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[2022] ZAECMKHC 124
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Legal Practice Council v Van Deventer (EL 2569/2021) [2022] ZAECMKHC 124 (29 November 2022)
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Certain
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NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE
NO. EL 2569/2021
In
the matter between:
THE
LEGAL PRACTICE
COUNCIL
Applicant
and
COR
VAN DEVENTER
Respondent
JUDGMENT IN RESPECT OF
APPLICATION FOR THE
STRIKING OFF
OF THE RESPONDENT FROM
THE
ROLL OF LEGAL
PRACTITIONERS
HARTLE J
[1]
The
applicant, although initially praying that the respondent be struck
off the roll of legal practitioners, appeals to this court
to impose
a sanction against him arising from certain claimed “unprofessional
conduct”.
[1]
Despite the
wide powers afforded to the applicant under the provisions of Chapter
4 of the Legal Practice Act, No. 28 of 2014 (“LPA”)
to
effectively discipline legal practitioners under its regulatory
authority for misconduct,
[2]
section 44 (1) of the LPA provides that its provisions do not
derogate in any way from the power of the High Court to adjudicate
upon and make orders in respect of matters concerning the conduct of
a legal practitioner. In any event the powers of the applicant
do not
extend to a striking off of a practitioner from the roll or his/her
final suspension from practice. This requires an order
of this
court.
[3]
[2]
In
proceedings of this nature the court must firstly decide whether the
alleged offending conduct has been established on a preponderance
of
probabilities, which is a factual enquiry. Secondly, the court must
consider (if the ultimate object is to strike the practitioners’
name from the roll or to suspend him/her from practice) whether the
person concerned ‘in the discretion of the court’
is not
a fit and proper person to continue to practice. 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. Thirdly, the
court must enquire whether in all the circumstances
the attorney is
to be removed from the roll of attorneys or whether an order of
suspension from practice would suffice.”
[4]
[3]
The
enrolment of a practitioner on the roll in the first place assumes
the premise that he is fit and proper to be enrolled and
that he will
continue to maintain such a standard of conduct. A legal practitioner
serves at the pleasure of the court and the
statutory dispensation
under the LPA does not deprive it of exercising its common law powers
over legal practitioners. These powers
are essential for the
maintenance of professional standards of conduct of all legal
practices.
[5]
[4]
The
applicant is the successor in title to the erstwhile Cape Law Society
(“CLS”) which served as the statutory regulatory
body for
attorneys practicing in the Eastern Cape at the time of the
commission of the claimed offending conduct in May 2014.
[6]
[5]
The respondent is an enrolled attorney,
notary public, and conveyancer with the applicant and of this court
currently practicing
as a director of Van Deventer & Van Deventer
Inc., a legal practice in Sandton, Gauteng. He was admitted in all
three capacities
in 2008. It is common cause that except for the
complained of conduct at the core of these proceedings, and one or
two frivolous
complaints against him over the years concerning issues
that he avers were not within his control, he has an unblemished
professional
record.
[6]
On
9 March 2016 the CLS received a complaint directed against him and an
associate
[7]
at Greyvensteins
Incorporated where he was engaged as a practitioner at the time.
[7]
Under
the Rules of Attorneys’ Profession,
[8]
the CLS would have followed the unique provisions provided for
members under its disciplinary jurisdiction to address the
respondent’s
claimed misconduct following receipt of an
official complaint form which in the present case reads as follows
under the rubric
of “concise summary of (the complainant’s)
complaint”:
“
Trustees
of the ALC Property Trust is Cor Van Deventer, Director of
Greyvensteins Inc. and transferring attorney and seller.
Mrs J A Labuschagne is
member of Lauren Nash Business Trust and purchaser of property.
Lauren Nash is the wife of Cor Van Deventer.
Tiaan Labuschagne trustee
of Lauren Nash Business Trust and employer of Greyvensteins Inc.
Mrs L [....] is legally
married to complainant and married in community of property.
Signature of complainant
on consent form is false and was never signed.
Cor Van Deventer, son of
Mrs L [....] must have known that signatures were false as he was the
beneficiary of the transaction.”
[8]
The complaint was accompanied by a
suretyship which is the subject matter of the complaint.
[9]
The complainant was one C [....] P [....] L
[....].
[10]
It
is common cause that he was married to the respondent’s mother
but separated from her in June 2015. The marriage itself
was volatile
and an acrimonious divorce ensued.
[9]
The respondent thought it necessary to mention this feature of their
relationship as his perception was that the report of his
claimed
misconduct had been motivated by spite or was a plain vendetta by the
complainant directed against him, his mother, or
their family. The
claim forming the subject matter of these proceedings was apparently
instituted not long after his mother had
commenced divorce
proceedings against the complainant.
[11]
As can be deduced from the summary of the
complainant’s complaint above the grievance against the
respondent and his associate
had as its primary concern the fact that
his purported signature on a “consent form” (
sic
)
signed on 2 May 2016 was false. This form alluded to by him was
actually a formal suretyship agreement pursuant to which the
complainant and his wife “married in community of property to
each other” had on the face of it committed themselves
as
sureties to Standard Bank for the indebtedness of the Lauren Nash
Business Trust. Her name and signature appear in the places
in the
deed opposite the designation of surety number 1 and his (and
purported signatures) in the places reserved for surety number
2 to
sign. Separate pages reflect each of them as consenting spouses as
well since they were married to each other in community
of property
and would have been required by virtue of the provisions of section
15 (1) of the Matrimonial Property Act, No. 88
of 1984 (“MPA”)
to have consented to each other binding themselves as surety.
[12]
The surety related to the purchase by the
Lauren Nash Business Trust of property situated at [....] K
[....] Street,
North End (“the property”). The owner and
seller of the property was the ALC Property Trust, of which entity
the respondent
was a trustee.
[13]
The trustees of the purchasing trust were
his mother, his then wife, and the respondent’s associate
aforesaid. Standard Bank
granted a bond of R873 000.00 to
finance the purchase consideration. The suretyship in question,
executed on 2 May 2014, was
required from his mother in her capacity
as trustee for the mortgage loan. She was married in community of
property to the complainant
at the time and his signature would
ostensibly have been required at the very least as a consenting
spouse although he is reflected
as a co-surety in the deed. There is
no question though that his wife was the principal applicant for
financial assistance.
[14]
Ms. Craddock - the other attorney
disciplined by this court arising from the same alleged misconduct,
employed the respondent’s
mother at the time. She acted as the
transferring attorney.
[15]
The
bond registration was attended to by Bellingham Muller Attorneys.
[10]
[16]
The transaction was registered in 2014.
[17]
The property, after its transfer to the
Lauren Nash Business Trust, was “sectionalized” in March
2015 and the two sections
marketed for sale in the same year. Both
were sold and transferred by mid-2016 so that by the time the
complaint was lodged the
bond as well as the impugned suretyship had
already been cancelled. Indeed, as the respondent pointed out in
seeking to dispel
the concern that the complainant had been
prejudiced by the surety, there was only a short period of time when
there was an outstanding
bond for which the surety commitment had
been a requirement. (As far as he was concerned this rendered the
complaint “academic”
and gave fuel to his perception that
the complainant was on a mission to get at him and his family.)
[18]
On the relevant page of the deed concerning
him as surety number 2 a signature appears which the complainant
disavowed as his own.
Likewise, he alleged that he had not signed as
the consenting spouse or in the other places appearing on the deed
where the anticipated
signatory in either capacity had been expected
to sign or place his initials. The person alleged to have imitated
his signature
however signed on the deed in ten different places.
[19]
The respondent signed the deed as witness
number 1 in confirmation that the designated sureties - the
complainant and his mother,
had brought their signatures to bear on
the deed of suretyship, and ostensibly also as one of two competent
witnesses on the basis
required by the provisions of
section 15
(1)
of the
Matrimonial Property Act, No. 88 of 1984
, to confirm the
signatures of the “consenting spouses”. The respondent’s
professional name stamp appears in four
places below his full
signature where these occur in the document as witness number 1. His
initials appear in five other places
in the deed. There is no
question that this is his own signature and that he had acted in a
professional capacity (evidenced by
the affixing of his professional
stamp) in putting it to paper and thereby verifying the signatures
and promoting the validity
of the deed and the consent of the
spouses. In the deed itself a clause dealing with “confirmation
of compliance with formalities”
invites an expectation that
Standard Bank or its agent overseeing the signing has explained the
contents of the deed to signatures
and its particular import
including the right to get independent legal advice to make sure that
they understand their commitment
as surety. It further acknowledges
that they have been “given an adequate opportunity to read and
understand the terms and
conditions” and “have been made
aware of the condition … printed in bold”, that the deed
has been completed
in all respects up to the confirmation clause and
that their marital status has been recorded and that the consent of
spouses,
where applicable, has been completed and signed.
[20]
On the same date Ms. Craddock ostensibly
also brought her confirmatory signature to bear on the deed as is
evidenced from her commissioner
of oaths stamp as the second
competent witness although in the separate proceedings concerning her
she distanced herself from having
signed the deed in such capacity.
(It is relevant to mention her involvement since the applicant
brought proceedings in this court
to strike her name off the roll of
legal practitioners as well arising from the selfsame debacle. In her
instance two judges of
a full court found on 10 August 2022 that the
applicant had not canvassed sufficient facts to establish the
offending conduct relied
upon and dismissed the application.)
[21]
It is notable that in the complaint which
underlies the proceedings, the complainant went further than simply
alleging that the
signatures on the deed of suretyship purporting to
be his were false. This is the gravamen of his complaint. By stating
that the
respondent “knew that they were false as he was the
beneficiary of this transaction” he was obviously suggesting
that
the respondent had implicated himself at the level of a crime
having been committed or facilitated and that he had done so for
personal gain.
[22]
The respondent indeed had a peculiar
interest in the transaction in the sense that he was a trustee of the
seller and his now ex-wife,
the said Laura Nash, a trustee together
with his mother of the purchasing trust. He also coincidentally
revealed that the purpose
of the sale had been to raise capital to
purchase another property. As trustee of the ALC property trust he
would have elected
the conveyancing attorneys where his mother was
employed, but in theory would however have had no control over who
Standard Bank
appointed to register the bond and procure whatever
secondary securities were necessary.
[23]
As for how it happened that he came to
attest the signatures of the signatories in the deed, the respondent
clarified that from
2011 to 2015 the complainant was the rental agent
who attended to his and his ex-wife’s as well as their various
trusts’
property interests. The portfolio consisted of
approximately 60 rental properties. In the context of their busy
engagement, he
explained that documents were frequently signed by the
complainant, his mother, and himself notably as a witness. In a
letter to
the CLS he indicated that this happened even after office
hours. Implicit in this concession is that he sometimes signed
documents
in the absence of the complainant and his mother. In
respect of his attestation of the purported signature of the
complainant on
the suretyship
,
he
appeared to suggest that this might have been one of those occasions
when he had perfunctorily signed a document presented to
him by his
mother on the assumption that her and her husband’s signatures
appearing in the deed were authentic.
[24]
The
falsity of the complainant’s signature in the various places in
the deed of suretyship formed the subject of a criminal
investigation
by the South African Police Services (“SAPS”). He
evidently knew of the falsity of his signature on the
deed since
October 2015 but only formally complained of a forgery in March
2016.
[11]
[25]
As an aside it is evident from the judgment
of this court (coincidentally put up as an annexure to the
applicant’s founding
affidavit) in the divorce action between
the complainant and his now ex-wife that there was, as the respondent
suggested no love
lost between them. His mother’s relationship
with the complainant was also described as a volatile one and she
permanently
left the matrimonial home on 15 June 2015 after which she
issued the divorce action.
[26]
An
accusation that the respondent’s mother might have been
responsible for falsifying the complaint’s signature on the
deed of suretyship in question came up for discussion in the divorce
trial. In examining her alleged financial misconduct that
the
complainant prayed should be considered to justify his claim for a
forfeiture of benefits arising from the marriage, the court
in its
judgment related the following detail that is of relevance for
present purposes:
[12]
“
[60]
Furthermore, during the subsistence of the marriage the plaintiff
stood surety for a mortgage loan which her son entered
into in order
to purchase an immovable property. Again she did not acquire the
consent of the defendant. The defendant contends
that his signature
was forged on the document and he alleges that the plaintiff forged
the said signature. This the plaintiff denies
and no evidence has
been presented to me upon which I am able to make any finding in this
regard. The immovable property concerned
has since been sold and the
mortgage loan repaid. The plaintiff’s suretyship had no impact
on the joint estate and there
is no evidence of any conflict between
the parties at the time as a result of the plaintiff’s
suretyship.
…
[62] …
Although the application of the plaintiff’s signature as surety
on a mortgage loan agreement whilst
she was married in community of
property may be categorized as misconduct there is no evidence of the
impact which it may have
had on the relationship between the parties
at the time and it has no effect on the joint estate at all.”
[27]
In the present proceedings the applicant
put up an affidavit made pursuant to the provisions of
section 212
(4) (a) and (8) (a) of the
Criminal Procedure Act, No 51. of 1977
by
Warrant Officer Sinovuyo Ntlanyana, a “forensic questioned
analyst” (handwriting expert) in the employ of the SAPS,
wherein she confirms the probability that the purported signatures of
the complainant on the suretyship do not belong to him.
[28]
Despite Warrant Officer Ntlanyana’ s
opinion given in July 2016 of a probable forgery (which the
respondent accepts but without
any imputation to him of any knowledge
that the signatures were forged or of any complicity in the reported
crime), no prosecution
has ever ensued.
[29]
Even
before the advent of the forensic report, the CLS, utilizing the
machinery at its disposal at the time under the provisions
of the now
Repealed Attorneys Act, sought to investigate the complaint as a
serious one of dishonesty no doubt premised - worst
case scenario, on
one of possible inferences that suggested itself from the facts,
namely that that the respondent
knew
the purported signature of the complainant to be false.
[13]
(That scenario would have entailed that he was either complicit with
the perpetrator of the crime of forgery and uttering and/or
facilitated the commission of the crime.) The other possibility
namely that he was nescient of the falsity however equally lent
itself to a claim of “dishonesty” as he and Ms. Craddock
by their signatures on the deed as witnesses number 1 and
2 gave out,
at least as a primary supposition, that the complainant himself had
signed as surety number 2 in their presence, whereas
he obviously
could not have.
[30]
At
the time the respondent was first asked to provide a response to the
complaint in May 2016, he advised that he could neither
confirm nor
deny whether the complainant had signed the suretyship in his
presence.
[14]
In the context
of his regular dealings with the complainant and the numerous
documents being signed by each of them or witnessed
by him he claimed
to have had no independent recollection of the document’s
signing.
[15]
[31]
Once the Police Services’ forensic
report had come to hand and the respondent was requested to advise
whether it was his signature
on the deed. He confirmed almost three
weeks later that it “appeared” to be his signature.
[32]
Evidently
not satisfied that the respondent had given an adequate answer to the
complaint, the CLS formally charged him with “unprofessional
conduct” for contravening Rule 14.3.14,
[16]
claiming that he had brought the attorneys’ profession into
disrepute by signing a suretyship as a witness to a forged signature.
The forgery then having been established as a fact, the implication
again made clear from the way in which the charge had been
formulated
was that he either knew that the signatures on the deed were not the
complainant’s (and thereby attested to them
knowing of the
falsity) or that he had in any event attested the complainant’s
signing as a witness in his absence.
[33]
The respondent’s answer to the charge
was somewhat awkwardly articulated:
“
As
previously stated, Mr N [....] L [....] was married to my mother and
as a result we saw each other frequently. He attended to
various
rentals as my agent and documents were frequently signed after hours,
I have confirmed that it is my signature as the one
witness and the
only inference that can be drawn is that he signed it in my presence.
I have stated that I unfortunately cannot
recall signature of this
specific document as it was one of many documents signed by Mr
Labuschagne and is something that I vehemently
deny. As far as it is
relevant, Mr Labuschagne hade it his mission to launch a personal
attack on me as a result of the acrimonious
divorce. Their divorce
went on trial on 24, 25 and 26 November 2016 and the decision (which
is expected any day now) will no doubt
make Mr L [....]’s
motives, as well as his credibility as a witness, very clear.
The bond (and suretyship)
in question was cancelled almost a year ago and I sincerely hope this
matter can now be laid to rest.”
[34]
On 13 February 2017 the CLS's disciplinary
committee found that he had committed “unprofessional conduct”
and had brought
the attorney's profession into disrepute by signing
the suretyship as a witness to a forged signature. It qualified its
finding
that he had done so either “knowingly”, or in the
absence of the signatory.
[35]
The respondent was invited to address the
CLS on the sanction to be imposed. He was placed on terms to do so by
27 March 2017 because
he had not yet done. On 10 April 2017 the CLS
directed that he advance reasons why a resolution should not be taken
authorizing
it to launch an application for a court-based sanction.
[36]
This invoked a response the following day
(and an apology “due to (his) hectic program). He repeated that
he could not recall
the signing of the surety but assured the CLS
that he had had no inkling that the complainant’s purported
signatures had
been forged. He asserted that he certainly would not
have attested the complainant’s signature if he had been aware
that
his signatures had been falsified in the deed.
[37]
The
complainant and his mother were involved in an acrimonious divorce
and that the couple had “launched his complaint in
an effort to
advance his case in the divorce matters”.
[17]
[38]
As for the impact of the transaction itself
he reported that the need for the suretyship had fallen away since
the bond had been
fully settled, thus ameliorating any risk of harm
to the complainant. He requested that a fine be considered as an
appropriate
penalty for his accepted negligence.
[39]
Sadly he appeared to have missed the import
of the alternate premise of the disciplinary committee’s
finding, which is that
he had attested the complainant’s
signatures in the latter’s absence which was also an obvious
inference to be drawn
from the fact that the complainant’s
purported signatures were not in fact made by him.
[40]
On 15 January 2018 the CLS resolved to
bring a strike off application. This course ultimately followed after
finally inviting the
respondent’s final input and the applicant
seeking legal advice.
[41]
After the applicant had assumed control
over the regulation of the professional conduct of legal
practitioners under the ambit of
the new LPA, a further delay of
three years ensued before the legal advice was given effect to by the
launch of these proceedings
culminating in the present application in
which the CLS successor in title sought an order striking the
respondent from the roll
of legal practitioners. It prayed in the
alternative that the court impose a sanction that it deems
appropriate.
[42]
Despite
the austere relief sought in the main, the applicant did very little
by way of independent investigation to investigate
how it happened
that the complainant’s signature was falsified or how and why
the respondent and (ostensibly) Ms. Craddock’s
signature came
to be on the deed as if they had attested to the complainant’s
signing of it. It might have been entirely
innocent if, for example,
the complainant had given his authority in a separate document for
someone to have signed the suretyship
on his behalf. (The respondent
did not suggest this a possibility however, maintaining instead that
he had no independent recollection
of the document’s
signing.)
[18]
[43]
The applicant went no further than putting
up the forensic report referred to above in proof of the allegation
that the signatures
on the deed could not have been the complainant’s
to justify as the more significant premise (going to the remedy of
striking
off) that the respondent had
dishonestly
represented that he had attested to the false signatures. It asserted
in its founding affidavit that it was satisfied that the
affidavit of
Warrant Officer Ntlanyana “evidence(d) that (the complainant’s
signature) was forged” and reverted
to the original supposition
that “accordingly the respondent either knew of the forgery, or
did not sign as a witness in
the signatory’s presence”.
On either score, according to the applicant, he was guilty of
misconduct. The applicant
appeared to equivocate, however, between
the worst and the least of the offending conduct rather than guiding
this court as to
what aspect of the respondent’s conduct
exactly warranted the most serious censure of his name being struck
off the roll
of legal practitioners.
[44]
Justification for its decision in appealing
to this court to strike him off the roll of legal practitioners came
down to this:
“
The
attorneys’ profession places a high premium on the values of
honesty, integrity, reliability and accountability. Attorneys
can
only be described as fit and proper persons to practice the law when
they do more than pay mere lip service to these values,
but bind and
conduct themselves accordingly. The general public should have trust
and believe that attorneys are trustworthy and
of high moral
character.
From the outset the
respondent failed to give a satisfactory response and maintained that
he could not recall the signing of the
suretyship, despite admitting
that it was his signature and that he signed as a witness. One would
have expected, as an attorney,
that the respondent would be able to,
without hesitation, state that he would not have signed a document as
a witness without the
person whose signature he was witnessing being
present, particularly in circumstances in which the document is of
such significant
importance.”
[45]
In heads of argument filed by Ms. Watt
acting on the applicant’s behalf she suggested that the
respondent has committed fraud
by misrepresenting that he had
witnessed the complainant sign the suretyship in his presence whereas
(because the latter’s
signatures were established to be false)
this could never have been the case.
[46]
It is apposite to mention that in
Craddock
the court criticized the applicant for not having done the least it
could to have gotten to the heart of the matter once it had
accepted
that the complainant’s signatures could only have been affixed
on the deed through forgery, in establishing how
she allegedly abused
her position by attesting to the false signatures. (The same question
obviously begs itself concerning the
respondent’s position). It
expressed the view that the applicant could have sought to establish
where the deed of suretyship
emanated from and how it got to be
presented to her for witnessing. (The respondent however seems to
have conceded that his mother
brought the document to him to sign.)
The applicant apparently dismissed the source of the deed of
suretyship as irrelevant in
its replying affidavit in that matter.
The court was unimpressed with its stance:
“
[27]
… I fail to understand how it could be that the source of a
document with a forged signature would be irrelevant. One
would have
thought that the source of any forged document is part of the factual
matrix that would need to be disentangled in getting
to the bottom of
the forgery. To simply focus on the witness’ signature in
circumstances where forgery was clearly committed
is an over
simplification and an unfortunate lack of appetite to get to the
bottom of how the fraud or forgery was committed. An
investigation
might possibly have helped to unmask the role played by the witness
or witnesses thereto including the respondent
if she had anything to
do with it and their degree of participation. Most importantly, it
would have helped to establish whether
they were active participants
in that crime through directly facilitating it or perhaps unwittingly
facilitating it through for
instance signing as witnesses when they
did not witness the signing of that document.”
[47]
The
respondent himself featured large in the court’s speculation in
Craddock
of what might have happened:
[19]
“
[28]
The respondent (Ms Craddock) explains that the transactions which
were relevant to the deed of suretyship were the transfer
of erf
[....], North End which she handled. It also appears from the
relevant power of attorney to pass transfer that the transfer
was
from the ALC Property Trust and the trustee who signed for the trust
is Cor van Deventer, Mrs L [....]’s son. The conveyancer
who
was attending to the transfer was the respondent. The respondent has
explained that the simultaneous bond registration process
was
attended to by a conveyancer at Greyvensteins Incorporated.
[20]
That firm is where Cor and Liesl, his sister worked as attorneys or
co-directors both of whom, according to the respondent are
Mrs L
[....]’s children. It is not clear if Cor was the conveyancer
for that bond but his firm attended to the simultaneous
bond
registration. As bond registration conveyancers that firm would have
created and printed the bond documents which might have
included the
deed of suretyship on the instructions of Standard Bank.”
[48]
The
premise that Greyvensteins Inc attended the bond registration is
incorrect, but by the same token the applicant could and ought
to
have ascertained how the deed of surety came to be in the hands of
Ms. Craddock and the respondent as attesting witnesses respectively
when they “attested” to his purported signatures. (In
this instance the respondent appeared to concede but only in
his
answering affidavit filed in the present proceedings that his mother
probably brought the document to him for signature.)
[21]
[49]
The
court in
Craddock
also criticized the applicant for not carefully looking into the
conveyancing files of the relevant practitioners and drawing a
much
clearer picture of the circumstances in which that deed of suretyship
was signed and witnessed.
[22]
Evidently the input of the bond registering attorney was not obtained
to explain how a document ancillary to the bond registration
documents had left the offices of Bellingham Muller Attorneys who no
doubt and according to clause 16 of the surety which I highlighted
above required it as the bank’s agent to seek the necessary
confirmation of compliance from the principal surety and her
spouse,
the complainant. Conversely, if the respondent was going to be
stepping into a colleagues’ shoes and relieving that
firm of
their obligations to their client (Standard Bank) it would have been
a particularly good place for the applicant to begin
in their
investigations. It remains unknown, for example, how the deed left
their office, under what circumstances, who returned
it and what did
the return yield? Was the surety which the complainant availed to the
CLS the one prepared by the bond registering
attorney and more
significantly, was it the one finally presented to Standard Bank as
the final executed deed? Where and under
what circumstances the power
of attorney to register the bond was signed and who witnessed it?
Perhaps that document too accompanied
the surety when the respondent
attested to the signature on it. There must have been a good reason
why Bellingham Muller released
the documentation to the respondent’s
mother.
[50]
It is also not clear to me that he took the
steps that a professional person in his opinion would have when
confronted with the
complaint. To the contrary as I said above he
seemed to miss the significance of his professional misconduct.
[51]
The first and foremost step he should have
taken would have been to get to the bottom of how his office could
have been abused in
all the circumstances. He did not take the
complaint at face value, dismissing it instead as a nuisance. Even
when he was advised
of the outcome of the police investigation this
did not inspire him to conduct any form of introspection.
[52]
Another importance question which begs
itself is, as was highlighted by the court in
Craddock
,
is what investigations the bank itself undertook, if any, to
investigate the significant breach of their security and the
integrity
of their documentation. Is the bank even aware of the
complaint?
[53]
It is apposite to mention the respondent’s
reply in these proceedings to the allegations of unprofessional
conduct:
“
I
deny that I failed to give a satisfactory response. I responded to
the allegations honestly and factually as best I could. I
categorically state that I was not aware that the signature was
allegedly forged, however cannot remember that I witnessed the
signature in the absence of the Complainant. I can categorically
state that I had no knowledge that the suretyship contained a forged
signature (if indeed the signature is forged).
[23]
Having regard to the close relationship with my mother (and
previously the complainant as well), there was no reason for me to
doubt that documents brought to me for witnessing by my mother were
anything but genuine signatures. I submit that such an infraction
does not deserve a striking from the roll, particularly if one has
regard to the relationship that existed. I accordingly dispute
that a
striking off is appropriate.”
[54]
Whatever the applicant and the CLS before
it had considered was the high water mark of the “offending
conduct”, Ms.
Watt fairly conceded that the worst offence by
the respondent’s conduct that could be established from the
evidence on a
balance of probabilities was that he has attested to
the complainant’s signature purported in clear circumstances
where he
was absent. He had to be if once he accepts that the
purported signature was not his own. She conceded that there was no
reason
to believe that he would have signed as a witness to the
suretyship knowing that the complainant’s signature was a
forgery.
[55]
Whilst I accept that the evidence does not
establish dishonesty on his part the CLS finding of unprofessional
conduct is certainly
justified on the papers. Indeed the respondent
has made peace with this although it was contended on his behalf by
Mr. Manca who
appeared for him that such misconduct is not serious
enough to warrant the extreme penalty of striking off or even the
sanction
of a suspended sentence with conditions which the applicant
raises for consideration by this court. Quite contrary to the view of
the applicant that his unwitting attestation of a false signature on
the deed remains a serious infraction with its own and negative
features, the respondent contents that a reprimand is an appropriate
sanction. …….
“
The
conduct complained of, that the Respondent signed as a witness in the
absence of the signatory, has then been established on
a balance of
probabilities. As stated in the minority judgment in the Craddock
matter regarding such conduct “it is reflective
of a legal
practitioner willing to bend the rules and operate unethically in
certain circumstances, based on the identity of the
parties to
transactions before her and courtesy of her own personal relationship
with the role-players. This is unacceptable and
worthy of censure.”
[56]
I
disagree. A valid deed of suretyship is one that must be embodied in
a written document signed by or on behalf of the surety.
[24]
A consent by a spouse also carries with it the unique requirement
that it be attested by two competent witnesses.
[25]
[57]
Both ought to be signed in the signatory’s
presence because the very act of attesting to the signature is to
provide evidentiary
support in case there is a dispute about who
signs and more significantly, to protect against forgery.
[58]
A person who purports to serve as a witness
to a legal document verifies that the signature on the document
belongs to that signatory.
By attesting thereto such a person
recognizes that he may be called upon later to testify in court that
the person who signed his
name on the legal document did so in
his/her presence.
[59]
It may well be excusable in unique
circumstances but not desirable for a person who recognizes the
signature of the signatory to
verify it after the fact and in the
absence of seeing this party signing if he is familiar with that
person’s signature.
If the surety has given someone the
authority to sign in his place a witness will no doubt want to see
and examine that authority
and thereupon would vouch for the
signature of the proxy instead.
[60]
Ideally a witness to any agreement and here
I speak of an ordinary citizen should also not have any personal
interest in the document
he signs in this capacity because a conflict
may arise if he has to testify about it later on.
[61]
It
is more compelling when a notary public and conveyancer, on whose
signature a high value and import is placed, signs as a witness
to a
legal document. In this instance the fact of the related sale
transaction and relationship with the parties expected to sign
should
have been a red flag to a qualified legal practitioner to not get
involved.
[26]
[62]
A notary public and trained conveyancer
would also have been acutely aware of the hazards and opportunity of
fraud if the basic
pre-requisite was dispensed with for convenience
in any situation.
[63]
Indeed observed as was by the minority
court in
Craddock
:
“
most
probable inference on the evidence is that the respondent devised and
implemented a scheme in terms of which his firm rewarded
the estate
agencies for the referral of conveyancing work. Taken as a whole, the
evidence establishes on a clear balance of probabilities
that the
respondent
in fact
secured conveyancing work that was solicited by the agencies as a
result of their marketing agreements and the understanding with
regard to payment. This clearly constitutes the “soliciting”
of professional work within the meaning of Rule 14.6.1.1.
The
respondent accordingly breached the said Rule and is guilty of
unprofessional conduct in respect of both the charges leveled
against
him.”
[64]
A qualified conveyancer would know better
than to perfunctorily attest to signatures on a document prepared by
a colleague which
are of specific import requiring explanation (such
as in envisaged by clause 16 of the deed).
[65]
A legal practitioner, especially one who is
not attending to the registration of a notarial bond but finds
himself attesting signatures
to a deed of suretyship related to a
power of attorney to pass transfer that a notarial bond also involves
the interests of a spouse
of a joint estate would in my view owe a
duty coincidentally to be vigilant in explaining the significance of
the surety commitment
and what the parties would be binding
themselves to. Such a practitioner would therefore insist on the
parties being present before
him/her unless the absent party has
vouched for his authentic signature on some other basis or authorized
another to sign the deed
of suretyship on his behalf.
[66]
There can hardly be any quibble that a
party attesting a formal suretyship such as the present one makes a
statement to the world
that the signatories have signed the deed in
his presence as a primary supposition. That is the whole purpose of
attesting a formal
signature and certainly one of a notary public’s
primary responsibilities. In this instance the fact that the
signatures
in the complainant’s case were found to have been
forged (it matters not for present purposes by whom) exposed the
fiction
that he had in this case properly attested to the
complainant’s signature wherein, lies the embarrassment to the
legal profession.
The very professional who is expected to protect
against the forgery of legal documents has unwittingly himself
facilitated it.
[67]
The respondent appears to have missed the
significance of this, accusing the complainant of a vendetta, but the
forgery was evidently
as real as his verification of the false
signatures. It is a worrying concern, as was emphasized in
Craddock
,
that it remains a mystery how it happened that the signatures were
forged but the most embarrassing consequence of it all is that
the
respondent’s purported attestation of the deed was exposed as a
lie. Instead of trying to explain that anomaly (or to
investigate it
as a prudent legal practitioner would to understand how his signature
had come to be abused) the respondent was
more focused on accusing
the complainant of a spiteful motive. Whilst there may be merit in
the respondent’s suggestion that
the complaint was
strategically timed and possibly used to advance the complainant’s
case in the divorce action, the respondent
certainly owed an it to
Standard Bank and to the applicant to investigate how the wool could
have been pooled over his eyes. There
may well be an innocent
explanation for it but I believe that the applicant was justified in
complaining of a lack of an adequate
answer to the enormity of the
accusation once it was established that the complainant’s
signatures on the deed were a falsity.
Whilst there may ultimately
have been no harm to the bank, or the complainant, it is in my view
incorrect to answer that the complaint
was “academic”.
More was required of the respondent to offend the profession rather
than his own narrow interests.
It is unfortunate that he believes
that his infraction does not deserve a striking off because of his
relationship wit his mother
and prior close working relationship with
the complainant, whereas it is exactly because of these relationships
that he should
not have brough forth his professional stamp and
compromised his office by casually and perfunctorily attesting
signatures in a
legal document that he should have steered well clear
of.
[68]
Even through the surety had run its course
by then, it was the known fact that the respondent had unwittingly
(negligently as he
professed) verified a fake signature that should
have prompted him to act. Righteous indignation should have been a
more appropriate
reaction. Once the forgery was established than
jumping on the blame wagon and blindly insinuating that the
complainant was acting
out of spite.
[69]
When weighed against the expected conduct
of an attorney, notary public and conveyancer, in all the
circumstances the respondent’s
conduct, far from
inconsequential as Mr. Manca suggested, comes up severely wanting and
demonstrates in my view that he is not
a fit and proper person to be
an attorney.
[70]
That is however not the end of the matter.
The applicant conceded that his professional misconduct does not
warrant that he be struck
from the roll. Indeed if a fear existed
that he should not be unleased on an unsuspecting public the
applicant would have brough
an application to interdict him from
practicing pending the outcome of the present application and would
certainly have acted with
more alacrity to seek the court’s
intervention to deal with the respondent’s misconduct which it
seems to have hoped
to establish on a more severe scale of blatantly
dishonest conduct.
[71]
It
is not necessary for this court to find that the respondent’s
unprofessional conduct renders him unfit to practice in order
to
impose the sanction of suspension from practice.
[27]
[72]
A
suspension on the basis suggested by the A Division with conditions
aimed at the respondent’s reform is more appropriate.
Whilst
his misconduct is certainly serious enough to warrant a more severe
penalty than a reprimand, the drastic steps striking
off would not be
justified. Such a sanction (as opposed to a striking off) would be
consistent with what the minority court found
in Craddock on the
assumption that the evidence established on a balance of
probabilities in its view that Ms. Craddock had lent
her signature to
the deed to vouch for what was in fact a fake signature.
[28]
[73]
The court was in that instance motivated by
its view that Ms. Craddock was not quite forthcoming in admitting her
role played in
the unfortunate saga.
[74]
It is not correct as Mr. Manca suggests
that the respondent has demonstrated an ability to reform and has
done so in the part eight
years since the offending conduct was
committed. To the contrary, he has never acknowledged any misconduct
although a careful appraisal
of the expectation of a legal
practitioner in his revealed to him that it was not about blame but
vindicating the honour of the
profession.
[75]
I am surprised that he could not have
bothered to find out how it came to be that he was unwittingly
misled.
[76]
The applicant is tasked with maintaining
appropriate standards of professional practice and ethical conduct of
all legal practitioners,
and with promoting and protecting the public
interest thereby. It would be remiss of it if it did not act to
vindicate the complaint
against the respondent and or by letting his
conduct slide as a trivial negligent slip. It therefore cannot be
faulted for having
sought the intervention of this court even if it
delayed substantially in bringing the application. Therefore although
the respondent
tendered party and party costs the applicant was duty
bound in my view to carry out its statutory obligation to bring these
proceedings
and should be properly indemnified in respect of the
costs which it has incurred.
[77]
I issue the following order:
1.
The respondent’s admitted conduct in
attesting the complainant’s signature as co-surety and
consenting spouse on the
impugned deed of suretyship in his absence
constitutes misconduct within the meaning envisaged in the
Legal
Practice Act, No. 28 of 2014
.
2.
The said misconduct warrants a sanction of
suspension from practice for a period of one year, provided that the
sanction hereby
imposed is suspended for a period of two years on
condition that the respondent is not found guilty of misconduct
committed during
the period of suspension.
3.
The respondent is liable for the costs of
these proceeding on the scale of attorney and client.
B HARTLE
JUDGE OF THE HIGH
COURT
I AGREE,
N GQAMANA
JUDGE OF THE HIGH
COURT
DATE OF HEARING:
3 November 2022
DATE OF JUDGMENT:
29 November 2022
APPEARANCES
:
For the applicant: Ms.
K Watt instructed by Wheeldon Rushmere & Cole Inc. Makhanda (ref.
Mr. Brody)
For the respondent:
Mr. B J Manca SC & Mrs. T Zietsman instructed by Anneke Whelan
Attorneys c/o Whitesides Attorneys, Makhanda
(ref. Mr. Nunn).
[1]
Before
the coming into operation of Chapter 4 of the Legal Practice Act,
No. 28 of 2014 (“the LPA”) on 1 November
2018, offending
conduct was categorized as “unprofessional”, “dishonest”
or “unworthy”.
The new act adopts the all
encompassing concept of “misconduct”. Section 36
of the LPA provides that the Code
of Conduct, defined in section 1
as meaning “
a
written code setting out rules and standards relating to ethics,
conduct and practice for legal practitioners and its enforcement
through the Council and its structures …
”
serves
as the prevailing standard of conduct which legal practitioners must
adhere to, and failure to do so constitutes misconduct.
[2]
Section 40 (3) (a) of the LPA.
[3]
The
applicant can cancel or suspend the enrolment of a legal
practitioner if he/she has “erroneously been enrolled”
or has been enrolled on information that is subsequently proved to
be false (Section 31 (1)(b)). In any other case it can
only
cancel or suspend enrolment if a high court orders that a
practitioner’s name be struck off the roll or that that
person
be suspended from practice (Section 31 (1)(a)). Such an order
will be preceded by a recommendation by the relevant
disciplinary
committee that the Council apply to the High Court for a striking
out, or an order suspending him/her from practice,
or “any
other appropriate relief” (Section 40 (3)(iv)) and obviously
an application to justify that relief sought.
[4]
Botha
v Law Society, Northern
Provinces
2000 (3) SA 44
(SCA) at para [10];
Malan
and Another v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) at para
[4]
.
[5]
Law
Society of the Cape of Good Hope v C
1986 (1) 616 (AD) at 639 D.
[6]
Section
116(1) of the LPA provides for pending proceedings under the old
Attorney’s Act, No. 53 of 1979, to be referred
to the
applicant to treat any unconcluded proceedings into alleged
unprofessional or dishonest or unworthy conduct of a legal
practitioner under the old act in the manner it presently deems
appropriate.
[7]
The
associate, or a director as may be the more correct designation of
him, is also a Mr. Labuschagne, although unrelated to the
complainant. In the complainant’s complaint submission
form only the respondent and Mr. Labuschagne are mentioned
(Greyvensteins Inc being indicated in the form as the “name of
attorney against whom the complaint is lodged”) but
it is
apparent from a judgment of this court in
Legal
Practice Council v Craddock
(1967/2020) [2002] ZAECMKHC 48 (10 August 2022) (“
Craddock
”)
that a third attorney was asked to account by the applicant for her
role played in the same saga. The applicant does
not disclose in its
founding affidavit what the fate was of the other two practitioners
but relied on the
Craddock
judgment in its oral submissions before this court to distinguish
the respondent’s situation from Ms. Craddock’s
and to
indicate the court’s sentiments regarding her misconduct which
the applicant was unable to prove it on a balance
of probabilities.
In my view it would have made sense to investigate the matter as a
single complaint against several practitioners
and to have brought
one application for the court to enquire into the alleged misconduct
(although uniquely personal to each)
and to decide the fate of each
professional one in relation to the other and against the measure of
the misconduct. As
it turned out, the splitting of the two
matters (I will leave Mr. Labuschagne out of the equation) seems to
have invoked speculation
about the respondent’s probable
culpability in the Craddock proceedings to strike her from the roll
based
inter
alia
on the incorrect premise that Greyvensteins Inc. attended to the
bond registration. The logic following that mistaken premise
is that the respondent would have drafted the suretyship under
scrutiny and would have overseen its execution by his mother and
the
complainant, in effect being in a position to manipulate the
situation for his own personal interests.
[8]
(GN
2 of 26 February 2016 : Rules of the Attorneys’ Profession
(Government Gazette No. 39740) which came into operation
on 1 March
2016
[9]
The
court remarked upon these features in a judgment given in the
complainant’s divorce action that has certain relevance
to
these proceedings.
[10]
Ostensibly
no input was obtained from Standard Bank’s attorneys regarding
their involvement in the matter. They would
likely have been
responsible for drafting the suretyship as an adjunct to their
formal conveyancing documents.
[11]
The
criminal docket reference number suggests that that complaint too
must have been lodged in March 2016.
[12]
The respondent in an explanatory letter to the CLS had suggested
that the complainant had used the facility of the complaint
to
advance his case in the divorce trial. As it turned out his
insinuation that his wife had forged his signature came
to naught.
[13]
Evidently the CLS held the view that the complainant disclosed a
prima
facie
case of dishonest conduct. It invited an explanation from the
respondent (under “Part VII Disciplinary Proceedings”
of
the Rules for the Attorneys’ Profession. It was not
satisfied that an adequate answer to the complaint had been
given
and thereupon formulated a charge of unprofessional conduct for
contravening Rule 14.3.14 and required the respondent to
furnish it
with his answer to the charge.
[14]
Of
concern is that he and Ms. Craddock must have decided to employ a
common strategy in answer to the complaint. This is
evident
from the fact that in both their initial responses, the same
typographical error occurs in their almost identical statements
that:
“
I
regret that I cannot
confer
(sic) or deny whether Mr Labuschagne had or had not signed in my
presence as I have no recollection of the said signature at
that
time”.
See
in this regard the court’s summary in Craddock at paragraph
[6]. Ms. Craddock coincidentally also suggested a
“personal
vendetta”, but by the complaint against his wife to aggravate
his claims in the divorce action.
[15]
It
is relevant to mention that he suggests to the CLA that he had
requested the suretyship from the Securities Department from
the
Bank, but never revealed later on whether he subsequently received
it or what his investigations in this regard indicated.
He
ought to have been curious enough to get to the bottom of the
complaint given that he had in fact signed as a witness to the
surety.
[16]
The Conduct Rules of the Cape Law Society refer……
[17]
Judgment
in the divorce action was an attachment to this letter, put up by
the respondent to bring home the supported malice and
all motives of
the complainant, leave aside the court’s negative comments
made in the judgment against the complainant’s
credibility.
[18]
Since
he had advised the CLS that he had asked for the deed from the bank
one would have expected some form of introspection by
him as a
reasonable professional who had allegedly duped or even more so once
the forensic report confirmed the complainant’s
grievance that
the signature on the consent form was indeed false.
[19]
See footnote 4 above. Speculation could have been avoided if
the applicant had investigated the matter as a combined complaint
and invited the factual enquiry envisaged in paragraph 2 above in
one single application to this court.
[20]
It
was accepted in the present proceedings that this is an incorrect
premise.
[21]
That
would have significantly lifted the lid off the mystery and laid
bare the obvious, which is that the respondent’s mother
could
have filled in the missing gaps to so many questions. I saw no
indication that the applicant had interviewed the
latter.
However, by the same token, the respondent ought to have conducted
his own investigation into the obvious abuse
of his professional
agency impliedly by his own mother.
[22]
Paras 29 – 31 of the
Craddock
judgment.
[23]
I should point out that the respondent begrudgingly accepted the
“proof” of the forgery as set out in the forensic
report
in the absence of a confirmatory affidavit by Warrant Officer
Ntlanyana and the lack of any opportunity to have countered
her
opinion. He also remarked upon the absence of any enquiry or
opportunity under the auspices of the CLS’ disciplinary
processes to have had an opportunity to have disputed the evidence
of a fraudulent signature or to cross examine witnesses though
the
CLS was not obliged at the time to hold a hearing. In a
further affidavit filed in February 2022 this year he however
confirmed having had the benefit of inspecting the police docket and
that he did not wish to supplement his answering affidavit
in this
respect.
[24]
Formalities
in respect of contracts of suretyship. – No contracts of
suretyship entered into after the commencement of this
Act, shall be
valid, unless the terms thereof are embodied in a written document
signed by or on behalf of the surety: Provided
that nothing in this
section contained shall effect the liability of the signer of an
aval under the laws relating to negotiable
instruments.
[25]
Section
15 (5) of the MPA.
[26]
Section
95
(1) of the
Deeds Registries Act No. 47 of 1937
provides for the
signing of any power of attorney executed under the act. It
must be attested by two competent witnesses
who will not qualify if
he is to derive any benefit. This should have been the
respondent’s guide concerning the
attestation of the related
surety.
[27]
case
reference.
[28]
Paragraphs
[70] and [71] of the judgment.