Swartzberg v Law Society of the Northern Privinces (83/07) [2008] ZASCA 36; [2008] 3 All SA 438 (SCA); 2008 (5) SA 322 (SCA); (28 March 2008)

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Swartzberg v Law Society of the Northern Privinces (83/07) [2008] ZASCA 36; [2008] 3 All SA 438 (SCA); 2008 (5) SA 322 (SCA); (28 March 2008)

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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case Number :
83 / 07
In the matter between
ISAAC SWARTZBERG ... APPELLANT
and
THE LAW SOCIETY OF THE NORTHERN
PROVINCES ... RESPONDENT
Coram
:
MPATI DP, MTHIYANE, NUGENT, CLOETE et PONNAN JJA
Date of hearing
:
21 FEBRUARY 2008
Date of delivery
: 28 MARCH 2008
SUMMARY
Attorney –
re-admission of – s 15 (3)(a) of Attorneys Act 53 of 1979.
NEUTRAL CITATION
This judgment may be
referred to as:
Swartzberg
v
Law
Society, Northern Provinces
(83/2007)
[2008] ZASCA 36
(March 2008)
________________________________________________________________
J U D G M E N T
________________________________________________________________
PONNAN JA:
[1] In his book
Confessions
of an Uncommon Attorney
,
Reginald L Hine observes somewhat wryly:
‘
The
law, precisely because it is not an exact science, is a most exacting
profession, and you will find its practitioners driven to
do other
things - preferably illegal - to preserve their health of mind.
’
One instinctively recoils, I am sure,
at the breadth and harshness of that indictment and yet, albeit
infrequently, one encounters
conduct, as here, that is wholly
incongruous with the calling of an honourable profession – conduct
that may well serve to support
that charge.
[2] The appellant, Mr Isaac
Swartzberg, applied to the Pretoria High Court for his readmission
and enrolment as an attorney. The application
was opposed by the
respondent, the Law Society of the Northern Provinces (‘the Law
Society’). Bosielo J (Pretorius J concurring)
dismissed the
application with costs, but granted leave to the appellant to appeal
to this Court. The appellant, who is presently
77 years old, was
originally admitted as an attorney on 18 October 1955 and practised
as such in Pretoria for some 44 years. On 13
August 1999 and on the
application of the Law Society, the appellant’s name was struck
from the roll of attorneys by Mynardt J.
[3] In brief, the gist of the
complaints against the appellant were that he had failed to keep
proper books of account both in general
and as to trust monies over a
protracted period resulting in deficiencies in his trust account of
approximately R249 000. Moreover,
he had devised a stratagem to
conceal those shortages which remained undetected from at least 1996
until August 1998. He thus successfully
hoodwinked his auditor into
certifying that his books of accounts were being properly maintained
and on the strength of that secured
a fidelity certificate from the
Law Society.
[4] For a fuller appreciation of the
appellant’s wrongdoing, however, it is nonetheless necessary to
refer in greater detail to
the allegations levelled by the Law
Society against him in its application for his striking-off. First,
the appellant had been instructed
to prosecute a third party claim on
behalf of a certain Mr Uys. The claim was settled during 1994 and
after payment of disbursements
and deductions for fees a balance fell
due for payment to his widow, Mr Uys since having died. By the time
that payment was ultimately
effected by means of a trust cheque to Ms
Uys there were no longer any funds standing to her credit in the
appellant’s trust account.
It followed therefore that the appellant
had utilised trust monies standing to the credit of one of his other
clients to effect the
payment in question to Ms Uys.
[5] Second, one of the appellant’s
clients, a Mr Jacobs, alleged that he had been overcharged by the
appellant, who had allegedly
also not properly accounted to him. A
disciplinary enquiry was held by the Law Society, before which the
appellant declined to testify.
The disciplinary committee concluded
that the appellant had accepted money from a client for professional
work for which he did not
properly account and in the light of the
fact that he had charged a seemingly exorbitant fee, he was guilty of
overreaching.
[6] Third, one of the appellant’s
clients, Ms van der Linde, had lent and advanced the sum of R100 000
to the appellant. The appellant
failed to effect repayment in
accordance with his loan agreement with Ms van der Linde. Ultimately
summons had to be issued on her
behalf by new attorneys who had been
instructed by her to recover the moneys. Before doing so however, her
new attorneys encountered
considerable difficulty in persuading the
appellant to release her file to them.
[7] Fourth, Mr Bambise was employed
for a period in excess of 20 years as a messenger by the appellant.
During 1995 Mr Bambise’s
wife died and he was appointed the
executor of her deceased estate. He turned to the appellant for
assistance. On 31 January 1996
an amount of R198 356.35 was paid into
the appellant’s trust account in favour of that estate. It was
withdrawn that very day by
the appellant and a fee for the full
amount was debited to that account. Mr Bambise was forced to consult
another firm of attorneys
to recover those moneys. The appellant
eventually acknowledged his indebtedness to Mr Bambise by signing an
acknowledgment of debt
in his favour. He did not however comply with
his obligations under the acknowledgement and in due course summons
had to be issued
against him. Although the appellant denied all of
the essential allegations in his plea and sought to delay
finalisation of the matter
by seeking a postponement, ostensibly on
the basis that the matter was the subject of a disciplinary enquiry,
he eventually settled
the matter on the day of the trial.
Notwithstanding the written settlement agreement and a consent to
judgment, subsequent payment
of the agreed instalments in reduction
of his indebtedness to Mr Bambise was neither timeous nor in full. As
at 13 August 1999 the
total repaid by the appellant to Mr Bambise was
a paltry R21 000. It thus fell to the fidelity fund of the Law
Society to thereafter
make good the shortfall.
[8] Although the appellant initially
sought to oppose the application for his striking-off, he did not
persist with his opposition.
Nor did he file an answering affidavit
in response to the allegations levelled against him by the Law
Society.
[9] Flowing from those allegations the
appellant was arraigned in the Pretoria Regional Court during 2000 on
a charge of theft of
R220 000 from his trust account. He was
convicted on his plea of guilty and sentenced to a fine of R100 000
or three years’ imprisonment.
He elected to pay the fine. A further
term of two years’ imprisonment was conditionally suspended for a
period of four years. One
such condition was that he repay the amount
of R220 000 to the Fidelity Fund of the Law Society within seven days
of sentence. That
condition, he duly complied with.
[10] During August 2002 the appellant
brought an application – which was subsequently withdrawn – for
his readmission. Of that
application the appellant states in his
present founding affidavit:
‘
Prior
to the launching of the application I appeared before a committee of
the Law Society in an attempt to persuade the Law Society
that I
qualified for readmission. Despite the fact that the Law Society was
not so satisfied I brought the application. However,
in due course I
was advised by those representing me that the application would
probably not succeed, and I proceeded to withdraw
the application.’
[11] Eighteen months later, as the
appellant puts it, he renewed the application for his readmission as
an attorney. That application
was dismissed with costs on the
attorney-and-client scale by Daniels J (Makhafola AJ concurring) on
29 November 2004. In dismissing
the application, Daniels J stated:
‘
[w]hen
one reads the applicant’s version of events it is difficult to
understand why and on what basis he was ever charged. His
explanation
is exculpatory and he displays … a disregard of the facts. The
applicant clearly does not understand the gravity of
his errant ways.
If he does not understand he cannot be heard to say he has remorse.’
[12] On 19 December 2005 the appellant
deposed to his founding affidavit in support of the application which
is the subject of this
appeal. He there states:
‘
I
have studied all the papers in the two aforesaid applications, as
well as the judgment of His Lordship Mr Justice Daniels. I am
ashamed
by the realisation that I never actually came to terms with the fact
that my acts of dishonesty demonstrated a material defect
of
character. On re-reading my own papers, it became clear to me that I
continued to consider myself as an honest man who had succumbed
to an
isolated act of dishonesty, as to which I offered various excuses.’
[13] On 6 February 2006, the appellant
appeared before the council of the Law Society. He thereafter filed a
supplementary affidavit.
The purpose, so he contends, was two-fold:
first, he had been informed by the council of the Law Society that he
‘... had not made
sufficient disclosure of the reasons for his
demise as an attorney ...’; and, second, he had been requested to
deal ‘... specifically
with those persons who had been reimbursed
by the attorneys’ fidelity fund’. In his supplementary affidavit,
the appellant describes
his conduct thus:
‘
To
hide what I was doing I used a mechanism of reversing fees’ debits
from time to time to balance the books. This is subterfuge
because
the reversal of debits was not accompanied with any payment. In this
way the actual trust deficit continued to grow.’
He further states:
‘
I
recognise that my conduct was reprehensible and unbecoming and I have
overcome the trait of dishonesty displayed by me completely.’
[14] Where a person who has previously
been struck off the roll of attorneys on the ground that he was not a
fit and proper person
to continue to practise as an attorney applies
for his readmission,
‘
[t]he
onus
is
on him to convince the Court on a balance of probabilities that there
has been a genuine, complete and permanent reformation on
his part;
that the defect of character or attitude which led to his being
adjudged not fit and proper no longer exists; and that,
if he is
re-admitted he will in future conduct himself as an honourable member
of the profession and will be someone who can be trusted
to carry out
the duties of an attorney in a satisfactory way as far as members of
the public are concerned.’
(Per Corbett JA in
Law
Society, Transvaal v Behrman
1981
(4) SA 538
(A) at 557B-C.)
[15] In considering whether the
onus
has been discharged the court must:
‘
...have
regard to the nature and degree of the conduct which occasioned
applicant’s removal from the roll, to the explanation, if
any,
afforded by him for such conduct which might,
inter
alia
,
mitigate or perhaps even aggravate the heinousness of his offence, to
his actions in regard to an enquiry into his conduct and proceedings
consequent thereon to secure his removal, to the lapse of time
between his removal and his application for reinstatement, to his
activities subsequent to removal, to the expression of contrition by
him and its genuineness, and to his efforts at repairing the
harm
which his conduct may have occasioned to others.’
(
Kudo
v The Cape Law Society
1972
(4) SA 342
(C) at 345H-346, as quoted with approval in
Behrman
at 557E.)
[16] Section 15(3) of the Attorney’s
Act 53 of 1979, which makes express provision for the readmission and
the re-enrolment of a
person as an attorney, provides:
‘
A
court may, on application made in accordance with this Act, readmit
and re-enrol any person who was previously admitted and enrolled
as
an attorney and has been removed from or struck off the roll, as an
attorney, if -
(
a
)
such person, in the discretion of the court, is a fit and proper
person to be so readmitted and re-enrolled; . . .’
Section 15(3)(
b
)
is not relevant for present purposes.
[17] Section 15, according to
Ackermann J, unquestionably confers
‘…
a
discretion on the Court in deciding whether an applicant, whether for
admission or re-admission as an attorney, is a “fit and
proper
person”. Section 15(1), dealing with an admission, expressly
provides that the Court has a discretion to decide whether
the person
applying “is a fit and proper person to be so re-admitted and
re-enrolled”. Section 15(3) deals specifically with
re-admissions.
A discretion in deciding whether an applicant is a ”fit and proper
person to be so re-admitted and re-enrolled”
is now expressly
conferred on the Court. It is also significant that, whereas s 15(1)
provides that a Court “shall” admit and
enrol a person as an
attorney if the preconditions of ss (
a
)
and (
b
)
are
fulfilled, ss (3) provides that a Court “may” “re-admit and
re-enrol any person who was previously admitted and enrolled
as an
attorney and has been removed from or struck off the roll, as an
attorney” if the preconditions of ss (
a
)
and (
b
)
are fulfilled. The fact that the word “may” is used in s 15(3),
whereas “shall” is used in ss (1) is, …significant. It
shows …
that the Legislature wanted to differentiate between the Court’s
functions under ss 15(1) and 15(3), and wished to confer
a further
discretion on the Court in regard to re-admissions under s 15(3). It
seems that, even where the Court is satisfied that
s 15(3)(
b
)
has been complied with and that the person applying is, in terms of s
15(3)(
a
),
“in the discretion of the Court” a “fit and proper person”
the Court still has a residual discretion to refuse re-admission.’
(
Ex
parte Aarons (Law Society Transvaal, Intervening)
1985
(3) SA 286
(T) at 290C-G.)
[18] A factor of importance in any
such application is the attitude adopted by the Law Society
concerned. Any person who applies for
readmission and enrolment as an
attorney is required in terms of s 16 of the Act to satisfy the Law
Society of the province where
he or she applies that he or she is a
fit and proper person to be readmitted and enrolled. Although it is
not a condition precedent
to readmitting a person to practice that
the Law Society should first be satisfied as to his or her fitness,
considerable weight
must be given to the attitude adopted by the Law
Society (
Behrman
at 557H).
[19] It was contended on behalf of the
Law Society that the appellant did not make a sufficiently full
disclosure of the details of
the various activities engaged in by him
since his striking-off. The appellant does state that he is ‘unable
to present a work
record in proof of his complete rehabilitation’.
The Law Society had granted the appellant permission to obtain
employment with
the firm Van der Walt and Hugo. His employment with
that firm, as is to be expected, was subject to conditions imposed by
the Law
Society. For reasons that remain unexplained, however, he did
not take up that employment. On this aspect the appellant states:
‘
In
the past four years I have been approached on numerous occasions to
assist people in legal matters. After consultations and the
preparation of their brief, matters which require legal action are
referred to the firm of attorneys Bloch, Gross and Partners. I
then
become a client of the firm. The firm debits me with its
disbursements and fees, which I recover from the consultant, and I
also receive a small remuneration from the consultant. In each case I
specifically inform the consultant that I am not a practising
attorney, as I have been struck from the roll of attorneys. In each
case I explain the procedure to the consultant, and I obtain
the
consultant’s consent to Bloch, Gross and Partners being briefed in
the matter. In each case Bloch, Gross and Partners opens
a file in my
name with reference to the particular consultant.’
[20] Of the appellant’s arrangement
with Bloch, Gross and Partners Inc, Mr Ernst William Serfontein, a
senior director of that firm,
states:
‘
After
the applicant was struck off the roll of practising attorneys he
approached me and requested me if I would accept referrals
from him
of clients who are in need of legal assistance. I accepted his
proposal and since then several clients have been referred
to me by
him. The clients paid our firm directly and Mr Swarztberg had no
involvement in the financial aspects relating to these
clients. In
many instances, however, he would assist us in the matter and we made
use of his expertise without remuneration to him.
In many matters he would
brief Counsel and drew up documents and once we had drawn our bill he
would see to it that our legal fees
and disbursements were promptly
settled by the client upon presentation of the bill.’
[21] That there are material
discrepancies in the two versions is patent. Moreover, that
arrangement in either guise had not been
disclosed in the earlier
application that came before Daniels J during 2005. That much is
clear when one has regard to the following
excerpt of the judgment of
Daniels J:
‘
As
to the applicant’s activities subsequent to his striking off very
little if anything that he did was related to the practise
of the
law. He was employed as a legal advisor, (according to the applicant
at “a totally inadequate salary”), by Sure Benefit.
For how long
we do not know. We were not informed what his employment involved. He
obviously did not have access to or control over
finances of the
organization.
Upon perusing the present
application one finds a single reference to attorney’s work. I
prefer to quote fully:
“
2.1(2)
With the permission of the director of the Law Society of the
Northern Provinces I have briefed attorneys and shepherded my
clients’ interests when I was given permission by the Society to
work for Van der Walt & Hugo. I was admonished not to let
or
allow any person to get the impression that I was an admitted lawyer.
I was not to accompany clients to court nor consult at the
chambers
of counsel.”
The impression is created
that this occurred whilst he was employed by Van der Walt & Hugo
with the consent of the society. It
is, however, common cause that
the applicant did not take up employment with the firm mentioned, or
any other firm.’
There is thus much to be said for the
argument not only that the founding affidavit is misleading in its
brevity but also that the
appellant failed to make full and frank
disclosure of the true position either in the current application or
in the previous one
that came before Daniels J. This from an
applicant who ought to have been fully aware of the need to disclose
all the facts.
[22] The fundamental question to be
answered in an application of this kind is whether there has been a
genuine, complete and permanent
reformation on the appellant’s
part. This involves an enquiry as to whether the defect of character
or attitude which led to him
being adjudged not fit and proper no
longer exists. (
Aarons
at
294H.
)
Allied to that is an assessment of the
appellant’s character reformation and the chances of his successful
conformation in the future
to the exacting demands of the profession
that he seeks to re-enter. It is thus crucial for a court confronted
with an application
of this kind to determine what the particular
defect of character or attitude was. More importantly, it is for the
appellant himself
to first properly and correctly identify the defect
of character or attitude involved and thereafter to act in accordance
with that
appreciation. For, until and unless there is such a
cognitive appreciation on the part of the appellant, it is difficult
to see how
the defect can be cured or corrected. It seems to me that
any true and lasting reformation of necessity depends upon such
appreciation.
[23] Amongst the matters to which a
court must have regard are the nature and gravity of the conduct
which occasioned the appellant’s
removal from the roll and the
explanation given by him for such conduct (
Behrman
at 558G). The moral
reprehensibility involved in the appellant’s conduct is
self-evident. The nature of the appellant’s conduct
involves very
serious dishonesty and deception. He did not succumb to a sudden
temptation and his fall from grace was not in consequence
of an
isolated act. His was deliberate and persistent dishonesty for
personal financial gain over a protracted period.
[24] In his supplementary founding
affidavit, the appellant explains why he persisted in keeping his
practice open when the writing
was clearly on the wall. He states:
‘
I
found it difficult to meet office expenses… and I fell into the
trap of forward debiting fees against trust funds. Most of my
staff
had been with me in excess of 20 years and I honestly did not want to
injure them in any way. I regarded it as my duty to retain
their
employment. I realise that I should have pruned my expenditures
severely at the time, but I did not wish to injure my employees,
and
my vanity prevented me from accepting the fact that I had to scale
down.’
That suggests that he was motivated by
a misguided sense of paternalism towards his staff. Not only does
that assertion reflect a
serious lack of insight into a defect of his
character and attitude, but it is far too glib and rings hollow when,
objectively viewed,
the most morally reprehensible act perpetrated by
the appellant in a series of rather serious transgressions stretching
over a period
in excess of two years was the theft from his
long-standing employee, Mr Bambise. Given the relationship that
existed between them
it is hard to imagine a more scandalous breach
of trust. That abuse of confidence was exacerbated by his
dilatoriness in repaying
what had been stolen from Mr Bambise.
Furthermore, after cynically stringing Mr Bambise along for more than
three years with false
promises of repayment, the appellant was able
when his personal liberty was threatened, not only to pay a fine of
R100 000 but also
to effect payment of R220 000 within seven days of
being ordered to do so by the regional court, to escape
incarceration.
[25] To his credit the appellant has
expressed contrition and repentance. And whilst those expressions
appear to be genuine and are
usually a sound indicator of reformation
or rehabilitation, they do not without more prove or establish such
reformation or rehabilitation
in this case. It is indeed so that the
appellant’s name was struck from the roll on 13 August 1999 and
from his perspective eight
long years have since passed. That
ordinarily would have weighed heavily with a court confronted by an
application of this kind.
In this case, however, on the appellant’s
own version it was only after the judgment of Daniels J that he
realised that his acts
of dishonesty demonstrated a material defect
of character. It thus took almost six years for the appellant to come
to terms with
the fact that he had behaved in a scandalous and
dishonest fashion. Even then it was only after scathing criticism by
a judge who
refused his application for readmission that the scales
finally fell from his eyes. And yet, only some 13 months were to pass
before
he deposed to the founding affidavit in this matter. Given the
seriousness of his misdeeds and his obduracy in coming to terms with
them, this can hardly be regarded as sufficient time for the kind of
critical introspection and reflection that must obviously precede
an
application of this kind.
[26] In the light of the extent of the
moral reprehensibility involved, the absence of introspective
evaluation and the haste with
which the application was launched, I
entertain substantial reservations as to whether the appellant has,
even as yet, properly and
correctly identified the defects of
character and attitude involved in his misdeeds.
[27] The question that now confronts a
court is not whether the appellant has been sufficiently punished for
his misdeeds. I have
little doubt that, if that were the issue, a
court may well have been satisfied that he has suffered enough. The
issue is rather
whether the appellant is a person who can safely be
trusted to faithfully discharge all of the duties and obligations
relating to
the profession of an attorney. After all, because of the
trust and confidence reposed by the public and the courts in
practitioners,
a court must be astute to ensure that the re-admission
of a particular individual will not harm the prestige and dignity of
the profession.
For, by granting an application for re-admission, a
court pronounces to the world at large that the individual concerned
is a fit
and proper person.
[28] The appellant had a heavy onus to
discharge. He had to prove to the satisfaction of the court that, by
reason of his complete
and permanent reformation, he is in no way
likely to fail in the future to discharge all of the obligations
appertaining to his profession.
In the case of a serious defect of
character, reformation is known to be difficult and, therefore, to
establish reformation as sufficiently
probable, might require more
cogent evidence than in respect of a less serious fault. (
Kudo
v
Cape
Law Society
1977 (4) SA at
659 (A) at 676D-E). Little, if anything, is put forward by the
appellant that might mitigate the heinousness of his
conduct.
Moreover, it must count against the appellant that his misdeeds were
committed when he was no longer a young man. For, even
at that mature
age, the appellant was lacking in the most basic standards of his
profession. He displayed a contempt for the law,
the courts and for
honest dealings with his clients, at least one of whom occupied a
position of particular vulnerability in relation
to him. Simply put,
the appellant was everything that an attorney ought not to be.
[29] To the extent that the appellant
suggests that he has atoned for his wrongdoing, the atonement, in my
view, was neither spontaneous
nor voluntary, but rather contrived and
induced by a desire for self-preservation. Thus, for example, the
appellant has never, in
the many years that have since passed,
contacted either Mr Bambise or any of the other victims of his
misdeeds to ascertain whether
the fidelity fund of the Law Society
has made good the financial loss suffered at his hands.
[30] Where the professional misconduct
consists, as here, of theft, one would imagine that it would be
relatively easy to establish
that the person has undergone complete
and permanent reformation. That could be done by placing evidence
before a court that the
individual concerned has for some length of
time handled money without supervision and has proved his honesty.
Obviously in the light
of his somewhat chequered work history since
the striking-off, no such evidence could have been adduced.
[31] It would be no exaggeration to
say that, on such evidence as there is, the appellant has
demonstrated a propensity toward inherent
dishonesty. It may, in
those circumstances, perhaps be postulated that the nature of the
appellant's original lapse speaks of a defect
of character incapable
of reformation. But, to go so far as accepting such immutability of
character may well be unnecessary. For
in a case such as this, where
proof of complete and permanent reformation is difficult because of
the moral turpitude of the misdeeds
committed by the appellant, the
evidence tendered by the appellant falls far short of that proof.
[32] Where a person is struck-off the
roll for the kind of conduct encountered here, he must realise that
his prospects of being re-admitted
to what after all is an honourable
profession, will be very slim indeed. Only in the most exceptional of
circumstances, where he
has worked to expiate the results of his
conduct and to satisfy the court that he has changed completely, will
a court consider readmission
at all (
Visser
v Cape Law Society
1930 CPD
159
at 160).
[33] It follows, on the view that I
take of the matter, that the appellant failed to discharge the onus
of convincing the court that
he is a fit and proper person to be
readmitted as an attorney.
[34] In the result the appeal is
dismissed with costs.
_________________
V M PONNAN
JUDGE OF APPEAL
CONCUR
:
MPATI
DP
MTHIYANE
JA
NUGENT
JA
CLOETE JA:
[35] I have had the advantage of
reading the judgment of my colleague Ponnan JA. I regret that I am
constrained to come to a different
conclusion.
[36] My learned colleague has
catalogued the offences for which the appellant was struck off the
roll as an attorney by Mynhardt J
and Motata AJ some eight and a half
years ago. They are undeniably serious. I remind myself, however,
that the application which
resulted in this appeal was not for an
order striking the appellant off the roll, but for his readmission.
Readmission is governed
by s 15(3) of the Act, which provides (to the
extent relevant) as follows:
‘
A
court may, on application made in accordance with this Act, readmit
and re-enrol any person who was previously admitted and enrolled
as
an attorney and has been removed from or struck off the roll, as an
attorney, if ─
(a) such person, in the
discretion of the court, is a fit and proper person to be so
readmitted and re-enrolled . . .’.
[37] The onus which the appellant had
to discharge was in essence to satisfy the court
a
quo
that he could be
trusted in the future should he be readmitted. That is the effect of
the following passage in the judgment of Corbett
JA in
Law
Society, Transvaal v Behrman
:
1
‘
Where
a person whose name has previously been struck off the roll of
attorneys on the ground that he was not a fit and proper person
to
continue to practise as an attorney applies for his re-admission, the
onus
is
on him to convince the Court on a balance of probabilities that there
has been a genuine, complete and permanent reformation on
his part;
that the defect of character or attitude which led to his being
adjudged not fit and proper no longer exists; and that,
if he is
re-admitted, he will in future conduct himself as an honourable
member of the profession and will be someone who can be
trusted to
carry out the duties of an attorney in a satisfactory way as far as
members of the public are concerned . . .’.
The discretion conferred by s
15(3)(a), as in the case of s 22(1)(d)
2
(which deals with an application for
the striking off of an attorney), involves in reality a weighing up
of all relevant facts and,
to this extent, a value judgment.
3
The relevant facts are set out in
Kudo
v The Cape Law Society
.
4
If an applicant clears that hurdle,
and only if he does so, the court has a residual discretion to refuse
admission, because of the
use of the word ‘may’ in s 15(3) (in
contradistinction to the use of the word ‘shall’ in s 15(1)
5
which deals with admissions):
Ex
parte Aarons (Law Society Transvaal, Intervening)
6
(quoted with approval by my colleague
Ponnan JA in para 16 of his judgment). The parameters of the
discretion are nowhere circumscribed.
An important factor relevant to
the exercise of the discretion, bearing in mind that the court has
ex
hypothesi
found the
applicant to be a fit and proper person to be readmitted, would in my
view be whether the applicant has been sufficiently
punished for what
he did. Rehabilitation is essential for readmission, because
otherwise the applicant would not discharge the onus
of proving that
he/she is a fit and proper person to be readmitted; but that may not
be sufficient if the court in the exercise of
its residual discretion
is not satisfied that the applicant should be readmitted yet.
[38] I shall first consider whether
the appellant has discharged the onus. There has been a fundamental
change in the attitude of
the appellant as it was when he applied for
readmission to the Pretoria High Court compared to the attitude he
evinces now. The appellant’s
attitude when he brought his previous
application is encapsulated in the following passage in the judgment
of Daniels J (which, whilst
it deals with the Uys matter, is equally
apposite to all of the charges of misconduct):
‘
When
one reads the applicant’s version of events it is difficult to
understand why and on what basis he was ever charged. His explanation
is exculpatory and he displays as has been said a disregard of the
facts. The applicant clearly does not understand the gravity of
his
errant ways. If he does not understand he cannot be heard to say that
he has remorse.’
The appellant’s attitude now is:
‘
I
have studied all the papers in the two aforesaid applications
7
as
well as the judgment of His Lordship Mr Justice Daniels. I am ashamed
by the realisation that I never actually came to terms with
the fact
that my acts of dishonesty demonstrated a material defect of
character. On re-reading my own papers, it became clear to
me that I
continued to consider myself an honest man who had succumbed to an
isolated act of dishonesty, as to which I offered various
excuses.’
The appellant went on to say:
‘
I
am firmly convinced that I have become fully rehabilitated. The
devastating consequences of my actions are also the severest
taskmasters.
It is inconceivable that I will ever commit an act of
dishonesty again.’
[39] The appellant also filed a
supplementary affidavit after he had been interviewed by the Council
of the Law Society of the Northern
Provinces. In that affidavit he
said:
‘
I
am a devout Christian and at the time I was a leading member of the
Church of Jesus Christ of Latter-day Saints. In 1995 I held
the
office of Lay Bishop, and I also acted extensively as legal adviser
to the Church. These duties took me all over South Africa
and abroad.
Because I was so deeply involved in the affairs of the Church, I
neglected my practice, but I failed to recognise that
I was on a path
of destruction. I wanted to maintain my position in the Church, but I
also wanted to maintain my position as a senior
practising attorney.
I have come to recognise that I was driven by self-serving vanity,
and nothing else.
My neglect of my legal
practice soon translated into reality. I found it difficult to meet
office expenses (salaries, rental of office
space and the like), and
I fell into the trap of forward debiting fees against trust funds.
Most of my staff had been with me in
excess of 20 years and I
honestly did not wish to injure them in any way. I regarded it as my
duty to retain their employment. I
realise that I should have pruned
my expenditure severely at the time, but I did not wish to injure my
employees, and my vanity prevented
me from accepting the fact that I
had to scale down. Although I didn’t realise it at the time, there
is no escape from this treadmill.
It leads inexorably to destruction.
Nevertheless, I managed to convince myself that matters would take a
turn for the better and
that I would be able to surmount my problems.
To hide what I was doing,
I used a mechanism of reversing fees debits from time to time so as
to balance the books. This was a subterfuge
because the reversal of
debits was not accompanied with any payment at all. In this way the
actual trust deficit continued to grow.’
In regard to Mr Bambise, the appellant
said:
‘
My
conduct was part of a survival strategy, in which I was sadly remiss.
I recognise that my conduct was reprehensible and unbecoming.
I am
deeply ashamed of the entire event. I have overcome the trait of
dishonesty displayed by me completely.’
In regard to Messrs Uys and Van der
Linde, the appellant said:
‘
I
have full appreciation of the fact that I shirked my duties as an
attorney. My conduct was part of a pattern during a time when
I had
damaged my practice through neglect. I dishonestly attempted to save
myself from disgrace, and in so doing I only managed to
disgrace
myself and the attorneys profession. My disgraceful conduct as a
whole demonstrates a defect of character. It has taken
me a long time
to appreciate the extent of the defect which I displayed. As I have
sought to demonstrate, I have overcome the defect
completely.’
[40] The appellant also said in his
supplementary affidavit:
‘
I
have overcome the trait of dishonesty in my character in a number of
ways, which have all operated together. I have done so by a
process
of deep introspection and prayer since my demise. I am a deeply
committed Christian. I have recommitted myself to my faith
and I have
been cleansed of all inclination to dishonesty. This did not occur
haphazardly. I confided in several members of my church
and we
actively discussed and prayed in order to establish my unreserved
commitment to honesty and integrity. My wife and I followed
the same
honest and open process. The harsh consequences of my dishonesty have
served as a severe taskmaster. I was filled with disgust
at my own
frailty. Since my demise I have been meticulously honest in
everything that I have done and I have developed an incorruptible
culture of honesty. I have come to the full realization that I
disgraced the profession I served all my life at an advanced age,
which left my life empty, forlorn and purposeless. I have come to
realize the full import and validity of the justified observations
as
to my inadequacy described in the judgments of Their Lordships Mr.
Justices Mynhardt and Daniels. I have a deep desire to serve
as an
attorney again and to make amends for my inexcusable conduct. I
humbly pray that I be granted such opportunity.’
[41] In support of his application,
the appellant annexed affidavits by Dr Irma Labuschagne, a forensic
criminologist who had testified
in mitigation of sentence at his
criminal trial, and Mr Groenewald, the incumbent Temple President of
the appellant’s church. Dr
Labuschagne said there whereas the
appellant had previously not expressed true remorse, he:
‘
now
voices true insight into his criminal behaviour at the time and
therefore, for the first time, shows deep remorse. He is not simply
voicing regret. . .
He has made full
restitution and made, in different ways and by truly applying
himself, good the losses he had caused. He no longer
creates the
feeling that he simply repaid to get rid of the problem. His desire
was born out of his insight with regard to injuries
caused to others.
It is my opinion that this is bound up with deep remorse.
When a person is merely
sorry for himself because he is in trouble, there will be signs of
attempts to blame others
for the crime;
own interests above all
else, and
attempts to find excuses
for own behaviour.
Mr Swartzberg is no
longer guilty of any of the above.’
The legal representative of the Law
Society submitted that this evidence was ‘of value’. I would put
it far higher than that.
[42] Mr Groenewald said that he had
been closely involved with the appellant for the past 33 years, both
as a friend and as a member
of the church. He said this:
‘
As
a Church leader over the past 30 years I have come into daily contact
with a great number of people from every sphere of society.
Because
of my vast experience I regard myself as an astute judge of
character. I was severely disappointed by the Applicant for his
criminal conduct which led to his conviction of theft and his
striking from the roll of attorneys. I have scrutinized the Applicant
closely and I have engaged him in many intensive discussions. I am
completely satisfied that his remorse and full repentance are
genuine. I am also satisfied that the Applicant had rehabilitated
himself completely and that there is no danger that the Appellant
will commit an act of dishonesty again.’
[43] The court a quo simply brushed
this evidence aside and in so doing, committed a fundamental
misdirection of fact. The court said:
‘
In
my view, there is no sufficient and cogent evidence to demonstrate
that the applicant has become completely and genuinely reformed.
I
regret to state that the affidavits by Dr Labuschagne and Mr
Groenewald are of little value in this respect.’
No reasons for this conclusion were
advanced and I find it inexplicable.
[44] The court
a
quo
also had no regard to
the affidavit of Mr Serfontein, the senior director of attorneys
Bloch Gross & Associates Inc, which it
had itself elicited.
Serfontein said that he had come to know the appellant well during
the appellant’s association with the firm
(which is described in
paragraphs 19 and 20 of my learned colleague’s judgment) and went
on to say the following about the applicant:
‘
In
fact, he has become a good friend and I can honestly say that he has
openly discussed the reasons for his being struck off the
roll with
me and that he never attempted to justify the mistakes he had made in
the past, except to show remorse and regret.
There can be no doubt
that he deeply regrets what he has done and the fact that he has not
been able to practise the profession that
he loves so dearly and
which he has for most of his life practised with so much enthusiasm
and commitment, has had a profound effect
on his life. I can honestly
say that Mr Swartzberg has learned from his mistakes in the past and
that it is extremely unlikely that
he would ever make himself guilty
of the same misconduct.
. . .
I would without
hesitation consider employing him if re-enrolled. He has much to
contribute to the profession in the future and is
still highly
respected by his colleagues.’
[45] I wish to deal in passing with
the appellant’s relationship with Bloch Gross & Associates Inc
which the court
a quo
categorised as one which ‘seriously
raises eye-brows’. The arrangement was disclosed by the appellant
in his founding affidavit
and he was asked a few questions about it
by the members of the Council of the Law Society ─ 12 in all,
including the President
and Vice-President, assisted by the Director,
and the Heads of Members Affairs, Professional Affairs and
Disciplinary Matters ─
who interviewed him. There was not the
slightest suggestion at that meeting, or in the affidavit
subsequently deposed to by the President
of the Law Society opposing
the application, that there was anything untoward about the
relationship.
[46] I am mindful of the fact that a
relatively short period elapsed between the date on which Daniels J
gave judgment in the previous
application (the judgment was delivered
on 29 November 2004 and the copy in the record was apparently revised
on 17 May 2005) and
the date on which the appellant deposed to his
founding affidavit (19 December 2005). I am also mindful of two other
factors. The
first is that the appellant is now 77 years old and the
other is that the appellant narrowly escaped a custodial sentence for
his
previous acts of dishonesty ─ he will not be entitled to expect
leniency should he again offend. These factors, together with the
evidence of the appellant ─ supported as it is by an independent
expert and two other persons who know the appellant well, one
of whom
is a senior attorney ─ lead me to conclude that the appellant
discharged the onus. Indeed, I have difficulty in appreciating
what
more can be required of him in this regard. I would merely add that
it was common cause that the appellant had repaid the amount
which,
according to the Law Society, was missing from his trust account and
there is no reason to assume either that this amount
was not
sufficient to make good the loss suffered by the victims of his
misdeeds, or that it was not paid over to them.
[47] That brings me to the exercise of
the residual discretion. I emphasise that this question only arises
because I have found that
the court
a
quo
misdirected itself in
not finding that the appellant had discharged the onus. The court
a
quo
did not get that far as
it held that the onus had not been discharged. In my view, serious
though the appellant’s offences were,
the period he has been off
the roll ─ now some eight and a half years ─ is sufficient
punishment, bearing in mind that he has
repaid the monies stolen and
is paying off the costs incurred by the Law Society in the previous
proceedings. The consequences of
the appellant’s previous actions
were dire. In his
own
words:
‘
At
the age of 70 I had managed to reduce a reasonably successful life to
one of utter desolation. I have no assets and no income and
my wife
and I survived on her meagre income from an inheritance.’
I see no reason to exercise the
residual discretion against readmitting the appellant.
[48] The court
a
quo
ordered the appellant
to pay the costs of the Law Society. I would leave that order
undisturbed as the Law Society is not an ordinary
litigant and its
opposition was not unreasonable. I do consider, however, that the Law
Society should pay the costs of the appeal.
[49] I would accordingly allow the
appeal, with costs, to the extent of replacing the order dismissing
the application with an order
granting it.
_________________
T D CLOETE
JUDGE OF APPEAL
1
1981
(4) SA 538A
at 557A-C.
2
‘
Any
person who has been admitted and enrolled as an attorney may on
application by the society concerned be struck off the roll
or
suspended from practice by the court within the jurisdiction of
which he practices ─
. . .
(d) if he, in the discretion of the court, is not a fit and proper
person to continue to practice as an attorney.’
3
cf
Jasat v Natal Law Society
2000 (3) SA 44
(SCA) at 51E-F;
Law
Society of the Cape of Good Hope v Budricks
2003
(2) SA 11
(SCA) at 14A and
Summerley v
Law Society, Northern Provinces
2006
(5) SA 613
(SCA) at 615C-E.
4
1972
(4) SA 342
(C) approved in
Behrman
at 557E, and quoted in para 15 of the judgment of
my colleague Ponnan JA.
5
‘
Unless
cause to the contrary to its satisfaction is shown, the court shall
on application in accordance with this Act, admit and
enrol any
person as an attorney if . . . ‘.
6
1985
(3) SA 286
(T) at 290E-G.
7
The
aborted application for readmission and the previous application
before Daniels J and Motata AJ.