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[2015] ZAGPPHC 204
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Law Society, Northern Provinces v Thirion (71294/2014) [2015] ZAGPPHC 204 (16 April 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 71294/14
DATE: 16 APRIL
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
IN THE MATTER
BETWEEN:
LAW SOCIETY,
NORTHERN
PROVINCES
.........................................................................
APPLICANT
AND
ANNELIE
THIRION
..............................................................................................................
RESPONDENT
JUDGMENT
KUBUSHI, J
[1] This is an
application by the Law Society of the Northern Provinces, for an
order suspending the respondent, an attorney of
the High Court of
South Africa, immediately from the roll of attorneys; and for the
respondent to immediately surrender and deliver
to the registrar of
this court her certificate of enrolment as attornery of this court;
and for other ancillary orders.
[2] The applicant is
a regulatory authority governing the attorney’s profession
within the four provinces of Gauteng, Mpumalanga,
Limpopo and a
portion of the North West Provinces incorporated in terms of s 56 of
the Attorneys Act 53 of 1979 (the Act).
[3]
The applicant has
locus
standi to
bring the application.
[4] The respondent
Annelie Thirion, was admitted and enrolled as an attorney of this
court on 28 October 2008. Her name is still
so enrolled but at the
time of the hearing of this application she had already ceased to
practice as an attorney. She previously
practiced as a sole
practitioner under the style Thirion Attorneys.
[5]
The basis of this application
is that the respondent is not a fit and proper person to continue to
practice.
[6] The respondent
is in essence not persisting with the dismissal of the applicant’s
claim. She has, however, filed opposing
papers which, according to
her, are meant to place us in possession of the full facts leading up
to the application, specifically
her version of events, for a fair
and correct decision to be made; and, to request us to grant her a
lesser sanction than prayed
for in the application.
[7]
Section 22 (1)
(d)
of
the Act provides that a person who has been admitted and enrolled as
an attorney may on application of the Law Society be struck
off the
roll or suspended from practice if he or she, in the discretion of
the court, is not a fit and proper person to continue
to practice as
an attorney.
[8]
Regarding applications of this nature, it is settled law that a court
is in effect called upon to consider a three-stage enquiry
that
requires a court to enquire whether
1
(a)
The
Applicant has established the offending conduct on which it relies,
on a balance of probabilities;
(b)
The
conduct established indicates that the attorney is not a fit and
proper person to practice; and
(c)
The
attorney should be struck from the roll of attorneys or whether an
order suspending the attorney would suffice.
[9] The first issue
to be determined is whether the applicant has established the
offending conduct on which it relies, on a balance
of probabilities.
[10] The facts and
circumstances which prompted the applicant to launch this application
are common cause between the parties. According
to the applicant the
offending conduct of the respondent is the following:
(a)
the
respondent failed to submit her rule 70 auditor’s report for
the period ending 28 February 2013 to the applicant;
(b)
the
respondent was not in possession of a Fidelity Fund certificate and
has practiced as an attorney without such certificate since
1 January
2013;
(c)
the
respondent failed to co-operate with the applicant in an
investigation into her bookkeeping and practice affairs;
(d)
the
respondent abandoned her practice alternatively ceased practicing
without notifying the applicant, without winding up her practice
properly and without filing a closing auditor’s report; and
(e)
the
respondent failed to keep the applicant advised of her contact
particulars.
[11]
The respondent does not dispute having committed the offending
conduct complained of. The explanation which she provides and
the
reasons she gives as to certain of the transgressions, do not take
away the fact that she committed the transgressions.
[12]
For instance, the respondent’s averment that she did notify the
applicant of the change of her details because her contact
details
were reported in certain documentation such as her application for a
Fidelity Fund certificate and her email signature,
does not
constitute compliance with rule
3
of
the applicant’s Rules. As such, her failure to notify the
applicant of her changed address as required in terms of rule
3
of
the applicant's Rules amounts to unprofessional, dishonorable and
unworthy conduct.
[13]
The further averment by the
respondent that she did not abandon her practice but ceased
practicing as an attorney during September
2013
is without merit. On her own
version she contradicts herself by alleging that she proceeded to
practice as an attorney in respect
of at least two matters after the
date of September
2013.
After
the said date, there were still transactions on her trust account,
and at the time this application was brought, her trust
account was
still open and operating. There were still trust funds available and
trust creditors that had not been accounted to.
She admitted having
notified the applicant of the closure of her firm only during May
2014
and
failed to close her trust account and submit her outstanding
auditor’s report as well as her closing auditor’s report.
The closing auditor’s report subsequently submitted by the
respondent was submitted out of time and the report was qualified
in
that her accounting records were not updated monthly and reconciled
regularly. In my view, these failures are akin to abandonment
of her
practice.
[14] I am,
therefore, satisfied that the applicant has been able to demonstrate
and to establish the offending conduct, on a balance
of
probabilities.
[15]
The second issue is whether the
respondent is a fit and proper person, to continue to practice as an
attorney.
[16] A serious
consideration of the respondent’s conduct is required to
determine whether or not she is a fit and proper person
to remain on
the roll of attorneys. She failed to provide any explanation for most
of her transgressions and in fact admits to
such contraventions.
Consequently, it is my view that the only reasonable inference that
can be made from her conduct in relation
to all the charges,
considered cumulatively, is that her conduct, does not accord with
that of a fit and proper person. Respondent’s
conduct
constitutes deviation from the standards of professional conduct that
it cannot be said that she is a fit and proper person
to continue
practicing as an attorney. It is, therefore, my conclusion that the
respondent is not a fit and proper person to be
retained on the roll
of attorneys.
[17] The last issue
for determination, is whether a person who has been found not to be a
fit and proper person should continue
to practice as an attorney, or
whether he should be struck from the roll or whether an order of
suspension will suffice.
[18]
This enquiry also requires the court to exercise its discretion. The
court must decide whether the person found not to be fit
and proper
to practice as an attorney deserves the ultimate penalty of being
struck from the roll or whether an order of suspension
will suffice.
2
[19] The applicant
calls for the suspension of the respondent on the basis that she is
not a fit and proper person to continue to
practice as an attorney.
[20] The following
was stated in Law Society, Northern Provinces v Setshogoe [2009] JJOL
23071 (T), at para 120 -
'It is seldom, if
ever, that a mere suspension from practice for a given period in
itself will transform a person who is unfit to
practice into one who
is fit to practice. Accordingly, as was noted in A v Law Society of
the Cape of Good Hope 1989 1 SA (A) 852E-G,
it is implicit in the Act
that any order of suspension must be conditional upon the cause of
unfitness being removed. For example,
if an attorney is found to be
unfit of continuing to practice because of an inability to keep
proper boobs, the conditions of suspension
must be such as to deal
with the inability. Otherwise the unfit person will return to
practice after the period of suspension with
the same inability or
disability. In other words, the fact that a period of suspension of
say five years would be a sufficient
penalty for the misconduct does
not mean that the order of suspension should be five years. It could
be more to cater for rehabilitation,
or if the court is not satisfied
that the suspension will rehabilitate the attorney, the court ought
to strike him from the roll.
An attorney who is the subject of the
striking off application and who wishes a court to consider this
lesser option, ought to
place the court in a position of formulating
appropriate conditions of suspension.’
[21] The respondent
on the other hand, prays that the suspension be suspended with
appropriate conditions attached, as an appropriate
sanction in the
circumstances of this matter. According to the respondent’s
counsel we should, when penalizing the respondent
take her
circumstances into account that: she is presently not practicing as
an attorney; no act of dishonesty was found against
her; there were
no persons who laid complainants against her; she did not put the
public at risk; and there were no shortages of
trust monies involved.
[22] The
respondent’s assertion is that conditions which will
rehabilitate her should at the discretion of the court be attached
to
the suspension order, namely: should she decide to go back to
practice, she should be debarred from sole practice - she should
practice as a professional assistance for a period of a year or two
before practicing on her own; and that she undergoes training
in the
attorneys bookkeeping.
[23] My view is
that, in the circumstances of this case, an order for the suspension
of the respondent will suffice. The complaints
against the respondent
are administrative in nature and as such the deviation complained of,
though serious, is not so material
that it warrants striking off. I
would not say that the conduct complained of reflects upon her
character, it, rather relates to
the lack of administrative skills
and/or capabilities on her part. On the facts of the case, it does
not appear that the respondent
acquired enough experience to operate
her own practice.
[24] Should the
respondent go back to practise, she must be precluded from practising
for her own account, either as a principal
or in partnership or in
association or as a member of incorporation, for a period of two
years. Should, she, after the expiry of
the period stated herein,
choose to practise as stated above in this paragraph, she shall have
to satisfy the court that she is
a fit and proper person to do so.
[25]
The respondent has since stopped practicing as an attorney and has as
of now furnished the applicant with the closing auditor's
report. It
is thus, no longer necessary to appoint a curator
bonis.
The applicant must, however, see to
it that the respondent’s trust account has been properly closed
and that all the creditors
have been accounted to.
[26]
The applicant has prayed for an order for costs on an attorney and
client scale. The general rule in matters of this nature
is that the
respondent has to pay the costs of the applicant on an attorney and
client scale because the applicant is not an ordinary
litigant as it
performs a public duty.
3
On
the facts of the present matter, there is no reason, in my view, to
depart from the general rule. The cost order against the
respondent
must be on an attorney and client scale. Indeed, as stated by the
applicant’s counsel, the applicant must not
be burdened with
legal costs when launching applications of this nature.
[27] Consequently, I
would make the following order -
(a)
The
respondent, Annelie Thirion, is suspended from practice as an
attorney of this court until such time as she satisfies the court
that she is a fit and proper person to resume practice as an
attorney.
(b)
The
respondent is ordered to immediately surrender and deliver to the
registrar of this court her certificate of enrolment as an
attorney
of this court.
(c)
In
the event the respondent failing to comply with the terms of this
order as detailed in paragraph 2b of this order within two
(2) weeks
from the date of this order, the sheriff of the district in which the
certificate is, is authorized and directed to take
possession of the
certificate and to hand it to the registrar of this court.
(d)
The
respondent is ordered to pay the costs of suit on an attorney and
client scale.
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
I agree, and it is
so ordered
S. POTTERILL
JUDGE
OF THE HIGH COURT
APPEARANCES
HEARD
ON THE :
12
MARCH 2015
DATE
OF JUDGMENT :
16
APRIL 2015
APPLICANT'S
COUNSEL :
M
VAN ROOVEN
APPLICANT’S
ATTORNEY :
ROOTH
&
WESSELS
INC
RESPONDENT’S
COUNSEL :
L
REISER
RESPONDENT’S
ATTORNEY :
THIRION
ATTORNEYS
1
See
Jasat v Natal Law Society
2000 (3) SA 44
,
[2001] 2 All SA 310
(SCA)
at para 10; Summerly v Law Society, Northen Provinces
2006 (5) SA
613
(SCA) at para 2; Botha and Others v Law Society, Northern
Provinces
2009 (3) SA 329
(SCA) at para 3.
2
See
Summerly v Law Society, Northern Provinces
2006 (5) SA 613
(SCA)
para 2.
3
See
Law Society of the Northern Provinces v Dube
[2012] JOL 29446
(SCA)
at para 33.