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[2015] ZAFSHC 22
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Law Society of the Free State v Le Roux and Others (3039/2014) [2015] ZAFSHC 22 (6 February 2015)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: 3039/2014
In
the matter between:
LAW
SOCIETY OF THE FREE STATE
….......................................................................
Applicant
and
WERNER
LE ROUX
…............................................................................................
First
Respondent
BERNARDUS
JACOBUS VIVIERS
…..........................................................
Second
Respondent
STELLA
SMITH
…...................................................................................................
Third
Respondent
GOODRICK
& FRANKLIN ATTORNEYS
INC
.....................................
Fourth
Respondent
(Registration
Number: 2003/031198/21)
CORAM:
MOLEMELA,
JP
et
DAFFUE,
J
JUDGMENT:
DAFFUE,
J
HEARD
ON:
6
NOVEMBER 2014
DELIVERED
ON:
6
FEBRUARY 2015
[1]
This is an application by the Law Society of the Free State Province
for the striking off the roll of an attorney, Mr Werner
Le Roux (“Le
Roux”), alternatively his suspension from practice.
[2]
Le Roux is cited as the 1
st
respondent. His former
codirectors of Goodrick & Franklin Attorneys Inc, Mr
Bernardus Jacobus Viviers and Ms Stella Smith
are cited as 2
nd
and 3
rd
respondents respectively and the company is cited
as 4
th
respondent.
[3]
In contrast to the relief claimed against the 1
st
respondent, the following relief is sought against 2
nd
and 3
rd
respondents in the Notice of Motion:
“
The
second and third respondents are warned, alternatively appropriately
sentenced (sic), but their names are not removed from the
roll of
attorneys.”
[4]
It is not strange that 2
nd
and 3
rd
respondents
do not oppose the application in view of the stance adopted by the
Law Society.
[5]
It is the Law Society’s case that the 4
th
respondent’s trust account reflected a substantial trust
deficit in the total amount of R917 652.27 on 28 February 2011.
This
is not in contention.
[6]
Other grounds relied upon for the bringing of the application are (a)
the contravention of rule 16 and 16A of the Law Society’s
rules, (b) misappropriation of trust funds by the respondents, (c)
consistent trust deficits over a period of time, (d) the failure
to
submit a Rule 16B audit report timeously, (e) qualified audit reports
for the years ending 28 February 2011 and 29 February
2012, and (f)
the failure to keep proper book of accounts in contravention of
section 78 of the Attorneys Act and ihe Law Society’s
rule 16.
Furthermore it is alleged that 1
st
respondent in
particular failed to co-operate fully with applicant during its
investigation and making conflicting statements,
that he practises
without a Fidelity Fund Certificate and that he is guilty of
unprofessional conduct.
[7]
Partners in a firm of attorneys and directors in an incorporated
company of attorneys are jointly responsible to keep proper
books of
accounts in according with the Attorneys Act, 53 of 1979 and Rules of
the Law Society. Each director in an incorporated
company is jointly
and personally liable for the acts and omissions of the company.
[8]
Messrs Kotie Kruger Chartered Accountants, the auditors of the 4
th
respondent, presented an annual audit report on 2 September 2011 in
respect of the financial year ending on 28 February 2011. It
contained a qualification. The auditors did not audit the books of
the 4
th
respondent for the terms ending at the end of May
and August 2010, but the trust deficits were found to be R99 899.98
and R26 310.22
respectively. On 30 November 2010 the 3
rd
term of the 2011 financial year, the trust deficit increased to R441
846.17 and by the end of that financial year the trust deficit
was
R917 652.27.
[9]
Prior to the launch of this application the company’s directors
were given the opportunity to respond to a report prepared
by Newtons
Chartered Accountants on behalf of the Law Society. It transpired
from the responses that Le Roux, Smith and the bookkeeper
of 4
th
respondent find themselves in one camp, whilst Viviers finds himself
in a different camp. Accusations are rife between Le Roux
and Viviers
in particular, the one blaming the other for the predicament in which
the company and the directors find themselves.
[13]
The non-involvement of a director with the financial management of
the company is no defence at all. Compliance with the Act
and Rules
is the duty imposed upon every practising attorney for his account,
in partnership or as a director of a corporate company.
See:
Hepple
loc
cit
at
para [21].
[14]
As a general rule striking-off is reserved for attorneys who have
acted dishonestly, whilst transgressions not involving dishonesty
are
usually visited with a lesser penalty of suspension from practice.
See:
Summerlev
v Law Society,
Northern
Provinces
2006
(5) SA 613
SCA at para [21].
[15]
If an attorney is unable to administer and conduct a trust account,
it does not mean that striking-off should follow as a matter
of
cause. The converse is also correct: it does not follow that
striking-off is not an appropriate order. See:
Malan
and
another v The Law Society, Northern Provinces
2009(1)
SA 216 SCA at paras [10] and [11],
[16]
Due to the seriousness of the allegations brought to light, the court
may, on the basis of the principles laid down in the
Hepple
case
be inclined to impose harsher sanctions than the ones proposed by the
Law Society in respect of 2
nd
and 3
rd
respondents who have at this stage chosen not to oppose the
application. In appreciation of the fact that they may have chosen
not to oppose the application due to the relatively lighter sanctions
recommended for them by the Law Society, it is only fair
that they be
afforded an opportunity of filing answering affidavits so as to
comprehensively deal with the evidence relied upon
by the Law
Society.
[17]
Consequently the following orders are issued:
(1)
The application is postponed to the opposed roll of Thursday 16 April
2015;
(2)
The 2
nd
and 3
rd
respondents are allowed to file
answering affidavits dealing with the aspects referred to in this
judgment, if they so wish, by
not later than 13 March 2015;
(3)
Applicant shall file a supplementary replying affidavit, if required,
by not later than 27 March 2015;
(4)
Heads of argument and any supplementary heads of argument that the
parties may wish to file shall be filed in accordance with
the
Practice Directives of this Division;
(5)
Costs to stand over for later adjudication
J.P.
DAFFUE, J
I
concur.
M.
B. MOLEMELA, JP
On
behalf of applicant: Adv. D.M Grewar
Instructed
by:
Azar
& Havenga Inc
BLOEMFONTEIN
On
behalf of 1
st
respondent:
Adv. H Van Eeden SC
with
Adv C de Witt
Instructed
by:
Steenkamp,
De Villiers & Coetzee
BLOEMFONTEIN