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Pretoria Society of Advocates v Van Zyl (13901/2013) [2016] ZAGPPHC 815 (2 September 2016)

85 Reportability
Legal Practice
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Brief Summary

Advocates — Removal from Roll — Application for removal of advocate from the Roll due to misconduct involving mismanagement of Floor Fund — Respondent failed to account for significant shortfalls and withdrew funds without proper authorization — Conduct deemed unfit for practice as an advocate — Application granted.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a disciplinary application brought in the High Court (Gauteng Division, Pretoria) in which the applicant sought the respondent’s removal from the roll of advocates. The proceedings were not treated as ordinary civil litigation between parties, but as a request to the court—acting in its supervisory capacity over officers of the court—to exercise its disciplinary jurisdiction.


The applicant was the Pretoria Society of Advocates, a society constituted in terms of section 7(2) of the Admission of Advocates Act 74 of 1964. The respondent, Ms Margaret van Zyl, was an admitted advocate who had practised from chambers in Pretoria and who, during the relevant period, moved between different chambers.


The matter arose from internal concerns at the Pretoria Bar relating to the respondent’s conduct in relation to a members’ “floor fund” (a communal fund operated for chambers-related expenses). After attempts to resolve the issues internally, the matter escalated to Bar structures, leading to the decision to institute proceedings for removal from the roll. The application was launched under the auspices of the profession’s disciplinary oversight mechanisms, with a hearing taking place in March 2014 and the filing of a supplementary affidavit by agreement. Judgment was delivered on 2 September 2016.


The general subject-matter was whether the respondent’s handling of communal funds, her failure to account, and her subsequent conduct (including misleading explanations and manipulated documents) demonstrated a lack of the honesty and integrity required of an advocate, and what sanction (striking off or suspension) was appropriate.


2. Material Facts


The court accepted as common cause that the respondent (as a junior member) and a senior advocate, Mr Michiel Daniel Du Preez, served as floor representatives responsible for administering a “Floor Fund” for members on the second floor at High Court Chambers. Members who joined were expected to contribute R100 per month, with contributions processed via the Bar’s accounts system and deposited into an ABSA savings account for the fund. The fund was used for routine floor expenses, including allowances to support staff and refreshments, and there were controls including a daily withdrawal limit of R1 000, with larger payments requiring both representatives’ approval.


It was also not in dispute that during 2010, members were asked to make a once-off contribution of R300 towards new kitchen equipment. The respondent collected contributions from approximately 20 members, amounting to around R6 000, and she did not deposit at least one member’s cheque (which expired). The respondent’s explanation (which the court recorded as her version) was that, due to withdrawal limits and practicality, she proposed that the collected funds be placed into her personal “blue bean” credit card account, assuring Mr Du Preez that the account was in credit; Mr Du Preez agreed to this arrangement on that assurance.


The undisputed chronology included that, in 2011, Mr Du Preez repeatedly requested that the respondent provide access to the fund’s bank card and records to enable reconciliation and reporting to members, particularly as the respondent was relocating chambers and a handover to another advocate (Ms Naude) was contemplated. The respondent repeatedly failed to produce the card and files timeously, and meetings were postponed on multiple occasions. Eventually, on 8 September 2011, access to the fund account was blocked and statements were obtained.


The ABSA statements revealed withdrawals by the respondent from the floor fund account. The court recorded that withdrawals totalling R4 850 occurred between 8 July 2011 and 11 August 2011, with further statements showing R1 000 withdrawals on 22 January 2011 and 10 February 2011, bringing withdrawals to R6 850 over the broader period. The respondent did not, when called upon at meetings, provide a complete and satisfactory account for withdrawals, and she did not promptly deliver the card and full records.


Following internal engagement, calculations were presented indicating that certain expenses were justified but that there was an unaccounted shortfall. The respondent later made a deposit of R4 814 into the floor fund account on 3 October 2011 (which was treated as covering the shortfall plus bank costs). However, a separate and substantial issue remained: the monies collected for kitchen equipment (reflected as approximately R6 105 in the court’s analysis) were not deposited into the floor fund’s ABSA account, and the respondent continued to assert that those monies were held in the blue bean account but were inaccessible due to FICA-related bank requirements.


A critical factual development, accepted by the court based on the respondent’s supplementary affidavit, was that the respondent’s earlier explanation regarding the blue bean account was false in material respects. The supplementary affidavit revealed admissions that the FICA difficulties were not genuine in the manner previously alleged; that the R6 105 had not been deposited into the blue bean account as asserted; and that the respondent had manipulated entries in the blue bean documentation using her personal computer so as to misrepresent the status of that account. The court further accepted that funds were transferred into the blue bean account only after the application was launched (including transfers in April 2013), and that when the account was closed in 2014, funds were routed to the respondent’s practice account and then to attorneys’ trust, culminating in R7 105 being paid over to the applicant.


The respondent raised explanations grounded in personal hardship (health issues, depression, marital breakdown, financial pressure, and other stressors). The court treated those circumstances as contextual to sanction but did not accept them as excusing the dishonest features of the respondent’s explanations and conduct when called upon to account.


3. Legal Issues


The central legal question was whether the respondent was a fit and proper person to continue practising as an advocate, assessed primarily through her conduct in administering and accounting for the floor fund, and her subsequent behaviour when required to explain discrepancies.


A further legal issue concerned the appropriate sanction if unfitness was established: whether the respondent should be struck from the roll (removal) or instead suspended from practice for a defined period.


The dispute required the court to determine matters of fact (what occurred with withdrawals, accounting, and the blue bean funds; whether falsehoods and manipulation occurred), the application of legal standards to facts (whether established conduct demonstrated lack of fitness), and a value judgment inherent in professional discipline (the assessment of integrity and the proportional sanction). The court approached the matter through the structured disciplinary enquiry described in authority, separating proof of misconduct, the fitness enquiry, and the sanction decision.


4. Court’s Reasoning


The court emphasised that proceedings for striking an advocate from the roll are disciplinary and sui generis, not ordinary civil disputes. The applicant, as the profession’s custos morum, functioned as a watchdog requesting the court to exercise its disciplinary powers over an officer of the court. The court located its authority in the court’s inherent power to control practitioners within its jurisdiction, referring to established precedent explaining that such proceedings are, in substance, proceedings of the court rather than conventional party-driven litigation.


The court accepted that the relevant conduct was not confined to the respondent’s work for clients or her conduct in court. It held that extra-professional conduct can be considered insofar as it illuminates the practitioner’s character and integrity, especially where the practitioner is entrusted with money belonging to others. The respondent had been placed in a position of trust in relation to communal funds and was obliged to account properly when called upon to do so.


Applying the standard disciplinary approach, the court noted that it must first be established on a preponderance of probabilities that the offending conduct occurred. The second stage is whether the practitioner is fit and proper, an enquiry involving a value judgment but not a free-ranging discretion. Only once unfitness is objectively established does the court exercise a discretion regarding sanction, choosing between suspension and striking off.


On the floor fund itself, the court noted shortcomings in the evidential picture, including limited bank statements before June 2011 and a lack of clarity in certain calculations. Even so, the respondent’s explanations for specific expenditures were found wanting. The court highlighted the absence of vouchers for alleged purchases (such as trays and jugs) and regarded it as improbable that goods could be returned to suppliers without any documentary trail. While the court observed that Mr Du Preez had not verified some items’ existence, it concluded that (save possibly for some items) it was probable that certain kitchen equipment (cutlery and crockery) was never purchased as alleged. The court treated the deposit of R4 814 on 3 October 2011 as repayment of the shortfall identified in relation to withdrawals.


The court’s most serious findings related to the blue bean account narrative and the respondent’s conduct in relation to explanations provided both to colleagues and in affidavits. The court considered the respondent’s admissions in her supplementary affidavit decisive: she had made false statements over time, including under oath, and she had manipulated bank statement entries to misrepresent the true status of the account. The court characterised this conduct as reprehensible and noted that providing false information under oath is a material indicator in determining fitness to practise. It also observed that such conduct could amount to perjury, underscoring the gravity of misleading the court.


In considering sanction, the court engaged with authority indicating that, where dishonesty is found, striking off will generally follow unless exceptional circumstances justify a lesser penalty. The applicant argued that the respondent’s deception over an extended period pointed to a character defect rather than a temporary lapse, and that striking off was warranted. The respondent relied on personal circumstances, first-offender status, repayment, and remorse.


The court ultimately accepted that the respondent’s conduct warranted strong disapproval, particularly because she had been entrusted with others’ money and had failed to take opportunities to set matters straight. However, it distinguished the case from one in which the practitioner persists in falsehoods to the end. The court treated the respondent’s admissions, repayment, and first-offender status, together with personal circumstances involving depression and ill health, as relevant to proportionality. On that basis, it concluded that suspension, rather than striking off, would suffice.


5. Outcome and Relief


The court ordered that the respondent be suspended from practice as an advocate for eighteen (18) months from the date of the order.


The court further ordered the respondent to pay the costs of the application.


The application for removal from the roll was not granted; instead, the court imposed a time-bound suspension as the appropriate disciplinary sanction in the circumstances.


Cases Cited


Society of Advocates of South Africa (Wits Division) v Edeling 1998 (2) SA 852 (W).


Solomon v Law Society of the Cape of Good Hope 1934 AD 401.


Society of Advocates, Natal v Z 1988 (3) SA 443 (N).


General Council of the Bar of South Africa v Matthys 2002 (5) SA 1 (E).


General Council of the Bar of South Africa v Geach and Others 2013 (2) SA 52 (SCA).


Kekana v The Society of Advocates of SA 1998 (4) SA 649 (SCA).


Legislation Cited


Admission of Advocates Act 74 of 1964 (section 7(2)).


Rules of Court Cited


No specific rules of court were cited in the judgment.


Held


The court found, on a balance of probabilities, that the respondent’s conduct in relation to the floor fund and her subsequent attempts to account for the kitchen equipment contributions involved serious ethical failings. In particular, the court accepted that the respondent made false statements, including under oath, and manipulated bank statement information to misrepresent the position regarding the blue bean account and the location of members’ contributions.


The court held that this conduct demonstrated a lack of the honesty and integrity expected of an advocate, warranting disciplinary sanction. However, taking into account that the respondent was a first offender, ultimately repaid monies, and admitted wrongdoing (thereby evidencing remorse), the court held that suspension for 18 months was an appropriate sanction rather than striking off.


The respondent was ordered to pay the costs of the proceedings.


LEGAL PRINCIPLES


Disciplinary proceedings for the removal or suspension of an advocate are sui generis and are not treated as ordinary civil proceedings between litigants; they are proceedings in which the court is asked, by the profession’s custos morum, to exercise disciplinary control over an officer of the court.


In determining whether an advocate should be struck off or suspended, the court follows a structured enquiry. First, the alleged misconduct must be established on a preponderance of probabilities. Second, the court must determine whether the practitioner is a fit and proper person, which involves a value judgment grounded in objectively established facts. Third, only after unfitness is established does the court exercise a discretion as to the appropriate sanction, typically choosing between suspension and striking off.


The court may take account of extra-professional conduct where it bears on the advocate’s character, integrity, and honesty, particularly where the conduct involves financial stewardship or trust responsibilities.


Dishonesty, and especially the giving of false information under oath or misleading the court, is treated as profoundly incompatible with the ethical duties of an advocate. Once dishonesty is established, striking off is ordinarily indicated unless the circumstances justify a lesser sanction; however, factors such as admissions of wrongdoing, repayment, first-offender status, and relevant personal circumstances may be weighed in determining whether suspension is sufficient in the particular case.

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[2016] ZAGPPHC 815
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Pretoria Society of Advocates v Van Zyl (13901/2013) [2016] ZAGPPHC 815 (2 September 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
D
I
VISION,
PRETORIA)
2/9/2016
CASE
NUMBER:
1
3901/2013
In the
matter between:
THE
PRETORIA SOCIETY OF
ADVOCATES

APPLICANT
and
MARGARET
VAN
ZVL

RESPONDENT
JUDGMENT
TLHAPI
J
I
NTRODUCTION
[1] The
applicant is a Society of Advocates constituted in terms of
section
7(2)
of the
Admission of Advocates Act 74 of 1964
and, this is an
application for the removal of the respondent from the Roll of
Advocates.
[2] The
respondent is an admitted advocate. She practised first, from the
High Court Chambers in Vermeulen Street ('Madiba Street")

Pretoria and in August 2011 she moved to New Court Chambers in Paul
Kruger Street. Her membership of the Pretoria Bar was terminated

while she was at New Court Chambers. She relocated again and
practised from 179 Blake Street, Riviera, Pretoria.
BACKGROUND
[3] This
application relates to the respondent's conduct when she as junior
member and Mr Michiel Daniel Du Preez ("Mr Du Preez"),
a
senior advocate of the Pretoria Bar were floor representatives tasked
with the management of the Floor Fund (“the fund").
The
fund was established by members on the 2
nd
Floor at High
Court Chambers. A member who joined the floor fund was obliged to
contribute R100.00 per month and the said amount
was reflected
by the
Accounts Section of the Bar as an expense against the member's Bar
account and his/her contribution was deposited thereafter
into the
ABSA floor fund savings account held at the Madiba street branch.
[4] It
was from the proceeds of the fund that allowances were paid to the
receptionist and tea lady. Other expenses related to floor
functions
which were arranged by the respondent in conjunction with Mr Du Preez
and for the regular purchase of refreshments and
other expenses on
that floor. Special expenses had to be approved by the members. The
daily withdrawal amount was limited to R1000.00.
When larger
amounts were required for payment, both representatives had to
approve such payment which occurred by internal
bank transfer or by
means of a bank cheque. The respondent was also responsible for
keeping the books and administration records
of the fund. Although
the bank card was usually kept in Mr Du Preez's office, the
respondent ended up keeping the card because
it was used on a regular
basis.
[5]
During 2010 members were asked to each make a once-off contribution
of R300.00 towards the purchase of new kitchen equipment.

Contributions were collected from 20 members between October and
December 2010. The respondent explained to Mr Du Preez that it
was
impractical to purchase the equipment where the daily withdrawal on
the floor fund account was limited to R1000.00. She suggested
that
the monies which she had collected in the sum of R6000.00 and which
was in her possession be deposited into her personal credit
card. She
gave him assurance that her account was in credit and he agreed.
[6] At
the beginning of 2011 Mr Du Preez made two requests to the
respondent. The first was that she make the bank card available
to
him in order to pay a contractor he intended calling to repair the
fridge door on the 2nd floor.  The respondent explained
that the
bank card was at her home. On another occasion she explained that she
had forgotten to bring the card along. After repeated
requests and
sms messages the respondent failed to make the card available. The
second request was prompted by the fact that they
needed to work
through the books of the fund and to report back to the members. She
undertook to do the report since the floor
fund files and bank card
were in her possession and at some point she had taken the files to
her home. When enquiries were made
regarding the kitchen equipment
she explained that she had made enquiries at various dealers and was
selecting the equipment to
be purchased. Mr Du Preez discussed his
concerns regarding the respondents conduct with Engelbrecht SC and
Raath SC, both members
of the floor fund and they advised that he
keeps on pressuring the respondent to make the card and books
available.
[7] When
the respondent was due to relocate to New Court Chambers she informed
Mr Du Preez that she had discussions with the lady
members on the
floor about taking over her position as floor representative and one
Adv M Naude ("Ms Naude") was willing
to take over from her.
The need to conduct a handing over of the card and books of the fund
and for her to compile her report on
the handling of the floor fund
was discussed. She was also advised to deposit the R6000.00 held in
her credit card into the savings
account. None of the requests were
complied with until she relocated to New Court Chambers on 1 August
2011. Mr Du Preez scheduled
a meeting in his office on 22 August 2011
to discuss the floor fund and for handing over to Ms Naude.  The
respondent failed
to attend but she asked for the meeting to be
rescheduled to 25 August 2011, then later to 1 September 2011 and
again to 8 September
2011. On the latter date the bank account was
closed and the respondent's access to the account was blocked. The
respondent was
informed of this action and the bank statements
obtained revealed that between 8 July 2011 and 11 August 2011 the
respondent had
withdrawn an amount of R4 850.00. The respondent
requested that the meeting be rescheduled to 9 September 2011.
[8] The
respondent attended the meeting of 9 September 2011 and Ms Naude and
Engelbrecht SC were also present. The respondent failed
to bring the
card and floor fund files along. She could not give an account or
give reasons for some of the withdrawals. She was
again requested to
deposit the R500.00 she had withdrawn to pay for the repair of the
fridge door into the floor fund account,
to deliver the files, and to
transfer monies held in her credit card account into the floor fund
account.
Another
meeting was scheduled for 13 September 2011. Further statements were
requested from the bank which showed that and amount
of R1000.00 was
withdrawn on 22 January 2011 and on 10 February 2011 bringing  the
total of monies withdrawn by her between
22 January and 11 August
2011 to R6850.00. It was evident from these statements that no
deposit was made from her credit card into
the account. The
respondent did not hand over the floor fund files and bank card and
she did not turn up for the meeting. A letter
was addressed recording
these events and another urgent meeting was requested. The respondent
sent an email of same date that she
had reduced everything into
writing. She would pay the money from the credit card into the
account and that she would send a messenger
to deliver the files the
following day, the 14 September 2011.
[9] On 15
September 2011 Mr Du Preez telephonically arranged a meeting with the
respondent for the handover on 19 September 2011.
He specifically
requested that the files be availed before the meeting and she
promised to do so via email. He, nevertheless decided
the following
day the 16 September 2011 to proceed to the respondent's chambers at
New Court Chambers to collect the said files.
He met the respondent
in the lift lobby on her way to court, she indicated that she would
soon return. After waiting for her for
a while he returned to his
office and sent an email recording the purpose of his visit. He
reiterated her past conduct regarding
the handover. He also confirmed
that a meeting was scheduled for 19 September 2011. On the latter
date the respondent sent 3 emails
in which she recorded the
misunderstanding about his visit to her chambers, confirming her
attendance of the meeting later that
day at 13H00. A second email at
12h45 indicated that she was still in court and at 13h00. She
indicated  that she would rather
explain everything in writing
and that he could call if he needed any explanation. Mr Du Preez in
an email of the same day demanded
delivery of the files, the card and
her written explanation no later than 12H00 the following day, the 20
September 2011, failing
which her conduct would be reported to the
members of the floor fund.
[10] The
files were received but not at the stipulated time and the respondent
had failed to account as was requested. Mr Du Preez
averred that he
worked through the files and, relying on her notes he reported back
to her, to the effect that expenses amounting
to R2 110.21 were
justified but that there was a shortfall of R4 739.79; for the
kitchen equipment R6 405.00 was collected but
there was a note
reflecting that R6105.00 had been deposited into a blue bean account.
A cheque for R300.00 was not deposited,
it had expired. There was no
proof that she had paid the kitchen equipment contributions into the
floor fund account. There was
therefore an amount of R11 144.79 not
accounted for. The respondent was given another opportunity to
explain the shortfall on or
before 26 September 2011, that is, before
her conduct could be reported to the members. When nothing was heard
from her she was
advised that a meeting of members had been scheduled
for the 3 October 2011and, she was invited to the meeting. The
respondent
sent an email on 29 September 2011 reporting that she had
been ill for two weeks and had not read her mail. She did not dispute

the calculations presented to her and she offered to pay back any
shortfall. She also wanted to know what interest was payable
on the
amount. She advised that she had experienced problems with her bank's
FICA requirement and was certain that she would be
collecting her
bank card that weekend.
[11] The
meeting with the members of the floor fund convened on 3 October 2011
recommended that before the conduct of the respondent
was reported to
the Bar Council an
ad hoc
committee consisting of Engelbrecht
SC, Raath SC and Bosman SC and all members convene a meeting with the
respondent to give her
an opportunity to resolve the matter. On the
same day the respondent sent an email advising that she had deposited
an amount of
R4 814.00 and explained that R500.00 was in respect of
the fridge door repair and R4 240.00 was used to buy kitchen
equipment because
she did not have access to her blue bean account
and requested time to enable her to transfer money from her blue bean
account
into the floor fund account.
[12] On 5
October 2011 at a meeting with Engelbrecht SC, Raath SC and Bosman SC
the respondent undertook to provide the bank statements,
the card in
respect of which she had FICA problems, the invoices and receipts of
the kitchen equipment purchased. She failed to
attend the meeting
convened on 7 October 2011 for the handover. Raath SC made a follow
up by sending sms messages on 14, 17 and
18 October 2011 and to these
she gave excuses and undertook to contact him. Raath SC sent a
message on 25 October 2011 that no
purpose would be served by making
further contact with her, because she had been given reasonable
opportunity to hand over the
statements and bank card. She made a
further undertaking on 27 October 2011.
[13] When
nothing further was heard from her Mr Du Preez prepared a memorandum
for consideration to the Bar Council which in turn
referred a
complaint to the Professional and Ethics Committee. The committee
referred the matter back and closed its file because
the respondent
had failed to pay her Bar accounts. The complaint was later
resubmitted by Advocate Bates to the Bar Council because
of the view
that the respondent's conduct lacked the honesty expected of an
advocate and, that this was
prima facie
indication that she
was not a fit and proper person to practice as an advocate. On
7
February
2012
the
Bar Council resolved to instruct the Professional and Ethics
Committee to launch an application for the removal of the respondent

from the roll of advocates.
[14]
The respondent averred that she served as floor representative
from
2007
to
2011.
Not all members of the floor contributed towards the floor fund. When
the funds were not sufficient to cover their needs she would
consult
with Mr Du Preez and a letter would be circulated for more
contributions. It was decided not to increase the contributions
lest
the paying members stopped paying. All purchases were discussed with
Mr Du Preez and when she had not done so she would report
back to him
and the receipts would be placed on the file. Sometimes when funds
were insufficient she would use her money, for example,
for the
purchase of colour cartridges and birthday cards. She would refund
herself when sufficient funds had accumulated between
RS00.00
and
R1000.00.
Furthermore
she realized that transaction fees charged for small withdrawals was
high and that when using the card for purchases
both she and Mr Du
Preez had to sign when using the card. It was agreed that that a
larger amount be withdrawn as opposed to the
weekly small cash
withdrawals. The card and cash were then kept by her and she would do
a reconciliation from time to time.
Contrary
to this Mr Du Preez averred that a
R1000.00
limit per day was placed on the card and that it was only in
respect of purchases exceeding
R1000.00
where he had to authorise a bank cheque or transfer of funds.
The respondent averred that she initially had her own file and it was

only in
2010
when Mr Du
Preez handed over the floor fund file which was in disarray. It
contained receipts and written notes and banking information.
She
undertook to organize the file for which he thanked her.
[15] It
was realized from 2008 that the kitchen equipment needed to be
replaced. She used her money to purchase a microwave oven
and later
refunded herself. It was only during 2010 when it was decided to ask
for additional contributions from the members. She
obtained
quotations and they decided on a budget of R6000.00 which was
approved by the floor members. She admitted having personally

collected the R300.00 contributions from 20 members and that she
failed to deposit Mr Blignaut's R300.00 cheque which expired.
Due to
incidents of theft at the chambers she decided to keep the bank card
and floor fund files at her home. She further admitted
to having made
withdrawals amounting to R4850 between July and August 2011 as
reflected in Annexure  B to the founding affidavit.
She withdrew
the money to pay for the kitchen equipment she had ordered because
she had problems with her blue bean account. In
order to facilitate
purchases the contributions of R300.00 were deposited into her blue
bean credit card which had a credit balance
and this was approved by
Mr Du Preez.
[16] The
respondent gave the following explanations to the complaints against
her:
Repair
of the fridge door:
She withdrew R500.00 from the floor fund to pay the handyman. She had
planned to
either give it to Mr Du Preez or to pay the handyman as
and when she was requested to do so. She later noticed that the door
was
fixed and when no one asked for the money she re-deposited it
into the floor fund account. According to Mr Du Preez the fridge door

was never repaired before 2012 and subsequently a new fridge was
purchased. He further denied that this specific amount was determined

by him, except that he suggested that if the repairs were done in
house it could cost less than R1000.00. He only became aware
of her
reason for the withdrawal at the meeting of 9 September 2011.
He
requested that she pay the money back into the floor fund account and
this amount was not paid back before October 2011.
Floor
fund files and r
eport:      She denied
that she was contacted early 2011 by Mr Du Preez to work through the
files. What
happened was that since she was moving to New Court
Chambers a replacement had to be appointed. Ms Naude was then
identified and
she informed Ms Naude that they needed to go through
the files and to discuss the procedures. She then asked her mother to
assist
with the filing. At about the same time she suffered
ill
health and was hospitalized. She prepared a report which was not in
bookkeeping format.
Floor
fund
bank
and
blue bean
cards:
She had not used the blue bean account since depositing monies for
the kitchen
equipment into it.  The last debit on the account
was on 29 September 2008. She informed Mr Du Preez that she was
arranging
to close the account in order to transfer the monies to the
floor fund account. She realized that the blue bean account had been

blocked and she was informed by the bank that it was due to FICA
registration requirements. After she delivered the requirements
she
was assured that the new card would be available in a few weekstime.
The problems with the blue bean card persisted after her
divorce.
During April 2013 she was informed that the balance on the card was
RS 203.90 and that the calculation of interest earned
on the amount
could only be traced back for a period of six months. After the
account was closed she tendered payment of the said
amount plus
R1000.00 as interest which amount was to be deposited into her
attorney's trust account in order that it be transferred
to the
fund.    She did not receive regular bank statements
and she could only produce those she could find after
searching
through her storage boxes being VZ1 and VZ2. Later VZS1 being a
letter advising of the closure of the blue bean account
and VZS2
which showed that there were funds available in the blue bean account
was sent.
According
to Mr Du Preez the blue bean statement VZ1 reflected a credit balance
of R506.40 for period 1
O
November to 1
O
December
2009, and that this was not for the period October to December 2010
when the deposits of the members were allegedly paid
into the blue
bean account. He further mentioned that without the full series of
statements from the blue bean account it was difficult
to determine
when the respondent made deposits into the account and when the
single amount of R6105.00 was paid into such account.
Only an amount
of R4 739.79 was paid into the floor fund savings account on 3
October 2011. The tender to pay in the outstanding
amount of R7
105.00 was only made after the application was launched.
Meetings
to discuss files and bank cards:
On 22 August 2011 she was held up in motion court. She rescheduled
for 25 August and
on this day her mother fell ill. On 1 and 8
September 2011 she had not been consulted on her availability. She
was again held up
in court and she informed Mr Du Preez. On 9
September 2011 she was under the impression that the meeting was
between her, Mr Du
Preez and Ms Naude, she was not expecting
Engelbrecht SC to be present. She had intended at this meeting to
inform Mr Du Preez
that she would deliver the kitchen equipment she
purchased over the weekend. She was upset because the meeting turned
into an interrogation.
She had not brought the floor fund file
along. The R500.00 withdrawal was for the fridge door repairs and two
more withdrawals
of R1000.00 each were for purchase of the kitchen
equipment. She was not in a position to account for the other
withdrawals she
had made from the floor fund account as reflected in
annexure B. On 13 September 2011 she was still upset by what occurred
at the
previous meeting and did not attend this meeting. She failed
to attend the meeting on 19 September 2011. She confirmed having met

with Bosman SC, Engelbrecht SC, and Raath SC on 5 October 2011. At
this meeting she undertook to provide statements of the blue
bean
account. On 7 October 2011 she met with Ms Naude at Bosman SC's
office and handed over receipts for additional costs which
she had
personally incurred but had not recovered from the floor fund. These
amounts were not taken into account in Mr Du Preez
calculations.
Her
personal circumstances:
Mr Du Preez and her colleagues were aware
that during that time she was under tremendous pressure and that she
could not cope.
She suffered
ill
health and depression and there had also endured three
attempts of a car hi-jacking.  She was married to one of her
colleagues
and she had problems in the marriage concerning her
husband's addiction to prescription medication and alcohol. He was
unable to
give her emotional support or to provide financially for
the family. She became the main breadwinner and on the other hand she
was also financially responsible for her mother. She got divorced and
had to relocate from her home. These circumstances put a strain
on
her practice and mental state and as a result she could not afford
the financial responsibilities of her practice. Her mother
also
suffered
ill
health. She
had transport problems due to accidents she and her mother had been
involved in and this affected her work during the
time when the
vehicle was being repaired. During 2012 she got engaged and fell
pregnant. Her fiancee had no interest in the pregnancy.
The
engagement was broken off and she did not disclose this to her mother
who had moved to Graaf Reinette.
[17] At
the hearing of the matter during March 2014 and by agreement between
the parties the respondent filed a supplementary affidavit
to deal
with the additional information requested by the applicant; the steps
she had taken to obtain the blue bean bank statements
and to address
the queries raised by the applicant's attorneys relating to the
statements.
She
annexed letters to the bank and one from the applicant's attorneys
dated 17 March 2014 which read:
"
Sonder
om
afbreuk
te doen aan die plig
van u klient
om
in die geheel
die hantering
van
die fondse
met
verwysing
na
die Blue
Bean kreditkaart
te verduidelik
by wyse van
'n aanvullende
verklaring,
word u klient
versoek
om
spesifiek
ook met verwysing na die staat
van
11 April
2013 drie krediet
inskrywings
te verduildelik
.
Teenoor
2 April
2013 is daar twee krediet
inskrywings
onderskeidelik
van R1000.00 en R3000.00 en
beskryf
as
"Fund Transfers".
Teenoor
11
April
2013 is daar een inskrywing
van
R3000.00 ook
beskryf
as
'Fund
Transfers'. Op die staat
van
Mei
2013
word teenoor 'payments and credits' 'n
bedrag aangedui van 8 215.64"
Dit
word
verlang dat
u klient
verduidelik
wat die oorsprong
is
van die krediete
en spesifiek
aandui
uit watter rekening
die bedrae
inbetaal
is
in the Blue Bean
rekening.
U
klient word ook versoek
om
op die
staat
van
10
Mei 2013 "Purchases and Debits"
van
R16 407.80
te verduidelik.
Verder
word u klient versoek
om
bewys te fewer van die rekening en
oorsprong van
die bedrag van
R7 105.00 in u
trustrekening
soos
uiteengesit in
ons
skrywe gedateer
11
Maart
2014."
The
supplementary affidavit dealt with an admission by the respondent
that she had misled the court in alleging that the R6105.00
had been
deposited into the blue bean account. She also gave reasons why she
had also manipulated the entries VZS2 by using her
personal computer.
The respondent proceeded to explain the problems she had encountered
in trying to obtain copies of her blue
bean account statements, that
is after the queries were raised by the applicant's attorneys.
Furthermore she amplified on her personal
circumstances which
contributed towards her failure to deal with her conduct regarding
the floor fund account.
THE
ISSUES
[18] The
issue is to determine whether the respondent is a fit and proper
person to practice as an advocate with focus on her management
of the
floor fund account and her conduct when she was called upon to
account by Mr Du Preez representing members of the floor
fund.
Furthermore, whether she should be struck from the roll of advocates
ANALYSIS
OF EVIDENCE
FLOOR
FUND ACCOUNT HELD WITH ABSA
[19] Each
member of the approximately thirty members of the floor fund were
expected to contribute R100.00 per month towards the
floor fund. A
contribution of about R3000.00 was therefore expected on a monthly
basis and if a lesser amount was deposited it
would mean that some
member failed to pay his or her contribution towards the bar account.
The members contributions were transferred
from their individual bar
accounts to the floor fund account held with Absa Bank. Only one bank
statement, annexure B, for the
months 8 June 2011 to 8 September 2011
was annexed. The following deposits were reflected on this statement,
R2800.00 on 24 June
2011; R2800.00 on 23 July 2011 and R2700.00 on 24
July 2011.
[20] The
R6105.00 collected separately from the R300.00 contributions was
never deposited into the floor fund account and the single
cheque
payment expired because it was not deposited. It was not explained by
Mr Du Preez what the status of the account was for
the months
preceding June 2011 except that withdrawals of R1000.00 each and
amounting to R2000.00, were made in January and February
2011.
Although no vouchers were availed the respondent explained that she
purchased trays and jugs for this amount. It is from
these
withdrawals of R2000.00 in the bank statements preceding June 2011
and R4850.00 in annexure B that Mr Du Preez determined
justified the
expenditure of R2 110.21, which left a shortfall of R4739.79. The
respondent averred that from the latter amount
she purchased kitchen
equipment after her blue bean account had been blocked. She averred
that she returned these items to the
suppliers after the meeting of 9
September 2011 and after she was subjected to an interrogation and
was allegedly embarrassed in
the presence of Ms Naude and Engelbrecht
SC. No vouchers were provided for the returns. On 3 October 2011 she
repaid the money
and deposited R4814.00 into the floor fund account
as refund of such shortfall.
THE BLUE
BEAN ACCOUNT
[21]
After the refund of the shortfall into the floor fund account the
respondent continued  to maintain that the R6105.00
collected
from the members was in her blue bean account and that she could not
secure the release of the monies due to the bank's
FICA requirements.
The
supplementary affidavit reveals the following:
1.
That the allegations of her FICA problems were false and having
regard to the time it took to obtain her bank
statements during March
of 2014, it was evident that they could easily have been obtained if
she had diligently pursued a request
for the statements with the bank
during 2011;
2.
She failed to obtain a full complement of the statements because she
had something to hide, the R6105.00 was
never deposited into the blue
bean account and instead by using her personal computer she ad mitted
that she manipulated the entries
in her blue bean bank statements
annexed to the answering affidavit in order to reflect that her
account was in credit;
3.
The blue bean account it transpires could not have been in credit as
alleged by the respondent when she allegedly
gave assurances of such
fact to Mr Du Preez, and when she alleged that the only reason for
her failing to make the R6105.00 available
was because of the FICA
requirements set by the bank. Different amounts were transferred from
her practice account to the blue
bean account only after the launch
of this application on
5
March
2013
being
an amount of
R4000.00
on
2
April
2013
and an amount of
R3000.00
on
11
April
2013;
4.
When the blue bean account was closed during
2014
an amount of
R8203.90
was
transferred to the respondent's practice account and then to her
attorneys trust account and a sum of
R7105.00
was paid over to the applicant.
THE LAW
[22]
An
application
for
the
striking
of
a
practitioner
from
the
roll
of
advocates
on
account
of
misconduct ,
is
not
an
ordinary
civil
proceeding
but
a
disciplinary
proceeding as
stated in
Society
of
Advocates  of
South Africa
(W
i
ts
D
i
vision)
v
Edeling
1998(2)
SA
852
(W)
at
859
1-J
and
860
A
"It
is
a
sui generis
statutory process of
a
disciplinary nature.........
Solomon
v Law
Society
of the Cape of Good
Hope
1934
A D 401
at
408..........
"The
proceedings
......are no more than
a
request to the Court by the custos morum of
the
profession to use its disciplinary powers over an officer of the
Court who has misconducted  himself."
At
860
B-C
"Proceedings
of this nature are those of the Court and not of the
parties.
It was the
Court in the first instance who admitted
a
person
as
an
advocate when it was satisfied that such person was
a
fit and proper person to be allowed to
practice
as
an advocate.
The Court exercises its inherent right to control and discipline the
practitioners who
practice within th
e
jurisdiction in applications of this nature"
[23]
The conduct under scrutiny relates strictly to the
respondent's conduct as floor representative of the floor fund who
together with
Mr Du Preez managed the fund; they were custodians of
the books/files of the fund and signatories to the floor fund bank
account
held with Absa Bank. The function of the applicant as the
custos morum
of the profession is that of watchdog. Its
functions may extend beyond the confines of the courts and
responsibility and relationship
a practitioner and member has with
the court and client. Such functions are not limited only to issues
pertaining to the career
of the practitioner and, what was stated in
Society of Advocates, Natal v Z
1988(3) 443 at 446
8-D
is apposite:
"We
can, however, have regard to extra-professional activities as
shedding light on the character and integrity of the respondent. In

deciding whether or not any particular action is morally
reprehensible one must, I consider, bear in mind that, as regards
actions
which take
place in the
particular
context of
a
business community, the standards of that community must
colour the conduct and may in certain
circumstances explain
conduct but not excuse it against the background that the conduct is
that of an officer of the Court"
[24] It
is trite that it must be determined first whether the offending
conduct has been established on a preponderance of probability.
The
next step is to establish whether the respondent was a fit and proper
person to practice as an advocate. Although this exercise
to some
degree involves a value judgement the exercise of the court's
discretion does not play a role. It is only after it has
been
objectively established from the facts that the respondent is not a
fit and proper person that the court  exercises its
discretion
to suspend or strike from the roll,
General Council of the Bar of
South Africa v Matthys
2002 (5) SA 1(E)
at paragraph 5;
General
Council of the Bar of South Africa v Geach and Others
2013 (2) SA
52
(SCA);
Kekana v The Society of Advocates of SA,
1998(4)SA
649 (SCA).
[25] It
is my view that the respondent's conduct should be examined from the
time that she decided to move to New Court Chambers
and her
realisation that she had to hand over to someone or Ms Naude. Common
sense demanded that she should have during March or
April 2011 when
she was considering moving, commenced with her report on the floor
fund account before her move in August 2011.
While it was submitted
on her behalf that the complaints levelled against her had nothing to
do with the rules of the applicant
or loyalty towards a client or her
conduct before the court, she was in control of monies which did not
belong to her; she was
placed in a position of trust; she had an
obligation to account as best she could and not necessarily in
bookkeeping format. Mr
Du Preez did not qualify what he determined
were justified expenses in that it was not clear to me what they
related to, especially
because on his version and that of the
respondent there were certain standing expenses. For example, the
allowances to the secretary
and tea lady and the expenses for
refreshments for the members and other purchases which she used to
pay for and later claim a
refund.
[26] On
the other hand the respondent failed to produce any voucher relating
to her purchase of the jugs and trays she alleged to
be already in
use and the crockery and cutlery which she alleged to have returned
to the supplier. In my view it was improbable
that goods could be
returned to the store without any document to show that such goods
originated from the stock of such store
and it is further improbable
that the store in question would fail to furnish any document to
prove that a customer had been refunded
for the returns. Ifurther
fail to understand why the respondent deemed it proper to return the
items which had been expected over
many months by the floor members
just because she had been interrogated and embarrassed by Mr Du
Preez. On the other hand Mr Du
Preez despite not having seen the jugs
and trays did not establish whether or not they were there and in
use. As I see it and except
for the trays and jugs it was probable
that the cutlery and crockery were never purchased by the respondent.
The respondent paid
back the shortfall by making a deposit into the
floor fund account on 3 October 2011, being an amount of R4814.00
(4739.79 plus
R74.21 bank costs) and such deposit was confirmed by Mr
Du Preez.
[27] As
officers of the Court practitioners are held to a very high standard
of ethical values and any conduct inconsistent with
such values is
reprehensible. Where an advocate gives false information whether
under oath or otherwise, this constitutes material
facts from which
the Court must determine whether he or she is a fit and proper
person, Kekana
supra.
The explanations of the respondent to her colleagues and
in her answering affidavit and as admitted in her supplementary
affidavit
amounted to false statements. Some of the statements were
made under oath where she not only misled her colleagues over a
period
of time but where she also misled the court. Furthermore, she
manipulated the figures on her bank statements with her personal
computer thereby misrepresenting the true status of her blue bean
credit card account. In as far as her affidavits were concerned
her
conduct could amount to perjury and Ifind that her conduct was
reprehensible. In Kekana
supra
at 655 H, Hefer JA stated:
"
I also support Heher J's observation in the present case that :
"the
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 on every tum."
"
This
is
why there is
a
serious
objection
to allowing
an advocate
to continue
practising
once
he has revealed
himself
as
a
person
who is prepared
to lie under
oath. Legal practitioners
occupy
a
unique
position.
On the one hand
they
serve the interests
of their clients,
which
require
a
case
to be presented
fearlessly
and
vigorously.
On the other hand,
as
officers
of the court
they serve the interests
of justice
itself by acting
as a
bulwark
against
admission
of fabricated
evidence.
Both
parties
have strict
ethical rules
aimed
at preventing
their members
from becoming
parties
to the deception
of the
Court.......
The preservation
of standard
of professional
ethics having been left
almost
entirely
in the hands of
individual
practitioners.
It
stands to reason,
firstly
that absolute
personal integrity
and scrupulous
honesty
are demanded
.....
a
practitioner
who
Jacks
these qualities
cannot be expected to play
his
part."
(my underlining)
In
Geach
and
Others
supra:
".It
was said in Malan that
"if
a
court finds dishonesty
the circumstances
must
be exceptional
before
a
court will order
a
suspension instead
of removal".
That does not purport
to Jay down
a
rule of Jaw but expresses what follows naturally
from
a
finding
of dishonesty. Once an advocate has exhibited dishonesty it might
be inferred that the dishonesty will recur and for that reason
he or
she should ordinarily be barred from practice.
[28] In
considering appropriate sanction it was submitted for the applicant
that the respondent's deception, in particular with
regard to her
blue bean account, over a long period of time should be viewed in
serious light. Furthermore that such conduct was
indicative of a
character defect, which could not be equated to a moral lapse because
of her personal circumstances. It was submitted
that she should be
struck off the roll and that only after a long period has lapsed,
where she has demonstrated that she has completely
reformed and
rehabilitated could a court consider permitting her to practice again
as an advocate.
It was
submitted for the respondent that her personal circumstances
contributed to her conduct and that these were unlikely to recur
and
would not be a consideration in the future. Without listing them,
during 2010 marital problems resulted in financial difficulties
where
she became the sole breadwinner, she suffered emotional distress and
depression; she was hospitalized at some point. These
problems
endured till about 2012. She was a first offender and had shown
remorse. She repaid the monies.
[29] I
have already found that her conduct was reprehensible especially that
of lying under oath and of manipulating her bank statements.
Unlike
what occurred in
Kekana
supra,
she did not persist with such version up to
the end. Her blue bean bank statements were finally released for
scrutiny although at
the instance of the queries raised by the
applicant's attorneys. Although the misconduct related to her
mismanagement of the floor
fund account and that she had repaid them,
one cannot ignore the fact that she had been placed in a position of
trust and that
she had failed to take the opportunities she was given
to set the record straight. I am of the view that the court has to
show
its disapproval of such conduct in the strongest of terms. I am
however not of the view that the appropriate sanction in these
circumstances was that of having the respondent struck off the roll.
In consideration of an appropriate sanction I must say that
her
admission to wrong doing showed remorse. She repaid the money and
furthermore she was a first offender. Due to problems in
her personal
life she went through a period of depression and ill health.  As
I see it a suspension from practice of the respondent
will suffice.
[30] In
the result I make the following order:
1.
The Respondent is suspended from practice for a period of eighteen
(18) months from the date of this order;
2.
The Respondent is ordered to pay the costs of this application.
__________________________
TLHAPI
W
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree
__________________________
MAUMELA
TA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA

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