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[2008] ZASCA 106
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Botha v Law Society of the Northern Provinces (446/2007) [2008] ZASCA 106; 2009 (1) SA 227 (SCA) ; [2009] 1 All SA 312 (SCA) (23 September 2008)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 446/2007
MARTIN
GERHARD BOTHA Appellant
and
THE
LAW SOCIETY OF THE NORTHERN PROVINCES Respondent
Neutral citation:
Botha v
Law Society, Northern Provinces
(446/2007)
[2008]
ZASCA 106
(23 September 2008)
Coram:
FARLAM,
CLOETE, HEHER, PONNAN
et
CACHALIA JJA
Heard:
4
SEPTEMBER 2008
Delivered:
23
SEPTEMBER 2008
Summary: Attorney
: unfit to
continue to practise; suspension or striking off the roll; if the
court a quo misdirected itself, facts subsequent to
its decision may
be taken into account on appeal.
Costs
:
costs of proceedings in court a quo and on appeal where suspension
substituted for striking off.
___________________________________
____________________________
ORDER
_______________________________________________________________
On appeal from: High Court, Pretoria (R D Claassen and
Mavundla JJ sitting as
court of first instance).
The following order is made:
(1) The appeal is upheld.
(2) The order of the court below striking the
appellant's name off the roll of attorneys is set aside, and the
following order substituted:
'(a) The appellant is suspended from practising as an
attorney for one year.
(b) The suspension referred to in (a) above is suspended
for three years with effect from 23 September 2008 on condition: (i)
that
the appellant is not found guilty of a contravention of any of
rules 68, 69 and 70 of the rules of the respondent committed during
the period of suspension; and (ii) that the appellant is not found
guilty of unprofessional conduct in terms of rule 89 of the
rules of
the respondent committed during the period of suspension.'
_______________________________________________________________
JUDGMENT
_______________________________________________________________
CLOETE
JA (FARLAM, HEHER, PONNAN and CACHALIA JJA concurring):
[1] On 14 September 2004 the Pretoria High Court (Rabie
J) granted an interim order as a matter of urgency at the suit of the
respondent
and with the consent of the appellant preventing the
appellant from practising as an attorney for his own account and
appointing
a curator bonis to administer and control his trust
account. On 28 February 2006 the court a quo (R D Claassen and
Mavundla JJ)
struck the appellant's name from the roll of attorneys,
but subsequently granted him leave to appeal to this court.
[2] Section 22(1)(d) of the Attorneys Act 53 of 1979
provides:
'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 practises . . . if
he, in the discretion of the court,
is not a fit and proper person to
continue to practise as an attorney.'
As was said in
Jasat v Natal Law
Society
1
and repeated most recently in
Malan v The Law
Society of the Northern Provinces
,
2
the section contemplates a three-stage inquiry:
First, the court must decide whether the alleged
offending conduct has been established on a preponderance of
probabilities, which
is a factual inquiry.
Second, the court must consider whether the person
concerned 'in the discretion of the court' is not a fit and proper
person to
continue to practise. This involves a weighing up of the
conduct complained of against the conduct expected of an attorney
and,
to this extent, is a value judgment.
Third, the court must inquire 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.
[3] The appeal was directed at the sanction imposed by
the court a quo. The decision whether an attorney who has been found
unfit
to practise as such should be struck off or suspended is a
matter for the discretion of the court of first instance. That
discretion
is an example of a 'narrow' discretion.
3
The consequence is that an appeal court will not decide the matter
afresh and substitute its decision for that of the court of
first
instance; it will do so only where the court of first instance did
not exercise its discretion judicially, which can be done
by showing
that the court of first instance exercised the power conferred on it
capriciously or upon a wrong principle, or did
not bring its unbiased
judgment to bear on the question or did not act for substantial
reasons, or
materially misdirected
itself in fact or in law.
4
It must be emphasised that dishonesty is not a sine qua non for
striking off. As Harms JA said in
Malan
:
5
'Obviously, if a court finds
dishonesty, the circumstances must be exceptional before a court will
order a suspension instead of
a removal . . . . Where dishonesty has
not been established the position is . . . that a court has to
exercise a discretion within
the parameters of the facts of the case
without any preordained limitations.'
[4] It is necessary to examine the facts in a little
detail. Before I do so and in view of some of the submissions made on
behalf
of the respondent, I wish to point out that an applicant law
society is entitled to apply for a respondent attorney to be called
for cross-examination under Uniform Rule 6(5)(g). That right may
usefully be invoked where the facts alleged in the attorney's
answering affidavit fall peculiarly within such attorney's knowledge
and suspicion attaches to their veracity. (A court could also
call
for oral evidence
mero motu
:
whatever the position may be in relation to other types of
application,
6
in matters such as the present the court is exercising its
supervisory function over legal practitioners and is entitled to call
for evidence to enable it properly to do so.) If the attorney is not
cross-examined then, unless the allegations and denials made
in the
answering affidavit are so far-fetched or clearly untenable that the
court is justified in rejecting them merely on the
papers, the case
must be decided on the common cause facts and, where there is a
conflict, on the attorney's version.
7
Speculation as to what might really have happened is not permissible.
[5] There were four complaints made to the respondent
about the appellant's
conduct. Two ─ by Mr Biyela and attorney Deon de
Klerk ─ prompt
ed the respondent to appoint
Mr A T van Rooyen, a management consultant and forensic investigator,
to investigate the appellant's
practice.
[6] Mr Biyela wanted to sell a property to Mr Mangwane,
whom the appellant had previously represented professionally. The
appellant
drew up the sale agreement and because he was not a
conveyancer, he undertook with the consent of both parties to arrange
with
attorney De Klerk for the property to be transferred into Mr
Mangwane's name. The latter paid R40 000, the first instalment
of the purchase price, to the appellant in about September 2004. The
payment was made in cash and the appellant says that he decided
to
take it home and put it in his safe as he had no safe at his office
(shared with five other attorneys, all practising for their
own
account) and the banks were already closed. On the way home he
attended a function with colleagues. He later discovered that
the
money, which he had been carrying on him, was gone. He decided to
replace the money from his own income. A further instalment
of
R25 000 was paid to him by Mr Mangwane in November and a final
instalment of R25 000 in December. He kept these amounts
in his
safe at his home. He issued no receipts at any time. He says that he
contacted Mr Biyela and told him of his predicament
after he had
received the first R25 000 and this allegation was not
challenged in the replying affidavit. He thereafter made
payments of
R10 000 (on a date unspecified), R20 000 on 1 February,
R16 000 on 2 February, R28 000 on 24 May,
R12 000 on 3
June and a final payment of R4 000 on 6 June 2005.
[7] There is no explanation why the two amounts of
R25 000 were not paid over to Mr Biyela immediately they were
received.
However, the appellant annexed to his answering affidavit a
copy of a letter dated 25 August 2005 sent by Mr Biyela to the
respondent
in which he withdrew his complaint and confirmed that the
full amount had been paid over to him; and the appellant also said
that
in August 2005 he paid to Mr Biyela interest calculated by the
latter's bank in an amount of R5 500. Again, this allegation
was
not challenged in the replying affidavit.
[8] In the meantime Mr Mangwane had, in about October
2004, paid an amount of R2 000 to the appellant for the transfer
costs
of the property that he had bought from Mr Biyela. That amount
comprised the fee the appellant had agreed with attorney De Klerk
plus disbursements. Transfer took place on 26
October 2004. In March 2005 attorney De
Klerk lodged a complaint with the respondent that he had not been
paid the agreed transfer
fee and costs. The appellant's explanation
was that he had transferred R1 700 to attorney De Klerk's bank
account on 14 October
2004; that he had paid the remainder of the
amount outstanding early the following year together with other
amounts that he owed
attorney De Klerk; and that the payments must
have been wrongly attributed in attorney De Klerk's books. The
appellant annexed
to his answering affidavit a letter from attorney
De Klerk dated 8 August 2005 in which the latter withdrew his
complaint against
the appellant and confirmed that the full amount
owing in respect of the Biyela/Mangwane transaction had been paid to
him.
[9] The appellant told Mr van Rooyen that he had not
received a letter of 30 March 2005 sent to him by the respondent
requesting
a response to attorney De Klerk's complaint and in his
answering affidavit he said that he had no recollection of receiving
such
a letter but if he had, he would have responded to it as he had
done to the complaint by Mrs van Wyk (referred to below). There
is no
basis upon which this explanation can be rejected particularly
because there is no proof that the letter, which was apparently
sent
by ordinary post, was ever delivered at his office.
[10] The appellant did not fully cooperate with Mr van
Rooyen. The criticism by the appellant of Mr van Rooyen and the
contents
of his report is misplaced and unfortunate in tone and
content. It was the appellant's obligation to co-operate in the
investigation
8
and it does not lie in his mouth to aver that the
report was deficient where his co-operation w
ould
have allowed the full picture to emerge. It is not necessary to go
into detail; it suffices to say that the appellant did not
react to
numerous messages left on his cellular telephone by Mr van Rooyen and
that he did not provide documents to the latter
when he should have.
He did, however, make a full and frank disclosure of what had
happened to the R40 000, and the fact that
neither of the two
amounts of R25 000 had been paid into his trust account or was
reflected in his books of account.
[11] The investigation by Mr van Rooyen led him to the
conclusion that the appellant had contravened the following
provisions of
the Act and rules made thereunder: s 78(1) of the Act,
in that not all monies received by the appellant were deposited into
his
trust account; ss 78(4) and (6) of the Act, read with rules 68.1
and 68.2, in that the appellant's accounting records did not reflect
all transactions of the practice; rule 68.5 in that the accounting
records were not up to date; rule 68.7 in that the appellant
did not
account to Mr Biyela within a reasonable time; rule 68.8 in that
amounts were not paid over to clients within a reasonable
time; rule
68.9 in that payment to other practitioners was not made within a
reasonable time; rule 69.1 in that trust money was
not promptly
deposited; rule 89.5, in that there was a failure to reflect all
financial transactions in the books of account of
the practice; and
rule 89.7 in that the payment of trust money to clients after due
demand was delayed without lawful excuse.
[12] In his answering affidavit the appellant pointed to
the predicament in which he had found himself after the R40 000
had
gone missing. He said that with the exception of the payments in
respect of the Biyela/Mangwane transaction, all amounts paid to
him
in trust had been deposited into his trust account, although he
explained that (with a few exceptions) he conducted a criminal
practice at the magistrates' courts and received no money in trust
for his services. He further explained that he was without exception
paid at the conclusion of each criminal trial, in many cases from the
repayment of bail money, and usually deposited those payments
directly into his business account. The appellant also admitted that
he had not timeously submitted audit reports required by Rule
70 for
two years, 2003 and 2004, although he pointed out that unqualified
certificates had subsequently been issued to him for
those years and
for 2005.
[13] The remaining two complaints received by the
respondent, from Mrs van Wyk and attorneys De Abreu & Cohen Inc,
can be dealt
with more briefly. Mrs van Wyk complained that the
respondent had not given proper attention to her instructions to
appeal against
the refusal of the South African Police Services to
grant her a firearm licence. The appellant's explanation was that he
was waiting
for the record, which he had requested from the South
African Police Services, and the delay was due to their failure to
provide
it; Mrs van Wyk's attitude was that he had not acted
sufficiently pro-actively. She terminated his instructions. He did
not give
her a receipt for her payment of R1 000. He refunded
this amount to her together with a further amount of R1 500 in
respect
of her travelling costs. The complaint of attorney Cohen of
the firm De Abreu & Cohen Inc, was that the appellant did not
reply
to their letters of 24 April, 28 May and 1 June 2004 proposing
a settlement between their respective clients who were engaged in
civil litigation. The appellant admitted that he had not done so but
pointed out that the matter had subsequently been settled
and that
the complaint against him, withdrawn. The charge that he had failed
to attend a disciplinary hearing in respect of the
Van Wyk and De
Abreu Cohen complaints when summoned by the respondent, was
conclusively refuted in his answering affidavit: he
did attend but
the hearing did not proceed.
[14] In the course of its judgment the court a quo said:
'In Respondent se hele relaas en
verontskuldigende bewerings is daar nie een enkele woord van
verskoning nie. Hy maak 'n gebrek
om trustgelde in te betaal op 'n
trustrekening, of dadelik uit te betaal (soos die laaste twee
paaiement in die Biyela-aangeleentheid)
af as 'n nietigheid. Sy
houding is dat omdat niemand sogenaamd skade gely het nie, die
siviele litigasie wel geskik is, en De Klerk
wel betaal is, en Van
Wyk se fooie terugbetaal is, het hy nie onprofessioneel ensovoorts
opgetree nie.
Die groot probleem myns insiens
in Respondent se hele antwoord en verweer is dat hy hoegenaamd geen
insig toon in dit waaroor dit
hier gaan nie.'
[15] The court a quo materially misdirected itself on
the facts. The appellant did not deny that he had been guilty of any
unprofessional
conduct. His attitude was:
'Alhoewel ek wel nie aan alle
bepalings van toepassing op my praktyk en werksaamhede as prokureur
van hierdie Agbare Hof voldoen
het nie, ontken ek dat ek sodanig
onprofessioneel, oneerbaar of onbetaamlik opgetree het wat hierdie
Agbare Hof sou noop om my
van die rol van prokureurs te skrap.'
Of course he put facts before the court which placed the
offences which he had committed in a less serious light. There is
nothing
wrong with that. But he did not attempt to exculpate himself,
as the court a quo found. Indeed, he remarked, with justification,
that when questioned by Van Rooyen:
'[E]k geen doekies omgedraai het
nie en het met die hele sak patats vorendag gekom en onmiddellik toe
ten spyte van my eie nadeel
en verleentheid aan Van Rooyen die volle
ware verhaal vertel; en ek het nooit enigsins gepoog om 'n verskoning
te gebruik of om
nie die volle verhaal, hoe inkriminerend ook al
teenoor myself, te openbaar nie.'
Nor did he dismiss as insignificant his failure to pay
trust monies into his trust account, or make payments out of it, as
the court
a quo said. This finding was without factual foundation. It
is true that the appellant did not apologise, but that in my view is
all together too tenuous a basis for finding that he has no insight
into the potential prejudice or harm that his conduct may have
caused
clients, other attorneys or the public at large. He said, in
connection with the loss of the R40 000:
'Ek het oor die volgende paar
dae besluit, verkeerdelik, om stil te bly oor die voorval en die geld
wat ek verloor het te vervang
uit my eie inkomste aangesien ek
verkeerdelik geglo het ek sou uiters verneder en belaglik vertoon het
as ek die gebeure openbaar
het.'
And he also said:
'Indien hierdie Agbare Hof gelas
dat my bevoegdhede as prokureur van hierdie Agbare Hof vir 'n verdere
tydperk gereguleer moet word
soos tans die geval is, sal die gevolge
daarvan voldoende wees om my nie net tereg te wys nie, maar ook
effektiewelik te straf
vir die situasie wat ek oor myself gehaal het
ten aansien van die Biyela aangeleentheid.'
[16] In view of the misdirections of the court a quo,
this court is at large to impose the sanction it considers
appropriate. Given
that it will impose a sanction as if none had
previously been imposed, I see no reason why it should not take into
account the
common cause fact that the appellant has, since the
interim order granted by the Pretoria High Court three years ago,
been practising
as an attorney in the employ and under the
supervision of attorney Jannus Vermaak.
9
There has been no suggestion that he has not conducted himself
properly during that period. If these facts are taken into account,
as I believe they should be, then I am satisfied for the reasons
which follow that the appellant will by now have been rehabilitated;
that the conduct which led to the finding of the court a quo that the
appellant was unfit to practise as an attorney, is unlikely
to be
repeated; and that neither an order striking the appellant off the
roll, nor an order suspending him from practice, is necessary,
either
in the interests of the public or to punish him. Of these two
considerations the former is the more important, although
the latter
must also be taken into account
10
and I shall examine each in turn.
[17] So far as the interests of the public are
concerned, I concurred in the judgment given in
Malan
11
in which it was said that even in cases not involving dishonesty, a
conservative approach should be followed in order to stem an
erosion
of professional ethical values. But it remains an important fact that
no dishonesty on the part of the appellant was alleged,
much less
established. The concatenation of circumstances which gave rise to
the problem surrounding the Biyela matter is not likely
to recur.
Once the appellant decided to keep quiet
about the loss of the R40 000 and to cover his
tracks, he inevitably made himself guilty of the
raft
of contraventions catalogued by Mr van Rooyen. Absent the cause, the
effect would not have followed. The three years the appellant
has
practised under supervision would in my view be sufficient to make
him realise the error of his ways. I do nevertheless consider
that,
bearing in mind that the appellant has not been practising for his
own account for the last three years, a suspension from
practice for
one year, which suspension is itself suspended on appropriate
conditions for three years, would be desirable in the
interests of
the public to make assurance doubly sure.
12
The conditions of suspension will relate to the rules of the
respondent which the appellant contravened ie those that deal with
payments to other practitioners within a reasonable time (rule 68),
regular and prompt deposits into, and payments out of trust
accounts
(rule 69), reports by accountants in regard to the books of the
practice (rule 70) and unprofessional, dishonourable or
unworthy
conduct (rule 89).
[18] So far as the punishment aspect is concerned, there
was no actual prejudice to any of the appellant's clients of any real
significance.
Mr Biyela was paid the full amount due to him, together
with interest; attorney De Klerk was paid in full; Mrs van Wyk's
appeal
was not compromised as it had already been noted when she
retained the appellant; and the De Abreu & Cohen matter was
ultimately
settled. On the other hand, the consequences for the
appellant were severe. In consequence of the interim order made he
worked
for another attorney and earned a monthly salary. The
difference between that salary and what he previously earned was
about R7 000
per month, which means that he has lost income of
over a quarter of a million rand over the last three years; and the
amount of
R40 000 paid to Mr Biyela plus the interest must be
added to that amount, as also the costs of the application in the
court
a quo (on the attorney and client scale) and his own costs of
appeal, for reasons that I shall give presently. I therefore consider
that he has been sufficiently punished for what
he did.
[19] That brings me to the question of costs. Both sides
asked for costs in this court and in the court a quo and in the case
of
the respondent, that those costs be awarded on the scale as
between attorney and client.
[20] I shall deal first with the costs in the court a
quo. The respondent was obliged to approach the court to obtain the
order
which this court has held was appropriate. The respondent is
not an ordinary litigant and in bringing proceedings of this nature,
it performs a public duty.
13
In the circumstances the order of the court a quo directing the
appellant to pay the respondent's costs on the scale as between
attorney and client should remain.
[21] I have found only three reported cases where the
sanction imposed by the court a quo has been reduced on appeal from
striking
off to suspension. All were before this court. In two,
14
the question of the costs of appeal was not discussed ─ the law
society concerned was simply ordered to pay the costs of
appeal; and
in the third,
15
where very special circumstances were present prompting this court to
remark that the variation of the order was largely one of
form rather
than substance, no order was made in regard to the costs of appeal.
In the present matter, the appellant has obtained
substantial success
on appeal ─ although, it must be emphasised, not against the
respondent, which continued to act as it
had in the court below as
the statutory
custos morum
of the attorneys' profession in the Northern Provinces. The approach
it should adopt on appeal was set out by Beadle CJ in a Rhodesian
case,
16
in a passage subsequently approved by this court,
17
as follows:
'To what extent the Law Society
should press for the penalty which it considers appropriate must, of
course, depend on the circumstances
of each particular case. If the
decision of the Court
a
quo
is taken on
appeal, however, I consider the function of the Law Society is to
oppose an appeal with all the vigour with which the
State would
oppose an appeal in a criminal case where there was an appeal against
the sentence of the High Court, which sentence
the State considers to
be an appropriate one.'
[22] I accordingly do not consider it appropriate to
order the respondent to pay the appellant's costs of appeal. There is
much
to be said for the argument on behalf of the respondent that its
members, who fund it, should not have to pay for its costs of appeal
either. I nevertheless prefer to follow the approach of Tindall J
(Solomon J concurring) in
Incorporated Law
Society v Taute
18
where it was held that where a law society fails to prove charges
against an attorney and the society's conduct is not open to
criticism, the correct order is no order as to costs. On a parity of
reasoning, where a law society fails on appeal to justify
the order
made for which it contended in the court of first instance and the
sanction imposed on the attorney is reduced in severity,
the same
order would be appropriate.
[23] The following order is made:
(1) The appeal is upheld.
(2) The order of the court below striking the
appellant's name off the roll of attorneys is set aside and the
following order substituted:
'(a) The appellant is suspended from practising as an
attorney for one year.
(b) The suspension referred to in (a) above is suspended
for three years with effect from 23 September 2008 on condition: (i)
that
the appellant is not found guilty of a contravention of any of
rules 68, 69 and 70 of the rules of the respondent committed during
the period of suspension; and (ii) that the
appellant is not found guilty of unprofessional,
dishonourable or unworthy conduct in terms of rule 89 of the rules of
the respondent
committed during the period of
suspension.'
_______________
T D CLOETE
JUDGE OF APPEAL
Appearances:
For Appellant: J C Klopper
Instructed by
Pieterse & Curlewis Inc Pretoria
Lovius-Block Bloemfontein
For Respondent: A T Lamey (Attorney)
Rooth & Wessels Inc Pretoria
Naudes Inc Bloemfontein
1
2000 (3) SA 44
(SCA) para 10.
2
[
2008] ZASCA 90
para 4.
3
Giddey NO v J C Barnard & Partners
[2006] ZACC 13
;
2007 (5) SA 525
(CC) para 19 and n 17.
4
A v Law Society of the Cape of Good Hope
1989
(1) SA 849
(A) at 851A-F;
Vassen v Law
Society of the Cape of Good Hope
[1998] ZASCA 47
;
1998
(4) SA 532
(SCA) at 537D-G;
Jasat
,
above n 1, loc cit;
Malan
,
above n 2, para 13; and cf
Kekana v
Society of Advocates of SA
[1998] ZASCA 54
;
1998 (4) SA
649
(SCA) at 654B-H.
5
Above n 2, para 10.
6
A question not yet decided by this court:
Minister of Land
Affairs and Agriculture v B & F Wevell Trust
2008 (2) SA 184
(SCA) para 60;
Miloc Financial Solutions (Pty) Ltd v Logistic
Technologies (Pty) Ltd
[2008] ZASCA 40
;
2008 (4) SA 325
(SCA) para 53.
7
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E-635C.
8
Prokureursorde van Transvaal v Kleynhans
1995 (1) SA 839
(T) at 853G-H.
9
Cf
S v Barnard
2004 (1) SACR 191
(SCA) paras 19 to 21 and p 197h-i.
10
Law Society of the Cape of Good Hope v
Budricks
2003 (2) SA 11
(SCA) para 7;
Summerley v Law Society, Northern
Provinces
2006 (5) SA 613
(SCA) para
19;
Law Society of the Cape of Good
Hope v Peter
[2006] ZASCA 37.
11
Above n 2, para 11.
12
Cf
Law Society of
the Cape of Good Hope v Peter
, above n
10, paras 22 and 23.
13
Incorporated
Law Society of Natal v
Hillier
(1913) 34 NLR 237
at 250-1;
Incorporated Law Society v Taute
1931 TPD 12
at 17;
Solomon v Law
Society of the Cape of Good Hope
1934
AD 401
at 408-9.
14
Law Society of the Cape of Good Hope v C
1986 (1) SA 616
(A) at 641H;
Summerley
v Law Society, Northern Provinces
,
above n 10 at 623D.
15
A v Law Society of the Cape of Good Hope
,
above n 3 at 853A-F.
16
Pitluk v Law Society of Rhodesia
1975 (2) SA 21
(RA) at 30B-D.
17
A v Law Society of the Cape of Good Hope
,
above n 3 at 853B-C.
18
Above n 13, loc cit.