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[2016] ZAKZPHC 102
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Society of Advocates of KwaZulu-Natal v Lange (8049/2015) [2016] ZAKZPHC 102 (15 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
CASE
NO: 8049/2015
In
the matter between:
SOCIETY
OF ADVOCATES OF KWAZULU-NATAL
Applicant
and
NATALIE
DIANA LANGE
Respondent
Order
:
1.
The
respondent is suspended from practicing as an advocate for a period
of six (6) months, such suspension to operate from 1 July
2016.
2.
The
respondent is to pay the applicant’s costs, including the costs
of two (2) counsel, on an attorney and client scale.
JUDGMENT
CHETTY
J:
1.
After hearing argument from counsel, we issued the following order:
1.1
The respondent is suspended from practicing as an advocate
for a
period of six (6) months, such suspension to operate from 1 July
2016.
1.2
The respondent is to pay the applicant’s costs, including
the
costs of two (2) counsel, on an attorney and client scale.
2.
What follows below are the reasons for decision, which are of
significance particularly as the applicant sought the striking
off of
the respondent as an advocate on the basis of her attempting to
mislead the High Court following upon an affidavit deposed
to by her.
Subsequent to the hearing of this application and the order issued
above, another division of the High Court also had
occasion to
comment on the conduct of the respondent in respect of the
circumstances giving rise to the complaint against her,
and that of
her partner in the misconduct, Advocate J Wild (‘Wild’).
We were informed at the hearing of this
application that Wild was
still practicing as an advocate in the Eastern Cape, but there was no
indication as to if, or when, any
disciplinary proceedings would be
instituted against her. As will become apparent, it is not possible
comment on the conduct of
the respondent without doing so in respect
of Wild, who appears to have been the
dramatis
persona
in the events giving rise of the complaint lodged against the
respondent.
3.
The applicant is 60 years old, having been admitted as an attorney in
1980 and practiced for her own account from July 1981 to
February
2006. After taking a sabbatical she joined the Durban Bar in
January 2008. During her combined career as an attorney
and advocate,
the present proceedings constitute the only blemish against her
professional integrity.
4.
During her time at university studying towards her law degree, the
respondent first encountered Wild, who was highly intelligent
and by
all accounts, a person who commanded the attention of others, someone
by whom the respondent was awe struck. Whilst
Wild went on to
become a prosecutor and thereafter an advocate, at more or less the
same time the respondent proceeded to get admitted
as an attorney,
and began to regularly brief Wild. Their professional
association grew into a close friendship, and when
Wild’s
career encountered certain “significant difficulties”,
the respondent remained loyal to Wild, continuing
to brief her when
others refused to. Wild then relocated her practice to the
Eastern Cape, but retained her contact with
the respondent and stayed
over at the respondent’s home whenever work brought her to
Durban. During the period of their
long friendship, the
respondent conceded that she had in fact idealised Wild as a
“powerful, brilliant, infallible and vastly
superior
advocate”. It is this admiration or idealisation of Wild
that ultimately, in the respondent’s submission,
led her to
abandon momentarily, her independence and her ability to carefully
consider her actions, giving rise to the complaint
of unprofessional
conduct.
5.
It is against this background of the respondent’s association
with Wild that I turn to examine the judgment of Ranchod
J in the
North Gauteng High Court under case number 69262/2010, delivered on
19 April 2012 as it pertains to the respondent.
The facts of
the matter are briefly that Richard Penwill and Andrew Penwill were
co-trustees of the Beverly Trust, together with
their mother, Pat
Penwill. The trust was founded by the late father of Richard and
Andrew. The trust was also the sole shareholder
in a company which
owned several properties collectively valued at approximately R15m.
Andrew had a claim against his father’s
estate for
approximately R1.7m and an arrangement had been made for this claim
to be satisfied by the trust. This did not happen
and consequently
Andrew instituted an action against the trust and obtained default
judgement in the Gauteng High Court. A warrant
of execution was
issued and the shares held by the trust in the company were attached
by the sheriff, Durban North. A sale in execution
of these shares was
scheduled to take place on 29 July 2009. Wild, acting on behalf of
Andrew flew to Durban on 28 July 2009 to
attend the sale, armed with
a mandate to buy back the shares at a higher price from any
successful bidder in order to ensure that
the shares ultimately were
secured by Andrew.
6.
The respondent, after discussions with Wild the evening before,
attended the sale in execution the next day and where she
successfully
bid R27 300.00 for the shares. On the basis
of the arrangement with Wild, the respondent sold the shares on to
Wild
for the amount of R34 300.00, and later signed a written
agreement confirming the sale of the shares to Andrew. The net
effect of the transaction, to which the respondent was party, was
that Andrew had caused an asset of the trust, worth approximately
R15m to be sold for a fraction of its value.
7.
Richard only became aware of what had transpired in April 2010 after
receiving a letter from the secretary of the company in
March 2010.
As a result of certain investigations, he discovered that his brother
Andrew instituted action against the trustees
of the trust. Despite
him being a trustee, he knew nothing about the action which led to
the judgment being granted against the
trust. Richard then brought an
application for the rescission of the judgment and asked the court to
declare that the sale in execution
on 29 July 2009 invalid and to be
set aside. In addition he asked for the removal of Andrew as a
trustee of the trust. The respondent
was cited as a third respondent
in the action in as much as she was the person who had initially
purchased the shares at the sale
in execution. Apart from the various
procedural irregularities pertaining to the default judgment, Richard
alleged that a gargantuan
fraud had been perpetrated by his brother
Andrew in obtaining the shares for a pittance.
8.
The action was defended by Andrew. The respondent elected to
file a notice to abide, with a brief affidavit comprising
10
paragraphs in which she confirmed that she had bid against two other
persons at the sale in execution and ultimately paid the
amount of R
27 300.00 for the shares. She disputed the assertion by Richard that
she had been a puppet of Wild and/or Andrew, and
contended that she
was unaware of any fraud relating to the sale of the shares. Of
particular importance to the judgment of Ranchod
J was the
respondent’s averment in paragraph 7 of her affidavit which
reads as follows:
‘
After I had
acquired the share certificates from the sheriff and as I was leaving
the premises of the sheriff I was offered R34,300.00
for the shares
by Miss Wild, on behalf of the first respondent in his personal
capacity. I verbally accepted the offer.’
9.
In his judgment setting aside the default judgement granted in favour
of Andrew, Ranchod J said at para 25 that it was common
cause that
Andrew caused an asset worth approximately R15m to be sold in a sale
in execution at a fraction of its value. In so
far as the events
leading up to the sale in execution, Ranchod J described these as
“rather strange” (see para 39).
What is also apparent is
that Richard struggled to get the particulars of the person who
purchased the shares at the sale in execution
as Andrew’s
attorney refused to initially divulge those details.
10.
Ranchod J then proceeded at paras 47 to 49 to draw the following
conclusions from the facts before him relating to the sale
in
execution:
‘
[47]
Andrew had sent Miss Wild to represent his interests at the sale in
execution.
He says he had given her a mandate that she should after
the conclusion of the sale approach any purchaser and offer that
purchaser
up to 50% more then what the purchaser paid for the shares.
Both these advocates attended the sale at the sheriff’s offices
where Ms Lange buys them and promptly thereafter sells them on to Ms
Wild to Andrew for R 34,300.00 after having purchased them
for R
24,500.00. The inference is inescapable that this was part of
the well-orchestrated plan to eventually have the shares
in the
possession of Andrew.
[48]
In consequence, the sale of the shares must be set aside.
[49]
I have grave misgivings about the conduct of the two advocates in
this regard. Richards says he lodged a complaint with the KwaZulu
Natal Bar Council about Ms Wild’s conduct but nothing much
came
of it save the complaint was forwarded by the Bar Council to Ms Wild
who responded by way of a letter and that is where the
matter
apparently ended . I will leave it to Richard, who is an advocate
himself, to pursue the matter further if he should wish
to do so
after receiving this judgement, by, if necessary, approaching the
General Council of the Bar if he is not satisfied with
the response
of the KwaZulu Natal Bar as far as Ms Wild is concerned, and he may
if he so wishes to, pursue or lodge a complaint
with the KwaZulu
Natal Bar in so far as Ms Lange is concerned.’
11.
Subsequent to the judgment being handed down, Richard lodged a formal
complaint with the KwaZulu-Natal Bar Council against the
respondent
“
for
her role in assisting Jenny Wild to perpetrate a fraud on the Beverly
Trust by causing the Trust’ 100% shareholding to
come into the
hands of my brother, a trustee and her client, for R34,300.00 thereby
intending to cause the Trust enormous loss.
In purchasing and
reselling the shares, MS Lange directly assisted in executing the
fraud on the Trust
.”
Richard went on to state that apart from the judgment of Ranchod J
and the respondent’s affidavit, he had no
other evidence
against the respondent, that he had never met her and knew nothing of
her except that she had appeared as Wild’s
attorney of record
some 10 years ago, which was suggestive of a long standing
relationship between the two.
12.
The
applicant, after receipt of the complaint from Richard, requested a
response from the respondent. In a letter dated 2 June 2012
the
respondent stated that she was distressed at the misgivings expressed
by Ranchod J and that she had no knowledge of and played
no part in a
scam, as alleged. In so far as her explanation as to how she came to
be at the sale in execution, the respondent stated
that Wild informed
her of the sale in execution a day before the event, and also
informed the respondent of her mandate to buy
the shares at a higher
price on behalf of Andrew from any successful bidder. The respondent
stated that she attended the sale primarily
as a ‘novelty’
and for the excitement or ‘fun’ of bidding. According to
her she had no information about
or interest in the potential value
of the shares, and had resolved to stop bidding at R30 000 as this
was all she had at her disposal.
In her view, there was nothing
untoward about bidding at a sale in execution as she contended that
banks often send their representatives
to such sales to buy back the
property for the bank. Accordingly she did not consider that her
conduct was untoward.
13.
The
chairperson of the complaints committee correctly pointed out
that her response to the committee had been in considerably
more
detail than the affidavit which she filed in the North Gauteng High
Court. It was further pointed out to the respondent
that while
the explanation tendered by her to the applicant did not contradict
anything set out in her affidavit, the factual omissions
would
suggest that she had no prior arrangement with Wild, and that even
the meeting with her at the auction was entirely fortuitous.
This version was patently rejected by Ranchod J as being part of a
well-orchestrated plan. On that basis it was suggested
to her
that her affidavit to the court was at least, at a prima facie level,
misleading.
14.
In
her response of 3 September 2012, the respondent conceded that her
affidavit was deficient in certain respects and as framed,
it was
perhaps “somewhat misleading”. In explaining the contents
and brevity of her explanation in the affidavit, the
respondent
conceded that she should have taken greater care to deal with the
issues in dispute and to have done so in a more comprehensive
manner.
Notwithstanding, she contended that it was not her intention to
mislead the court in anyway.
15.
In
response, Richard pointed out that despite the respondent’s
deficient explanation was not his primary complaint, but rather
her
unprofessional conduct in attending the auction and assisting with
the perpetration of an elaborate scam. He considered that
she was
misleading and dishonest and tried to conceal her relationship with
Wild. Richard described the respondent’s behaviour
as that of
an ‘accomplice’.
16.
In
light of these events, the applicant proceeded to charge the
respondent with two counts of improper conduct, namely:
1.
Participating
as a bidder in the sale in execution on 29 July 2009 and purchasing
the shares of the Beverly Trust in DJ Pennell
Properties Pty Ltd as
part of an elaborate scam, involving an abuse of the process of
court;
2.
In
respect of the proceedings in the North Gauteng High Court, she
deposed to an affidavit on 25 November 2010 in which she did
not
accurately record the full truth of her involvement in the sale in
execution and subsequent transfer of shares to Andrew Penwill,
with
the result that the affidavit was untruthful, or at least designedly
misleading.
Accordingly,
the applicant contended that the respondent’s conduct was not
befitting that of a practising advocate.
17.
The
matter came before the applicant’s disciplinary committee,
chaired by three senior advocates of the Durban Bar, and at
which the
respondent was represented by Mr
Hunt
SC, who also appeared on her behalf when the matter came before this
Court. The respondent pleaded not guilty to both counts.
The committee found that the first charge could not be sustained and
accordingly nothing further need be said in that regard. As
regards
the second count the committee noted that in the ordinary course it
would not be improper for an advocate to bid at a sale
in execution
provided that the advocate is not professionally connected with
anything to do with the sale. On the basis of the
factual information
before it the committee found that even though the respondent was not
acting as an agent of Wild or of Andrew,
the practical effect of the
arrangements she had made with Wild would suggest that she was acting
as an agent. Notwithstanding,
the committee found no basis to
conclude that her conduct in this regard was unprofessional.
18.
As
regards the second count the committee reiterated that a cornerstone
of the profession requires an advocate to be truthful and
frank at
all times, and to ensure that the court hears only the truth from
counsel irrespective of the situation. Our courts place
much reliance
on the tradition that when counsel makes a submission to the court,
the truthfulness of that submission must be beyond
reproach. Hefer JA
in
Kekana
v Society of Advocates of South Africa
[1998] ZASCA 54
;
1998 (4) SA 649
(SCA) at 655G accepted Heher J's observation that:
‘
(
t)he
word of an advocate is his bond to his client, the court and justice
itself. In our system of practice the courts, both high
and low,
depend on the
ipse
dixit
of counsel at every turn.'
19.
The
committee found that the respondent’s explanation to the North
Gauteng High Court as to how she came to bid at the sale
in execution
was misleading and that by her silence she suppressed information
which was obviously important to the court’s
assessment of both
her and Wild’s involvement in the matter. The impression which
she attempted to give the court was that
the sale of the shares to
Wild, after having successfully bid for them at the sale in
execution, was an unplanned coincidence.
This, the committee found,
could not be further from the truth. On the respondent’s own
version, she accepted that she had
not been truthful in her
explanation, which was due to Wild convincing her that she need not
have said more than what was recorded
in paragraph 7 of her
affidavit. She accepted Wild’s advice to her detriment. The
committee found that her conduct could
not be regarded as merely
negligent as she knew that the contents of paragraph 7 of her
affidavit was not true, and that she had
not been scrupulous with the
truth as she ought to have. In the result, the committee found it
appropriate to impose a suspension
on the respondent’s
membership of the applicant for a period of six months within which
she would not be able to practise
as a member of the applicant. The
sanction was to commence from 1 January 2015, allowing the respondent
the remainder of December
2014 to get her affairs in order.
20.
Having
received the decision of the disciplinary enquiry, the respondent on
11 December 2014 wrote to the applicant giving notice
of intention to
resign with effect from 1 January 2015.
21.
This
resignation, at first glance may justifiably be interpreted as an
attempt by the respondent to circumvent the sanction imposed
on her
by the applicant. In her answering affidavit, the respondent
explains that on being faced with a six month suspension,
she
believed that she had no option but to resign because of her dire
financial predicament. In the course of 2014 she gave away
a
substantial amount of her work and suffered from severe depression
and was hospitalised for treatment as a result of the allegations
of
unprofessional conduct. This explanation is consistent with the
contents of a report filed by clinical psychologist Ms T B Broll,
who
consulted with the respondent and who prepared a report which was
attached to the answering affidavit. In particular, the respondent
was traumatised by the effect that her disciplinary enquiry would
have on her mother, who it would appear, had supported the respondent
throughout her career. She therefore suppressed her anxiety to the
extent that in September 2014 she had a breakdown and gave away
most
of her briefs to colleagues, lost a tremendous amount of weight and
became suicidal. Eventually, a colleague and her secretary
informed
the respondent’s mother of what was taking place. The
respondent was then referred to a psychiatrist and admitted
to
hospital for treatment.
22.
There
is nothing before us to gainsay the version of the respondent as to
her motivation for resigning from the Bar. On the contrary,
on a
balance of probabilities, it is more probable than not that her
resignation was prompted by the stress brought on by the disciplinary
enquiry and the humiliation of the sanction imposed on her.
23.
The
issue before us is whether the respondent is a fit and proper person
to practise as an advocate, and if not, whether she should
be struck
from the roll. The applicant approaches this court as
custos
morum
in order to protect the interests of the Bar in KwaZulu-Natal, the
interest of this court and the public at large. Despite the
respondent’s resignation from the Bar, is not in dispute that
the applicant has the necessary locus standi to bring this
application to have the respondent’s name struck from the roll.
24.
Mr
Voormollen
SC, who together with Ms
Mahabeer
,
appeared for the applicant, submitted in their heads of argument that
the respondent’s answer to the strike off application
could be
characterised more accurately as a plea for leniency. This is a fair
assessment of the respondent’s answering papers
particularly as
she accepted both in her answering affidavit and in her plea to count
2 that her affidavit was misleading as she
failed to make mention of
the relationship with Wild and the arrangement with Wild to buy back
the shares for Andrew at a higher
price than was initially paid for.
The respondent accepted that while she acted on the basis of
the advice given to
her by Wild in drafting the affidavit in
question, in doing so, she displayed a lack of judgement and failed
in her duty to the
court to make a full disclosure of all of the
facts in her knowledge pertaining to the sale of the shares. The
respondent accordingly
accepted that her conduct fell short of that
required of a practising advocate.
25.
The
stance adopted by the respondent when she appeared before the
committee and in this Court was to accept without equivocation
that
her conduct in filing the affidavit before the North Gauteng High
Court, despite the influence of Wild, was misleading.
It was
contended on her behalf that it displayed a moral lapse in her
character as opposed to a character defect. The affidavit
sought to
give the impression that Wild’s intervention on behalf of her
client, after the respondent had successfully bid
for the shares, and
the subsequent onward sale by the respondent of the shares to Wild,
was a sequence of unintended an unplanned
events. As Ranchod J had
however found, this was a well-orchestrated plan.
26.
In
Kekana
v Society of Advocates of South Africa
supra
at 654D-E the Court approved of the dictum in
Nyembezi
v Law Society, Natal
1981
(2) SA 752
(A) that the first enquiry in determining whether an
advocate or attorney is fit to continue practicing is:
‘…“
..”to
decide whether the alleged offending conduct has been established on
a preponderance of probability and, if so, whether
the person in
question is a fit and proper person to practise as an attorney.
Although the last finding to some extent involves
a value judgment,
it is in essence one of making an objective finding of fact and
discretion does not enter the picture. But, once
there is a finding
that he is not a fit and proper person to practise, he may in the
Court's discretion either be suspended or
struck off the roll.’
27.
In
the present matter and unlike the applicant in
Kekana
supra, the respondent cannot be said to have lied under oath.
As the disciplinary enquiry found, what she stated in paragraph
7 of
her affidavit was misleading - she had not set out of the full
circumstances of her prior association with Wild or of the
plans for
the onward sale of the shares. On Wild’s advice, the respondent
was urged to disclose as little as possible. Her
subsequent full
disclosure of facts to the committee was not inconsistent with the
facts set out in her affidavit, save that she
divulged much more to
the committee than she had revealed to the North Gauteng High Court.
I can put the distinction no higher
than that. Although she did
not fabricate evidence, the common denominator is that her conduct
was misleading.
28.
The
practice of an advocate (and that of an attorney) demand absolute
personal integrity and scrupulous honesty (
Kekana
supra at 656A). The respondent accepts, for the reasons associated
with the long standing relationship with Wild that she failed
in her
duty to maintain those high ethical standards demanded of
practitioners. The conduct of the respondent and Wild were also
cause
for consideration by Van Oosten J in
Penwill
NO & another v Penwill & others
(61782/2012)
[2016] ZAGPPHC 473 (20 June 2016)
[1]
where the brothers Penwill again clashed this time over the validity
of a will executed by their late mother, Pat. It is not necessary
to
traverse the lengthy factual background, save to say that the conduct
of Wild featured prominently in the adjudication of that
dispute,
where the Court found overwhelming in favour of Richard and ordered
that its judgment be forwarded to the General Council
of the Bar of
South Africa. At para 44 of his judgment Van Oosten J noted
that Ranchod J made a number of adverse findings
and comments
concerning the conduct of Andrew, Wild and the respondent, and
repeated Ranchod J’s findings of grave misgivings
about the
conduct of the two advocates. Van Oosten J went on to say the
following:
‘
[52]
In conclusion Wild, in my view, was an unsatisfactory witness who
clouded issues in proffering long winded, vague and irrelevant
responses. Wild dishonestly and relentlessly, right from the outset,
pursued her own agenda. In regard to the finding by Ranchod
J that
the sale in execution was an elaborate scam, Wild disingenuously
maintained that “it was a
bona
fide
attempt to recover shares that were going up on a public sale in
execution”, but reluctantly, later, conceded that it was
a scam
“only to the extent of the sale”. The evidence reveals a
carefully pre-planned scam to strip Richard of his
interest in the
company. Both Wild and Lange faced, or, are facing charges of
unprofessional conduct brought against them by the
Bisho Bar. Counsel
for the defendant unconvincingly sought to defend the bona fides of
the sale in execution, but was constrained
in the debate that
followed in argument, to concede, and correctly so, that a fraud had
indeed been perpetrated.
[53]
The integrity and professionalism of Wild and Lange acting in their
professional capacities as advocates, in my view, have
been shown, on
the facts of this matter, to fall dismally short of the norms and
standards applicable to the profession of an advocate
and I
accordingly, as I intimated to Wild at the conclusion of her
evidence, propose to order that a copy of this judgment be forwarded
to the General Council of the Bar of South Africa.’
29.
In
light of the facts of the present matter, we are satisfied that the
applicant’s disciplinary committee correctly concluded
that the
respondent had indeed fallen significantly short of the high
standards set and to be maintained by the profession.
Notwithstanding the strong hand of Wild throughout this matter and
the force of her influence over the respondent, the respondent
ought
never to have fallen prey to the plan set out by Wild. Having
found that the respondent, on a balance of probabilities
was guilty
of misconduct, the next enquiry is whether she is a fit and proper
person to practise as an advocate.
30.
Mr
Voormollen
submitted that as a matter of course in such matters, the applicant’s
stance is to seek an order to strike off the practitioner.
This
is done in order not to shackle the discretion of the Court as to
what would be an appropriate sanction. The applicant accepted
that
each case must be determined having regard to the particular
circumstances of the matter, taking into account the nature of
the
misconduct, its seriousness and the moral blameworthiness of the
practitioner.
31.
The
committee found the respondent guilty of failing to record the full
truth of her involvement in the sale in execution and the
purchase of
shares thereat. A range of sanctions was available to it, including a
fine not exceeding R25 000, an admonishment,
suspension or expulsion
from the Society. The committee was of the view that a fine would be
an inappropriate sanction as it would
not express the gravity of the
respondent’s misconduct. Instead, the committee determined that
a suspension for a period
of six (6) months would be appropriate.
32.
In
General
Council of the Bar of South Africa v Geach & others
2013
(2) SA 52
(SCA) para 198 the court noted that:
‘
The most
significant factor in determining the appropriate sanction must be
the nature and scale of the primary misconduct.’
33.
In
determining a suitable sanction, this Court also takes into account
that the respondent has clearly shown remorse for her conduct,
which
the clinical psychologist Ms Broll terms a ‘moral lapse’.
At the same time, the saga of the respondent having
to face a
disciplinary enquiry before her peers (the first in her 30 years as a
legal practitioner)
has
allowed her the opportunity to reflect on her conduct. She
accepts now that she may have been “duped” into
filing
the affidavit which she did, having acted under the advice of Wild.
She is now cautious of blindly trusting people,
as she had done with
Wild. We accept, as submitted by Mr
Hunt
,
that the respondent is therefore not likely to repeat her conduct,
having regard to the consequences it has brought her.
Not only
has she had to face the humiliation of a disciplinary enquiry at
which she was found guilty for misconduct, but she has
also ensured
significant physical and psychological trauma, including being
hospitalised as a result of stress. Her
unlikeliness to
repeat her misconduct and the fact that this seemed to have been
something foreign to her nature was echoed by
two persons who
submitted character references – a senior attorney and a senior
advocate.
34.
In
KwaZulu
Natal Law Society v Moodley & another
3072/2012 [2014] ZAKZPHC 33, 9 May 2014 para 13 the court pointed out
that when faced with an application to strike off a legal
practitioner:
‘
It does not
follow however that every attorney who has stumbled and did something
dishonest should be removed from the roll. The
aim is to prevent
people who are not fit to practise from doing so. But when an
attorney who has suffered a moral lapse can recover
from it and
become a fit and proper person again we must allow him that
opportunity and make it possible for him to return to practice
as a
productive member of society.’
35.
The
same principles apply in determining the fate of an advocate found
guilty of misconduct. In
Summerley
v Law Society, Northern Provinces
2006 (5) SA 613
(SCA) para 2 Brand JA pointed out in that whether an
attorney is to be considered a fit and proper person to continue to
practise
is a value judgment, where in the exercise of its discretion
a court must decide whether to impose the ultimate penalty of being
struck from the roll or whether an order of suspension from practice
will suffice. There was obvious concern in this case
expressed
by the applicant that the respondent resigned as a member of the
Society after receiving the decision of the committee.
The applicant
construed the respondent’s decision to resign as an attempt to
avoid the consequences of her misconduct.
However, having
carefully considered the explanation of the respondent and the
contents of the report by Ms Broll, which have not
been refuted, I am
satisfied that the respondent did not act with ulterior motive to
avoid the penalty imposed by the committee.
36.
I
am accordingly satisfied that the objectives of this Court’s
supervisory powers over the conduct of advocates will have
been
achieved by the suspension of the respondent from practise rather
than the imposition of the most severe sanction of striking
her off
the roll.
Mr
Hunt
initially contended that if we were to impose a suspension from
practise, such suspension should itself be conditional. I do not
agree. To do so would be to minimise the seriousness of the
respondent’s misconduct. Counsel wisely withdrew this
contention.
I
however accept the submission of the respondent’s counsel that
if she were to be suspended, she should be allowed a period
of time
to wind up her affairs. Mr
Hunt
informed the Court that the respondent had three part-heard matters
in which she was involved. In order to avoid any prejudice
to
the respondent’s clients, I considered that any suspension
imposed should take effect from 1 July 2016, thereby allowing
sufficient time for these matters to be completed. This is not a
situation where a strike off is ordered, in which event the order
cannot be deferred.
37.
For
these reasons, the Order in paragraph [1] of this judgment was made.
__________
CHETTY
J
I
agree
__________
BALTON
J
APPEARANCES
For
the Applicant :
Adv V Voormolen SC &
S Mahabeer
Instructed
by J Leslie Ndlovu Street, Pietermaritzburg
For
the Respondent:
Adv C P Hunt SC
Instructed
by Janice Sellick
c/o
Messrs Venns Attorneys, Pietermaritzburg
Date
of hearing:
22
April 2016
Date
of judgment:
15 August 2016
[1]
This judgment was
delivered after the hearing and order was made in the present
matter.