAR
OF SOUTH AFRICA
.................................................................................
Appellant
and
BRENTON PATRICK GEACH
.......................................................
1
st
Respondent
JOHANNES STEPHANUS MARITZ
GÜLDENPFENNIG
..........................................................................
2
nd
Respondent
MARK UPTON
..................................................................................
3
rd
Respondent
JOHN O’DONOVAN WILLIAMS
...................................................
4
th
Respondent
EPHRAIM SEIMA
.............................................................................
5
th
Respondent
CAS GREYLING JORDAAN
...........................................................
6
th
Respondent
COLIN ROY VAN ONSELEN
.........................................................
7
th
Respondent
THE PRETORIA SOCIETY OF
ADVOCATES
.............................
8
th
Respondent
And in the matters between:
THILLAY PILLAY (273/12)
.......................................
Appellant in case no
273/12
MATTHEUS JOHANNES BOTHA
...........................
Appellant in case no 281/12
MARTHINUS CHRISTOFFEL
CORNELIUS
DE KLERK
.
...................................................................
Appellant
in case no 280/12
PERCY MAKGOTSHE LEOPENG
...........................
Appellant in
case no 275/12
DANIEL POLI MOGAGABE
......................................
Appellant
in case no 274/12
and
THE PRETORIA SOCIETY OF
ADVOCATES
............................
1
st
Respondent
THE GENERAL COUNCIL OF THE BAR
OF SOUTH AFRICA
........................................................................
2
nd
Respondent
And in the matter between:
Case No: 278/12
LEONARD FRANCOIS BEZUIDENHOUT
..........................................
.Appellant
and
THE PRETORIA SOCIETY OF
ADVOCATES
..................................
Respondent
Neutral citation:
The
General Council of the Bar of SA v Geach & others
(277/12;
273/12; 274/12; 275/12; 278/12; 280/12; 281/12)
[2012] ZASCA 175
(29
November 2012)
Coram:
MPATI P, NUGENT,
PONNAN, LEACH and WALLIS JJA
Heard:
4 SEPTEMBER 2012
Delivered: 29 NOVEMBER 2012
Summary:
Admission of
Advocates Act 74 of 1964
–
Section 7(1)(d)
– applications
for striking off – appeal from high court.
___________________________________________________________________
ORDER
__________________________________________________________________
Appeals from orders of North
Gauteng High Court, Pretoria (Van Dijkhorst, P C Combrinck and De
Villiers AJJ) sitting as court of
first instance.
Per NUGENT JA, MPATI P and PONNAN
JA concurring, LEACH and WALLIS JJA dissenting in part. (The order
appears at para 86).
1. The appeal of the General
Council of the Bar is dismissed. The first to seventh respondents in
that appeal are to pay the costs
of the General Council of the Bar
and those of the Pretoria Society of Advocates, jointly and
severally, which are to include the
costs of two counsel.
2. The orders
for repayment of moneys made against the appellant advocates in
appeals 273/12, 281/12, 280/12, 275/12, 274/12 and
278/12 are set
aside. That apart, their appeals are dismissed, in each case with
costs that include the costs of two counsel.
_______________________________________________________________
JUDGMENT
______________________________________________________________
NUGENT JA (MPATI P and PONNAN JA
CONCURRING)
[1] These appeals concern
thirteen practising advocates who are members of the Pretoria Society
of Advocates. Twelve
1
of
the advocates were found guilty by the Bar Council of the Society, on
their own admissions, of unprofessional conduct. In each
case the Bar
Council visited their conduct with disciplinary sanctions. The
Society thereupon applied to the North Gauteng High
Court for orders
‘noting’ the disciplinary action that had been taken. It
also applied for an order striking the name
of a thirteenth
advocate
2
from
the roll of advocates. The General Council of the Bar (GCB)
intervened in the proceedings and sought orders striking the names
of
all the advocates from the roll.
[2] The applications were heard
together by a Full Court (Van Dijkhorst, PC Combrinck and De Villiers
AJJ).
3
It imposed further sanctions upon
seven
4
of the twelve who had been
disciplined by the Bar Council, which included paying various amounts
to the Road Accident Fund. As for
the remaining five,
5
and the thirteenth
6
advocate who had not been
sanctioned by the Bar Council, it ordered them to pay various amounts
to the Fund, and struck their names
from the roll of advocates.
[3] The GCB appeals the orders
made in respect of the seven advocates who were not struck from the
roll, contending that they ought
to have been. The remaining six
advocates appeal the orders made against them, contending that it was
not competent to order them
to make payments to the Fund, and that
they ought not to have been struck from the roll. All the appeals are
before us with the
leave of this court.
[4] I conclude that all the
appeals should fail and I think it is useful at the outset to state
briefly the basis upon which I reach
that conclusion.
[5] As I expand upon later in
this judgment the case called for three steps in the enquiry before
the court below. The first two
are not controversial. The appeal
turns on the third step of its enquiry – which was whether the
advocates concerned ought
or ought not to have been struck off, as
the case may be. That decision fell within the discretion of the
court below and there
are limited grounds upon which an appeal court
may interfere. The only ground relied upon in this case (apart from
reliance by
two advocates upon perceived bias on the part of one
member of that court, which is dealt with in the judgment of Ponnan
JA) was
that the court was said to have misdirected its enquiry in
various ways. It is only if we conclude that it did misdirect its
enquiry
that we are entitled to embark upon that enquiry afresh and,
if appropriate, substitute our decision for that of the court below.
[6] The enquiry before us thus
falls to be conducted in two stages. The first enquiry is whether the
court misdirected its enquiry.
It is only if we conclude that it did
that we move to the second stage.
[7] I see no proper grounds for
finding that the court below indeed misdirected its enquiry. On that
basis the second stage does
not arise. It is on that basis that I
dismiss all the appeals.
[8] Some background is necessary
to understand the nature of the misconduct. The Road Accident Fund
established under the
Road Accident Fund Act 56 of 1996
is obliged to
compensate any person for loss or damage from death or bodily injury
caused by or arising from the negligent or other
wrongful driving of
a motor vehicle. A large majority of claims made against the Fund are
meritorious. To the extent that any dispute
exists in those cases the
dispute is generally confined to the apportionment of responsibility
or to the amount of compensation
to which the claimant is entitled,
or to both. For those who are experienced in that field, settling
disputes of that kind is often
relatively straightforward. Thus it
might be expected that many claims against the Fund would be promptly
assessed and paid, perhaps
after discussion with attorneys for the
claimants to settle disputed issues, thereby minimising legal costs
and ensuring that claimants
promptly receive their due.
[9] But that is not how the Fund
conducted its affairs at the relevant time. For some years the
administration of the Fund had been
in disarray. Claims were not
being evaluated and settled promptly, and claimants found themselves
compelled to institute action.
Even then the Fund would procrastinate
and claimants would be compelled to bring the pleadings to a close,
and to set the actions
down on the trial roll, even when claims were
not truly disputed. In the belief that procrastination would ease its
cash flow the
Fund went so far as to have as its policy that claims
would not be settled more than twenty days before the date set for
the trial.
[10] The situation that prevailed
was described in his affidavit by the Chairman of the GCB as follows:
‘
The
Fund is frequently wholly unprepared for trial and has often incurred
substantial expenses in taking to trial or appeal matters
which it
should responsibly have not contested and should have resolved. The
Fund has sought to manage its ongoing cash flow problems
by delays in
conceding liability, forcing matters to trial and only conceding
liability after a trial matter has been called at
roll call. The
Fund’s inadequate and inefficient administration has resulted
in legal costs being driven up by the Fund drawing
out litigation and
by generating unnecessary litigation with the overall intention of
settling matters at the doors of the court.
A vast number of RAF
trials do not start or run but are settled at court. Moreover,
settlements are invariably concluded on the
basis that the Fund
either makes a contribution towards or agrees to pay the claimants’
costs. It has been financially constrained
which has impeded its
ability to pay claims, and to a large extent the Fund has been
dysfunctional.’
[11] The Fund’s
procrastination in promptly settling and paying meritorious claims
can only be deprecated. Not only was its
conduct increasing legal
costs that became payable by the Fund – both its own costs and
the costs that were incurred by claimants,
for which the Fund would
invariably be liable – but it kept claimants from the
compensation that they were entitled to.
[12] Its conduct also had adverse
consequences for the management of the trial roll in the North
Gauteng High Court. It became inundated
with actions that claimants
were compelled to set down for trial, even though no trial was
anticipated, only to bring matters to
a head. The problem became so
acute that the Deputy President of that court found it necessary to
compile a separate roll for actions
against the Fund on which 70
actions against the Fund were listed per day.
[13] Needless to say, the burden
imposed on the court, and upon attorneys acting for claimants, was
intolerable. To find 140 or
more advocates every day – one for
the claimant and one for the Fund – to bring each of those
cases to finality would
be well nigh impossible. Moreover, it could
hardly be expected that advocates would hold themselves available for
a full day in
matters that were clearly destined to be settled or
postponed. And so a practice developed that advocates would receive
and accept
briefs for multiple cases that had been set down on the
trial roll on one day.
[14] Accepting briefs to conduct
more than one trial on the same day is generally prohibited by the
rules of the bar for the obvious
reason that an advocate is not
capable of conducting trials simultaneously. The consequence of
holding briefs to conduct two trials
on one day is inevitably that if
both trials proceed the advocate will find himself or herself
compelled to overcome the dilemma
by directing at least one case to
settlement, perhaps against the interests of the client, or by
postponing one so as to continue
with the other, again against the
interests of the client, or by surrendering the brief to an
unprepared colleague (assuming a
colleague was willing to accept it).
It is not surprising then that the practice of accepting potentially
conflicting briefs –
commonly called ‘double-briefing’
– is expressly prohibited by Rule 2.6 of the Uniform Rules of
the bar:
‘
It
is improper for counsel to retain a brief previously accepted by him
if the circumstances are such that he should reasonably
foresee …
that he would have to surrender the brief for whatever reason, and
that the surrender of such brief could cause
inconvenience and/or
embarrassment and/or prejudice to his client and/or a colleague who
is to succeed him in the brief and/or
his instructing attorney’
[15] In its heads of argument the
GCB submitted that an advocate transgresses the rule if he or she
holds briefs even to settle
two or more cases on the trial roll on a
day but I do not think that is necessarily correct. The rule
prohibits accepting a brief
if the advocate ‘should reasonably
foresee’ that it would have to be surrendered and whether that
is so will depend
on the particular case. No doubt there are cases in
which settlement negotiations can be expected to be intense and
protracted,
calling for the advocate’s full attention and time,
but that will not always be so, particularly in road accident cases.
Indeed, Rule 2.8 recognises that multiple briefs in such cases is not
prohibited when it provides that
‘
[it]
is not improper for counsel to accept a brief to settle a matter, as
opposed to a brief on trial’
[16] An advocate who accepts a
brief to conduct a trial must hold himself or herself available to do
so. Because the advocate has
held himself or herself available he or
she is generally entitled to a full day’s fee if the case
settles on the day or even
shortly before that and the advocate has
been left with no other income for the day. But if his or her
instructions are to postpone
a case when the roll is called, or to
note that the case has been settled, or to negotiate a settlement of
the claim, then the
fee must be commensurate with that service. To
charge a trial fee where the instructions are not to conduct a trial
but instead
to do something else is overreaching.
[17] In the cases that are before
us the advocates on numerous occasions held multiple briefs for cases
on the trial roll on one
day and in each case they charged a full
trial free. They were charged by the Bar Council with multiple counts
of double-briefing
and overreaching and in most cases they readily
admitted the transgressions. At the same time they protested that
their clients
had not been prejudiced, nor had there even been
potential prejudice, because their true instructions had usually been
only to
settle or to postpone, and in many cases that is probably
true.
[18] Consistent with the evidence
of the Chairman of the GCB that I have referred to this is how one
advocate explained the position:
‘
In
the matters in which I was briefed, the [Fund] very rarely, if ever,
briefed counsel to appear on its behalf. Matters would always
stand
down for settlement. On the rare occasions when counsel were briefed
it was in the greatest majority of cases not to run
a trial at all
but merely to facilitate the settlement thereof or to seek a
postponement of quantum or of both liability and quantum.
Witnesses
from both sides were hardly ever present at Court. As a general rule,
the [Fund] was never ready to proceed to trial
and, often, neither
party could have proceeded to trial. Experts were not in attendance
nor even on standby. There was no doubt
that the matters would not
proceed to trial. In many instances, acceptable offers were or had
been made and it was a question of
only trying to persuade the [Fund]
to increase the offer. These were not real trial briefs at all. It
was not necessary to proceed
on the basis that they would proceed to
trial if not settled. In truth, in my case, they were virtually all
briefs purely on settlement.
This is illustrated by the fact that
when I took more than one brief at a time they were mostly from the
same attorney. The [Fund]
would not properly consider settlement
until the trial date was at hand. The extraordinarily few cases that
would ultimately have
to proceed to trial were readily identifiable
in advance. That is why, as it transpired, I never encountered a
situation where
I prejudiced this Honourable Court, my clients, my
colleagues, any attorneys or myself. There was, in fact, no juggling
of briefs
in my case. Matters always stood down for recalculations or
simply for formal mandates from the [Fund] sometimes for days at a
time. By then, these matters were for all practical purposes already
settled. No-one was ever under any illusion that these matters
would
ever proceed to trial. I was under pressure from my briefing
Attorneys who were themselves under pressure to assist them
with
multiple briefs daily. I found it extremely difficult to refuse.’
[19] Some advocates went so far
as to say in their affidavits that by holding multiple briefs they
had performed a valuable service
to their attorneys and also to the
court, because it had assisted to manage the congested trial roll.
Indeed, the judges calling
the trial roll complimented them at times
for assisting to ease the congestion.
[20] To that extent there is no
reason not to believe them. The practice of the Fund to pay claims
only at the doors of the court
can be expected to have resulted in
cases being on the trial roll in which there was no dispute at all.
What would have been required
was only for the Fund to apply its mind
to the claim and pay it. There must also have been cases in which the
dispute was narrow
and a ready settlement could be expected. There
would also have been cases in which it would quickly become apparent
that settlement
was not possible and the case would have to be
postponed to prepare for a trial. It is apparent from the affidavits
that many of
the multiple briefs must in truth have been briefs to
perform services of that kind. In cases of that kind an advocate
might indeed
not ‘reasonably foresee’ a conflict arising
as contemplated by Rule 2.6, and their conduct would not have
amounted
to double-briefing as contemplated by that rule. Yet they
all admitted that they had indeed contravened the rule.
[21] To apply the law justly I
think it should be applied to the facts as they are known to be, in
preference to the facts as they
are merely said to be, where the two
conflict, and that applies as much to admissions that are made
incorrectly. No doubt they
were charged with double-briefing because
their records reflected that in each case they had been briefed to
conduct a trial. Yet
on the facts they allege, in many cases neither
they nor their attorneys intended that to occur, and the briefs were
marked in
that way as a sham. Rule 2.6 is concerned with what the
advocate is in truth called upon to do by his instructions, not to
what
is written on the briefing document. It is probably true that in
many cases the manner in which they carried out their instructions
indeed did not prejudice their clients and the admissions of
double-briefing recede to the background. But simultaneously the
further charges of overreaching come sharply to the fore.
[22] Because what the
protestations of the advocates overlooks is that if their true
instructions were indeed to postpone or settle
cases, and not to
conduct trials, then by their own admissions they were not entitled
to charge a fee as if they had been briefed
to conduct a trial.
[23] Yet in every case they,
abetted by their attorneys, charged a fee as if they had been
instructed to conduct a trial when, on
their own versions, they knew
full well that was not true. Most said their trial fees were
reasonable, and perhaps they were, but
that is beside the point: they
were not entitled to a trial fee at all. As the high court expressed
it:
‘
The
respondents are on the horns of a dilemma: Should they say that the
additional matter would surely settle, the question is:
Why then mark
a trial fee? Should they say we were ready to proceed to trial, the
question is: What then about the other matter?’
[24] It is an extraordinary
feature of these cases that some of the advocates, at least
initially, seemed rather unconcerned at
having charged those fees,
and that was shared by senior colleagues at the bar. Indeed, after
the GCB intervened, and questions
were posed by the court below, some
were dismayed that their honesty should be questioned. In argument
before us counsel for one
of the advocates even persisted in
submitting that charging trial fees when there was no intention that
the matter would go to
trial was not dishonest.
[25] Why advocates should have
thought it was not dishonest to charge trial fees when they knew full
well that they were not briefed
to conduct a trial remains a mystery
to me. Mr Pelser SC, who appeared for the Society, could provide no
explanation, but glimmerings
were evident in some of the submissions.
I have pointed out that it is accepted practice, within limitations,
for an advocate who
is briefed on trial to charge a full trial fee if
the matter becomes settled on the day or shortly before then. Absent
an alternative
explanation I can only assume that it was believed, by
extension, that a trial fee was permissible provided only that the
case
was on the trial roll, or that the brief was marked on trial,
even if only as a sham. If that was indeed the belief then it is
perturbing.
[26] Apart from the protestations
that clients were not prejudiced because their true instructions in
one case were capable of being
carried out without prejudice to the
other, most went on to say that claimants for whom they acted were
also not financially prejudiced
because the Fund was invariably
liable for the costs. Though claimants may not have been financially
prejudiced certainly there
was prejudice to the Fund in paying fees
to which the advocates were not entitled. It is no answer to say, as
some of them did,
that the administrators of the Fund were aware of
what was occurring. Dereliction of duty by officials of a public fund
is not
the benchmark against which to measure the conduct of
advocates.
[27] To summarise what occurred,
the manner in which the affairs of the Fund were being conducted made
it ripe for plundering, and
the advocates concerned set about doing
just that. To the extent that they double-briefed they transgressed
and that was at least
potentially prejudicial to their clients. But
even where each instruction was capable of being fulfilled without
prejudice to the
others they charged fees to which they were not
entitled. To have charged trial fees in those circumstances was
dishonest. It is
unfortunate that the Pretoria Bar Council did not
see things that way.
[28] Against that background I
turn to the facts.
[29] During 2006 it came to the
attention of the Bar Council that some members were announcing
themselves at the roll call as having
been briefed in more than one
case, particularly in actions against the Fund. After investigation
the Bar Council issued a circular
to its members. The circular
recorded the following:
‘
It
has come to the attention of the Bar Council that some members appear
at the roll call of civil trials in several matters set
down for the
same day. This phenomenon is prevalent especially in third party
matters.
In the normal course
the matters in which one counsel appears are either postponed or a
settlement is made an order of court or
noted, while in many
instances the same counsel announces that he/she is ready to proceed
in another matter, in some instances
even having requested another
matter to stand down for settlement.
What is further most
alarming is that such counsel probably charge full fees in respect of
preparation and appearance (a day fee)
in each of such matters. Such
conduct is viewed in a serious light as it undoubtedly amounts to
double briefing, and in many instances
even to multiple briefing, and
overreaching.
1. Counsel may not
retain more than one brief for the same day and charge a day fee in
respect of more than one brief;
2. It is permissible
to retain more than one brief for the same day strictly provided
that:
2.1 A full day fee
may only be charged in respect of one brief, if counsel has been
briefed for trial thereon and the matter becomes
settled not more
than two days before the trial date, or the matter proceeds to trial,
or there is an opposed postponement or an
opposed argument on costs.
2.2 In the other
matters in which the same counsel appears, it will be assumed that
counsel was briefed only to settle the matter
in accordance with
paragraph 2.8 of the Code of Conduct. Counsel will be entitled to
charge for the time spent and the reasonable
fee for the taking of
the order or the postponement of the matter on an unopposed basis.
2.3 Retention of a
brief under paragraph 2.2 above is only permissible if counsel’s
specific mandate
is to
settle
. If there is any
possibility of the matter proceeding to trial, or becoming an opposed
postponement, or a costs argument, counsel
shall not be entitled to
take or retain the brief together with a brief falling under
paragraph 2.1 above.
3. Members who take
or retain a brief contrary to the guidelines in paragraph 2.3 above,
act in contravention of paragraph 2.6 of
the Code of Conduct and
shall therefore be guilty of misconduct.
4. Charging a full
day fee in respect of more than one trial shall be seen as
overreaching and a contravention of paragraph 7.1.1
of the Code of
Conduct.
5. In order to
remove any misunderstanding, it shall be seen as misconduct if at
roll call a matter is requested to stand down for
settlement if
counsel holds another brief in respect of which he has been briefed
on trial.
8. The above
scenarios are clearly to be distinguished from the case where counsel
was briefed on trial and the matter is settled
before
the trial date and subsequent to settlement counsel is
briefed on trial in another matter for the same day. In such case
counsel
is entitled to mark a normal reasonable reservation fee in
respect of the matter which has become settled together with full
fees
in respect of the other matter.’
[30] The practice appeared to
abate for a while but in September 2009 it came to the attention of
the Bar Council that it had resumed.
It instructed the convener of
its Professional and Ethics Committee, Ellis SC, to investigate. The
committee met and twelve of
the advocates who are parties to these
appeals were identified as suspects. Upton was later added to the
list.
[31] It was agreed by the
committee that the advocates concerned would be called upon to
produce their fee books and diaries for
the period from 1 March 2009,
which would be submitted to an auditor for analysis. Ellis SC duly
wrote to them asking for their
books to be produced. Their books were
not produced but instead various discussions ensued. The upshot was
that six immediately
confessed to transgressing,
7
four asked for the mandate of the
committee to be reconsidered and proposed a general amnesty,
8
and two, according to Ellis SC,
flatly refused to produce their books.
9
The confessions of the six were
accepted and the request to produce their books was not pursued.
[32] Further discussions ensued
with the implicated members. Meanwhile, the four members I referred
to earlier wrote to the Bar
Council advising, amongst other things,
that approximately 62 other advocates had engaged in the practice,
and that they were being
subjected to unequal treatment, and
proposing that there be a general amnesty.
[33] The committee made the
following recommendations to the Bar Council:
‘
13.1
The two members who defied the Bar Council’s instruction to
surrender their books, should be referred to the disciplinary
committee for appropriate action;
13.2 The proposal of
an amnesty, proposed by Pillay, should be declined;
13.3 The signatories
of the Pillay letter should be placed on terms to:
13.3.1 Divulge the
names of the 62 members they allege are also guilty of double
briefing or over-reaching; and
13.3.2 Tender their
fee books and diaries to the convener, before close of business on 19
November 2009;
13.4 The
“confessions” of the six be accepted, on the following
terms:
13.4.1 They should
pay the amounts tendered by them into a special fund, to be
administered by the Bar Council, to assist junior
members who are
unable to pay their Bar fees, in the first year of their practice;
13.4.2 A finding of
guilty of double briefing and overreaching be entered on their files;
13.4.3 Each should
be suspended for one month, which suspension should be effective
during the court term, over a period determined
by the Bar Council.
13.5 The resolution
in paragraph 13.4 above shall apply as benchmark to all other members
who voluntarily submit similar tenders
before 15 December 2009, to
the convener of the committee, whether they are identified by the
committee or not;
13.6 Future similar
misconduct will be summarily dealt with by the Disciplinary
Committee.’
[34] The recommendations of the
committee were debated by the Bar Council and a committee comprising
De Vos SC, SJ Maritz SC and
LP Dicker was appointed to investigate
the allegations and to report its findings to the Bar Council. NGD
Maritz SC and FJ Labuschagne
were appointed to assist in the
investigation.
[35] The following day four
members – Bezuidenhout, De Klerk, Pillay, Leopeng and Jordaan –
sent a memorandum to the
Bar Council that, although misguided, was
clearly aimed at resisting disclosure of their books. Amongst other
things they said
the following:
‘
[From]
this moment on we invoke our rights guaranteed to us under the
Constitution of the Republic of South Africa, Act 108 of 1996,
more
specifically the rights afforded us under Chapter 2, Section 14 of
the Constitution ….’
10
[36] The investigating committee
– I will call it the ‘De Vos committee’ to
distinguish it from another committee
that was subsequently appointed
– commenced enquiring into the matter. Meanwhile N Maritz SC,
acting as pro-forma prosecutor,
had formulated charges against the
various advocates. In each they were charged with multiple counts of
double-briefing and corresponding
counts of overreaching. He also
formulated sanctions that he would recommend to the committee.
[37] Ten of the advocates were
called before the committee and consented to it being converted to a
disciplinary tribunal. They
formally admitted the charges and the
committee imposed sanctions on each of them.
[38] The disciplinary measures
provided for in the Constitution of the Society allow for suspension
from membership and for the
imposition of a maximum fine of R2 000.
The sanctions imposed by the committee all followed a standard form.
I need only set
out their effect. In each case the committee imposed
a fine, suspended the advocate from membership of the Society, and
placed
him under a supervisory regime for 18 months after the
suspension expired. I tabulate below the number of counts admitted by
each
advocate (in each case a count of double briefing and a
corresponding count of overreaching), the fine that was imposed, and
the
period for which his membership was suspended.
Geach SC 82 counts
R164 000 3 months
Güldenpfennig
90 counts R90 000 2 months
Upton 16 counts R 16
000 4 weeks
Williams SC
11
60 counts R120 000 6
months
Seima 33 counts
R33000 5 weeks
Jordaan 20 counts R
20 000 4 weeks
Van Onselen 133
counts R133 000 3 months
Pillay 28 counts R
28 000 5 weeks
Leopeng 315 counts
R157 500 6 months
Mogagabe 461 counts
R230 000 6 months
[39] In its report to the Bar
Council the committee recorded, amongst other things, that it had had
‘the fullest, candid and
honest co-operation’ of the
members concerned, that the members had acted ‘in wilful
disregard of the ethical rules
of practice of [the Society]’,
and that their conduct ‘displayed a decided ongoing pattern of
double-briefing and overreaching
over a lengthy period’. The
committee went on to report that ‘there was no element of
dishonesty on the part of the
members’: on the contrary they
had performed their duties ‘honestly, professionally, and with
dedication in each instance’
and that ‘on the evidence
before us it is also evident that neither the plaintiffs nor the
[Fund] were prejudiced in the
matters in which the affected members
acted on brief.’ It reported that the courts, the attorneys and
counsel had ‘co-operated
in a concerted effort to remedy an
insufferable situation that had arisen’ and that as a result
‘the incidences of
double briefing pale to a significant
extent.’
[40] It is astonishing that the
committee should have held those latter views. I have already said
that to charge a trial fee where
an advocate is instructed to perform
a service that is not to conduct a trial is dishonest and constitutes
overreaching. That was
made plain in the circular issued by the Bar
Council in 2006.
[41] The Bar Council debated the
report of the committee – the debate was said to have been
‘vigorous’ –
and adopted the sanctions that had
been recommended. It resolved as well to place its decision before
the High Court for orders
to be made that I refer to presently.
[42] That disposed of the ten
members leaving three. The Bar Council appointed a new committee to
deal with them, comprising L Vorster
SC, P Van Niekerk SC and A Laka
(I refer to it as the Vorster committee). De Klerk and Botha appeared
before the committee. At
his request the investigation of
Bezuidenhout was postponed to a later date.
[43] The Vorster committee took a
different view of the matter. It found the two members to have acted
without integrity, that their
conduct had prejudiced the Fund, and it
recommended that the Bar Council take steps to have them struck from
the roll. The recommendations
of the Vorster committee were rejected
by the Bar Council. Instead the two advocates were sanctioned
consistently with the other
ten. The counts that each admitted, and
the fines and effective periods of suspension imposed, were as
follows:
Botha 170 counts
R170 000 5 months
De Klerk 74 counts R
74 000 3 months
[44] That left only Bezuidenhout.
He appeared again before the committee and applied for the recusal of
its members, in view of
the findings they had made in relation to
Botha and De Klerk. The members declined. He announced his intention
to apply to the
high court to review their decision, whereupon the
Bar Council revoked the mandate of the committee and launched an
application
for an order striking Bezuidenhout from the roll.
[45] At the same time the Society
applied to the North Gauteng High Court, in separate applications in
respect of each advocate,
for orders as follows:
‘
1.
That the disciplinary sanctions imposed upon the respondent by the
[Society] be noted; and/or
2. That such other
order be made as the Honourable Court may deem appropriate’.
[46] Thirteen separate
applications were thus before the high court: twelve for the
sanctions that had been imposed to be ‘noted’,
or for
such other appropriate order to be made, and in the case of
Bezuidenhout, for an order striking him from the roll. After
the
advocates had filed answering affidavits the GCB was admitted as a
party to the proceedings and asked for orders striking all
the
advocates from the roll. It advanced no further facts of its own but
relied on the facts contained in the founding affidavit
of the
Society. Further affidavits were filed by the advocates in response
to the orders sought by the GCB.
[47] At the time the applications
were heard by the high court all the advocates had paid the fines
imposed on them and had served
their periods of suspension. In
respect of seven of the advocates, it ordered them to pay varying
amounts to the Fund. In four
of those cases it ordered a further
period of suspension, part of which was suspended for a period on
certain conditions. In the
remaining three cases a period of
suspension was imposed, all of which was suspended. By the time the
matter came before us all
had paid the moneys and had served their
further periods of suspension.
[48] I tabulate below the full
sanction visited on each of the seven once the high court had made
its orders under the following
columns: the fine imposed by the
Society, the amount the advocate was ordered to pay to the Fund, the
total period of actual suspension
(those in bold are suspensions
imposed by the Society that were not added to by the court) and, in
brackets, the further period
of suspension that was suspended.
Geach SC R164 000
R984 000 12 months (6 months)
Güldenpfennig R
90 000 R864 000 12 months (6 months)
Upton R 16 000 R166
400
4 weeks
(6 months)
Williams SC R120 000
R864 000 11 months (7 months)
Seima R33 000 R141
900
5 weeks
(6 months)
Jordaan R 20 000 R
94 000
4 weeks
(6 months)
Van Onselen R133 000
R967 800 9 months (6 months)
[49] The other six advocates were
struck off the roll and in addition they were ordered to pay the
following amounts to the Fund:
Pillay R 268 800
Botha R1 768 000
De Klerk R 310 800
Leopeng R1 323 000
Mogagabe R1 916 800
Bezuidenhout R5 992
400
[50] Section 7(1)(
d
)
of the Admissions of Advocates Act 74 of 1964 allows a court to
suspend any person from practise as an advocate or to order that
his
or her name be struck off the roll of advocates ‘if the court
is satisfied that he [or she] is not a fit and proper person
to
continue to practise as an advocate.’ It is trite that there
are three steps in the enquiry whether such action should
be taken.
In
Malan v Law Society,
Northern Provinces
12
this court said, in the context
of the comparable provision of the Attorneys Act 53 of 1979, relying
upon what had been said to
similar effect in
Jasat
v Natal Law Society
:
13
‘
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.’
[51] The words ‘in the
discretion of the court’ in the second stage of the enquiry
appear in s 22 of the Attorneys Act
and are absent from the
Admission
of Advocates Act but
that is not significant for present purposes.
The enquiry in each case necessarily calls for the conduct complained
of to be weighed
against the standards of the profession, which is
partly value judgment and partly objective fact.
14
[52] In view of their admissions
of overreaching it is curious that at least some of them denied in
their affidavits that they had
been dishonest, because overreaching
is, by definition, dishonest.
[53] The court below was alive to
that contradiction, and queried whether the guilty pleas were
admissions of dishonesty. The response
of the advocates was that they
were not admitting dishonesty but had intended in their pleas to
admit only to overcharging –
which is not necessarily dishonest
– and not to overreaching. Accepting those explanations the
court said that ‘giving
the respondents the benefit of the
doubt, in our view the plea should be read as guilty to overcharging
as opposed to overreaching’.
On that basis it said that ‘the
sole question that remains at this stage was whether they acted
honestly’.
[54] I ought to make it clear
what the court meant when it said that ‘in our view the plea
should be read as guilty to overcharging
as opposed to overreaching’.
When seen in its context, and in relation to the question that was
then under consideration,
the court meant only that it accepted that
the pleas of guilty by the advocates concerned had been intended by
them to be pleas
of guilty to overcharging. The court did not mean
that it accepted that they were guilty only of that offence. On the
contrary,
it is clear from the manner in which it then dealt with the
issue, and the findings that it then made, that it concluded, in
effect
if not in words, that their offences were indeed overreaching
and not merely overcharging. For it found in each case that the
advocates
were not entitled to charge fees at all, and that in every
case they had done so they had acted dishonestly, and the court dealt
with the matter of sanction accordingly.
[55] On the second stage of the
enquiry the high court said that ‘it must consider whether the
person concerned ‘in
the discretion of the court’ is not
a fit and proper person to continue to practise’. Its
expression of the test was
drawn from cases dealing with attorneys
and was not strictly correct. I have pointed out that the words ‘in
the discretion
of the court’ do not appear in the Admission of
Advocates Act. Be that as it may, there was no dispute that they were
not
fit and proper to continue in practice.
[56] On appeal before us its
findings on those two legs of the enquiry are not controversial. The
controversy is confined to the
third stage of the enquiry.
[57] At the third stage of the
enquiry the sanction that should be imposed lies in the discretion of
the court. Where a discretion
is conferred it implies that the matter
for decision has no single answer and calls for judgment, upon which
reasonable people
might disagree. That being so a court on appeal is
restricted to determining whether the decision-maker has correctly
gone about
the enquiry. If he or she has correctly gone about the
enquiry then a court on appeal may not interfere with the decision,
albeit
that it considers the decision to be wrong.
[58] That restriction upon the
power of a court to interfere on appeal was expressed as follows in
Kekana v Society of
Advocates of South Africa
:
15
‘
[A]ppellate
interference with the trial Court’s discretion is permissible
on restricted grounds only. In
Beyers
v Pretoria Balieraad
1966
(2) SA 593
(A) at 605F-H,
Olivier
v Die Kaapse Balieraad
1972
(3) SA 485
(A) at 495D-F and
Swain
v Society of Advocates, Natal
1973
(4) SA 784
(A) at 786H
ad
fin
the
grounds for interference are stated in slightly different terms, but
the approach is essentially the one adopted in all other
cases where
a Court of Appeal is called upon to interfere with the exercise of a
discretion, viz that interference is limited to
cases in which it is
found that the trial Court has exercised its discretion capriciously
or upon a wrong principle, or has not
brought its unbiased judgment
to bear on the question, or has not acted for substantial reason.
(See
Benson
v SA Mutual Life Assurance Society
1986
(1) SA 776
(A) at 781I-782A and the cases referred to there.)’
[59] In
Fine
v Society of Advocates of SA (Witwatersrand Division)
16
it was expressed differently, but
to the same effect, when the court said that
‘
the
Appeal Court will only interfere with the exercise of this discretion
on the grounds of material misdirection or irregularity,
or because
the decision is one no reasonable Court could make. (See
Nyembezi
v Law Society, Natal
1981
(2) SA 752
(A).)’
[60] There are two enquiries to
be made when exercising a discretion. The first is to establish the
material facts. The second is
to evaluate those facts towards the
correct objective. The various grounds for interference referred to
in the cases merely identify
the failures that might occur in that
process. Where the conclusion arrived at has been actuated by bias,
or is capricious, there
has been no evaluation at all. Where the
evaluation proceeds from incorrect facts, or from an incorrect
appreciation of the law,
or where a wrong principle is applied, the
evaluation has gone in the wrong direction. As this court said
S
v Pillay
,
17
which related to criminal
sentencing in which the same principles apply, ‘“misdirection”
in the present context
simply means an error committed by the Court
in determining or applying the facts for assessing the appropriate
sentence’.
[61] Misdirection of the enquiry
might be revealed by the express language of the reasoning, or by
necessary inference from that
expressed reasoning, or by an
outrageous conclusion. For if the conclusion it came to is one that
‘no reasonable court could
make’
18
it can be inferred that somewhere
along the line it must have misdirected its enquiry, or acted with
bias or been capricious, or
acted upon a wrong principle,
notwithstanding the language in which it expresses its reasoning. But
in reasoning along those last
lines a court must be careful not to
cast itself as the archetypal reasonable court, and reason from there
that because its view
of the matter differs from that of the court
below, the decision of that court is one that could not reasonably
have been made.
The question is not whether a reasonable court could
have reached a different conclusion, but instead whether a reasonable
court
could not have reached the conclusion that it did.
[62] When analysing the language
of the decision-maker it needs always to be kept in mind that a
judgment is generally written to
inform the parties why they have
respectively won and lost and not only with an eye to an appeal. For
that reason a court of appeal
should not scrutinize the language as
if it was construing a statute. In particular it must not be thought
that a point was overlooked
only because it was not expressly
mentioned. As this court said in
Lepholletsa
v S
,
19
which was an appeal against
sentence, in which the same principles apply:
‘
Soos
opgemerk in vorige uitsprake van hierdie Hof (wat ek nie nodig ag om
aan te haal nie) dui die blote versuim om 'n besonderefeit
of aspek
van die saak pertinent in 'n uitspraak te opper, nie noodwendig
daarop dat dit nie oorweeg is nie.’
[63] That is particularly
relevant in the present case, in which the papers were voluminous and
the case was argued over five days.
To expect that everything that
was taken into account by the court below would appear in its
judgment would be unrealistic. Indeed,
some matters might have been
conceded, or argument on the matter might not have been advanced, in
which case it can be expected
that the court would not express itself
on the issue, or at least not do so fully. I think it is also
appropriate to bear in mind
that in this case the judges who
comprised the court below were themselves at one time senior
advocates of long standing. That
is no reason to defer to their
conclusions but it is reason to expect that they would not always
find it necessary to express themselves
on matters that would be
trite to those in the profession.
[64] I deal first with the GCB’s
appeal against the decision concerning the seven advocates who were
not struck off, and later
I deal with Bezuidenhout’s appeal.
The appeals of the remaining five advocates are dealt with in the
judgment of Ponnan JA,
and I agree with his conclusions, and also
with his reasons for reaching them, supplemented by the views
expressed in this judgment
so far as they apply generally to all the
advocates.
[65] There is no suggestion by
the GCB that the high court proceeded from an incorrect appreciation
of the facts. Nor, obviously,
does it contest that the seven
advocates were not fit and proper to practice. Perhaps I need to
repeat that those two stages of
the enquiry were not contentious
before us and I do not find it necessary to deal with them. Leaving
aside the allegations by two
of the advocates that they perceived
bias on the part of the one of the judges – with which the
remaining advocates pertinently
disassociated themselves, and which
have been rightly rejected in the judgment of Ponnan JA – the
appeals were directed solely
to whether the court below properly
exercised its discretion at the third stage of the enquiry.
[66] There has been no suggestion
of bias, nor that the decision was capricious. The GCB submitted only
that in various ways the
court below misdirected its enquiry.
[67] The end to which the court
below conducted its enquiry was that stated in
Van
der Berg v General Council of the Bar
,
20
which was reiterated in
Malan
:
‘
The
enquiry before a court that is called upon to exercise its
disciplinary powers is not what constitutes an appropriate punishment
for a past transgression but rather what is required for the
protection of the public in the future. Some cases will require
nothing
less than the removal of the advocate from the roll
forthwith. In other cases, where a court is satisfied that a period
of suspension
will be sufficiently corrective to avoid a recurrence,
an order of suspension might suffice.’
[68] I ought to mention that the
court below questioned whether that case held that the powers of a
court in proceedings of this
nature are confined to striking off or
suspension, and rightly concluded that it had not done so. On a
proper and careful reading
I think it will emerge that the references
to striking off and suspension were illustrative of what was being
said. I deal further
with that subject later in this judgment.
[69] It was said in
Malan
that ‘if a court finds
dishonesty, the circumstances must be exceptional before a court will
order a suspension instead of
a removal’. That does not purport
to lay down a rule of law but expresses what follows naturally from a
finding of dishonesty.
Once an advocate has exhibited dishonesty it
might be inferred that the dishonesty will recur and for that reason
he or she should
ordinarily be barred from practice. What was said in
Malan
means
only that when the person concerned has been shown to have been
dishonest a court will need to be satisfied that the circumstances
of
the case are such that that inference, exceptionally, need not be
drawn, and thus that striking off need not follow. In
Law
Society, Cape v Peter
21
that exception was expressed by
distinguishing a ‘character defect’ from a ‘moral
lapse’. It is clear that
the court below was alive to that
distinction and directed its enquiry to whether these cases were
indeed the exception.
[70] Once having proceeded from a
correct appreciation of the facts, and having directed its enquiry
towards answering the correct
question, it is difficult to see how it
can be said that the court’s enquiry in this case was
misdirected. Upon proper analysis
it seems to me that the complaints
of the GCB and Bezuidenhout are no more than that the court ought to
have evaluated the facts
differently, which is not a ground upon
which this court may interfere with its decision.
[71] In going about its
evaluation the court below collected together various factors that it
categorised collectively as ‘exceptional
circumstances’,
others that it called ‘aggravating circumstances’, and
some that it said were ‘mitigating’.
I do not think that
undue store should be placed upon that use of language, which is more
appropriate to evaluating sentence in
a criminal case. I think it is
clear from a fair reading of the judgment as a whole that what it
called ‘exceptional’
and ‘mitigating’
circumstances were simply those factors that the court considered, in
different degrees, to militate
against striking off, and those that
it called ‘aggravating circumstances’ were factors that
favoured striking off.
22
[72] The approach of the GCB was
to isolate some of those factors and take issue with their
characterisation. Thus it submitted
that it was not an ‘exceptional
circumstance’ that the advocates had complied with the
sanctions imposed by the Bar
Council, nor was it an ‘exceptional
circumstance’ that the judges calling the roll had ‘shut
their eyes to the
insidious practice of double briefing’ (the
words used by the court below). Nor was it an ‘exceptional
circumstance’
that members of the Pretoria bar, including
members of the Bar Council, were aware of the practice of double
briefing and had not
acted to end it. It was also not an ‘exceptional
circumstance’ that the advocates had practiced professionally
from
the time they had admitted their transgressions to the time of
the hearing of the applications. In the same vein it was submitted
that the court ought to have treated the fact that the advocates had
not disclosed details of transgressions committed outside
the period
for which they were charged as an ‘aggravating circumstance’.
(So far as that submission is concerned it
is true that the duty of
an advocate in a disciplinary enquiry is to be frank and
co-operative, but I do not think that means that
he must necessarily
insist that the Bar Council receive information that it knows to
exist but shows no interest in having. In
this case the advocates
readily admitted that they had transgressed outside the time period
being investigated and neither the
Society nor the GCB took the
matter further. I cannot see how they can then be criticised for not
pressing the matter themselves.
That is also how the court below saw
the matter and in my view it cannot be faulted.)
[73] I think I have already
indicated that to ask whether a ‘circumstance’ of the
case in isolation is ‘exceptional’
is not the proper
approach to cases of this kind. The proper approach is instead to ask
whether the circumstances as a whole reveal
that the case the court
has before it is an exception from those in which it can ordinarily
be inferred that the dishonesty will
recur and should thus be met
with striking off. To debate whether a particular factor is a
‘circumstance’ that is ‘exceptional’
–
or ‘mitigating’ or ‘aggravating’ –
leads the enquiry astray. Going behind the inapt language
used in the
judgment and examining instead the line of reasoning that it reveals
– which I think one must do where the judgment
is no model of
linguistic exactness or elegance, as in this case – I find the
judgment to reveal clearly that that is indeed
how the court dealt
with the matter.
[74] The question that fell for
decision was whether, upon an evaluation of all the material
circumstances, which include ‘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’
23
,
the advocate should be barred from continuing to practise. The manner
in which the court applied the various factors reflects
that it
considered some to point in one direction and others to point in the
other direction and it evaluated each case accordingly.
That is
precisely what a proper exercise of its discretion required. What
each of those various factors was called seems to me
to be neither
here nor there.
[75] Stripped of terminological
niceties the submissions advanced for the GCB amount to no more than
a challenge to the weight,
or lack of it, that the court below
accorded to the various factors it placed in the scales. It was the
prerogative of that court
to determine what factors should weigh with
it one way or another – and even whether no weight should be
attached to any
one of them at all – and how they should be
weighed relative to one another. This court is not entitled to
interfere only
because it might have seen things differently.
[76] The GCB also placed in issue
the approach that the court took to factors that were said in
individual cases to have ‘mitigated’
the conduct of the
advocate concerned. Thus the court considered it to be ‘mitigating’
that some had practised for
many years with no blemish to their
names, and that some were said not to have been motivated by ‘greed’–
a rather
imprecise term in the context of the profession. Once again
I think it is clear, when viewed in context, that what was meant was
only that those factors, in varying degrees, indicated that the case
was one in which it could be expected that the dishonesty
would not
recur, which it was the prerogative of that court to decide.
[77] There are two further
matters that I find it necessary to deal with. The first concerns the
orders that were made by the court
for repayment of money to the
Fund. The GCB submitted that those orders were not competent in
relation to the advocates who were
struck off the roll and I agree.
Once the court struck them from the roll its disciplinary powers over
them were exhausted. In
relation to the other advocates it submitted
that it was competent, and those advocates do not suggest the
contrary, but I find
it necessary to say something about those orders
nonetheless.
[78] The Act is directed to
regulating who may practise in the courts. In effect it provides that
a court may permit a person to
do so, and it may also withdraw that
permission, whether permanently by striking off, or temporarily by
suspension. It does not
purport to say anything about the powers of a
court to exercise discipline over practitioners while they enjoy the
right to practise.
I agree with the court below that a court has an
inherent power to do so, as this court, and other courts, have said
before.
24
That it has its roots in
antiquity, and that we no longer employ the disciplinary remedies of
earlier times, seem to me to be neither
here nor there. I see no
reason why that inherent power does not permit a court to order a
practitioner to repay moneys as a condition
for further practice.
[79] The second matter I find it
necessary to deal with concerns only Geach SC. The Value Added Tax
Act 89 of 1991 requires every
person who carries on an enterprise to
be registered as a vendor. In its affidavit the GCB said that in the
course of the investigation
into his affairs it had emerged that
Geach SC had not registered as a vendor, although he had been obliged
to do so, and that was
admitted. Having said that, the GCB moved on,
and said nothing further on the matter. The fact was mentioned, but
not elaborated
upon, by the court below. The GCB mentioned in its
heads of argument before us as an act of misconduct, but made nothing
more of
it. The matter was raised from the bench.
[80] By failing to register Geach
SC committed an offence. It can be expected also to have resulted in
loss to the revenue authorities
of VAT that he should have charged.
The court below must have been aware of those ordinary consequences.
I see no reason to infer,
merely from the absence of elaboration,
that it failed to take them into account, particularly if the GCB
made no issue of it in
argument, just as it made no issue of it in
this court.
[81] Turning to the appeal of
Bezuidenhout, unlike the seven advocates I have dealt with, he was
un-cooperative, even obstructive
in dealing with the allegations
against him. He denied the evidence of Ellis SC that at first he
‘flatly refused’ to
produce his records but that denial
can be summarily dismissed. He was one of those who claimed their
right to privacy when they
became aware that the Bar Council was once
more in search of their books, which is hardly consistent with an
intention to disclose
his books. Moreover, the court below recorded
that he failed to comply with a request by the Bar Council to place
certain of his
records before the court. When he was compelled to do
so by the court they reflected that his transgressions were
continuing, obliging
the court to order his suspension until the
outcome of the application.
[82] No misdirection has been
demonstrated so far as the striking off order is concerned, but on
another issue the appeal has merit.
I have already said the GCB
conceded that the court below was not entitled to make an order for
the payment of money to the Fund
in the case of those who were struck
off, and I agree. That order must be set aside.
[83] One might pick away at this
part of the judgment, and then at that part, but I think that, when
looked at overall and from
afar, it cannot be said that the court
below misdirected its enquiry. It went about it on the correct facts,
and on a correct construction
of the law, and the rest fell within
its discretion. Perhaps the acid test is whether its conclusions
could not have been reached
by a reasonable court. Whether or not I
agree with them I don’t think they can be said to be
unreasonable.
[84] So far as the costs of the
appeal of the GCB are concerned the seven advocates have succeeded in
resisting it, and would ordinarily
be entitled to their costs. On
this occasion, however, I do not think that would be apposite. The
GCB was justified in bringing
the matters on appeal in protection of
the standing of the profession. I think the advocates concerned
should incur the costs they
have brought upon the GCB and the
Society. Bezuidenhout has failed in his appeal and there is no reason
why he should not be liable
for the costs occasioned by his appeal.
Punitive costs were ordered in the court below. The manner in which
the appeals were conducted
does not further punitive costs. The same
applies to the other appellants. As to the division of the costs
between the appeals,
that is a matter that can be left to the taxing
master if it becomes necessary.
[85] Mr Epstein SC and Mr Bester
have acted for the GCB at no charge, for which we commend them, and
express our appreciation for
their assistance, and the assistance of
their two juniors. The two juniors, whose assistance was justified,
cannot similarly be
expected to have acted without remuneration. For
that reason the costs should include the costs of two counsel.
[86] For the reasons given in
this judgment and that of Ponnan JA the following orders are made:
1. The appeal of the General
Council of the Bar is dismissed. The first to seventh respondents in
that appeal are to pay the costs
of the General Council of the Bar
and those of the Pretoria Society of Advocates, jointly and
severally, which are to include the
costs of two counsel.
2. The orders for repayment of
moneys made against the appellant advocates in appeals 273/12,
281/12, 280/12, 275/12, 274/12 and
278/12 are set aside. That apart,
their appeals are dismissed, in each case with costs that include the
costs of two counsel.
_________________
R W NUGENT
JUDGE OF APPEAL
PONNAN JA (MPATI P and NUGENT JA
CONCURRING):
[87] ‘The first thing we
do, let’s kill all the lawyers’ is Dick the Butcher’s
exhortation in Henry VI to
Jack Cade - ‘the head of an army of
rabble and a demagogue pandering to the ignorant’. That oft
misunderstood phrase
was William Shakespeare’s homage to
lawyers as the primary defenders of democracy. Through it, The Bard
recognised that for
tyranny and anarchy to flourish, the law and all
those who were sworn to uphold it had to first be eliminated.
Lawyers, because
of the adversarial nature of litigation in this
country, will never be universally loved by the public. That is not
to suggest
that as members of a distinguished and venerable
profession they do not occupy a very important position in our
society. After
all they are the beneficiaries of a rich heritage and
the mantle of responsibility that they bear as the protectors of our
hard
won freedoms is without parallel. As officers of our courts
lawyers play a vital role in upholding the Constitution and ensuring
that our system of justice is both efficient and effective. It
therefore stands to reason that absolute personal integrity and
scrupulous honesty are demanded of each of them.
25
It follows that generally a
practitioner who is found to be dishonest should in the absence of
exceptional circumstances expect
to have his name struck from the
roll.
26
[88] As Nugent JA has intimated
this judgment deals with the appeals of the five advocates
27
who contend that they ought not
to have been struck from the roll. Each application, although part of
the series of applications
by the Pretoria Bar against various
members, fell to be adjudicated upon its own facts. That the high
court did. As is evident
from the judgment of my learned Brother none
of the five contest the factual findings of the court below or the
finding that they
are not fit and proper persons to continue to
practise. Nor, it seems to me, could they have. Rather what they seek
to achieve
is to persuade us that they have been treated too harshly.
I am by no means satisfied that such arguments as were advanced on
behalf
of each of the five brings the matter within the compass of
any of the recognised grounds for interference.
28
On the contrary as I shall show
with reference to each of the five a striking off was wholly
justified. It is so that at first blush
they appear to have been
treated more harshly relative to their colleagues who were suspended.
But on closer examination that is
not so. In my view the disparity in
treatment between them and those who were suspended was plainly
justified. The high court was
alive to the task that confronted it.
It appreciated that the enquiry with which it was engaged was ‘what
is required for
the protection of the public in the future’.
29
And that in embarking upon that
enquiry the various transgressions of the advocates were not to be
viewed in isolation but that
their conduct was to be viewed
holistically. In that regard the high court explained why it plumped
for a striking off as opposed
to a suspension, thus:
'In the case of
contraventions after the notice of 26 October 2009, unexplained
fiddling with hours, mendacious explanations to
the Court and
exorbitant numbers of transgressions the scale swung to striking
off.'
[89] Before turning to a
consideration of the individual appeals of the five, it is necessary
first to dispose of a contention advanced
both before this court on
appeal as also the high court at the application for leave to appeal
stage of the proceedings, that Van
Dijkhorst AJ ought not to have sat
in the matter because the parties (or more accurately some of them)
entertained a reasonable
apprehension that he had not brought an
impartial and unprejudiced mind to bear on the matter. According to
Pillay, after judgment
was handed down in the matter but prior to the
application for leave to appeal being heard, a transcript of the
minutes of the
meeting of the Pretoria Bar Council held on 17
November 2009 came to hand. In it W Maritz SC, who was the pro forma
prosecutor
before the disciplinary enquiry, is recorded as having
informed the meeting that Van Dijkhorst AJ had expressed the view
that ‘anyone
who takes two briefs for the same day should be
nailed’. Pillay alleges that that utterance, which only came to
his attention
after the matter had been heard, has led him to believe
that the learned Judge had failed to bring an open and impartial mind
to
the resolution of the question involved in the matter before the
court and that he should accordingly have disqualified himself
from
sitting. His failure to recuse himself, so it was asserted, vitiated
the entire proceedings. Whilst some of the other advocates
specifically disavowed any suggestion of bias, there was as well an
alternative argument advanced on behalf of Botha that did not
conclude with a request that the entire proceedings before the Court
a quo
should
be set aside. Instead it was submitted that inasmuch as Van Dijkhorst
AJ had failed to bring an unbiased judgment to bear
on the issue
(
Malan
para
13), that part of the Court
a
quo's
order, which
required the exercise of a discretion, namely a striking off as
opposed to a suspension, fell to be set aside. The
consequence of
that, so the argument went, is that this court would be at large to
reconsider the issue, untrammelled by any constraint
imposed by the
exercise of a discretion by the Court
a
quo
.
[90] Actual bias was not
asserted, rather it is alleged that there is an appearance of bias.
As it was put by Centlivres CJ in
R
v Milne and Erleigh
(6)1951
(1) SA 1 (A) at 6H: ‘ . . . there can be no doubt that if a
Judge, who ought not, because he is biased, to preside
at a criminal
trial, nevertheless does so he commits . . . an irregularity in the
proceedings every minute he remains on the Bench
during the trial of
the accused.’ It matters not that here the complaint is
levelled against just one of a panel of three
judges. For, if a Judge
incorrectly refuses to recuse himself the remaining members should
not sit with that Judge as the proceeding
would be irregular
(
President of the RSA v
South African Rugby Football Union
[1999] ZACC 9
;
1999
(4) SA 147
(CC) (
Sarfu)
para 32). In
Sarfu
para 48, the
Constitutional Court formulated the proper approach to recusal as
follows:
‘
The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the Judge
has not or
will not bring an impartial mind to bear on the adjudication of the
case, that is a mind open to persuasion by the evidence
and the
submissions of counsel. The reasonableness of the apprehension must
be assessed in the light of the oath of office taken
by the Judges to
administer justice without fear or favour, and their ability to carry
out that oath by reason of their training
and experience. It must be
assumed that they can disabuse their minds of any irrelevant personal
beliefs or predispositions. They
must take into account the fact that
they have a duty to sit in any case in which they are not obliged to
recuse themselves. At
the same time, it must never be forgotten that
an impartial Judge is a fundamental prerequisite for a fair trial and
a judicial
officer should not hesitate to recuse herself or himself
if there are reasonable grounds on the part of a litigant for
apprehending
that the judicial officer, for whatever reasons, was not
or will not be impartial.’
[91] The test thus contains a
two-fold objective element – the person considering the alleged
bias must be reasonable, and
the apprehension of bias itself must
also be reasonable in the circumstances of the case (
Sarfu
para 45). It follows
that mere apprehensiveness on the part of a litigant – even a
strongly and honestly held anxiety –
would not be enough. The
question to be answered is: ‘what would an informed person,
viewing the matter realistically and
practically – and having
thought the matter through – conclude’.
30
Applying those principles to the
facts here present I am by no means satisfied that the fairly high
threshold set by the test has
been surpassed. The gist of the
complaint appears to be that the robust tone with which the learned
Judge expressed himself would
have instilled in a reasonable litigant
in the position of Pillay a reasonable apprehension that he was
biased against him. It
is so that he appears to have expressed
himself in a strong and perhaps even emphatic fashion. But had Van
Dijkhorst AJ employed
a less emotive word such as ‘punished’
instead of ‘nailed’ that could hardly have provoked any
feelings
of disquiet. Counsel was constrained to concede as much.
After all it needs to be remembered that disqualification flows from
a
reasonable apprehension that the judicial officer will not decide
the case impartially and without prejudice, rather than that he
will
decide the case adversely to the one party.
31
[92] It must be remembered as
well that by the time the matter came to be heard in the court below
the issues of fact, which were
not in dispute since the
transgressions had first surfaced, had long since crystallised. To
that must be added a further important
consideration: the reasonable
litigant through whose eyes the appearance of bias must be assessed,
is in this instance a trained
lawyer, who no doubt must have a proper
appreciation of what judicial impartiality truly entails. In
SA Commercial Catering &
Allied workers Union v I & J Ltd
[2000] ZACC 10
;
2000
(3) SA 705
(CC) para 13, the Constitutional Court elaborated thus:
'The second in-built
aspect of the test is that "absolute neutrality" is
something of a chimera in the judicial context.
This is because
Judges are human. They are unavoidably the product of their own life
experiences and the perspective thus derived
inevitably and
distinctively informs each Judge's performance of his or her judicial
duties. But colourless neutrality stands in
contrast to judicial
impartiality – a distinction the
Sarfu
decision itself
vividly illustrates. Impartiality is that quality of open-minded
readiness to persuasion – without unfitting
adherence to either
party or to the Judge's own predilections, preconceptions and
personal views – that is the keystone of
a civilised system of
adjudication. Impartiality requires, in short, "a mind open to
persuasion by the evidence and the submissions
of counsel"; and,
in contrast to neutrality, this is an absolute requirement in every
judicial proceeding.
[93] A reasonable litigant in the
position of Pillay is expected to be mindful that in applying the
test Courts have recognised
a presumption that judicial officers are
impartial in adjudicating disputes. This is because Judges on account
of their training
are assumed to be capable of judging fairly. The
presumption carries considerable weight. Thus reviewing courts are
generally hesitant
to make a finding of bias or to perceive a
reasonable apprehension of bias on the part of a Judge, in the
absence of convincing
evidence to that effect. (See
Sarfu
paras
40-42.) It goes
without saying that an unfounded or unreasonable apprehension is not
a justifiable basis for recusal. The apprehension
of the reasonable
person must of necessity be assessed in the light of the true facts.
One cannot ignore from the reckoning that
prior to the commencement
of the hearing of the matter, the learned Judge despatched a note to
the parties, the relevant portion
of which read:
‘
Die
volgende inligting word bekend gemaak aangaande myself. Ek het begin
om kennis te dra van die gevalle (sonder detail van afsonderlike
sake) toe Quintus Pelser SC my geraadpleeg het oor die vraag of
dubbelbrevettering in die sake van die Fonds op onprofessionele
gedrag neerkom. My uitgesproke mening was dat dit is en dat dit
homvrystaan om die inligting oor te dra aan die Balieraad. Ek het
geen kennis gedra van die verdure verloop van sake nie en later
verneem dat die sake afgehandel is en strawwe bepaal is en dat
die
geval van adv French Bezuidenhoutoorstaan. Ek het my nooit uitgelaat
oor die gepastheid van die strawwe nie. Adv Quintus Pelser
SC het my
op ‘n latere stadium gevra of dit gepas sou wees as die
Balieraad die sake aan die Hof voorlê sonder ‘n
sanksie
te bepleit. Ek het hom meegedeel dat dit kan.Dit is die omvang van my
betrokkenheid na die beste van my herinnering.
Indien die vraag of
die optrede op onprofessionele gedrag neerkom, tersprake is, kan ek
nie sit nie. Waar die betrokkenesegterskuldigge
pleit het en bloot
die sanksie ter sprake is, is hierdie Bank van mening dat ek kan sit.
U word versoek om binne 7 dae enige beswaar
wat u mag hê, voor
te lê vir oorweging’.
Van Dijkhorst AJ had thus
disclosed of his own volition that he had engaged in discussions with
members of the Pretoria Bar. The
parties were invited to intimate
whether any of them had any objections to him sitting in the matter.
None of them did.
[94] Nor can one lose sight of
the fact that when the allegation first surfaced at the application
for leave to appeal stage, Van
Dijkhorst AJ availed himself of the
opportunity to place the following on record:
‘
The
note refers to two discussions. In the first I was consulted about
the question whether double briefing in the matters of the
RAF
constituted unprofessional conduct. I expressed the view that it was
and that this could be conveyed to the Bar Council. From
the context
it is clear that this was before the disciplinary hearings of the Bar
Council. I was not involved at all in the hearings
or in Maritz SC’s
preparation, therefore, or Pelser SC’s role therein, if any,
and did not know what the outcome was
till much later.
The second
discussion was much later. After the hearings and when it was being
considered by the Bar Council to bring an application
to Court. The
advice was that the Bar could put the matters before Court without
pleading a specific sanction. The facts disclosed
in the notes were
communicated to all respondents. I stated that if the dispute was
whether the actions of the respondents amounted
to unprofessional
conduct I could not sit as the respondents had pleaded guilty and it
was merely a matter of sanction. The bench
held the view that I
could.’
[95] It follows that when
assessed in the light of all the true facts, if Pillay indeed
apprehended that Van Dijkhorst AJ would
not bring an impartial and
unprejudiced mind to the adjudication of the matter, that
apprehension was unreasonable, and the submission
that he ought to
have recused himself is without merit.
[96] That clears the way for a
consideration of whether the high court erred in the exercise of its
discretion in respect of each
of
Pillay, Botha, De
Klerk, Leopeng and Mogagabe.
Pillay
[97] The high court stated:
'The number of
charges he faced and the amount he gained [R268 800.00] [out of the
commission of the offences] is on the lower end
of the scale compared
to the other respondents. Had it not been for two other matters we
would have in all probability suspended
him from practice'.
The two matters that the court
had in mind were: first, that he had invoiced for work done for the
same periods in respect of different
briefs; and, second, that he had
lied to a Judge.
[98]
As to the first
: An
examination of Pillay's books revealed that on two occasions, in
addition to marking a fee on trial, he charged for as many
as 18 or
19 hours of consultations per day. On a third day he charged for a
total of 20½ hours of consultations. In many
instances the fee
notes submitted by him reflected him to have consulted in more than
one matter at the exact same time. His answer
in a supplementary
affidavit filed in reply to those allegations was:
'I confirm that the
errors in respect of the overlapping hours are due to my inaccurate
and deficient recordkeeping'.
[99]
As to the second
: The
gist of the complaint may be gleaned from two letters. The first was
written by Mojapelo DJP to the Pretoria Bar. It reads:
‘
On
the day in question the matter of Mr Pillay was stood down at the
first roll call at 09:30 in Johannesburg while he was as it
was put
to the court, delayed on the N1 motorway travelling from Pretoria.
When counsel finally
appeared in the Johannesburg High Court at 12:00, the court was
suspicious that he might have appeared first
in the Pretoria High
Court. In response to a direct enquiry from the court, Mr Pillay
denied having appeared in the Pretoria High
Court before coming to
the Johannesburg High Court. As Mr Pillay’s answer appeared
somewhat muffled, the question was reiterated
and Mr Pillay's
response was an unequivocal denial. He unequivocally denied having
appeared in the Pretoria High Court that morning.
Later that same day
I phoned my colleague, the Honourable Mr Justice van der Merwe, who
was by then the Acting Deputy Judge President
in charge of the trial
roll in Pretoria. And he confirmed that Mr Pillay had appeared in
that court that very same morning.
It was in the wake
of the developments sketched above that I confronted Mr Pillay and
requested him to report his conduct to the
Professional and Ethics
Committee in Pretoria.’
In the second letter, which was
written (as already alluded to) at the request of Mojapelo DJP,
Pillay informed the Pretoria Bar:
‘
During
the conversation between Justice Mojapelo and myself, I gained the
impression that Justice Mojapelo had suggested that the
reason that I
was late was that Advocate Bezuidenhout and I may have had a case
together in the Transvaal Provinical Division.
This was not the case.
I believe that Advocate Bezuidenhout from Pretoria may have been late
as well. I believe that Mr Justice
Mojapelo had also suggested that I
may have appeared at the calling of the roll for a trial in Pretoria
separately from Mr Bezuidenhout.
I confirm that my answers to Mr
Justice Mojapelo’s questioning on my belatedness, was on the
understanding that the presumption
that he was and the presumption
that he was suggesting that Mr Bezuidenhout and I had a case against
each other in the Transvaal
Provincial Division and that therefore we
were both late for the calling of the roll in the WLD. I wish to
place on record that
I in no way sought to mislead the court or
Justice Mojapelo.’
[100] Pillay was the only one of
the advocates to testify before the high court. He was afforded an
opportunity to deal with those
two aspects. In respect of the first
he told the court:
'My Lord I submit to
you with respect that all the hours which I debited I worked. Those
invoices are as a result of the fact that
I tried to reconstruct
these hours at a time much later than I worked. When I made those
notes I didn't keep proper records of
the time, the hours. I would
write one hour or two hours for reading and then I would think okay I
thought I read it on Sunday
or Monday between this time and that time
... that is improper and it is a mistake ...'.
And in respect of the second his
evidence went thus:
‘
This
is then the correspondence which we have from the correspondence it
appears that according to you, you denied having appeared
against Mr
Bezuidenhout in Pretoria and that is how you understand the question.
Judge Mojapelo answers that by saying, I asked
him directly whether
he had appeared in the Pretoria High Court before coming to
Johannesburg, he denied it, the question was reiterated
and he
responded with an unequivocal denial. He unequivocally denied having
appeared in the Pretoria High Court that morning. Now,
do you admit
or deny this statement by the Deputy Judge President Mojapelo? --- I
do not deny it.
You do not deny it?
--- No
So, what happened
is, you were confronted by Judge Mojapelo because you did not attend
the roll call. You were asked why you did
not attend and you were
asked why you had appeared or whether you had appeared in the
Pretoria Court. You denied that you had appeared
in the Pretoria
Court, whereas you in fact had appeared in the Pretoria Court. So
this is then the fact? --- What had happened
was, at the time that
Justice Mojapelo asked me why I was late, I started to explain the
circumstances of the morning from the
morning. He then started
suggesting, because I told him that my daughter was sick and as a
result of her being ill, I could not
make it for 09:30 and then he
suggested yes, that Mr Bezuidenhout, did you have a case against Mr
Bezuidenhout and the conversation
went along those lines. I did not
pay proper attention to him and I did not and that is a grave mistake
on my part. But I was,
you now answered that question, I was under
the impression that he was still referring to that Mr Bezuidenhout
and I were in Pretoria
and we had a case against each other, that is,
I was completely flustered that morning because of the events of that
morning. I
had no reason to lie to him, I with hindsight, I should
have clarified his question, I should have said to him, Judge, I was
in
Pretoria on my own, but I was not there with Mr Bezuidenhout, that
is a mistake I made. It was a grave mistake.
Mr Pillay you were,
if you were completely flustered on the 26 August, when this
happened, you surely were not still completely
flustered on 9
September when you wrote this letter? --- No.
Which is in conflict
with what Judge Mojapelo says and you say that Judge Mojapelo is
right, why then did you write a letter which
is exculpatory and which
is incorrect? --- M’Lord, the letter simply seeks to convey my
state of mind at the time. All it
seeks to convey is at that time
when I made that answer, my state of mind. My state of mind was, I
was completely under pressure
because my daughter was sick, I was
late for the calling of the roll, I was under tremendous pressure
because there was a suggestion,
I got the impression that Judge
Mojapelo was suggesting that I was in court on a trial in Pretoria
with Mr Bezuidenhout and that
is why I was late and I only wanted to
convey my state of mind and to convey to the judge that I did not do
anything intentionally.
Mr Pillay, you are
now under oath? --- Yes.
With hindsight,
looking at your letter of 9 September which I read out in full, are
those facts correct or are they incorrect? ---
They are correct and I
should have gone further to say that I should have paid proper
attention to Judge Mojapelo’s question,
I should have answered,
I should have enquired exactly what he wanted and I should not just
have made the assumption.
Do you admit that
your letter is in conflict with the letter of Judge Mojapelo? ---
M’Lord, I do not know it is in conflict
in so far as it, I only
tried to tell my state of mind. I wanted to give the impression that
this is what I was going through at
the time.
Did you attend roll
call in Pretoria? --- Yes, I did.
Did you deny when
Judge Mojapelo asked you, whether you had appeared in the Pretoria
High Court that morning, did you deny that
you had appeared there?
--- M’Lord, my recollection of the matter was, that question
followed a suggestion that Mr Bezuidenhout
and I appeared together on
a trial and I said no. I remember saying no and I should have with
hindsight, I should have said, M’Lord
no, I did not appear with
Mr Bezuidenhout in a trial but if Your Lordship, is asking me whether
I appeared on my own, to confirm
a cost order in a settled matter, I
did appear according to the roll. It is a grave, grave error, I did
not pay proper attention
and it is a grave error.’
[101] The high court, quite
correctly in my view, disbelieved Pillay. It concluded:
'It is
overwhelmingly probable that Pillay did not work the hours which he
recorded and that he falsely represented to the clients
that he in
fact did consult for the recorded number of hours. This is nothing
less that fraud
. . .
'We have no
hesitation in disbelieving Pillay and concluding that he deliberately
lied to the judge.'
Botha
[102] By the time the application
came to be heard in the high court an investigation had been
conducted in respect of Botha's accounting
records, which revealed
that he had, inter alia, on diverse occasions charged for more hours
than there were in the day. By way
of example on 11 August 2009 he
charged for four court appearances, a settlement at the RAF tariff
and seventeen hours of preparation.
On 12 August 2009 he charged for
two trials and 27 hours of preparation. On 26 August 2009 he charged
for three court appearances
and 33 hours of inspections in loco,
consultations and preparation.
[103] In an affidavit filed in
response to those allegations he states:
'3.4 My secretary,
Mariëtte Munik, would, on receipt of each brief, automatically
insert a worksheet. She would then contact
the other side, establish
precisely who was dealing with the matter on the other side (usually
counsel; sometimes attorney), and
insert his or her detail on the
worksheet. I would then, as I prepared, consult etc, note my times on
the worksheet. I unfortunately
always noted times, but not dates, of
my work. From leading other counsel and tallying times with them, I
have come to see that
this is a failing of many advocates. I am thus
far from alone in this weakness.
3.5 On finalisation,
I would hand the brief over to my secretary, who would make up the
account on the strength of the worksheet.
The computer programme
which generates my invoices will not accept an amount in the
horizontal column without a date having been
inserted. My secretary
as a matter of rote inserted dates prior to the trial date, to enable
her to complete the invoice. In the
nature of things, these dates
might or might not be correct. I accept that the result could be a
misleading invoice, but not materially
so, because the important fact
would be that the work was done, and not the exact date on which it
was done.'
[104] The high court held:
'Botha's explanation
is unconvincing. It amounts to this: though each invoice sets out a
specific date or dates when work was done,
these do not reflect the
truth. One cannot determine what the truth is. There is no attempt to
rearrange the information to prove
that when all is properly set out,
there has been no overcharging. One would have expected such an
attempt to be made in view of
the seriousness of the prima facie
facts. To merely say that it is all due to erroneous bookkeeping is
not in these circumstances
an acceptable answer. It indicates that
knowingly over a long period he gave incorrect information to his
attorneys. This detracts
from his integrity. It is probable that
Botha did not work the hours that he recorded and that he falsely
represented to the attorneys
that he did in fact consult or prepare
for the recorded number of hours. This is nothing less than fraud.'
[105] What, moreover, weighed
with the high court was the fact that even after the investigation
into his conduct had commenced,
Botha, as the high court put it
'brazenly continued with his contraventions'. He accordingly, so the
high court stated 'displayed
a persistent violation of the Bar Rules
and a contemptuous attitude thereto', which it found to be 'seriously
aggravating'.
De Klerk
[106] De Klerk took the view that
his conduct was not proscribed by the Uniform
Rules of
Professional Ethics. Thus in his answering affidavit he stated:
'12.1 I deny that
the logical correlative of the so-called "cab rank rule" is
the rule which prevents counsel from taking
on more than one trial
brief per day. I am not aware that the alleged "logical
correlative" has become known as the rule
against "double
briefing".
12.2 I have perused
the whole of the Rule Book of the Pretoria Society of Advocates, the
only reference to the words "double
briefing" may be found
in the Section B2 as a heading and the general circular of the
Pretoria Society of Advocates dated
1 November 2006 in which certain
"guidelines" were laid down.
The aforesaid
general circular only became part of the "new" Rule Book
distributed to members in the form of a clip file
that allowed for
the substitution of pages. The "new "Rule Book in this form
was distributed to members during the course
of June 2009.
12.3 I only became
aware of the existence of the said general circular between 23
November 2009 and 26 November 2009.'
The high court found that it was
'most unlikely that De Klerk would not have known about [the
circular] given that it would certainly
have been a great talking
point amongst advocates at the Pretoria Bar'. It expressed puzzlement
at the emphasis placed by De Klerk
on receipt of the circular as in
its view every advocate knows that there is a rule against double
briefing. Accordingly, so it
held, if De Klerk did not know that, he
was not fit to be on the roll of advocates.
[107] A recurring theme
throughout De Klerk’s answering affidavit was a denial of any
wrongdoing. He thus asserted:
'47.1 . . . I held
the view at the investigation meeting/disciplinary proceedings that:
47.1.1 I never acted
improper[ly] towards a client,
47.1.2 I never acted
surreptitiously;
47.1.3 I had not
overcharged my client or had charged improper fees for the work done
by myself.'
. . .
'50.1 I deny that
the misconduct of which I had been found guilty was motivated by
greed.'
Continuing to protest his
innocence was at odds though with him having pleaded guilty before
the disciplinary committee. He, however,
explained that he felt
compelled to plead guilty before the disciplinary enquiry because of
the interpretation placed by the Ellis
circular on the rule. The high
court held that it was evident from De Klerk's affidavit that he had
shown no remorse or contrition
as he did not genuinely believe that
he had done wrong.
[108] Despite his plea of guilty
to overreaching before the disciplinary committee, De Klerk
subsequently sought to protest his
innocence. The high court dealt
with that contention thus:
'De Klerk's argument
that he as a result did not overreach is wrong. The flaw in the
argument is that De Klerk approaches the raising
of fees on a
holistic basis instead of a case by case basis. The fact that the RAF
was in each instance his client, does not mean
that when he raises a
fee, that fee need not be appropriate with regard to the specific
matter to which that fee pertains.
...
De Klerk's
explanation rings especially hollow when one has regard to certain of
the days in respect of which he confessed breaches
of the rules. For
instance, on 2 September 2009 he accepted and charged for seven
matters on trial. It is simply impossible for
one person to accept
instructions in seven matters to take them to trial on the same day.
Furthermore, had he (and this is not
his version) accepted some of
these instructions on settlement, he has dishonestly and fraudulently
charged a trial fee instead
of a fee on settlement.'
[109] The additional
considerations that weighed with the high court were: First, De Klerk
initially adopted the attitude that he
would not submit his books of
account to the scrutiny of the Professional and Ethics Committee of
the Pretoria Bar. Second, when
he appeared before the Vorster
Disciplinary Committee, De Klerk requested that he be expelled from
the Pretoria Bar so that he
could set up practice as an independent
advocate untrammelled by the Society's rules. Third, on 26 March 2012
and after being summoned
to appear before the Vorster Committee, he
tendered his resignation from the Pretoria Bar. The Bar Council
declined to accept his
resignation. Despite the fact that his
resignation was not accepted, he vacated his chambers on Saturday 1
May 2010. Fourth, De
Klerk had continued, as the high court put it,
in contemptuous disregard of the Ellis circular, with his pattern of
multiple briefing
and did so on no less than 17 occasions on nine
court days during November 2009.
Leopeng
[110] The high court took the
view that Leopeng was one of the more serious offenders, with the
number of charges that he faced
being surpassed only by Mogagabe and
Bezuidenhout. For the period February to October 2008 he had accepted
in excess of 300 additional
briefs. For the months of February,
March, April and May 2009 and prior to the rolls having become
congested, which only occurred
during July, Leopeng accepted 23, 25,
18 and 33 additional briefs per month, respectively.
[111] Despite having been made
aware of the fact that the Professional and Ethics Committee was
investigating him and had called
for his books, his conduct continued
unabated. An examination of his books revealed that on multiple
occasions he had marked fees
for consultations, perusal and
preparation in excess of twenty four hours per day. Thus by way of
example he had marked fees as
follows: 1 April 2009 - 25.25 hours, 11
May 2009 - 27.5 hours, 7 August 2009 - 31 hours, 1 September 2009 -
35 hours. His response
to these allegations was:
'This overlapping is
mainly caused by my lack of keeping proper record of the exact dates
and times spent on each matter. It is
also as a result of the large
number of these third party matters I am handling. This is however
not intentional and is regretted.'
The high court was not persuaded
by Leopeng's explanation, stating: '[i]t is simply not good enough to
merely make the bald statement
that it was due to the fact that
proper records weren't kept'.
[112] The high court went on to
record:
'We regard this
explanation as totally inadequate and unconvincing. On one day, 11
May 2009 he debited for the following hours worked:
(a)
Sekgobela
v The Road Accident Fund
- 5 hours of R1 000
an hour for perusal and preparation;
(b)
Khumalo
v The Road Accident Fund
- 4 hours for
perusal and preparation;
(c)
Makua
v The Road Accident Fund
- 5 hours for
perusal and preparation;
(d)
van
Schalkwyk v The Road Accident Fund
- 4 hours
for perusal and preparation;
(e)
Maphitshi
v The Road Accident Fund
- 5 hours for
perusal and preparation;
(f)
Mosena
v The Road Accident Fund
–
4 hours for
perusal and preparation and attending pre-trial conference - 30
minutes.’
In each of those matters the fee
charged did not include consultations but was restricted to perusal
and preparation and in one
instance attending a pre-trial conference.
Actual times were not furnished, instead globular amounts were
charged. The high court
concluded:
'[t]he irresistible
inference is that he could not possibly have worked the hours that he
has claimed. He represented to the attorney,
the Fund, and the Taxing
Master that he had done the work well-knowing that in fact he had
not. He acted fraudulently and is not
fit to be an officer of this
Court'.
Mogagabe
[113] Mogagabe's transgressions
ranked second only to Bezuidenhout. During February, March, April,
May, August and October 2009
he held 33, 49, 54, 68, 78 and 84
additional briefs per month, respectively. An examination of his
books revealed that during February
to October 2009 he had debited
fees for 18 hours or more per day on 73 occasions. On 40 occasions he
debited fees for 24 hours
or more per day. On 24 occasions he debited
fees for 30 hours or more per day. And on what the high court
described as the longest
day of his life, namely 21 October 2009, he
allegedly worked for a total of 49 hours.
[114] In response to the
allegations Mogagabe stated in his affidavit:
' ... one gathers
the impression that I dishonestly marked fees for preparation. The
evaluation of my accounts apparently leads
to the conclusion that I
marked fees and charged for work that I did not in fact do. This is
not correct, as appears from what
is stated below. The above
inference however hinges on the correctness of my accounts. My
accounts according to me reflect the
correct hours taking into
account what is stated below. In certain instances the dates create
the wrong impression as to when the
work was actually done. In order
to put this in perspective, I will deal with my routine and my
administration.
...
The Honourable
Court, will, with respect, realise that under the above circumstances
office administration is prone to lack [lag]
behind. I kept a
timesheet in the front of each brief. I normally marked the time as
and when I did the work. I wrote down the
time spent, but I was not
in the habit of writing down the specific day on which I did specific
work. I did not always distinguish
between the nature of my
preparation (consultations; pre-trial conferences; inspections;
perusal, etc). It from time to time happened
that I was interrupted
in my preparation to attend to other urgent matters. I would then
record my preparation hours later that
day, or later in the week
whilst it was still easy to recollect the work done. In the unusual
event that I could not recall the
hour(s) spent later in the week, I
would evaluate the brief and estimate the time spent on preparation
and/.or perusal, taking
into account the fee arrangement with the
RAF.
...
I normally invoiced
my attorneys on Fridays or every second Friday by sending the
relevant worksheet to my typist after having recorded
the hours spent
on preparation and perusal. I added all the preparation and perusal
times on the worksheet, but due to the fact
that I had no record when
the preparation was actually done, I normally recorded my total
preparation on the brief a day or two
before the trial date. In some
cases I kept proper records and allocated the fees accordingly. In
other words, in certain instances,
the date reflects the actual day
when the work was done and others the date on the invoice reflects
work done previously.'
[115] The high court dealt with
his explanation thus:
'This is a glib
explanation. It amounts to this: though each invoice sets out a
specific date or dates when work was done, they
do not reflect the
truth. The truth lies elsewhere, but where, one cannot say.
The hours complained
of are a composite result of a number of invoices in different cases,
in each case a few hours. There is no
attempt to rearrange the
information to prove that when all is properly set out, there was no
overcharging. One would have expected
such an attempt to have been
made in view of the seriousness of the prima facie facts. But then,
rearranging the deck chairs will
probably not prevent the Titanic
from sinking. To merely say, as Mogagabe in effect does, that it is
all due to erroneous bookkeeping
is not in these circumstances an
acceptable answer. It indicates that knowingly over a long period he
gave incorrect information
to his attorneys. This detracts from his
integrity.
It is probable that
Mogagabe did not work the hours which he recorded and that he falsely
represented to the clients that he in
fact did consult or prepare for
the recorded number of hours. This is nothing less than fraud.'
[116] Like Bezuidenhout, the high
court ordered each of Pillay, Botha, Leopeng and Mogagabe to repay
what may be described as the
extent of their ill-gotten gains
32
to the Fund. As Nugent JA points
out (para77) those orders were not competent and they accordingly
fall to be set aside. For the
rest the appeals are devoid of any
merit. To be sure no court relishes having to impose the ultimate
sanction upon an advocate.
But here in respect of each there were
'aggravating circumstances' present that favoured striking off. The
explanations advanced
by each of the five under oath were generally
unconvincing if not plain dishonest. And as it was put by Hefer JA in
Kekana
(at
655G):
‘
I
share the view expressed in
Olivier’s
case
supra at 500H
ad
fin
that,
as a matter of principle, an advocate who lies under oath in
defending himself in an application for the removal of his name
from
the roll, cannot complain if his perjury is held against him when the
question arises whether he is a fit and proper person
to continue
practising.’
In
Malan
(para 10), Harms JA
said ‘[o]bviously, if a court finds dishonesty, the
circumstances must be exceptional before a court will
order a
suspension instead of a removal’. Although not a rule of law,
Nugent JA explains (para 69) why the logical corollary
of a finding
of dishonesty is that an advocate should generally be barred from
practice.
[117] A person who practises as
an advocate is expected to know what his duties are, including that
he mark his brief with the work
that has been done and the fee that
is relevant to that work. In the ordinary course it would thereafter
have fallen to the instructing
attorney to hold an advocate to
account for the fees that he has charged, by properly scrutinising
the accounts that have been
submitted. That, as we well know, simply
did not happen here. Thus when confronted with the allegation that
excessive fees had
been charged, the advocates in question were
unable to furnish sufficient detail of the work done, but sought to
explain in general
terms only the nature of the work done in return
for those fees. That was wholly unsatisfactory. For, as Nugent JA put
it in
Van der Berg
(para 29): ‘[n]o
doubt it is incumbent upon an advocate who is alleged to have charged
excessive fees to provide sufficient
detail of the work that has been
performed to enable the fee to be assessed, and in appropriate cases
cross-examination might be
called for to establish the true facts . .
.’
[118] Their transgressions paint
a picture of advocates who appear to be quite indifferent to the
demands of their profession. The
sustained nature of their
transgressions, unlikely excuses and exculpatory explanations
‘manifest character defects, a lack
of integrity, a lack of
judgment and a lack of insight’.
33
None of them betray the slightest
appreciation of where they may have fallen short or the enormity of
their wrongdoing. Instead
they responded with enmity and indignation
that their conduct could have been called into question at all. In
short having taken
all of the relevant considerations into account
the high court concluded that there were no exceptional circumstances
present warranting
the suspension of any of the five as opposed to
their striking off. That, as already stated, was a matter for the
discretion of
the high court. Given that it is in the nature of a
‘narrow’ discretion
34
(and not having brought the
matter within the compass of any of the recognised grounds for
interference) this court is not simply
at large to decide the matter
afresh and to substitute its decision for that of that court. It
follows that the appeals of Pillay,
Botha, De Klerk, Leopeng and
Mogagabe, must – like the other appeals in this matter –
also fail.
_________________
V M PONNAN
JUDGE OF APPEAL
WALLIS JA (LEACH JA CONCURRING)
[119] Having had the advantage of
reading the judgments prepared by my brothers Nugent and Ponnan, I
find myself in respectful disagreement
with Nugent JA in regard to
the determination of the appeals by the GCB in respect of Messrs
Geach, Güldenpfennig and Van
Onselen. I agree with him that the
GCB’s appeals in respect of Messrs Upton, Jordaan, Seima and
Williams should fail and
that the appeal by Mr Bezuidenhout must
fail. I agree with Ponnan JA that the appeals of Messrs Pillay,
Botha, De Klerk, Leopeng
and Mogagabe against the orders that they be
struck off the roll of advocates should be dismissed. The appeals by
them against
the orders by the court below that they repay certain
amounts to the Road Accident Fund (the Fund) should, however,
succeed.
[120] The broad grounds for my
disagreement with my colleague are as follows. First, Mr Geach failed
to register for, or to pay,
VAT from its inception in 1992 until
2010. That was a sustained course of dishonesty for which he gave a
dishonest explanation.
The high court mentioned ‘VAT’ as
further misconduct, but did not mention it again. Accordingly there
are no factual
findings in that regard in the judgment. In any event,
in my opinion, it resulted in a clear misdirection in regard to
sanction,
because the high court either failed to have regard to
material misconduct or treated it as inconsequential. In regard to Mr
van
Onselen, the high court held that he, unlike some of his
colleagues, had not engaged in improper duplication of hours charged
for
work done in chambers. In my opinion that factual finding was
incorrect, and it resulted in a misdirection in regard to sanction.
Second, I think that the high court misdirected itself in its
approach to sanction, both at an individual level in relation to
those who were not struck from the roll, and at a general level in
failing to apply the principle of parity in assessing sanction
and in
regard to its orders for payment to the Fund. That conclusion
necessitates a reconsideration of the sanctions imposed in
relation
to both those who were struck off the roll of advocates and those who
were not. As will appear, in approaching that task,
my approach
differs in certain respects from that of my colleagues. The judgment
of the high court is now reported as
Pretoria
Society of Advocates & another v Geach & others
.
35
I shall refer to it as the
reported judgment. I will refer to Nugent JA’s judgment as the
main judgment. A large part of the
background emerges from the main
judgment and I shall endeavour, so far as possible within a coherent
narrative, to avoid repetition.
The Background
[121] The circumstances in which
the conduct of these advocates attracted the scrutiny of the court
can be summarised fairly shortly.
In the North Gauteng High Court
there was a considerable backlog of cases against the Road Accident
Fund (the Fund). This was largely
due to some misguided decisions by
the Fund in an endeavour to address its chronic funding problems. The
decisions aimed at avoiding
incurring legal costs until a late stage
of the actions against the Fund and postponing the settlement of
cases until the very
last minute. The consequence was that the Fund
was rarely, if ever, properly prepared for trial. Pre-trial
conferences were held
late and were ineffectual because of a lack of
instructions. Witnesses, both on the merits and in regard to quantum,
were not consulted
or available. Attorneys could not obtain
instructions and briefed counsel at the very last minute. This meant
that there was no
advice on evidence. One of the advocates, who did a
substantial amount of work for the Fund, estimated that his briefs on
trial
would arrive between three and seven days prior to the date of
set down. The result was that when the day for trial arrived the
Fund
could not proceed in any sensible fashion. It was compelled to settle
the majority of cases on the best terms it could obtain.
Otherwise it
would postpone them, or, in a few instances, try to defend them on
the basis of the plaintiff’s evidence. In
virtually every
instance an order would be made that the Fund pay the costs of the
action or the postponement.
[122] In this situation these
thirteen advocates took more than one brief a day for matters set
down for trial before the North
Gauteng High Court. The extent of the
multiple briefing varied from one advocate to the next and from one
day to another. Sometimes
only a single extra brief would be taken.
In one instance one of them took 21 briefs on a single day. Sometimes
the multiple briefs
came from the same attorney and sometimes not.
Sometimes all the briefs would be to represent plaintiffs, or the
Fund, but sometimes
the advocate would hold briefs for both
plaintiffs and the Fund on the same day. The disarray in the Fund’s
conduct of cases
enabled them to do this. They could be reasonably
certain that the cases would settle or be postponed and that, if any
needed to
proceed, they would be able to conduct those cases, whilst
disposing of the balance of the matters in which they had been
instructed.
Experience no doubt taught them which cases stood a risk
of proceeding and required rather more preparation, but the conduct
of
actions against the Fund, at least on the merits, is rarely
complex, involving as it does a description of how a particular motor
accident occurred and an analysis of who was at fault and the degree
of their fault. Consequently, if a case proceeded unexpectedly,
this
did not pose any great difficulty.
[123] Accepting multiple briefs
to conduct trials in the same court on the same day in circumstances
where, if one case ran the
others could not, was a clear breach of
the rules governing the professional conduct of advocates as
contained in the Uniform Rules
of Professional Conduct of the GCB as
well as the domestic rules of the Pretoria Bar. However, matters did
not rest there. The
other aspect of the conduct of these thirteen
advocates related to the fees they charged for these cases. In each
instance identified
by the Pretoria Bar in the course of its internal
investigation, the advocates charged a full trial or day fee for the
case irrespective
of what work had been done on it or what effort or
input it involved from the side of the advocate. This was so even
though many
of the briefs ultimately involved no more from them than
to settle the cases, rather than conduct a trial. It appears that the
advocates charged in accordance with the Fund’s in-house tariff
of fees for counsel, when they were briefed on behalf of the
Fund,
36
and the fee that would be allowed
on taxation by the taxing master where they appeared for the
plaintiff.
37
The end result was that, by
multiplying the number of briefs they took and charging a full trial
fee in respect of each of them,
they could earn far more than would
otherwise have been the case. In every case the Fund bore the costs
and the advocates appear
to have set their fees with this in mind.
[124] The history of the
disciplinary proceedings and this litigation are set out in paras 29
to 49 of the main judgment. I add
the following detail. Each advocate
faced two general charges, one of ‘double briefing’ and
one of over-reaching with
the number of counts dependent on how often
they had impermissibly taken an extra brief. In regard to double
briefing they took
multiple trial briefs on the same day, in
circumstances where they could not have conducted trials in all
cases, because that would
have required them to be in more than one
court at the same time. The charge specifically alleged that the
additional briefs forming
the subject of the charges were not briefs
with ‘a specific mandate to settle the matter.’ The
advocates accepted this
as correct when they pleaded guilty to these
charges. It is accordingly not open to them to contend, as some did,
that these were
not in reality trial briefs. They were trial briefs
(albeit that it was not anticipated that many of them would result in
trials
being fought) and were treated as such by the advocates
because they charged trial fees for them. This led directly to the
second
general charge, one of over-reaching. Here it was alleged
that, in contravention of the Bar rules governing the charging of
fees,
they charged a full trial fee in every ‘extra’ case
accepted under this practice of accepting multiple trial briefs
on
the same day. Each extra fee charged constituted a separate count of
over-reaching. In substance the charges of double briefing
and
over-reaching constitute two sides of the same coin. Had the former
not occurred, the latter would also not have occurred.
The Law
[125] In South Africa the
advocates’ profession is primarily under the control of
voluntary professional organisations, situated
in each centre where a
high court is located. These organisations in turn are the
constituent members of the GCB. On questions
of admission to, and
continued membership of, the profession the high court exercises
control. It is the high court to which application
must be made for
admission and the high court that has the power to remove
practitioners from the roll of advocates or attorneys.
It exercises
these powers in terms of the Admission of Advocates Act, 74 of 1964
(the Act).
[126] A person can only be
admitted to practise as an advocate if they satisfy the court that
they are a fit and proper person to
be admitted as such.
38
Central to the determination of
that question, which is the same question that has to be answered in
respect of attorneys, is whether
the applicant for admission is a
person of ‘complete honesty, reliability and integrity’.
39
The court’s duty is to
satisfy itself that the applicant is a proper person to be allowed to
practise and that admitting the
applicant to the profession involves
‘no danger to the public and no danger to the good name of the
profession’.
40
In explaining the reasons for
this I need go little further than the words of Hefer JA in
Kekana
v Society of Advocates, of South Africa
,
41
when he said:
‘
Legal
practitioners occupy a unique position. On the one hand they serve
the interests of their clients, which require a case to
be presented
fearlessly and vigorously. On the other hand, as officers of the
Court they serve the interests of justice itself
by acting as a
bulwark against the admission of fabricated evidence. Both
professions have strict ethical rules aimed at preventing
their
members from becoming parties to the deception of the Court.
Unfortunately the observance of the rules is not assured, because
what happens between legal representatives and their clients or
witnesses is not a matter for public scrutiny. The preservation
of a
high standard of professional ethics having thus been left almost
entirely in the hands of individual practitioners, it stands
to
reason, firstly, that absolute personal integrity and scrupulous
honesty are demanded of each of them and, secondly, that a
practitioner who lacks these qualities cannot be expected to play his
part.’
The need for absolute honesty and
integrity applies both in relation to advocates’ duties to
their clients and their duties
to the courts.
42
In the past, applicants for
admission as an advocate, who were unable to demonstrate those
qualities of honesty and integrity, had
their applications refused.
43
[127] These qualities of honesty
and integrity must continue to be displayed throughout an advocate’s
practice. That is apparent
from the provisions of s 7(1) of the Act
that reads as follows:
‘
Subject
to the provisions of any other law, a court of any division may, upon
application, suspend any person from practice as an
advocate or order
that the name of any person be struck off the roll of advocates—
(a)
–
(c)
…
(d)
if
the court is satisfied that he is not a fit and proper person to
continue to practise as an advocate.’
Conduct by an advocate in the
course of his or her practice that demonstrates a lack of honesty or
integrity has repeatedly been
held to lead to the conclusion that
they are no longer a fit and proper person to continue to practise as
an advocate.
44
Although in these cases the court
is usually concerned with conduct in the course of the advocate’s
practice, that does not
mean that conduct unconnected with practice
may not be taken into account in assessing whether the advocate lacks
the honesty and
integrity to remain in practice as an advocate.
45
[128] Hefer JA set out the proper
approach to an application under s 7(1)(d) of the Act in
Kekana
,
46
where he said:
‘
In
terms of
s 7(1)
of the
Admission of Advocates Act 74 of 1964
, as
amended, the Court may suspend any person from practice, or order
that the name of any person be struck off the roll, if it
is
satisfied that he is not a fit and proper person to continue to
practise as an advocate. The way in which the Court had to deal
with
an application for the removal of an attorney's name from the roll
under a similar provision in the Attorneys, Notaries and
Conveyancers
Admission Act 23 of 1934, as amended (before that Act was repealed),
was considered in
Nyembezi
v Law Society, Natal
1981
(2) SA 752
(A) at 756H-758C. It emerges from the judgment that the
Court first has to decide whether the alleged offending conduct has
been
established on a preponderance of probability and, if so,
whether the person in question is a fit and proper person to practise
as an attorney. Although the last finding to some extent involves a
value judgment, it is in essence one of making an objective
finding
of fact and discretion does not enter the picture. But, once there is
a finding that he is not a fit and proper person
to practise, he may
in the Court's discretion either be suspended or struck off the
roll.’
[129] On the first two questions,
namely what conduct has been proved and whether, in the light of that
conduct, the advocate is
a fit and proper person to remain on the
roll of advocates, this court determines on appeal whether the high
court was correct
and interferes if it was not. It approaches the
matter in the same way that it approaches any other appeal involving
factual questions.
Insofar as the second issue has elements of a
value judgment, it is not discretionary in the sense of being open to
a number of
possible conclusions. It is a judgment by the court in
the light of all relevant considerations and does not involve a
choice between
alternatives.
47
Where, as here, the decision is
made in application proceedings without a reference to oral evidence,
this court is in as good a
position as the high court to assess the
facts.
48
In regard to the third element of
the enquiry – the issue of an appropriate sanction –
Hefer JA, in
Kekana
,
said that:
‘
All
that need be added is that appellate interference with the trial
Court's discretion is permissible on restricted grounds only.
In
Beyers
v Pretoria Balieraad
1966
(2) SA 593
(A) at 605F--H,
Olivier
v Die Kaapse Balieraad
1972
(3) SA 485
(A) at 495D-F and
Swain
v Society of Advocates, Natal
1973
(4) SA 784
(A) at 786H
ad
fin
the
grounds for interference are stated in slightly different terms, but
the approach is essentially the one adopted in all other
cases where
a Court of Appeal is called upon to interfere with the exercise of a
discretion,
viz
that
interference is limited to cases in which it is found that the trial
Court has exercised its discretion capriciously or upon
a wrong
principle, or has not brought its unbiased judgment to bear on the
question, or has not acted for substantial reason. (See
Benson
v SA Mutual Life Assurance Society
1986
(1) SA 776
(A) at 781I-782A and the cases referred to there.)’
49
In
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs & others
50
the Constitutional Court, in
dealing with a similar kind of discretion, said the following about
the powers of a court of appeal:
'(I)t may interfere
only when it appears that the lower court had not exercised its
discretion judicially, or that it had been influenced
by wrong
principles or a misdirection on the facts, or that it had reached a
decision which in the result could not reasonably
have been made by a
court properly directing itself to all the relevant facts and
principles.'
It is not sufficient that the
court made correct factual findings. It must also direct itself in
accordance with those facts. Relevant
factors must be considered and
irrelevant ones ignored. If manifestly relevant facts do not feature
in its evaluation, or irrelevant
facts are taken into account, or
facts are treated as pointing to one result, when they clearly point
to the opposite result, the
court misdirects itself and the appeal
court may interfere.
51
It is in terms of those
principles that I approach this case. In doing so I am mindful that
the best, indeed the only, evidence
of what a court considers in
arriving at its decision is the contents of its judgment and one can
only consider the question of
misdirection by looking at the contents
of the judgment in the light of the evidence in the record. I start
by addressing the factual
findings of the high court under the
general headings of ‘The principal misconduct’ and
‘Additional misconduct’
and conclude that, save in one
respect in relation to Mr Geach and another in respect of Mr van
Onselen, their factual findings
were justified. I then consider the
issue of whether the advocates were fit and proper persons to remain
in practice as advocates
and lastly deal with the issue of sanction.
The principal misconduct
[130] The high court held that
the advocates were guilty of misconduct in accordance with their
pleas. It then enquired into the
question of dishonesty because all
of them denied that their conduct was dishonest. It rejected a
suggestion that the double briefing
was merely technical and endorsed
an opinion furnished to the Johannesburg Bar Council that:
‘
It
is not possible for one counsel to act in the best interests of
clients in two or more trials set down for the same day, even
if only
one action is set down for trial and counsel is briefed on settling
the other matters.’
52
Insofar as the over-reaching
charges were concerned, the high court held that the advocates had
not been entitled to charge full
trial fees for the additional briefs
they had improperly taken and likened this to ‘daylight
robbery’. Its conclusion,
apparent from the opening paragraph
of its judgment, was that their conduct was due to greed.
53
The court accordingly concluded
that their conduct was dishonest.
[131] I agree with these
conclusions and in my judgment they justified the charge (and guilty
pleas) of over-reaching. Advocates
are only entitled to charge a
reasonable fee, and if they charge an unreasonable fee they are
guilty of over-charging. That may
or may not involve dishonesty. A
misjudged view of the advocate’s worth or the value of the
service rendered is not necessarily
dishonest. Of course the excess
may be such that it justifies an inference of dishonesty.
54
Over-reaching is something more
and it may be of assistance to indicate why this is so.
[132] Over-reaching involves an
abuse of the person’s status as an advocate, to take advantage
for personal gain of the person
who is paying them. Advocates enjoy a
considerable advantage in setting a fee. They know what standards are
applicable to the charging
of fees; they know what work has been done
on the brief and what time and effort has gone into that work; they
know in broad terms
the fees charged by advocates of comparable
seniority and ability for similar work. This creates what economists
call information
asymmetry between the advocate and the client and
even the attorney, one of whose functions is to ensure that the
advocate does
not claim or be paid unreasonable fees.
55
Where the attorney is ignorant of
what constitutes a reasonable fee, or is unable or has no incentive
to act as a check on counsel,
which was probably the situation here
because all concerned anticipated that the fees were to come out of
the Fund, the advocate’s
advantage is magnified as the check
built into the system is absent. For the advocate to take advantage
of that situation, by marking
a fee knowing that it is not a proper
fee, but one that is unreasonable and improperly marked under the
rules, is an abuse of the
advocate’s position and amounts to
over-reaching. It is innately dishonest behaviour.
[133] These advocates claimed to
be entitled to charge a full first day fee on trial, not only on the
one brief it was legitimate
for them to accept each day, but on all
the extra briefs as well. They thereby represented to their attorney,
the lay client, and
more importantly – since the costs were
inevitably going to come out of the Fund – the representatives
of the Fund,
that it was legitimate for them to charge these fees.
For the reasons that follow I am satisfied that they were not.
[134] Traditionally a first day
fee on trial compensated the advocate for the work done in
preparation for the trial, apart from
work, such as drafting
pleadings or conferences, that had been the subject of a separate
specific brief. It thus covered all work,
such as considering the
available evidence; reading the documents; deciding which witnesses
to call; preparing to lead witnesses;
preparing cross-examination of
the opponent’s witnesses; legal research and the general
planning of the conduct of the case.
It also compensated the advocate
for the appearance on the first day of the case. Fees for the second
and further days, known as
refreshers, were significantly lower. In
current practice, where many advocates charge separately for their
preparation, a first
day fee on trial should not be markedly
different from the refresher because they are compensating for the
same work – the
day in court.
56
[135] A misapprehension that
infected some of the arguments before us was that, if a trial settles
shortly before the date of set
down, that entitles the advocate to a
fee on brief equivalent to a first day fee on trial, irrespective of
whether any work had
been done on the brief and irrespective of
whether the acceptance of the brief resulted in work being turned
away to the advocate’s
detriment. That approach is incorrect.
It would have the result that the mere fact of entering a trial date
in the advocate’s
diary would give rise to an entitlement to
charge a fee on brief. But that would breach the basic rule that an
advocate is only
entitled to charge a reasonable fee. The true
position is expressed in rule 8(b)(i) of the rules of the Society of
Advocates of
KwaZulu-Natal (which has for many years been the ethics
committee of the GCB), which reads as follows:
‘
A
fee on brief is chargeable by counsel in order to compensate him for
work done in preparation for the trial of a case and for
the loss of
opportunity to earn fees from other work suffered in consequence of
his acceptance of a trial brief. Where neither
of these factors is
present counsel will not ordinarily be entitled to charge a fee on
brief.’
57
For that reason the rule goes on
to provide that if a trial settles before the date of set down the
advocate’s fee should
not be settled with the attorney or
marked until the date of set down. This enables the advocate to
assess the extent of any prejudice
arising from the acceptance of the
brief. Advocates who wish to claim payment of a fee on the footing
that they have been prejudiced
by accepting the brief should be able
to demonstrate that they have had to turn other work away as a
result.
[136] The twelve advocates
engaged in double briefing because of the virtual certainty, as many
of them explained, that the Fund
would settle or require an
adjournment. The amount of work involved in preparation must have
been minimal, amounting largely to
guiding the attorney in assessing
a fair figure at which to settle and perhaps conducting all or part
of the negotiations. Experienced
attorneys specialising in personal
injury cases would probably have done much of the groundwork and the
advocates’ own experience
would have enabled them to make a
reasonable assessment without undue effort. They were already being
compensated for the day’s
appearance, so charging a day’s
fee in the extra cases they were taking as a result of their double
briefing was clearly
impermissible.
[137] In addition they cannot
have failed to be aware of the cumulative effect on their earnings of
charging multiple fees on the
same day. I attach little weight to the
suggestion made by many of them that they kept their fees to the
level of the Fund’s
tariff or the amount recoverable on
taxation. It was obviously profitable – indeed extremely
profitable – for them
to do so.
58
In addition fixing their fees at
that level was consistent with the entire system, which was that the
fees would be paid out of
the Fund. They must all have been aware
that the fees they were charging in these cases were not reasonable
fees assessed in accordance
with the rules governing their
profession. The rapidity with which, once the Pretoria Bar conducted
its investigation, the majority
of them admitted to over-reaching
merely reinforces that.
[138] In regard to the counts of
double briefing, the explanations proffered by the advocates all
turned, to a greater or lesser
extent, around the circumstances of
the Fund and the backlog in Fund cases described in paras 8 to 13 of
the main judgment. Some
suggested, in exculpation of their conduct,
that they assisted in ameliorating this situation. It is apparent
from the record of
the first ten disciplinary hearings conducted by
the Pretoria Bar that it was treated as exculpatory by both the
counsel acting
as pro forma prosecutor and the members of the
committee. In my view that was a mistake. The incompetence of the
Fund created an
opportunity that these advocates exploited to engage
in double briefing on a relatively risk free basis. Like the high
court and
my colleague
59
I am unable to accept that their
reason for doing this was altruism and not their own financial
benefit. Had it been altruism they
would not have charged the fees
that they did, but would have undertaken the resolution of cases for
nominal fees and possibly
made helpful suggestions to the Judge
President or his Deputy of ways in which the problems being
experienced could be resolved.
There is no indication that they did
either of these. All that they did was exploit the situation and by
doing so obtained significant
financial benefits. As Nugent JA so
aptly expresses it, they set about plundering the Fund.
60
[139] The acknowledgements of
misconduct by these twelve advocates in relation to double briefing
were in my view entirely justified.
I do not think it correct to say
that they had perhaps been mistaken in accepting that they were
guilty of double briefing. They
could not have been certain in
advance which cases would proceed and which not so all were
potentially cases where trials could
proceed. The fact that in the
light of experience they could be fairly sure that almost all of them
would settle or be postponed
does not in my view affect matters.
Every advocate has encountered cases that they thought would settle,
but did not, in the same
way as they encountered cases that they were
convinced would proceed that settled. They were charged and admitted
their guilt on
the express basis that these were not briefs on
settlement, but briefs on trial. As experienced advocates they
presumably read
the charge sheet and accepted that it was correct.
However, in view of the linkage between double briefing and
over-reaching there
is no need to explore this any further.
[140] Overall their misconduct
was deliberate, flagrant, serious and committed over a lengthy period
of time. It was undertaken
in the face of a specific warning from
their professional body of the consequences of such conduct. To
behave in that fashion shows
a lack of integrity. Whilst the
investigation by the Pretoria Bar only spanned a ten month period
from February to November 2009
it is plain that some of the advocates
had been guilty of the same conduct before. There was evidence that
Messrs Geach, de Klerk
and Pillay (as well as Mr Bezuidenhout) were
engaged in this conduct in 2007 and Messrs Upton, Van Onselen and
Seima acknowledged
that they had double briefed prior to February
2009. The other advocates declined to deal with transgressions of the
rules prior
to February 2009 although they were specifically
challenged by the GCB to do so. Instead they adopted the attitude
that this was
not within the scope of the enquiry. That was not a
proper approach. It has frequently been pointed out that disciplinary
proceedings
against a legal practitioner are of a special kind
61
and that an advocate facing such
proceedings should approach them with candour and not resort to a
technical approach based on bland
or evasive denials.
62
Additional misconduct
[141] Certain further conduct was
placed before the court in relation to those individuals in respect
of whom striking off orders
were made and one who was not. Five of
them, Messrs Pillay, Botha, Van Onselen, Leopeng and Mogagabe, were
found, on an inspection
of their books of account by the Pretoria
Bar, to have charged fees for preparation, conferences and the like
at times when, according
to their records, they were engaged in
trials or other consultations or preparatory work. In effect fees
were being raised in respect
of different clients in respect of the
same periods of time. The explanations of administrative inefficiency
given for this were,
save in the case of Mr van Onselen, rejected by
the high court. I will revert to the finding in his case in due
course. In the
case of Mr de Klerk there was no evidence of any
separate and additional misconduct, but it was pointed out that he
had continued
on his path of double briefing and over-reaching for
nine days in November 2009 at a stage when he was aware of the
Pretoria Bar’s
investigation into that topic.
[142] In respect of Mr Pillay,
the high court considered a complaint that he had lied to Mojapelo
DJP, when asked by the latter
if the reason for his not being in
court at the roll call in Johannesburg one day was that he was
appearing in the roll call court
in Pretoria. Not only did the high
court accept that he had indeed lied to Mojapelo DJP, but it
correctly held that Mr Pillay’s
evidence about this was
untruthful. That conclusion reflects directly on his honesty and
integrity. The courts have repeatedly
(and rightly) said that a
dishonest explanation by a legal practitioner of misconduct, and
seeking to mislead the court that is
considering charges of
misconduct, can be taken into account in determining whether the
practitioner is a fit and proper person
to remain on the roll of
advocates or attorneys as the case may be.
63
After all one of the cardinal
duties owed by an officer of the court is not to mislead the court in
any way.
64
[143] That brings me to the
matter of Mr Geach’s failure to register for, and pay, VAT,
where in my view the high court erred.
When he was required to make
his books of account available for inspection he disclosed what would
have been apparent from them,
namely that he had never registered as
a vendor in terms of the Value Added Tax Act,
65
notwithstanding the fact that he
had for many years earned considerably more than the statutory
threshold at which such registration
is mandatory. Nor had he
accounted for VAT on his fees. His non-compliance with s 23(1)
of the VAT Act was an offence in terms
of s 58
(c)
of the VAT Act and rendered him
liable on conviction to a fine or a sentence of imprisonment of up to
two years. In addition for
the reasons explained in the following
paragraphs his non-payment of VAT caused a loss to the fiscus and was
potentially detrimental
to his clients.
[144] Although not registered, Mr
Geach was a ‘vendor’ as defined in s 1 of the VAT Act. As
such, when he rendered services
as an advocate, they were taxable
supplies under the VAT Act. His non-registration does not mean that
he did not have to charge
VAT on his fees and pay it to SARS. It
merely provided the occasion for his not doing so. Taxpayers may
either charge VAT on an
exclusive or an inclusive basis. It is usual
for advocates to charge on an exclusive basis. Their accounts then
reflect the VAT
as an additional amount over and above the fee. This
amount they are supposed to collect from the client and pay to SARS.
If they
do not do so then there is a loss to the revenue. The reason
is that in terms of s 7(1)
(a)
of the VAT Act, VAT is
only payable by a vendor on the supply of goods or services.
Attorneys may be obliged to procure services
for their clients, such
as the services of the Sheriff, an advocate or an expert witness.
However, those services are rendered
to the client, not the attorney.
That principle was established in this court in
Minister
of Finance & another v Law Society, Transvaal
,
66
where Goldstone JA said:
‘
The
moneys now in question are in nowise paid to the attorney, notary or
conveyancer for a service rendered by him. They are paid
in respect
of the service rendered by counsel, correspondent attorney, notary or
conveyancer, expert witness, deputy sheriff or
messenger of the
court, as the case may be, on behalf of the client. The moneys may
not be claimed from the client by the instructing
attorney, notary or
conveyancer save in respect of the service performed by the third
party. In no way does the fee or other amount
accrue to and in no way
is it received by the attorney, notary or conveyancer for a service
rendered by him. The fact that because
of a professional practice or
a contract the attorney, notary or conveyancer may be personally
liable to pay for the service performed
by the third party in no way
has as a consequence that the attorney, notary or conveyancer himself
performs that service.’
[145] The fact that advocates
look to their instructing attorney for payment of their fees does not
affect this.
67
The payments the attorney makes
for those services are disbursements and the attorney does not charge
VAT on those disbursements.
If the advocate does not charge VAT the
attorney’s account to the client does not include VAT in
respect of that service.
The same is true in relation to other
disbursements. The attorney is not concerned with whether the person
to whom disbursements
are made is charging VAT. They may after all,
like many advocates, have earnings that are below the threshold for
registration
and charging of VAT.
68
The attorney recovers whatever
amount has been charged for the services in question whether or not
the fee includes VAT and does
not himself add VAT if none has been
charged. In the result there is a clear loss to the revenue if the
advocate is obliged to
charge VAT and does not do so. In addition, in
terms of s 61(1) of the VAT Act, the client may be required by
SARS to pay
the unpaid VAT once the failure to collect and pay it
over is discovered. In common parlance this is described as a fraud
on the
revenue. It is probably a fraud in law as well, but that is
irrelevant. What is important for present purposes is that it is
fundamentally
dishonest.
69
[146] For the sake of
completeness I deal also with the situation where the advocate, who
is a VAT vendor, charges on an inclusive
basis. VAT is then included
in the fee. The default position where no election is made or where
the vendor does not register is
that the amount charged is deemed to
be inclusive of VAT.
70
One does not avoid that by not
registering to pay VAT. Mr Geach was liable to charge VAT. He did not
claim VAT from his clients
over and above his fees. His fees were
accordingly VAT inclusive, a matter specifically drawn to the
attention of his counsel.
As a matter of law he collected VAT as part
of his fees and should have accounted to SARS for that VAT. The
effect of his non-registration
was to avoid the payment of VAT to
SARS. Whichever way one looks at Mr Geach’s behaviour it was
dishonest and involved a
loss to the fiscus.
[147] Mr Geach does not say that
he was unaware of his obligations in regard to registration,
collection and payment of VAT, and
no senior counsel could be heard
to claim ignorance of these matters. His conduct was deliberate.
Whichever way one looks at the
matter he was obliged to collect and
pay VAT to SARS and did not do so. That involved a loss to the fiscus
over nearly 20 years.
On the fees that he was earning the amounts
must have been considerable. This is misconduct of the most serious
kind and was dishonest.
[148] The dishonesty was
compounded by Mr Geach’s response to this charge. The founding
affidavit on behalf of the Pretoria
Bar recited his failure and said
that his conduct must have been intentional and that he had no
defence. His response to these
serious allegations was to say that he
disclosed his non-registration to the Bar and prior to that had made
application for registration.
He went on to say:
‘
I
was lax and careless rather than intentional in this regard.’
Earlier in his response to the
Pretoria Bar on this issue he said:
‘
My
nalate om te registreer was eerder die gevolg van agterlosigheid aan
my kant as ʼn doelbewuste poging om belasting te ontduik.’
71
That response displays
breathtaking insouciance on his part in regard to a matter of this
gravity. It cannot possibly be truthful.
VAT was introduced in South
Africa in September 1991. Mr Geach has been a successful advocate
through most if not all of that period.
He could not possibly claim
to have been unaware of its existence or the fact that advocates are
obliged, like other vendors, to
register for VAT purposes and collect
and pay over the tax collected.
72
A tax system dependent upon
self-assessment and regular payment of the tax by vendors is
undermined if vendors do not fulfil their
obligations and, hence, a
failure by them to do so is a serious offence. For an advocate to be
guilty of not registering and failing
to pay VAT for many years in
substantial sums and then to dismiss his failure to do so as an act
of administrative carelessness
demonstrates a complete lack of
probity. Taken on its own, in my view, it would probably justify the
conclusion that he was not
a fit and proper person to practise as an
advocate. When taken together with his other misconduct it
demonstrates a complete lack
of the integrity demanded of an
advocate.
[149] It is then relevant to
consider how this was dealt with in the reported judgment.
Regrettably the answer is that it was not.
The issue of VAT is
mentioned under the general heading of ‘additional’ in
the schedule in para 4 of the reported judgment.
It is not mentioned
again, either in the general part of the judgment or in dealing with
Mr Geach individually.
[150] The high court was aware of
the VAT issue in relation to Mr Geach because it listed it as
additional misconduct. It then did
not revert to it. There are two
possible explanations. The one is that it overlooked it. The other is
that it did not regard it
as particularly serious and accepted Mr
Geach’s explanation for it. Whichever of those is correct, it
was an error in regard
to the relevant facts. This was extremely
serious misconduct and it should not have been overlooked or
disregarded. Accordingly,
insofar as he is concerned, the factual
basis upon which the high court dealt with him was wrong. That
requires the court to look
afresh at the consequences of that
misconduct.
Fit and proper persons to
practice as advocates
[151] Although the high court did
not deal expressly with this question (the second in the enquiry on
which it was engaged) one
infers from various passages in the
reported judgment that they regarded these advocates as not being fit
and proper persons to
continue in practice as advocates.
73
That conclusion must have been
reached notwithstanding their protestations that as a result of the
sanctions imposed by the Pretoria
Bar they had learned their lesson
and would never again contravene the rules regarding the charging of
fees. By way of example,
Mr Geach said:
‘
I
have certainly learned my lesson and I will not double brief nor
charge incorrectly in future.’
Mr Güldenpfennig said:
‘
I
am remorseful of my actions and will ensure that I will not breach
the Rules of the Applicant or the Advocates’ Profession
in the
future.’
Similar expressions of remorse
and contrition are to be found in the initial affidavits filed by
each of the twelve advocates in
response to the Pretoria Bar’s
applications against them.
[152] These statements were
invoked before the high court in support of the contention that the
advocates had reformed and would
not be guilty of similar conduct in
the future, so that no additional sanction should be imposed on them.
That was a claim that
they were,
at
that stage
, fit and
proper persons to be permitted to continue to practise as advocates.
That pertinently raised an issue that does not appear
to have been
expressly dealt with in any previous case, namely, at what date the
court, faced with an application in terms of s 7(1)(d)
of the
Act, must consider whether the advocate is a fit and proper person to
continue practice as an advocate. Is it the date of
the conduct that
gives rise to the application, the date of commencement of the
proceedings or the date on which the court decides
the application?
[153] In my view the answer is
that the correct date is the date at which the court hears and
decides the application. That is the
construction of s 7(1)(d)
that is most consistent with the language used, which is couched in
the present tense and speaks
to the immediate future, when it
requires the court to satisfy itself whether the advocate ‘is a
fit and proper person to
continue practice as an advocate’.
74
It is also the construction that
best accords with the main function of the court in exercising the
disciplinary power conferred
by the section. Our courts have
repeatedly said that the primary purpose of the provisions empowering
courts to remove legal practitioners
from the roll is not punitive,
but the protection of the public.
75
If the advocate has reformed and
remedied his or her failures and shortcomings before the application
comes to court, there may
be no further need for any disciplinary
sanction to be imposed, because the advocate is, once again, a fit
and proper person to
continue to practise as such. I say ‘may
be’ deliberately, because there are cases where the conduct is
so serious
that, by its very character, it renders the advocate unfit
to remain in practice and may even exclude the prospect of
rehabilitation.
76
The need to protect the good name
of the profession, which is central to the enquiry whether a person
is a fit and proper person
to practise as an advocate, may sometimes
lead to the conclusion that a person is not such, even though there
is evidence indicating
that it is unlikely that they will repeat
their previous misconduct.
[154] It follows from this that,
in sitting on appeal from the high court, we are concerned with the
situation that confronted the
high court when it heard the case.
Subsequent events and conduct, unless placed before this court by way
of an application to lead
further evidence on appeal, cannot be
considered in determining the answer to the question of fitness and
propriety to be an advocate
or the appropriate sanction. If this
court holds that the high court has erred in regard to sanction, its
task is to impose the
sanction that the high court should have
imposed. That is pertinent to our weighing certain submissions about
the conduct of the
advocates after the high court’s judgment.
[155] Reverting to the reported
judgment the inference to be drawn from it is that the high court
regarded the misconduct of the
advocates, and the dishonesty that
permeated that misconduct, justified the conclusion that they were
none of them at that time
fit and proper persons to remain in
practise as advocates. The further necessary inference is that it did
not regard the sanctions
imposed by the Pretoria Bar as having
sufficed to reform the character defect of dishonesty. No doubt it
bore in mind that throughout
the proceedings before it the advocates
persisted in the stance that their conduct was not dishonest; that
with one or two exceptions
they denied having been motivated by
greed; that they claimed that their misconduct was largely of a
technical character; and that
they blamed the RAF for creating the
situation of which they had taken advantage. I agree that they were
shown not to be fit and
proper persons to remain on the roll of
advocates and find it unnecessary in those circumstances to canvass
the situation of each
advocate personally. I turn then to deal with
the issue of sanction, bearing in mind the constraints on an appeal
court in addressing
that issue.
Sanction
Background, Bezuidenhout and
Pillay
[156] The high court approached
the question of sanction on the footing that as it had found
dishonesty on the part of the advocates
it was necessary for
exceptional circumstances to be present if they were to avoid removal
from the roll.
77
It did so on the strength of a
statement to that effect in
Malan
’
s
case.
78
That statement was made in the
context of the conduct of an attorney’s practice where the firm
had engaged in widespread touting
and virtually every rule governing
the operation of attorney’s books of account had been broken.
In the context of an advocate
who has been shown to be dishonest and
lacking integrity, what is called for is evidence showing that the
character flaw of dishonesty
has been overcome, or will be overcome,
if a sanction less than striking off, is imposed. As the character
flaw in these cases
was manifested by improper and dishonest charging
of fees the court needed to be satisfied, if the advocates were to
avoid striking
off, that they would not be guilty of irregularities
in charging fees in the future.
[157] The names of six advocates
were struck from the roll of advocates and seven were suspended from
practice for periods set out
in the order and further suspended the
operation of all or part of those suspensions on certain conditions.
In the case of Mr Bezuidenhout
his conduct was so egregious and his
defence of it, even in this court, so misplaced, that his striking
off was undoubtedly warranted.
Similarly with Mr Pillay, albeit that
his involvement in double briefing and over-reaching was at the
bottom of the scale, his
conduct giving rise to the complaint by
Mojapelo DJP, and his dishonesty in dealing with that complaint,
was such as inevitably
to lead to an order for striking off the roll.
I need say nothing more about these two.
Geach
[158] It is appropriate to deal
next with Mr Geach. For the reasons set out in paras 145 to 153 of
this judgment I am satisfied
that this court must address the
question of sanction in his case on a factual basis different from
that of the high court. He
was guilty of serious misconduct in regard
to both his double briefing and over-reaching as well as in relation
to his failure
to register for and pay VAT collected on his fees.
These offences were committed over a protracted period and involved
dishonesty
in relation to large sums of money. The principal targets
of his misconduct were the Fund, which derives its revenues from road
users and taxpayers, and SARS, which is responsible for collecting
tax on behalf of the community to pay for public services. His
motivation in over-reaching was clearly greed. In regard to the
double briefing and over-reaching he denied dishonesty and in regard
to VAT he tried to dismiss it as a trivial administrative oversight.
Such conduct by an advocate must not only be deprecated, but
also
dealt with appropriately. The proper starting point is that, in the
absence of some compelling or exceptional circumstance,
because he
has failed to display the honesty and integrity required of an
advocate and brought the name of the profession into
disrepute, he
should be struck from the roll.
[159] Mr Geach’s position
was the following. He was the most senior advocate in terms of call,
having been at the Bar for
33 years. He had held silk for five years.
He was in a position of leadership where he should have set an
example for others. The
example he set was a bad one. His misconduct
was extensive and clearly comparable with that of those who were
struck off. The statement
by the high court that ‘his offences
were not on the scale of the majority of other respondents’
79
was factually incorrect. He had
the sixth highest number of contraventions and was the fifth highest
beneficiary in financial terms.
There were 82 counts spread over 47
days (out of a possible 140 days). The High Court calculated his gain
at R984 000. His
earnings over and above this were substantial.
That emerges from a set of 34 charges, not already discussed in this
judgment, of
reducing his fees without obtaining the consent of the
Bar Council. In 34 cases between February and August 2009 he reduced
his
marked fees. Globally the reduction was from some R2.25 million
to about R950 000. (There was a further breach of the Bar rules
in that he reduced his fee to what was allowed on taxation, which is
impermissible.)
[160] The high court held that
there were certain exceptional circumstances present in relation to
all of the advocates in regard
to the double briefing and
over-reaching. It said that these consisted in the fact that the
sentences imposed by the Pretoria Bar
had been served; in the fact
that the practice was widespread and both judges and fellow advocates
turned a blind eye to it; and
that the advocates had practised after
serving their suspensions in a professional fashion. It added to
these in relation to Mr
Geach that he had paid a hefty fine and been
unable to practise for three months; that he was 59 years of age,
married with a family
that he supported, and had been in practise for
33 years without prior complaints of misconduct; that he appeared not
to have been
actuated by greed; that the chairman of the disciplinary
committee concluded that there were ‘extensive extenuating
circumstances’;
and that he claimed that no client had had to
pay any part of the award from the Fund to him in respect of fees.
[161] There are difficulties with
some of these findings. The court had already held that the advocates
had been motivated by greed
and no other plausible reason emerges for
Geach to have behaved as he did. His maturity, experience at the Bar
and the fact that
he had held silk for five years were all factors
that had been present when he engaged in this misconduct and had not
deterred
him. There is also nothing to indicate that he would have
desisted from this misconduct or regularised his tax position had the
Pretoria Bar not instituted its enquiries. The court had already
correctly held that the approach of the De Vos committee to its
task
had been defective – a view shared in both the main judgment
and here – and in those circumstances the view of
the chair of
the disciplinary committee as to the presence of extenuation was
irrelevant.
[162] What weight should be given
to the misconduct in regard to VAT? This is a novel issue in South
Africa so far as professional
misconduct is concerned. However, I
have found helpful the approach to this question adopted in a number
of decisions in Australia
the effect of which is gathered together in
the judgment of Mason P in
New
South Wales Bar Association v Hamman
.
80
First it is important to note
that the approach of those courts to professional misconduct is
similar to our own. That much emerges
from paras 73 to 79 of that
judgment where the duty of the barrister and the role of the court in
exercising its disciplinary functions
are set out in language so
similar to that used by our courts that it is unnecessary to quote it
in full. One passage is however
worth repeating. It reads:
‘
Giles
AJA described the basis of the Court's jurisdiction … [and]
referred to the protective function of general deterrence
in the
following terms (at 471):
But the object of
protection of the public also includes deterring the legal
practitioner in question from repeating the misconduct,
and deterring
others who might be tempted to fall short of the high standards
required of them. And the public, and professional
colleagues who
practise in the public interest, must be able to repose confidence in
legal practitioners, so an element in deterrence
is an assurance to
the public that serious lapses in the conduct of legal practitioners
will not be passed over or lightly put
aside, but will be
appropriately dealt with.
These references to
the public's perception of the Court's reaction to the professional
misconduct do not make the Court hostage
to the public's assumed
sense of anger at the misconduct uncovered. The Court must be
satisfied that its enunciated views give
proper weight to widely and
reasonably held public attitudes to practitioners in the context of
the administration of justice generally
and in the particular case.’
[163] Turning to the specific
issue of failure to make returns of and to pay income tax Mason P
held that this was clearly dishonest
and went on as follows:
‘
85
I emphatically dispute the proposition that defrauding "
the
Revenue
"
for personal gain is of lesser seriousness than defrauding a client,
a member of the public or a corporation. The demonstrated
unfitness
to be trusted in serious matters is identical. Each category of
"
victim
"
is a juristic person whose rights to receive property are protected
by law, including the criminal law in the case of dishonest
interception. "
The
Revenue
"
may not have a human face, but neither does a corporation. But behind
each (in the final analysis) are human faces who are
ultimately worse
off in consequence of fraud. Dishonest non-disclosure of income also
increases the burden on taxpayers generally
because rates of tax
inevitably reflect effective collection levels. That explains why
there is no legal or moral distinction between
defrauding an
individual and defrauding "
the
Revenue
".
Indeed, the latter involves an additional element indicative of
unfitness to practise. As Sheller JA pointed out in the
Court of
Criminal Appeal (par 59 above):
... the
Australian system of tax collection depends upon the honesty of
taxpayers and, in particular, upon their fully declaring
in each year
of income what their gross income is. In a free society, such as
Australia, the tax collector cannot check that every
taxpayer has
done so.
86
I agree with the following opinion of Justice Traynor, speaking for
the Supreme Court of California in
In
re Hallinan
272
P 2d 768
,
771 (1954):
The fraudulent
acquisition of another's property is but another form of theft in
this state. We see no moral distinction between
defrauding an
individual and defrauding the government, and an attorney, whose
standard of conduct should be one of complete honesty,
who is
convicted of either offence is not worthy of the trust and confidence
of his clients, the courts, or the public, and must
be disbarred,
since his conviction of such a crime would necessarily involve moral
turpitude
.’
[164] Those statements are
apposite to the seriousness with which we should view Mr Geach’s
conduct in regard to VAT. That
does not mean that his name must
necessarily be struck from the roll of advocates for such conduct. As
that case and many others
from that jurisdiction
81
show, the seriousness of his
conduct, the reasons for it and his response once it is discovered
are all important features. In the
present case these must be weighed
together with the other misconduct he committed. What is highly
relevant is that this was protracted
conduct over many years (VAT was
introduced in 1992) and caused substantial losses to the public
purse. Although he said that he
had now registered, there was no
evidence that he has paid all the arrear taxes and any penalties or
made any attempt to do so.
(We were told from the Bar that with the
agreement of SARS he had regularised his tax affairs from 2006 to the
present.) He did
not avoid paying VAT because he was under either
personal or financial stress and the only possible explanation was
personal financial
advantage. His response to this, in attributing it
to an administrative oversight, was dishonest. There was no
recognition of the
seriousness of his misconduct. At the least what
was required was a full and frank disclosure to the court of his
position with
regard to the payment of VAT and the arrangements he
made with SARS to remedy his position. That was not forthcoming. When
that
is taken together with his other misconduct and the absence of
any exceptional circumstances either mitigating that misconduct or
demonstrating reform, in my view the only possible sanction is that
his name should be removed from the roll of advocates.
Upton, Jordaan and Seima
[165] I do not propose to deal
with these three at length because, notwithstanding my view, set out
below, that the general approach
of the high court to sanction was
flawed, I do not, after weighing the evidence, reach a different
conclusion to the high court.
They were all correctly viewed as minor
participants in this conduct. That is evidenced by the limited number
of counts of double
briefing; the limited amount of their improper
gains and the relatively few occasions (12, 20 and 27 respectively)
when they had
been guilty of misconduct. Each was a middle junior
having been at the Bar for periods ranging between seven and thirteen
years.
Their offences lay in taking one or two extra briefs on a
relatively sporadic basis, in circumstances where other more senior
colleagues
were engaged in an ongoing practice of double briefing on
a large scale. In those circumstances their explanations that they
fell
into the practice have some weight. In comparison with the
others the extent of their enrichment was not great, between R90 000
and R160 000, and they have all repaid these amounts to the
Fund, albeit in terms of orders that in my view should not have
been
made. That does at least demonstrate a willingness on their part to
do what the high court regarded as necessary to demonstrate
their
remorse. In addition they paid the fines that the Bar Council imposed
on them and also served brief periods of suspension.
In Upton’s
case he reported himself, not having been part of the original
enquiry. They have since practised without further
complaint although
one would expect nothing less if they wish to remain on the roll of
advocates. The high court did not think
it necessary to impose a
further direct suspension, and they have not challenged the suspended
suspension order imposed upon them.
[166] Against that, none of them
can, or do, claim to be young and naïve. Nor did they claim that
they were unaware of the
Bar rules. Their offence, although limited
in extent, was serious and dishonest. I do not think that there was
sufficient material
before the high court to satisfy it, in the face
of such serious misconduct, that they were fit and proper persons to
continue
to practise as advocates at the time of the hearing below.
However, there was in my opinion enough evidence to justify the
conclusion
that the imposition, of a further period of suspension,
itself suspended,
82
when taken in conjunction with
the indications of remorse that they had already given, rendered any
further similar transgression
after resuming practice improbable. In
view of the more limited scope of their transgressions permitting
them to remain on the
roll of advocates would not cause harm to the
reputation of the profession. I accordingly agree with the main
judgment that the
GCB’s appeals against the orders suspending
them from practice should be dismissed.
Williams, Güldenpfennig
and Van Onselen
[167] That brings me to the three
remaining advocates who were not struck from the roll. In dealing
with their cases and indeed
the question of sanction generally there
is disagreement between my judgment and the main judgment. That
disagreement revolves
around three issues. Two are of a general
nature that affect all the decisions in relation to sanction, and
relate to the need
for parity of treatment among all the advocates
and the orders the high court made for repayment to the RAF. The
third, which I
will address first, relates to the approach of the
high court to these three individuals specifically. I start by
rehearsing the
misconduct of which they and the four who were struck
off were guilty. I do so because the approach of the high court to
their
cases is central to the general point regarding parity of
treatment.
[168] The major charges of
misconduct against all seven were in content and form the same. They
all were guilty of the same dishonesty;
they all pleaded guilty to
the charges of double briefing and over-reaching; they all relied in
defence of their conduct on the
Fund’s conduct of litigation
and the state of the court rolls in North Gauteng; they all paid
substantial fines and served
periods of suspension from practice in
terms of the Bar’s decisions; they all returned to practice
after their initial suspension
without further complaints being made
against them; they had varying but significant levels of seniority;
they had not previously
been found guilty of misconduct; and they all
undertook to abide by the Bar rules in the future. When the GCB
intervened and alleged
dishonesty they all denied that allegation.
[169] Turning to the seriousness
of their conduct, that must be judged against two criteria, namely
the number of occasions on which
they engaged in double briefing and
over-reaching and the extent of their improper gains from this
practice. If one does that their
circumstances are largely
indistinguishable. Mr de Klerk appears to have profited less from his
transgressions than the others
as his gains were assessed at
R310 800, but that arose from 74 counts of double briefing on
some 50 occasions, sometimes involving
his taking multiple briefs. As
for the remainder their gains ranged from a low of R864 000
(Messrs Williams and Güldenpfennig)
to a high of R1 916 800
(Mr Mogagabe). The number of counts ranged from 60 (Mr Williams) to
461 (Mr Mogagabe). There
is no significant difference between the
different cases insofar as the nature or seriousness of the
misconduct is concerned. They
all involved the advocates enriching
themselves with very large sums of public money. There is no
convenient or appropriate line
of demarcation between the lowest of
these figures and the highest.
[170] The high court correctly
started from the perspective that, in the light of the dishonesty of
their conduct, an order for
their removal from the roll of advocates
would be appropriate in the absence of exceptional circumstances
justifying the lesser
sanction of suspension from practice. I have
inferred
83
that it did so on the basis that
it was satisfied, at the time that these applications came before it,
that these seven individuals
were not fit and proper persons to be
permitted to remain in practice as advocates. In considering a
suspension in any particular
case it must therefore have had in mind
that, in the light of the exceptional circumstances relating to that
individual, a further
suspension from practice would have the effect
of remedying the defect in character that had led to their misconduct
and result
in their being fit and proper persons to practise as
advocates. It is rare that this will be the case. As Harms ADP said
in
Malan
:
84
‘
It
is seldom, if ever, that a mere suspension from practice for a given
period in itself will transform a person who is unfit to
practise
into one who is fit to practise. Accordingly, as was noted in
A
v Law Society of the Cape of Good Hope
1989
(1) SA 849
(A) at 852E - G, it is implicit in the Act that any order
of suspension must be conditional upon the cause of unfitness being
removed.
For example, if an attorney is found to be unfit of
continuing to practise because of an inability to keep proper books,
the conditions
of suspension must be such as to deal with the
inability. Otherwise the unfit person will return to practice after
the period of
suspension with the same inability or disability.’
[171] The GCB’s argument
was that the high court had not identified any circumstances in
relation to Messrs Williams, Güldenpfennig
and Van Onselen that
could properly be regarded as of such an exceptional character that
they warranted a suspension from practice
rather than an order for
their removal from the roll of advocates. I respectfully disagree
with the main judgment’s characterisation
of its submissions as
‘no more than a challenge to the weight (or lack of it) that
the court below accorded to the various
factors it placed in the
scale’.
85
The submissions were expressly
made on the basis that the high court had misdirected itself. The GCB
argued that the factors identified
by the high court as exceptional
could not properly be described as such, nor did they mitigate the
seriousness of the misconduct,
or justify an inference that there was
no likelihood of a repetition of this misconduct in the future. It
also submitted that the
failure to treat the advocates’ refusal
to admit to having committed the same misconduct in the period prior
to that under
investigation, or the failure to give details of its
extent where such prior misconduct was admitted, constituted a
material misdirection,
because it failed to give any weight to the
advocates’ failure to comply with their duty (referred to in
the reported judgment)
to co-operate fully with and make a full
disclosure to the Bar Council and the court in the investigation of
their misconduct.
[172] In order to advance these
submissions the GCB needed to examine and make submissions on the
reasons given by the high court
for its conclusion. It could only do
so by having regard to the terms in which the high court couched its
judgment. The main judgment
rightly says that one does not read a
judgment as if it were a statute, nor does one harp upon the omission
of reference to some
or other factual detail of less importance. (A
failure to mention and deal with a factor of great and obvious
weight, such as Mr
Geach’s misconduct in regard to the payment
of VAT, stands on a different footing.). However, as Corbett CJ
pointed out in
a much-cited address to judges published in the South
African Law Journal,
86
not only do litigants want to
know why they have won or lost but ‘should the matter be taken
on appeal, the Court of appeal
has a similar interest in knowing why
the Judge who heard the matter made the order which he did’. In
these appeals the GCB
engaged with the judgment of the high court and
submitted that it had erred in the exercise of its discretion. That
it could only
do by dealing with what the high court said in giving
its reasons. Equally, in giving our judgment in this appeal we need
to engage
with those reasons. That task cannot be avoided.
[173] The language in which the
high court expressed itself referred to ‘aggravating’ and
‘mitigating’ circumstances’.
That language is more
appropriate to a criminal court and its use in this context has been
held by this court to amount to a misdirection.
87
However, like the main judgment,
88
I will approach the matter on the
footing that this was merely an unfortunate choice of language that
did not divert the court from
considering the true issue, which was
whether there were circumstances present that warranted the
exceptional inference, when an
advocate has behaved dishonestly,
that, after serving a further period of suspension, this conduct
would not recur.
[174] I turn then to consider
what the high court said in regard to these three individuals. It
said they had engaged in misconduct
that demonstrated a lack of
honesty and integrity that would ordinarily result in their names
being removed from the roll of advocates.
As a result of that
misconduct they had enriched themselves out of public funds to the
tune of R864 000 in the cases of Mr
Williams and Mr
Güldenpfennig and R967 800 in respect of Mr van Onselen. I
am in no doubt that in the eyes of the public
this would be regarded
as entirely unworthy of those who have the privilege of appearing in
our courts. The importance of that
right, and the responsibilities
attaching to it, cannot be understated in our constitutional
democracy. It has frequently been
pointed out that courts cannot
fulfil their important role in our society without a strong,
independent and, I would add, entirely
trustworthy legal profession.
Accordingly in examining the high court’s judgment I bear in
mind the passage quoted in para
41 above, that:
‘
The
Court must be satisfied that its enunciated views give proper weight
to widely and reasonably held public attitudes to practitioners
in
the context of the administration of justice generally and in the
particular case.’
[175] The high court identified
four general factors that it regarded as exceptional.
89
These would, of course, being
general, apply to all the advocates and are therefore equally
applicable to the cases of those who
were struck off. They were that
the advocates had served the suspensions and paid the fines imposed
by the Pretoria Bar; that the
misconduct at least insofar as double
briefing was concerned was apparent to the judges of the North
Gauteng court and to other
advocates yet nothing was done about it;
that the advocates had all been practising for a substantial time
since their suspension;
and that their uncontradicted evidence was
that they had done so professionally.
[176] I agree with the GCB’s
submission that the fact that the misconduct was blatant and public,
and that judges and advocates
who should have taken steps to put a
stop to it did not do so, was incapable of making the misconduct less
serious or indicate
that it would not be repeated. The high court
erred in treating this as an exceptional circumstance favouring a
sanction other
than removal from the roll of advocates. It did not
explain why it thought this an exceptional circumstance and I can
discern no
basis for that finding. It is therefore a misdirection. In
regard to dishonesty, a matter that initially gave me pause was that,
not only was there no intervention by the Bench and other advocates,
but neither the senior counsel, who conducted the investigation
on
behalf of the Bar Council and acted as pro forma prosecutor, nor the
initial disciplinary committee regarded this conduct as
dishonest.
The main judgment rightly expresses astonishment at this.
90
It details
91
the conclusions of the De Vos
committee. One of the members of that committee said at the very
first enquiry – that of Mr
Williams – that he had been
honest in difficult circumstances and that was a theme that recurred
throughout the proceedings
before that committee. There are a number
of places in the records of these enquiries where a member of the
committee expressed
concern at the severity of the sanctions the
committee would recommend; stated that there was no indication of
dishonesty, and
indicated that the advocates had been struggling
manfully to deal with a difficult situation caused by the Fund.
Indeed some of
the advocates specifically relied upon these
statements in rejecting the GCB’s claim that they had been
dishonest.
[177] On reflection, however, I
have concluded that this did not affect or mitigate the finding of
dishonesty because such dishonesty
was obvious. The Vorster committee
had no difficulty in seeing that this conduct was dishonest and it
said so unequivocally. It
also rejected the notion that the
circumstances of the Fund and the congestion of the trial rolls
constituted any excuse. As Mr
Vorster SC said in the course of Mr
Botha’s disciplinary enquiry:
‘
But
is the short point not this, that the system which you have now
adequately described, at best gave rise to counsel doing things
which
they knew from the start were wrong, but still they did it, because
the system was there and it was easy to exploit it.’
After the event the ranks of the
Pretoria Bar were divided, but there was a body of opinion that
regarded this conduct as warranting
a striking off application. The
GCB, which represents virtually all the practising advocates in South
Africa, clearly and unequivocally
recognised that this was dishonest
and that the state of the court rolls and the behaviour of the Fund
did not alter or mitigate
their conduct. That view was unquestionably
correct. The high court rejected a contention that because what
occurred had taken
place in the public eye this meant that it was not
dishonest.
92
By parity of reasoning, inaction
on the part of the Bench and other advocates did not create an
exceptional circumstance in favour
of the advocates. It should not
have been taken as a factor counting in favour of a lesser sanction.
[178] As regards the other two
factors the court found, as I have inferred, that the advocates
remained not fit to remain on the
roll of advocates after complying
with the sanctions imposed by their professional body. That they did
comply is some indication
of a willingness to submit to its
discipline, but they had little choice but to do so if they wished to
continue to practise as
members of the Pretoria Bar or any other
constituent member of the GCB. As regards the second, two comments
are apposite. The first
is to heed what Hefer JA said in
Kekana
that ‘what
happens between legal representatives and their clients or witnesses
is not a matter for public scrutiny’.
93
Accordingly misconduct is hard to
detect so that the absence of any contradiction is understandable.
The second is that, on the
assumption that this was so, there was
little else that the advocates could do if they wished to resist the
applications for their
removal from the roll.
[179] Those two factors alone
were clearly not sufficient for these three to avoid a striking off
order. Had they been, the other
four would not have been struck off.
It is accordingly necessary to examine what factors it bore in mind
in dealing with the individuals.
The following are summaries of its
findings in relation to each of these three advocates.
[180] In the case of Mr Williams
the court noted his background and personal circumstances. He had
been in practice for 22 years,
a silk for seven and a half years and
served on the Bar Council as an advocacy trainer and as an acting
judge. In other words he
had served his profession. Seven of his
senior colleagues wrote letters in his support testifying to his work
ethic, his contribution
to the Pretoria Bar and the fact that they
had never found him to act unethically. When the Bar’s enquiry
commenced he immediately
made a full disclosure to the pro forma
prosecutor of his conduct and before the disciplinary committee he
freely accepted that
greed had been a significant motivation for this
misconduct. His affidavit in opposition to the GCB’s
application, whilst
describing the charges of over-reaching as
‘technical’, made no attempt to excuse his conduct. He
explained the context
in which it had occurred but did not suggest
that this made it right to exploit that situation. He expressed
remorse for his conduct.
Over and above this when the enquiry
disclosed that he had also been guilty of a contravention of the Bar
rules by not reporting
to the Bar’s office manager a number of
cases in which he had charged a contingency fee, he repaid the whole
of the fees
so charged (R868 850) without being required to do
so. That is at least some indication of a wish to wipe the slate
clean
and start afresh, as it appears that in most of those cases if
he had made the required report it would have been permissible for
him to charge and recover a contingency fee.
[181] Against that the court
placed the fact that the misconduct occurred whilst Mr Williams was a
senior and experienced member
of the Pretoria Bar and one to whom
others could look for an example. His actions were entirely
deliberate. In the telling expression
he used to the disciplinary
committee, ‘As dit pap reën, moet jy skep.’ (If it
rains porridge, you must help yourself.).
The high court took into
account that the disciplinary committee held that there were ‘very
very extensive extenuating circumstances’.
It expressed its
conclusions as follows:
‘
We
nevertheless feel that in the light of the special circumstances
outlined in the main judgment (para [47]
94
)
together with the circumstances personal to Williams, particularly
the fact that he for more than 20 years practised without
transgressing, that it cannot be said that he is not a fit and proper
person to continue practising. He has shown remorse and has
furthermore undertaken to repay to the RAF the amount that he gained
from his contravention of the rules (R864 000). In monetary
terms his
conduct has therefore cost him R1 732 825.To this must be added the
loss of income suffered during his six months’
suspension and
the future loss he will suffer as a result of being suspended from
practice.’
95
[182] In the case of Mr
Güldenpfennig, the high court took note of the fact that he had
been at the Bar for 26 years and there
had been no prior instances of
misconduct. It accepted his claim that he had not been motivated by
greed in the light of his statement
that he had declined numerous
other briefs where he judged that there was a possibility of
prejudice to the client if he accepted
them. He also said, and this
was accepted, that he restricted his fees and limited the hours he
charged for, as he was dealing
with social legislation. In all cases
he limited his fees to what was recoverable on taxation. The court
said that his offences
were not on the scale of the majority of other
respondents and that he did not continue after his books were called
for and did
not charge for work not done. It concluded that he was a
man of mature years with years of practice behind him and that it did
not consider that there was any prospect of his again breaching the
rules of the Bar. For those reasons it thought a suspension
from
practice appropriate.
[183] In regard to Mr van Onselen
the high court took note that he had been at the Bar for 14 years
without prior complaints of
misconduct. He had on occasions assisted
at court in settling cases without charging a fee and had co-operated
with the enquiry
and the pro forma prosecutor and apologised for his
conduct. He said that he had just got caught up in the events and the
pressures
from attorneys. It was accepted that his actions had not
prejudiced any litigant. The court concluded:
‘
Van
Onselen will have learnt his lesson after the suspension which we
impose, if he has not already done so. We do not consider
that there
is any prospect of him again breaching the Rules of the Bar. The
public interest does not require that he be removed
from practice
permanently.’
96
[184] In my judgment the high
court misdirected itself in reaching its conclusions in respect of
these three. Some of the factors
were neither exculpatory, in the
sense of reducing the seriousness of their conduct, nor any
indication that the character flaws
demonstrated by the misconduct
would not manifest themselves again in the future. In other respects
they were based upon factual
statements that were inconsistent with
earlier findings or simply erroneous. I identify these in the
following sub-paragraphs:
First, it held that the fact
that the judges and other advocates knew of double briefing and took
no steps to report it or put
a stop to it was an exceptional
circumstance. I have explained why in my view it was not. It does
not count in favour of the
advocates that they could have been
stopped earlier had other people intervened. The important point is
that they exploited the
situation for their own advantage. In
addition it is clear that they would have continued to do so but for
the belated intervention
of the Bar council. That is what put an end
to the exploitation of the Fund.
Second, it took into account in
favour of these three advocates their years of membership of the Bar
and the absence of prior
misconduct. However, when they committed
their misconduct, they had nearly the same levels of seniority and
clean disciplinary
records, yet this did not serve to restrain them.
In Mr Williams’ case he was in silk and had standing as a
member of the
Bar Council. Like Caesar’s wife, one would have
expected his conduct to be beyond reproach. Yet none of this acted
as a
restraint to misconduct fuelled by greed. It is unclear then
why it would make a difference in the future. In addition, in
relation
to colleagues with similar years of experience and equally
unsullied disciplinary records, these factors were not taken into
account in their favour.
Third, in respect of both Mr
Güldenpfennig and Mr van Onselen, it concluded that they were
not motivated by greed. That was
inconsistent with its own finding
at the commencement of its judgment that counsel had ‘mounted
the steed of greed’.
In fact Güldenpfennig’s
explanation was that he could have been greedier if he had been
willing to run greater risks.
In addition, the finding in his
favour, that his offences were not on the scale of the majority of
the other respondents, does
not stand up to scrutiny. He ranked
sixth in number of counts and only five others had gains that
markedly exceeded his.
Fourth, in respect of Mr
Williams the high court took into account in his favour the view of
the De Vos committee that there were
substantial extenuating
circumstances. However, not only did that committee not explain what
those circumstances were, but it
is apparent from reading the
transcript of the disciplinary proceedings that it was under the
misconception that there was no
dishonesty and that the advocates
were assisting the court and endeavouring to resolve a difficult
situation created by the Fund.
That view was rightly rejected by the
high court when it said that the De Vos committee had ‘closed
its eyes to the obvious’.
97
Fifth, the high court held that
Mr Williams would suffer monetary loss as a result of repaying the
R864 000 he was held to
have charged improperly. That is
plainly wrong. One cannot suffer monetary loss by having to repay
money improperly obtained.
Sixth, in relation to Mr
Güldenpfennig the high court held that it counted in his favour
that he had confined his fees to
those recoverable by his attorney
on taxation and would, where necessary, reduce his fees to this
level. Apart from the fact
that this was also a breach of the Bar
rules, all that this demonstrated was that his intention was to
target the Fund, which
would be responsible for his fees after
taxation.
Lastly, the inspection by the
Bar Council of Mr van Onselen’s books revealed four days on
which there was a duplication
of hours involving 21 different cases
and claims to have worked for 16 and 17 hours in a day.
98
Thus on 2 February he
charged the same periods of time (from 2pm to 4.30pm in one case and
from 2 pm to 5pm in three cases)
to four different clients. There
were even more considerable duplications on three other days. His
explanation was that this
was due to administrative error rather
than dishonesty on his part and that he had worked the hours in
question. The high court
simply said that this could not be refuted.
In my view, it should not have been accepted, for the same reason
that similar explanations
were not accepted in relation to Messrs
Leopeng, Botha and Mogagabe, whose books revealed similar practices.
Like them there
was no attempt by Van Onselen to show by reference
to the actual cases, his diary and information obtained from his
attorneys,
that he had in truth done the work but made
administrative errors. If, as he claims, his notes of time worked
were deficient
that does not explain how he could send out detailed
fee notes, consecutively numbered, in different cases reflecting
detailed
hours worked. The sample invoice in the record shows that
he set out the times spent on reading documents and other
preparation
quite specifically eg ; ‘08h00 – 08h45’
on a specific day. If his notes were inadequate these times and
dates
were simply invented for the purposes of the fee note and bore
no relation to reality. His bland explanation, like those of his
colleagues, should not have been accepted.
[185] I next deal with the
general point of parity of treatment. It is a fundamental principle
of justice, well established in a
number of fields dealing with
sanction, that in general like cases should be treated alike.
99
That principle was applicable
here as
Kekana
demonstrates. As
pointed out in paras 47 and 48 above, all of the advocates were
guilty of the same conduct and there was no material
difference
between them in regard to the nature and extent of their
transgressions or of their response to the charges being levelled
against them; their approach to the sanctions imposed by the Bar or
their attitude in the present proceedings. As all of them had
been
found guilty of substantially the same misconduct and had responded
to it in substantially the same way an immediate question
that arises
is on what basis the high court differentiated between the two
groups.
[186] The only passage in the
reported judgment that deals with that issue is the following:
‘
In
the case of contraventions after the notice of 26 October 2009,
unexplained fiddling with hours, mendacious explanations to the
court
and exorbitant numbers of transgressions the scale swung to striking
off.’
100
As I understand it the high court
viewed this additional misconduct as indicating that the advocates
concerned had thereby placed
themselves beyond the pale of
rehabilitation, so that it was inappropriate to sanction them by way
of an additional suspension
from practice subject to conditions.
[187] Mr de Klerk is the person
whose additional misconduct involved him continuing to engage in
double briefing and over-reaching
after the Pretoria bar instituted
its enquiry and informed him that he was under investigation. He did
so for nine days. That was
described by the high court as
‘contemptuous’. Bearing in mind that he, like all the
others at that stage, took the
view that what he was doing was not a
breach of the rules or improper, and that the letter did not instruct
him to desist from
any specific conduct, that was unjustified. The
high court also said that the scale on which he contravened the
rules, and the
period of time over which he did so, was an
aggravating factor. That was also unjustified. Even when the
additional nine days were
taken into account he had fewer
contraventions than any of the other six,
101
save Mr Williams. More
importantly the extent of his enrichment was considerably less at
R310 800. The reported judgment sets
out in some detail his
response to the charges and his view that he had not been guilty of
over-reaching, save in a technical sense,
arising from the
interpretation the Bar Council placed on the relevant rules. However,
in saying that, denying dishonesty and averring
that the Fund
suffered no loss arising from his conduct, he did no more than those
who were not subjected to the sanction of striking
off. It will be
recalled that all of them denied dishonesty, attributed their
misconduct to the situation brought about by the
Fund and said in
their affidavits that the Fund had not suffered financially from
their misconduct. He said that he accepted briefs
conditionally on
the basis that his attorneys knew that if one case had to be tried he
would be unable to attend to the other matters
in which he held
briefs. But that was effectively the position of all of the
advocates, as they all said that their attorneys and
clients were
well aware of their position. All in all his position was not
significantly different from the three who were not
struck off.
[188] I agree with the high court
that the conduct it described as ‘unexplained fiddling with
hours’ involving Messrs
Botha, Leopeng and Mogagabe, amounted
to further misconduct that weighed against a conclusion that
suspension from practice on
terms would be an appropriate sanction.
102
As Mr van Onselen was guilty of
the same misconduct the same should apply in his case. When an
advocate does work in chambers unsupervised
by the presence of client
or attorney only their honesty and integrity prevents them from
padding their hours of work and claiming
additional fees. That is the
dangerous aspect of charging fees on an hourly basis. Once an
advocate has been found guilty of padding
their hours of work they
cannot be trusted to charge fees honestly in the future and must be
removed from the roll. That was the
high court’s conclusion in
respect of Messrs Botha, Leopeng and Mogagabe and had it not
erroneously accepted Mr van Onselen’s
explanation, no doubt it
would have been its conclusion in respect of him as well.
[189] The other factor that was
held to have swung the balance in favour of striking off as opposed
to suspension was described
as exorbitant numbers of transgressions.
However, it is difficult to discern where the line was drawn in this
regard. Mr de Klerk
was condemned for 74 contraventions involving
R310 800, while Mr van Onselen’s 133 contraventions
involving R 967 800
escaped the same criticism. If one
ignores Mr de Klerk, the line appears to run between those 133 cases
and Mr Botha’s 170
cases and between that sum of R967 800
and Mr Leopeng’s R1 323 000. However, in the absence
of any reasoned
explanation for this distinction, I am unable to
accept that it is justified. The heart of this case lies with the
charges of over-reaching
and the enrichment of the advocates at the
expense of the Fund. Whilst that was greater in the case of Messrs
Botha, Leopeng and
Mogagabe, than in the cases of Messrs Williams,
Güldenpfennig and van Onselen, the fact remains that in the case
of the latter
their undue benefit was close to a million rand. To
distinguish Messrs Botha, Leopeng and Mogagabe on the basis that they
gained
more than a million rand was not in my view justified. In
addition if one bears in mind that the greater amounts in respect of
the latter two arose from a far greater number of cases, then it is
apparent that the extent to which they were over-reaching in
each
case was considerably less than the other four.
103
[190] Apart from these matters
there is an inconsistency in the high court’s treatment of the
same factor in respect of different
individuals. I confine myself to
mentioning the most significant of these. The court said that Mr
Botha had been dishonest in saying
that ‘these were not really
trial briefs at all’. This counted against him. However, Mr
Geach had said the same thing,
104
yet it was not taken into account
against him. The other advocates said that because cases were
expected to settle there was little
chance of clients being
prejudiced. In effect they were saying that the briefs were not real
trial briefs,
105
yet this was not held against
them. Again in respect of Mr Botha it was said that ‘his
reluctance to furnish the details of
his earlier transgressions
negates any suggestion that he is contrite’. Yet the high court
had said earlier in its judgment
106
that it would not hold this
against the advocates ‘in view of the limitation of the ambit
of the enquiry’. Other than
Messrs Upton, van Onselen and
Seima, the others likewise refused to deal with prior misconduct.
[191] Mr Botha was also condemned
for not reporting his unprofessional conduct to the Bar Council,
107
something that only Mr Upton did.
His protestations of remorse and contrition were rejected on the
basis that he blamed his actions
on how the Fund conducted
litigation,
108
but that was the consistent
refrain of the others. In addition it had formed the foundation for
the De Vos committee saying that
the advocates had acted honestly in
trying circumstances and that there were considerable extenuating
circumstances surrounding
their behaviour. Those findings by the
initial disciplinary committee were cited as favouring Messrs Geach,
Upton, Williams and
Seima. Yet the identical findings in respect of
Messrs Leopeng and Mogagabe, were not mentioned. The latter two
testified to being
placed under considerable pressure to accept work
from the Fund. That was entirely plausible in view of the Fund’s
practice
of trying to brief counsel from previously disadvantaged
backgrounds. Yet that pressure was not taken into account in their
favour,
whilst similar pressure on Mr Jordaan, a previous employee of
the Fund, counted in his favour.
109
[192] In my opinion the
disparities of approach that emerge from the matters described in
paras 188 to 194 justify the conclusion
that the high court did not
give appropriate consideration to the need for parity of treatment in
determining the sanctions in
these cases. It is not a factor that it
mentioned as relevant to its decision. In that respect also it
misdirected itself and means
that this court must consider that
question afresh in relation to all of these seven advocates.
[193] For the sake of
completeness, and lest silence on the topic were to be taken as
assent, it is also my view that the high court
erred in law in making
orders for the repayment of amounts to the Fund. This clearly
influenced its approach to sanction and it
said as much
110
in setting out its general
approach to sanction in the individual cases, where it said ‘must
include an order for restitution’.
That too, in my opinion,
amounted to a misdirection in regard to sanction.
[194] As noted in the main
judgment
111
the GCB did not support these
orders insofar as the struck off advocates were concerned.
112
That was wise. However, I think
it necessary to explain in greater detail my reasons for that
conclusion, as I do not share the
view in the main judgment that this
was because the disciplinary power was exhausted by the striking off
orders. The GCB asked
the court to exercise its powers under
s 7(1)
(d)
of the Act to strike the names of
the advocates from the roll of advocates. The only alternative under
the statute would be an order
suspending them from practice. The high
court recognised this and turned to the common law and the inherent
powers of the court
to control and discipline legal practitioners as
a source of its authority to make such orders.
113
That power is not excluded by the
terms of the Act.
114
The high court gave four examples
as illustrating this inherent power. The first, the power to make a
declaratory order in regard
to the conduct expected of a legal
practitioner, is a corollary of the court’s power to suspend a
practitioner or strike
them from the roll, and provides no support
for the notion that the court may make compensatory orders. The
second, the power to
make an adverse order for costs against counsel,
is no different in form from that often exercised in respect of
attorneys or others
responsible for wasteful expenditure or
unnecessarily incurring costs in litigation. The third was that
courts may find an advocate
guilty of contempt. Whilst true that does
not arise from the status of an advocate. Contempt is a common law
crime that can be
pursued against anyone. Finally the court referred
to the fact that in Roman times, confiscation and perpetual exile
were permissible,
and in Roman Dutch times deportation for ten years
could be meted out as punishment to legal practitioners. The court
did not identify
the conduct that would attract such condign
punishments and I can only say that we no longer live in Roman or
Roman Dutch times.
Such punishments have no bearing on whether a
South African court in the 21
st
century can grant orders that
advocates, who it is going to strike from the roll of advocates, make
financial amends for their wrongdoing.
[195] At the end of the day the
high court concluded that ‘there is no reason why this Court
should not be empowered to order
an advocate who has overreached to
return the ill-gotten spoils’ and that to hold otherwise ‘would
be laughable in
the eyes of the public’. The true question was
not whether there was no reason for the court not to have that power,
but
whether the court did indeed have the power to make that order.
Courts as much as, if not more than, other constitutional
institutions
are bound by the principle of legality that requires
that the exercise of public powers be authorised by law. The power in
question
is not authorised by law and does not arise from an inherent
disciplinary power that courts may exercise over legal practitioners.
These orders should not have been made. As regards the concern that
it would be laughable in the public eye for it to hold otherwise,
the
law provides appropriate and adequate remedies to a party that has
been overreached to recover the extent of its losses from
the party
responsible and the Fund had already instructed attorneys to pursue
its remedies in this regard.
[196] The high court thought that
the orders for repayment that it made against those whom it suspended
from practice fell in a
different category, on the grounds that they
could be made the subject of conditions of the order and, in that
way, compliance
could be secured. That approach is shared in the main
judgment. The GCB’s submission, while addressed to the appeals
against
these orders, was that such orders were in general
impermissible. I agree. Either it was permissible for the court to
make such
orders or it was not. It could not remedy the absence of a
power to order repayment to the Fund, by making payment in terms of
such order a condition of a suspension from practice.
115
The practical problem with such
an order is that it does not address, as these orders did not
address, what is to happen if the
advocate did not or could not pay
or stopped paying when some, but not all of the amount had been paid.
Execution could not be
levied by the Fund against the assets of the
advocate. Non-payment would not entitle the court to reconsider its
order of suspension
from practice. In essence the court took it upon
itself in disciplinary proceedings concerning these advocates to
enter upon and
determine potential civil claims against them by the
Fund. In my respectful opinion it was not entitled to do so and it
could not
overcome its lack of a power to do so by attaching it as a
condition to a suspension from practice.
116
[197] For the reasons set out in
para 67, in my judgment the high court misdirected itself in regard
to sanction in respect of Messrs
Williams, Güldenpfennig and van
Onselen. For the reasons set out in paras 68 to 79 it also in my
judgment misdirected itself
on two general matters relevant to
sanction that materially influenced its judgment. That requires us to
reconsider the sanctions
imposed in all seven cases.
Conclusion in regard to
sanction
[198] The most significant factor
in determining the appropriate sanction must be the nature and scale
of the primary misconduct.
It was dishonesty fuelled by greed. It
involved very large amounts of public money plundered from the Fund,
which exists to compensate
the victims of road accidents for the
damages they have suffered. There were clear and deliberate breaches
of the bar rules that
exist, in part, to prevent such misconduct and
abuse. There was no question of ignorance. The circular issued in
November 2006
made it plain that this was misconduct. The wrongdoing
occurred over a lengthy period and on a substantial scale. In all
cases
save Mr de Klerk it involved amounts in the region of, or
greater than, R1 million. All of the advocates were fairly senior,
ranging
from 13 to 32 years in practice. Mr Williams was in silk.
None of the advocates accepted that they had been dishonest until the
hearing in this court. All tried to mitigate what they had done by
relying on the state of the court rolls and the Fund’s
deficient approach to litigation and its responsibilities. Their
conduct undoubtedly brought the profession into disrepute. There
is a
genuine public concern about legal costs and the level of legal fees,
most recently expressed by the Constitutional Court
in
Camps
Bay Ratepayers’ and Residents’ Association & another
v Harrison & another
.
117
That concern is exacerbated when
advocates seek to enrich themselves out of public funds.
[199] In regard to all of the
advocates I would not attach weight to their failure when first
brought before the De Vos committee
to concede dishonesty, as it is
clear that the members of the committee did not think that they were
dishonest. Nor would I attach
weight to their failure to recognise
from the outset that the major problem lay not with the double
briefing charges, but with
their charging full trial fees in every
case. Again that reflected the view of the members of the De Vos
Committee. Those factors
should not count against them. However, I
would attach weight to their failure, once confronted with the
Vorster committee report
and the intervention of the GCB, with its
clear allegations of dishonesty, not to reconsider their stance and
recognise the error
of their ways. Their protestations throughout the
proceedings before the high court that they had not been dishonest
showed a lack
of recognition of the nature of their misconduct. It
also undermined their contention that they had learned their lesson
as a result
of the sanctions imposed by the Pretoria bar.
[200] I do consider it to count
in their favour that during lengthy careers at the Bar none of them
had previously been guilty of
misconduct. I also accept that their
conduct does not appear to have prejudiced any plaintiff client. Had
it done so one would
have expected, given the time that has passed,
that a complaint would have surfaced. I do not, however, accept the
argument that
there was no prejudice to the Fund, because if they had
not engaged in double briefing other counsel would have had to be
briefed
in their stead and they would have been entitled to claim a
full trial fee. I do not do so because it is not clear to me that
counsel,
behaving ethically, would not have accepted briefs on
settlement only and charged appropriately. The argument presupposes
that
other counsel would have over-charged and I do not accept that.
[201] Two arguments were pressed
upon us in relation to the GCB’s appeal. They were that the
advocates had, in compliance
with the high court’s orders, made
the payments they had been directed to make to the Fund and served
the suspensions where
those had not been further suspended. I do not
think that can affect matters. Insofar as the payments were made
pursuant to the
high court’s orders they may well be
recoverable under one of the condictiones
.
118
That would follow from the fact
that the payments were made in terms of court orders, and if those
orders are set aside the basis
on which they were made has fallen
away, leading to a right to claim restitution. It would not appear to
be an answer to such a
claim for the Fund to say that the advocates
overreached it and there is accordingly no enrichment. The defence of
non-enrichment
is not advanced on that basis. It exists where the
recipient of the payment can show that if the payment had not taken
place it
would have been in no worse position than it was as a result
of the payment.
119
However, if that is not so, the
advocates cannot complain about their having been deprived of amounts
to which they were not entitled
in the first place.
[202] As regards the fact that
the advocates have served a period of suspension, if they had been
struck from the roll, which is
the issue in this appeal, they would
not have been entitled to practise at all. Accordingly the fact that
they have been permitted
to do so, as a result of the high court
erroneously failing to strike them from the roll, cannot redound to
their advantage. To
the extent that any who should have been removed
from the roll have continued practising, that was a benefit to which
they were
not entitled arising from an erroneous judgment by the high
court. In my opinion neither of these factors is relevant to the
outcome
of these appeals. I turn then to consider the individual
cases
[203] In the cases of Messrs van
Onselen, Leopeng, Mogagabe and Botha there was the seriously
aggravating circumstance that they
charged for hours that they could
not have worked and gave a false explanation for doing so. That
undermined their professions
of contrition. In addition that type of
over-reaching of clients is almost impossible to detect. The client
is absolutely dependent
on the advocate’s honesty when saying
that work was done at a particular time for a specified period. There
is no explanation
in any of these cases for the attorneys accepting
these charges, some of which they must have known were unjustified,
but that
does not seem to me to be relevant. When advocates have been
found to charge for work that could not have been performed at the
time and for the period stated, an assurance from them that they will
not do it again cannot be taken at face value. A denial that
they did
it and a false explanation compounds the dishonesty. For those
reasons I agree that the decision to strike Messrs Botha,
Leopeng and
Mogagabe from the roll was correct. The same decision should have
been made in respect of Mr van Onselen, whose misconduct
was in every
way on a par with theirs. As I regard this factor as decisive it is
unnecessary to consider other factors counting
against these four.
[204] In the case of Mr Williams
I take into account to his credit that he has tried over the years to
make a contribution to his
profession by serving on professional
bodies and assisting with the training of pupil advocates. It is also
to his credit that
a number of his senior colleagues, like him in
silk, were prepared to speak on his behalf and to say that they had
never encountered
any hint of unprofessional behaviour on his part.
He was described as being a scrupulously honest opponent. That counts
strongly
in his favour. Every experienced advocate knows which of
their colleagues can be trusted to fulfil their undertakings
meticulously;
not to misrepresent their case; and to abide by the
rules governing litigation. Equally, every experienced advocate knows
which
of their colleagues is likely, in the vernacular, to try to
‘pull a fast one’; or seek to take unfair advantage of an
opponent. It counts strongly in Mr Williams favour that a number of
his senior colleagues speak so highly of him. It is also to
his
credit that he was the person who immediately and openly admitted
that greed lay behind his behaviour; that he recognised that
the
double briefing in which he engaged involved some risk that clients
might have been prejudiced, although he says none were;
and that, of
his own accord, he repaid the amounts paid to him in terms of
contingency fee agreements that were not reported to
the Pretoria Bar
as required by its rules. His professions of regret and remorse ring
true. In addition three senior and experienced
judges – all of
them having held office in either their domestic bars or the GCB or
both – believed that allowing him
to remain in practice would
not harm the good name of the profession or pose a risk to the
public. My colleagues Nugent and Ponnan
share that view. Although I
am deeply concerned at the scale of his misconduct in the light of
his seniority, after careful reflection,
I have come to the
conclusion that, although it is a borderline case, theirs is a view
from which I should not differ.
[205] Can the same be said for Mr
Güldenpfennig? In his case there is virtually none of the
evidence that is available in respect
of Mr Williams. There were
however letters from four firms of attorneys who regularly briefed
him in Fund matters and spoke highly
of his skill and integrity. He
had been in practice at the Bar for longer than Mr Williams, although
he had not taken silk. He
had a greater number of contraventions and
the same financial benefit. He pleaded guilty to 90 counts of double
briefing and 90
counts of over-reaching. In response to the GCB’s
application he denied dishonesty and denied that he had behaved
disgracefully.
He ‘categorically’ denied that he had been
motivated by greed and said that if he had been he could have
accepted far
more briefs than he did. I am not impressed by this
statement. It merely demonstrates that he knew what he was doing was
wrong
and limited his misconduct accordingly. He charged fees on the
basis of what would be allowed on taxation and indicated to attorneys
that if any amount was taxed off he would reduce his fees
accordingly. These too involved a breach of the Bar rules. He
accepted
that he had contravened the rules in the period prior to
that under enquiry but, save to say that the opportunity to do so was
less at that time, he gave no details of the extent to which he did
this.
[206] Before the high court Mr
Güldenpfennig maintained his stance that he had not been
dishonest and was one of those who
contended that the Pretoria Bar’s
attitude was more stringent than that of the Johannesburg Bar
Council. This argument was
characterised by the high court as one of
‘audacious ingenuity’ to which the court listened ‘with
amazement’.
120
It concluded, correctly in my
view, that this showed a lack of remorse.
121
In regard to dishonesty his
counsel said in argument that he has accepted this without
reservation ‘since the judgment’
in the high court. When
all this is weighed the position seems to be that Mr Güldenpfennig
accepted that he had been in breach
of the Bar rules but did not
accept at any stage that he had behaved disgracefully and
dishonestly. The belated acceptance made
on his behalf in argument in
this court does not take the matter further. In those circumstances I
do not think that there is evidence
from which to draw the inference
that he has insight into the true nature of what he did wrong. That
being so one cannot draw the
inference that he will not err again. In
my judgment, taking into account the nature and seriousness of the
misconduct and the
terms of the response to it, the GCB’s
appeal in respect of Mr Güldenpfennig should succeed.
[207] That brings me finally to
the appeal by Mr de Klerk. His misconduct was of the same character
as that of the others, but the
extent of it was less in terms of the
gains he made from it. That was so even though he carried on
accepting double briefs and
engaging in concomitant over-reaching for
nine days after learning of the Bar’s investigation. That is
not surprising as
his attitude up until the disciplinary hearing
before the Vorster committee was that he had not breached the rules
at all. He made
it clear in a letter addressed to the investigating
committee that he could find no rule that precluded double briefing
and that
in his view he had never charged excessive fees and was not
guilty. The only prohibition he had found on double briefing was in
the form of the circular sent to members of the Pretoria Bar on
1 November 2006. He alleged, without any substantiation, that
a
number of other members of the Pretoria Bar should be investigated
for the same offence and in a letter dated 26 March 2010
tendered his resignation from the Pretoria Bar and vacated his
chambers. If that was not accepted then he asked for his disciplinary
hearing to be expedited and that he be expelled from the Pretoria
Bar. When a disciplinary hearing was initially convened he indicated
that he would plead not guilty. That resulted in the Vorster
committee being convened on 24 May 2010. He then sought a
postponement
on the basis of a lack of time to prepare. In the course
of argument his counsel made it clear that he challenged the
correctness
of the Bar’s rulings regarding double briefing and
over-reaching. A postponement was granted to the following day. At
the
resumed hearing he pleaded guilty to 74 counts of double briefing
and 74 counts of over-reaching. Having done so he asked that he
be
expelled from the Pretoria Bar. He indicated that he intended to try
and build up a practice afresh outside the ambit of the
Pretoria Bar.
[208] It is proper to draw the
inference that Mr de Klerk at no stage accepted that he had been
guilty of wrongdoing, but wished
to end the disciplinary proceedings
and then return to practice outside membership of the formal Bar. The
Vorster committee recommended
that an application be made for his
name to be removed from the roll of advocates. Instead the Bar
Council imposed a sanction formulated
similarly to that of the other
advocates and applied to the high court for the noting of that
sanction. De Klerk filed a detailed
affidavit in response to this in
which he in substance repeated his contentions that he had not been
guilty of any misconduct,
save technical breaches of the Bar rules
arising from the interpretation given by the Pretoria Bar to those
rules.
[209] When the GCB intervened in
the proceedings De Klerk filed a further affidavit. It said little
more than before. He denied
dishonesty and relied on the circular
from the Johannesburg Bar. He reiterated that he had undertaken this
work for the Fund under
pressure from claims handlers at the Fund’s
prescribed tariff and said that if he had charged his ‘normal’
fee
in a single case that would have exceeded the total fees he was
earning in a day as result of double briefing. However, there is
a
problem with this claim. At his disciplinary hearing his counsel
placed on record that ‘He only had an RAF practice for
the
defendant’ and that since the commencement of the disciplinary
proceedings he did not have a practice at all. There was
accordingly
no question of a ‘normal’ fee other than the tariff fees
he was charging the Fund. He also refused to deal
with any
contraventions prior to the period of the Pretoria Bar’s
enquiry.
[210] What weighs in Mr de
Klerk’s favour is that his misconduct caused less harm to the
Fund financially than that of most
of his other colleagues. What
counts against him is his persistent failure to accept that his
misconduct involved dishonesty and
was more serious than his
characterisation of it as a technical breach of Bar rules based on
the Pretoria Bar’s interpretation
of the rules, with which he
did not agree. His desire to remove himself from disciplinary
oversight and his reliance on the Johannesburg
Bar circular
compounded this. In argument in this court he persisted in his
contention that his conduct in accepting multiple briefs
was
permissible because he accepted them conditionally to the knowledge
of his instructing attorney. His counsel was however hard-pressed
to
explain how that conditionality worked in practice. My conclusion is
that he lacked, and continued throughout the proceedings
to lack, any
insight into the nature and seriousness of his misconduct. That being
so it cannot be inferred that after a further
suspension from
practice he would not again stray from the path of rectitude. His
appeal must therefore fail.
Disposition of the appeals
[211] In my judgment the GCB’s
appeals in respect of Messrs Geach, Güldenpfennig and van
Onselen should succeed. The
orders made by the high court should be
set aside and replaced by orders striking their names from the roll
of advocates. The GCB’s
appeals in relation to Messrs Upton,
Jordaan, Seima and Williams should be dismissed. The appeals by
Messrs Bezuidenhout, Pillay,
Botha, De Klerk, Leopeng and Mogagabe
should succeed to the extent that the orders that they repay amounts
to the Fund are set
aside, but their appeals should otherwise be
dismissed.
[212] That leaves the question of
costs. In my view there is no reason to burden Messrs Upton, Jordaan
and Seima with further adverse
orders for costs. The GCB appeals in
relation to them should be dismissed with each party to pay his or
its own costs. Mr Williams
tendered to pay the GCB’s costs on
the attorney and client scale and effect should be given to that
tender. As the appellants
and respondents in the other cases have
failed in their opposition to the GCB’s contentions, they
should be ordered to pay
the GCB’s costs on the scale as
between attorney and client, such costs to include the costs of two
junior counsel and the
out of pocket expenses of Mr Epstein SC and Mr
Bester, who appeared without charging fees in accordance with the
best traditions
of the Bar.
___________________
M J D WALLIS
JUDGE OF APPEAL
APPEARANCES:
On behalf of the General
Council of the Bar
:
H Epstein SC, A Bester, C Malema,
R Wilson
Instructed by
:
Rooth &Wessels Inc, Pretoria
Naudes, Bloemfontein
On behalf of the Pretoria
Society of Advocates
:
Q Pelser SC, L E Vilakazi
Instructed by
:
Bernhard van der Hoven, Pretoria
Rosendorff Reitz Barry,
Bloemfontein
Counsel for appellants
:
M J Botha: Puckrin SC, C Harms
M C C de Klerk: P P Delport SC
T Pillay: A Bava SC, K Pillay, H
Vermaak
P M Leopeng: M Khoza, A Cajee
D P Mogagabe: E M Coetzee SC, H J
de Wet
L F Bezuidenhout: A de Vos SC
On behalf of Geach,
Güldenpfennig, Upton, Williams, Seima, Jordaan, Van Onselen,
Pillay & Leopeng
:
B P Geach: S Rosenberg SC, A Katz
SC, M Ioannou
JS M Güldenpfennig: E Botha
M Upton: J F Mullins SC, R
Kzyingo
J O'D Williams: J H Ströh SC
E Seima: J F Mullins SC, R
Kzyingo
C G Jordaan: B C vd Heever SC, W
W Geyser
C R van Onselen: B C vd Heever
SC, W W Geyser
Instructed by
:
N Geach Attorneys, Pretoria
Honey Attorneys, Bloemfontein
On behalf of Botha
:
Puckrin SC, C Harms
Instructed by
:
Klagsbrun de Vries Attorneys,
Pretoria
Honey Attorneys, Bloemfontein
On behalf of De Klerk &
Bezuidenhout
:
P P Delport SC, A de Vos SC
Instructed by
:
Snyman de Jager Attorneys,
Pretoria
Honey Attorneys, Bloemfontein
On behalf of Mogagabe
:
E M Coetzee SC, H J de Wet
Instructed by
:
Izak J Croukamp Attorneys,
Pretoria
Honey Attorneys, Bloemfontein
1
B
P Geach SC, J O’D Williams SC, J S M Güldenpfennig, T
Pillay, M Upton, M J Botha, E Seima, M C C De Klerk, C
G
Jordaan, C R Van Onselen, P M Leopeng, D P Mogagabe.
2
L
F Bezuidenhout.
3
Pretoria
Society of Advocates v Geach
2011 (6) SA 441
(Ngoza).
4
Geach
SC, Williams SC, Güldenpfennig, Upton, Seima, Jordaan, Van
Onselen.
5
Pillay,
Botha, De Klerk, Leopeng, Mogagabe.
6
Bezuidenhout.
7
Geach
SC, Williams SC, Botha, Güldenpfenning, Seima, and Van Onselen
8
Pillay,
Leopeng, Mogagabe and Seima.
9
De
Klerk and Bezuidenhout.
10
"Everyone
has the right to privacy, which includes the right not to have -
(a)
their person or home searched;
(b)
their property searched;
(c)
their possessions seized; or
(d)
the privacy of their communications infringed.'
11
An
additional fine of R76 000 was imposed on 38 counts of failing
to register a contingency fee agreement. The contingency
fees were
returned.
12
Malan
v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) para 4.
13
Jasat
v Natal Law Society
2000 (3) SA 44
(SCA) para 10.
14
Jasat
v Natal Law Society
at 51E-F;
Kekana v Society of Advocates
of South Africa
[1998] ZASCA 54
;
1998 (4) SA 649
(SCA) at 654 D-F.
15
At
654E-H.
16
1983
(4) SA 488
(A) at 494H-495(A).
17
S
v Pillay
1977 (4) SA 531
(A) at 535B.
18
Fine
v Society of Advocates of SA
at 494A-495A.
19
[1997]
3 All SA 113
(A) at 115F-G Also see
S v Pillay
at 533B.
20
Van
der Berg v General Council of the Bar
[2002] 2 All SA 499
(SCA)
para 50.
21
Law
Society, Cape v Peter
2009 (2) SA 18
(SCA) para 16. See, too,
Malan’s
case, para 28.
22
Malan
v Law Society Northern Provinces
, para 28.
23
Malan
's
case above, para 5, citing
Jasat
's
case'.
24
De
Villiers v McIntyre, N.O.
1921 AD 425
at 428 and 435;
Law
Society of the Cape Hope
v C
1986 (1) SA 616
(A) 638C-E;
Society
of Advocates of Natal v Knox
1954 (2) SA 246
(N) 247 G-H.
25
Kekana
v Society of Advocates of South Africa
[1998] ZASCA 54
;
1998 (4) SA 649
(SCA) at
656A.
26
Malan
v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) para 10.
27
Pillay,
Botha, De Klerk, Leopeng and Mogagabe.
28
See
paras 58-61 of the judgment of Nugent JA.
29
Van
der Berg v General Council of the Bar of SA
[2007] 2 All SA 499
(SCA) para 50.
30
Per
De Grandpré’ J in
Committee for Justice and Liberty
et al v National Energy Board
(1976) 68 DLR (3d) 716 at 735;
Sarfu
para 45.
31
In
Re JRL: Ex Parte CJL
[1986] HCA 39
;
(1986) 161 CLR 342
(HCA) at 352;
Sarfu
para 46.
32
Those
amounts are set out in paragraph 49 of Nugent JA's judgment.
33
Malan
para 28.
34
Botha
v Law Society, Northern Provinces
[2008] ZASCA 106
;
2009 (1) SA 227
(SCA) para 3.
35
Pretoria
Society of Advocates & another v Geach & others
2011 (6)
SA 441
(GNP).
36
These
fees appear to have ranged from R4 000 per day in the case of
more junior members up to R5 600 per day in the
case of the
more senior advocates.
37
This
seems to have been of the order of R12 000 to R15 000 per
day.
38
Section
3(1)(a) of the Act.
39
Vassen
v Law Society of the Cape of Good Hope
[1998] ZASCA 47
;
1998 (4) SA 532
(SCA) at
538G.
40
Ex
parte Knox
1962 (1) SA 778
(N) at 784.
41
Kekana
v Society of Advocates of South Africa
[1998] ZASCA 54
;
1998 (4) SA 649
(SCA) at
655I-656A.
42
Hayes
v The Bar Council
1981 (3) SA 1070
(ZAD) at 1081H-1082D.
43
Ex
parte Swain
1973 (2) SA 427
(N) and on appeal
Swain v Society
of Advocates, Natal
1973 (4) SA 784
(A);
Hayes v The Bar
Council
1981 (3) SA 1070
(ZAD) and
Ex parte Ngwenya: In re
Ngwenya v Society of Advocates, Pretoria, & another
2006 (2)
SA 88
(W).
44
Olivier
v Die Kaapse Balieraad
1972 (3) SA 485
(A);
General Council
of the Bar of South Africa v Matthys
2002 (5) SA 1
(E) paras 34
and 35. The same ethical standards are demanded of attorneys.
Society of Advocates of Natal & another v Merret
1997 (4)
SA 374
(N) at 383D-G.
45
Society
of Advocates of Natal & another v Knox & others,
1954
(2) SA 246
(N) at 249A-B. I am aware of a case where an advocate was
struck off the roll for making a fraudulent insurance claim and a
conviction
of a serious criminal offence would ordinarily result in
the advocate being struck from the roll.
46
At
654C-D.
47
Media
Workers Association of South Africa & others v Press Corporation
of South Africa Ltd (‘Perskor’)
[1992] ZASCA 149
;
1992 (4) SA 791
(A)
at 800D-G. Para 46 of the main judgment notes the difference of
language between the provisions of the
Admission of Advocates Act
and
the corresponding provision in s 22 of the Attorneys Act. It is
unnecessary to go into the effect of that difference as it does
not
arise in the present case.
48
Malan
& another v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) para 12.
49
At
645E-F.
50
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs & others
2000 (2) SA 1
(CC) para 11.
51
For
an example see
Manong & Associates (Pty) Ltd v City of Cape
Town
2011 (2) SA 90
(SCA) para 94. In the context of review
proceedings the same point was made in
Jacobs
& ń ander v Waks & andere
[1991] ZASCA 152
;
1992 (1) SA 521
(A) at 550D-551B where Botha JA pointed out that the limitation on
the power of a court to interfere with a discretionary decision
by a
functionary means that the court does not substitute its view for
that of the functionary but it also means ‘dat die
Hof wel sal
ingryp op grond daarvan dat die funksionaris 'n relevante faktor oor
die hoof gesien het (of te veel of te min gewig
daaraan geheg het),
wanneer die Hof oortuig is daarvan dat hy nie behoorlike aandag aan
die saak bestee het nie. Die passasie
beteken nie dat die Hof nie by
magte is om in te gaan op die vraag of 'n relevante oorweging
verontagsaam is (of verkeerd aangeslaan
is) en, as dit bevind word
die geval te wees, om op daardie grond die besluit tersyde te stel
nie, op die grondslag dat die funksionaris
in daardie opsig nie
behoorlike aandag aan die saak bestee het nie.’
52
To
this extent its findings appear to go further than the main judgment
in paras 20 and 21, but little turns on this in the light
of the
conclusion of dishonesty in relation tot the fees they charged on
the additional briefs.
53
‘
Where
counsel mount the steed of greed and attempt to clear the hurdle of
their professional rules their fall inevitably dents
the reputation
of their profession.’
54
Algemene
Balieraad van Suid-Afrika v Burger en 'n ander
1993 (4) SA 510
(T) at 525I-526A.
55
Ibid,
521I-522B.
56
The
two different approaches to charging fees are discussed in
City
of Cape Town v Arun Property Development (Pty) Ltd & another
2009 (5) SA 227
(C) paras 5-6 and 22-23.
57
This
is the point of the explanation for charging a fee on brief in
Pretorius v Santam Bpk
2000 (2) SA 858
(T) at 867F-868A. It
also illustrates why there cannot be a direct comparison between the
fees charged by advocates and attorneys
for trial work.
Road
Accident Fund v Le Roux
2002 (1) SA 751
(W) at 757B-D;
Aircraft
Completion Centre (Pty) Ltd v Rossouw & others
2004 (1) SA
123
(W) para 154(5) and fn 11. The article in
De Rebus
(September
2012) 21 which seeks to equate the two, proceeds from the erroneous
perspective that advocates are entitled (and therefore
attorneys
should likewise be entitled) to charge a fee for a day merely
because they have set the day aside, even though they
have been paid
separately for their preparation and were not prejudiced by having
to turn work away as a result of their reserving
the day. That is
incorrect. If the attorney wishes to claim a fee for the day then it
is for the attorney to show that this is
justified by work performed
and not charged for separately and by prejudice in their practice as
a result of agreeing to undertake
the trial. This may be more
difficult in the case of an attorney because of the differences
between an attorney’s and an
advocate’s practice.
58
The
high court calculated and the advocates accepted that the extent of
their financial gain from these activities during the
ten months of
the bar’s enquiry was R984 000 (Geach); R864 000
(both Williams and Güldenpfennig); R268 000
(Pillay);
R166 400 (Upton); R1 768 000 (Botha); R141 900
(Seima); R310 800 (De Klerk); R94 000
(Jordaan); R967 800
(Van Onselen); R1 323 000 (Leopeng); and R1 916 800
(Mogagabe). It did not explain
how it arrived at these figures.
59
Main
judgment para 18 and 22.
60
Main
judgment para 27.
61
The
cases are collected in
Society of Advocates of South Africa
(Witwatersrand Division) v Edeling
1998 (2) SA 852
(W) at
859F-861E.
62
Prokureursorde
van Transvaal v Kleynhans
1995 (1) SA 839
(T) at 853E-G;
Malan
& another v Law Society, Northern Provinces
, supra, para 12.
63
The
authorities are collected in
General Council of the Bar of South
Africa v Matthys
, supra, paras 34 and 35.
64
See
the passage from the judgment in
Rondel v W
[1966] 1 All ER
(QB) at 479 cited in
Natal Law Society v N
1985 (4) SA 115
(N) at 121I-122B.
65
Act
89 of 1991 (the VAT Act).
66
Minister
of Finance & another v Law Society, Transvaal
[1991] ZASCA 88
;
1991 (4) SA
544
(A) at 556H-557A.
67
Serrurier
& another v Korzia & another
2010 (3) SA 166
(W).
68
Currently
R1 million.
69
Estate
Agency Affairs Board v McLaggan & another
2005 (4) SA 531
(SCA) paras 21-24.
70
Section
64(1) of the VAT Act.
71
‘
My
failure to register was the result of carelessness on my part rather
than a deliberate attempt to avoid tax.’ (My translation)
72
The
full scope of a vendor’s obligations and the importance of
complying with them is spelled out by Kriegler J in
Metcash
Trading Ltd v Commissioner, South African Revenue Service &
another
2001 (1) SA 1109
(CC) paras 13-17.
73
In
particular the fourth bullet point in para 59 of the reported
judgment. I assume that the statement in regard to Mr Williams
at
475G-H of the reported judgment that ‘it cannot be said that
he is not a fit and proper person to continue practising’
and
the similar statement in respect of Mr Seima at 483C-D were made in
error. There was never a suggestion that this was a case
such as
Law
Society of the Cape of Good Hope v C
1986 (1) SA 616
(A) at 638I
- 639E where the court exercised disciplinary powers of suspension
from practice in the absence of a finding that
the attorney was not
a fit and proper person to continue to practice as such.
74
This
appears to have been the approach in
Society of Advocates of
South Africa (Witwatersrand Division) v Cigler
1976 (4) SA 350
(T) at 358D-G.
75
Van
den Berg v General Council of the Bar of South Africa
[2007] 2
All SA 499
(SCA) para 50
76
Ex
parte Knox
supra;
Algemene Balieraad van Suid-Afrika v Burger
en 'n ander
1993 (4) SA 510
(T) at 526H-527A.
77
Reported
judgment para 12, item 1.
78
Fn
14 supra.
79
Reported
judgment 464F-G item 9.
80
New
South Wales Bar Association v Hamman
(1999) 217 ALR 553
(NSWCA);
[1999] NSWCA 404.
See also
Legal Services Commissioner v Hewlett
[2008] QLPT 3 and the cases cited in para 13.
81
There
is a compendious collection of cases in
Legal Services
Commissioner v Stirling
[2012] VCAT 347
paras 85 to 140 that
concludes with the following helpful summary:
‘
It
is evident from the above cases that the failure to file income tax
returns and pay tax for an extended period:
(a)
demonstrates a lack of integrity that the public has a right to
expect from a barrister;
(b) reflects
hypocrisy and inconsistency in purporting to practice in and uphold
the law, while at the same time committing serious
breaches of the
taxation law;
(c)
constitutes complete defiance of his civic responsibilities, while
taking advantage of the full range of public services made
available
by taxation, not least in the provision of the Court system in which
he earned his income;
(d)
places a taxation burden upon his fellow citizens while he earned a
high income;
(e)
must be evaluated in the context of the underlying reason or
motivation for the offending conduct; and
(f)
is more serious conduct than failing to pay tax when assessed.’
82
I
entertain doubts about the appropriateness of a suspended suspension
for the reasons set out in Nugent JA’s judgment in
Law
Society of the Cape of Good Hope v Peter
2009
(2) SA 18
(SCA) paras 28 to 34. See also
Algemene
Balieraad van Suid-Afrika v Burger en 'n ander
, supra, at
527B-C;
Law Society of the Cape of Good Hope v Budricks
2003
(2) SA 11
(SCA) para 7;
Botha & others v Law Society,
Northern Provinces
2009 (3) SA 329
(SCA) paras 21 to 23;
Malan
& another v Law Society, Northern Provinces
, supra, para 2.
However, this court has on at least one occasion accepted such a
suspension (
Botha v Law Society, Northern Provinces
[2008] ZASCA 106
;
2009 (1)
SA 227
(SCA)) and the majority in
Peter’s
case attached
a condition to a suspension from practice that effectively meant
that the attorney’s restoration to practice
was not
unqualified. See also
Summerley v Law Society,
Northern Provinces
2006 (5) SA 613
(SCA). The GCB submitted that such an order is illogical and
impermissible but the propriety of such an order was not debated
in
detail before us and accordingly this is not the occasion to
consider whether my reservations are justified.
83
Para
31 ante.
84
Para
8. See also
Law Society of the Cape of Good Hope v Peter
2009
(2) SA 18
(SCA) paras 21 and 34.
85
Para
75 of the main judgment.
86
MM
Corbett 'Writing a Judgment' in
(1998) 115
SALJ
116
at 117,
echoing his judgment in this court in
Botes v Nedbank Ltd en ʼn
ander
1983 (3) SA 27
(A) at 28A.
87
Law
Society of the Cape of Good Hope v Peter
supra para 29.
88
Main
judgment para 73, where the reported judgment is described as ‘no
model of linguistic exactness or elegance’.
89
Reported
judgment para 54.
90
Main
judgment in paras 40.
91
Main
judgment para 39.
92
In
para 45 of the reported judgment it rejected this with the colourful
metaphor: ‘ A daylight robber can hardly be called
an honest
person.’
93
In
the passage quoted in para 8 ante.
94
This
appears to be a reference to para 54 of the reported judgment.
95
Reported
judgment at 475G-I item 8.
96
Reported
judgment at 494D-E item 11.
97
Reported
judgment para 45.
98
Reported
judgment at 493I-494C item 9.
99
In
criminal cases it applies to sentence. See
S v Giannoulis
1975
(4) SA 867
(A) at 870H and 873E-H;
S v Marx
1989 (1) SA 222
(A) at 225B-D. In labour matters it is a central principle of the
assessment of sanctions for misconduct in the workplace. See
the
note by Brenda Grant and Asheelia Behari ‘The application of
consistency of treatment in dismissals for misconduct’
(2012)
33
Obiter
145.
100
Reported
judgment para 59 at 462F-G.
101
And
fewer than Mr Geach whose offences the high court described as ‘not
on the scale of the majority’.
102
Similar
misconduct occurred in
Algemene Balieraad van Suid-Afrika
v Burger en 'n ander
supra 522g-525F.
103
For
Messrs Leopeng, Mogagabe and de Klerk they profited to the tune of
about R4 000 per case. In the case of the others it
was in
round figures R7 000 (Mr van Onselen); R10 000 (Messrs
Botha and Güldenpfennig); R12 000 (Mr Geach)
and R14 000
(Mr Williams).
104
‘
These
were not real trial briefs at all. It was not necessary to proceed
on the basis that they would proceed to trial if not
settled. In
truth, in my case, they were virtually all briefs purely on
settlement …’
105
That
this was the situation appears to be accepted in the main judgment
paras 20 and 21.
106
Para
55 of the reported judgment.
107
Para
9(f) at 479 of the reported judgment.
108
Para
9(g) at 479 of the reported judgment.
109
Reported
judgment at 491 item 6.
110
Reported
judgment para 59.
111
Para
98.
112
The
GCB did not ask that such orders be made and they were raised by the
high court
mero motu
.
113
De
Villiers & another v McIntyre NO
1921 AD 425
at 428;
Society
of Advocates of South Africa (Witwatersrand Division) v Edeling
1998
(2) SA 852
(W) at 860B-G.
114
A
v Law Society of the Cape of Good Hope
1989 (1) SA 849 (A).
115
The
power to attach an order for compensation to a suspended sentence in
criminal proceedings is a statutory power. See
s 297(1)(b)
of the
Criminal Procedure Act 51 of 1977
.
116
There
may be circumstances in which a court could order an advocate to
repay money in his or her possession, but that is not the
situation
in these cases.
117
Camps
Bay Ratepayers’ and Residents’ Association & another
v Harrison & another
[2012] ZACC 17
paras 10 and 11.
118
Kudu
Granite Operations (Pty) Ltd v Caterna Ltd
2003 (5) SA 193
(SCA)
paras 15 to 17 would suggest that the appropriate niche is either
the
condictio ob causam finitam
or the
condictio causa
data causa non secuta
. In
Besselaar v Registrar, Durban and
Coast Local Division & others
2002 (1) SA 191
(D) it was
suggested that the
condictio indebiti
or the
condictio
sine causa
is the appropriate remedy. In both cases it was said
that the precise juristic niche was immaterial.
119
African
Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd
1978
(3) SA 699
(A) at 713G-I where the test was set out as follows:
‘
Die
las om 'n wegval of vermindering van verryking te bewys, rus op die
verweerder. As die verweerder met inagneming van al die
omstandighede, tog nie beter daaraan toe is as wat hy sou gewees het
indien die ontvangs van die geld nie plaasgevind het nie,
kan hy nie
as verryk beskou word nie en is hy nie meer aanspreeklik nie. As hy
slegs gedeeltelik beter daaraan toe is, is sy
aanspreeklikheid
dienooreenkomstig verminder.’
120
Reported
judgment paras 24 and 25.
121
Reported
judgment para 29.