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[2015] ZAFSHC 163
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Law Society of the Free State v Pieterse (2189/2015) [2015] ZAFSHC 163 (27 August 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2189/2015
In the
matter of:
THE
LAW SOCIETY OF THE FREE
STATE
Applicant
and
PHILIP
PETRUS PIETERSE
Respondent
CORAM:
RAMPAI, J & MOKOENA, AJ
HEARD
ON:
20
AUGUST 2015
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
27 AUGUST 2015
[1]
The matter came to court by way of motion proceedings on 11 May
2015. The main relief sought by the applicant was to have
the
respondent’s name struck off the roll of attorneys. The
respondent did not oppose the application.
[2]
The respondent, Mr Philip Petrus Pieterse, was admitted as an
attorney on the 19 May 1994. He practised as such under
the
name and style I.A.J. Malherbe, a law practice situated at 50
Voortrekker Street, Philippolis in the Free State Province.
[3]
The current application represented the second attempt by “The
Law Society of the Free State” to have the respondent
permanently debarred. The first bid to have his name struck off
the roll of attorneys was launched over 2 years ago, on 05
May 2013,
to be precise, under case number 2012/2013. The complaint of
the applicant then was that the respondent had, for
three consecutive
years, preceding the launching of that application failed to submit
unqualified annual trust audit reports in
terms of rule 16(B) of the
applicant’s rules. The respondent’s breach of the
rule concerned the financial audit
periods which commenced on the 01
March 2010 and ended on the 28 February 2013. It was that
breach which precipitated the
first application.
[4]
The first application was heard by Molemela, J as she then was, and
Lekale, J on the 17 October 2013. Their judgment was
delivered
on the 4 November 2013. The court reasoned that seeing that the
dishonesty did not feature in those proceedings
the respondent’s
striking off would, in those circumstances, be too harsh to the
respondent and that it would constitute
an inappropriate sanction to
impose. Consequently the court decided to conditionally suspend the
respondent for 18 months instead
of altogether debarring him from
practice. The suspension was in line with the applicant’s
alternative prayer –
(
vide
prayer 2 notice of motion).
[5]
The full scope, terms and conditions of the suspension order dated
the 4 November 2013 are contained in “anx vm1”
to the
current application. I deem it necessary to reproduce the suspension
order in this judgment in full.
“
1.
The respondent
PHILIP
PETRUS PIETERSE
is interdicted from practising as an attorney pending:
1.1
submission
by him of all outstanding audit reports in respect of 2010/2011;
2011/2012 and 2012/2013 financial years to the
applicant;
1.2
finalisation
of the winding up of his practice in terms of rule 3B of the rules of
FREE
STATE LAW SOCIETY
pursuant to the sale of his practice or in terms of paragraph (8)
infra
.
2.
Should the incidents in 1.1 and 1.2 above eventuate the applicant
shall issue and file with the registrar of
this court a certificate
to that effect, whereupon, the above interdict viz. (1) shall lapse.
3.
The respondent is, further interdicted from, at any stage whatsoever,
practising for own account or in partnership
or as a director of
incorporated practice or as a branch manager of attorney’s
practice without being in possession of a
valid fidelity fund
certificate.
4.
The respondent is, furthermore, suspended from practising as an
attorney for 18 (eighteen) months.
5.
The above sanction in (4) viz. suspension is, however, suspended in
whole for (3) three years on condition
that the respondent shall not
be found guilty of either failing, during the period of suspension,
to comply with the provisions
of rule 16B.3 of the rules of
FREE
STATE LAW SOCIETY
or of practising in capacities set out in paragraph (3) supra without
a fidelity fund certificate.
6.
The respondent is directed to surrender and deliver to the registrar
of this court his certificate of enrolment
as attorney, within a
period of
seven
days
calculated from date of service of this
order
.
7.
Should the respondent fail to comply with paragraph (6) supra, then
and only in that event, the Sheriff of
this court is authorised to
take possession of the respondent’s certificate of enrolment as
attorney wherever it may be found
and to deliver it to the registrar
of this court.
8.
In the event of the sale of the respondent’s practice not
having been approved by the applicant or finalised
by 4 November
2013, then and only in such circumstances are orders in terms of
paragraph 4 to and including 14 of the
Draft
Order
marked “
X
”
as amended granted.
9.
The respondent shall pay the applicant’s costs on an attorney
and client scale save for the costs reserved
on the 15
th
August 2013 which shall be paid on a scale as between party and
party.”
[6]
The current application, unlike the previous application, contains no
alternative prayer for the respondent’s suspension
or shall I
rather say further suspension. On this occasion the relief
sought by the applicant is the ultimate disciplinary
sanction, the
strike-off. Now the applicant seeks an order crafted in the
following stern terms as per the notice of motion:
“
1.
That it be ordered and declared that Respondent is not a fit and
proper person to act as an attorney of this Honourable
Court.
2.
That Respondent be struck of the roll of attorneys of the Free State
High Court, Bloemfontein.
3.
That the Respondent be ordered to surrender and deliver to the
Registrar of the Free State High Court,
Bloemfontein, his certificate
of enrolment as attorney, within a period of 7 (SEVEN) days
calculated from date of service of this
order.
That
should Respondent fail to comply, then that the Sheriff of this
Honourable Court be ordered and authorised to take possession
of the
said certificate of enrolment wherever it may be found and deliver
same to the Registrar of the Free State High Court, Bloemfontein.
4.
That paragraph 4 to and including 14 of the Draft Order, marked “
X”
,
as set out in paragraph 8 of this Court’s order under case
number 2209/2013 as amended, be granted.
5.
That Respondent shall pay the Applicant’s costs on an attorney
and client scale.
6.
Further and or alternative relief.”
[7]
The gravamen of the current complaint is that the respondent, the
suspension order notwithstanding, continues to project himself
in
public as an attorney and to practice as such. The applicant’s
deponent, Mr VM Morobane, who is designated as the
applicant’s
president, urged us to declare that the respondent is no longer a fit
and proper person to practice as an attorney.
According to him
the evidence, in other words the new facts, constitutes a very strong
case of a very serious misconduct committed
by the respondent.
[8]
Applications of this kind are of a disciplinary nature. It is
trite that they are
sui
generis
.
In the instant matter, there is no
lis
between the applicant and the respondent. “The Law
Society” is the
custos
morum
of the legal profession. It merely gathered the facts and
placed them before us for consideration.
Hassim v
Incorporated Law Society of Natal
1977 (2) SA 757
(A) at 767 C –
G;
Law Society
Transvaal v Matthews
1989 (4) SA 389
(T) at 393 E;
Cirota and Another
v Law Society Transvaal,
1979 (1) SA 72
(A) at 187 H;
Prokureursorde
van Transvaal v Kleynhans
1995 (1) SA 839
(T) at 851 E – F
[9]
The question whether an attorney is a fit and proper person as
contemplated in terms of sec 22(1)(d) of the Attorneys Act No
53/1979
is not dependent upon factual findings but lies in the
discretion entrusted to us as a court of law.
Law Society of the
Cape of Good Hope v C,
1986 (1) SA 616
(A) at 637 C – E;
A v Law Society of
the Cape of Good Hope
1989 (1) SA 849
(A) at 851 A – E;
Law
Society of Transvaal v Matthews
supra
at 393 I – J
[10]
Firstly, the court must first decide, as a matter of fact, whether
the alleged offending conduct by an attorney has been established.
Secondly, if the court is satisfied that the offending conduct has
indeed been established, it has to make a valued judgment in
order to
decide whether the person concerned is indeed not a fit and proper
person anymore to practise as an attorney. Thirdly
if a court
decides that the attorney concerned is not a fit and proper person to
practise as an attorney anymore, it must decide,
in the exercise of
its discretion, whether in all the circumstances of the case the
attorney in question is to be removed from
the roll or merely
suspended from practice.
Kaplan
v Incorporated Law Society Transvaal
1981 (2) SA 762
at 782 A – C.
Reyneke
v Wetsgenootskap van die Kaap die Goeie Hoop
[1993] ZASCA 161
;
1994 (1) SA 359
at 369 – 370.
Law
Society of the Cape of Good Hope v Buddricks
2003 (2) SA 11
at 13 I and 14 A – B.
[11]
The discretion of the court has to be based upon facts before it and
such facts must be proven on a balance of probabilities.
Law Society
Transvaal v Matthews supra at 393 I – J;
Olivier v Die
Kaapse Balieraad
1972 (3) SA 485
(A) at 496 F – G;
Summerley
v Law Society Northern Province
2006 (5) SA 613
(SCA) at 615 B –
F
[12]
The following facts and circumstances prompted the Free State Law
Society to bring the current application:
12.1
The annual trust audit reports for 3 consecutive financial years
referred to in the 2013 suspension order
were still outstanding as on
11 May 2015 when the current application was filed. The
respondent’s failure to do so
is in breach of paragraph 1.1 of
the suspension order.
12.2
The law practice of the respondent was never wound-up before 4
th
November 2013 since the respondent did not co-operate with the
applicant. The respondents conduct constituted breach of
paragraph 1.2 of the suspension order.
12.3
The required approval for the sale of the respondent’s practice
was never given to the applicant by
the respondent. His failure
to do so constituted breach of paragraph 8 of the suspension order.
12.4
The respondent neglected to surrender his admission certificate of
enrolment as an attorney to the registrar
of this court. His
failure to do so constituted breach of paragraph 6 of the suspension
order.
12.5
The respondent continues to practice as an attorney subsequent to the
grant of the suspension order as would
fully appear from “anx
vm3 – vm6.” The respondent’s action
constituted breach of paragraph 3 read
with paragraph 4 of the
suspension order.
[13]
As regards the first leg of the enquiry, we are required to determine
as a matter of fact, whether the respondent’s alleged
offensive
conduct has been established. I proceed to examine the factual
allegations made by the applicant to ascertain whether
there is
substance in the current application to sustain the alleged
misconduct.
[14]
On 27 November 2013 a letter was written by one P.P. Pieterse to A.H.
Taute of Schoeman Maree Incorporated. The letter
concerned an
apparent dispute relative to the transfer of a certain residential
property situated at Lillyvale Place in Bloemfontein
from Ernst
Roberts Family Trust to F.D. & K Theron. The letter was
written on the official letterheads of a law practice
called I.A.J.
Malherbe. The respondent’s full names appear at the top
thereof. At the foot thereof the letter
was signed P.P.
Pieterse before it was emailed to Mr. Taute. From the aforesaid
letter it could be discerned that Schoeman
Maree Incorporated, a law
firm in Bloemfontein, acted on behalf of the plaintiffs referred to
in the letter in question.
On 16 April 2014 Schoeman Maree
Incorporated, applied to the Bloemfontein Regional Court for summary
judgment on behalf of their
clients
Ernst
Evans Roberts N.O. & Another against Frank De Viliers Theron &
Another
.
They summarily claimed payment of the capital amount of R150 000.00
among others (vide anx vm3).
[15]
There can be no reasonable doubt that the respondent was indeed the
author of the letter referred to in the previous paragraph.
The
date of the letter was of particular significance. The
respondent wrote the letter on 27 November 2013, about three weeks
after the suspension order was made against him (ride anx vm1 supra).
[16]
On 2 May 2014, less than six months after his suspension, the
respondent signed a sworn statement at Philipolis in support
of his
clients Mr. F.D. Theron’s main affidavit - (anx vm6). The
affidavit was attached to that of his client as “anx
d”.
The author of the confirmatory affidavit, Philip Petrus Pieterse
declared that:
“
1.1
Ek is meerderjarige manlike prokureur praktiserend as sulks te I A J
Malherbe Prokureurs, Voortrekkerstraat
50, Philipolis, Vrystaat
Provinsie.
1.2
Die inhoud van hierdie verklaring ressorteer binne my persoonlike
kennis, tensy anders vermeld, en is
waar en korrek.”
[17]
The applicant’s Chief Executive Officer Ms, C.J. Marais decided
to investigate the complaint that the respondent was
still practising
as an attorney. Under the pretext of being a client, she
telephoned the respondent’s office and, through
the
receptionist, made an appointment to see the respondent. A
consultation was arranged. On 14 January 2015 Ms. Marais
accompanied by the sheriff and the auditor travelled to Philipolis
where she confronted the respondent. She found him in
his
office, confronted him with the complaint that he, contrary to the
suspension court order, was still practising as an attorney.
The respondent, who appeared startled and unease, failed to refute
the allegations levelled at him. He also failed to hand
over to
the lady his admission certificate which he should have handed over
to the registrar. Ms. Marais also perused the
respondent’s
diary and discovered that several dates were booked and reserved for
criminal cases in the local district magistrate
court. Her
subsequent discussion with the local prosecutor strengthen the
allegation that the respondent was still practising
as an attorney.
[18]
On the strength of the aforegoing undisputed factual allegations, I
find, as a matter of fact, that the alleged misconduct
has been
established on a balance of probabilities. A compelling case
has been made out, in my view, that the respondent
continued to
practice in flagrant violation of the conditional suspension order
imposed on him. He did so from the 27
th
November 2013 until the 14 January 2015 when the applicant removed
all the files of the respondent’s clients from his possession.
The first leg of the enquiry is, therefore, decided against the
respondent.
[19]
As regards the second leg of the enquiry, which now arises in view of
the positive finding I have made in connection with the
first leg, we
are now required to decide, by way of a value judgment, whether the
respondent is no longer a fit and proper person
to continue
practising as an attorney.
[20] The words “fit
and proper” are ordinarily used in relation to a person who
applies to be admitted and enrolled
as an attorney. The two
words taken by themselves have a variety of dictionary meanings.
For instance, the word “fit”
singularly taken has a whole
range of dictionary meanings which includes words such as:
adopted, adjusted, competent, qualified,
deserving or suited to some
purpose.
In the
case of the word “proper” its great variety of dictionary
meanings includes meanings such as: admirable,
commendable,
excellent, goodly, fine, of high quality, honest, respectable,
worthy, apt, fit, suitable of good character or standing.
(
See:
Oxford English Dictionary Kaplan
supra 782 A-B)
[21]
The phrase “fit and proper” does not contain two distinct
ideas. It is an expression of wide import.
Its meaning
has to be determined in the context within which it is used. In
this particular instance that context is the
legislation applicable
to attorneys. The immediate context of the section and the
broad context of the statue must be borne
in mind regard being had to
the apparent scope and purpose of the statute at hand. Kaplan
supra 782 C- 783 F.
“
The
indications are therefore that the expression "fit and proper
person" in s 15 relates to the personal qualities of
an
applicant. The expression is also used in s 22 which authorises the
Court to strike an attorney off the roll or suspend him
from practice
if the Court is satisfied that he is not a "fit and proper
person" to continue to practise as an attorney.”
Kaplan
v The Law Society Transvaal
1981
(2) SA 762
(TPD) of 783 G – H per Boshoff J.P.
[22]
The expression refers not only to moral suitability of an attorney
whose “fitness and propriety” is under the spotlight
of
inquiry but also to technical competence. As a court we have
inherent discretion to regulate and control the conduct of
practitioners even where there is no suggestion of disgraceful or
dishonourable conduct attributed to an attorney against whom
allegations of misconduct have been levelled. I do not want to labour
the point as regards the respondent’s “fitness
and
propriety” to hold office as an attorney. I do not want
this leg of the inquiry to detain us any longer.
The punch line
in a nutshell is this: What misconduct by an attorney, an
officer of the court, can be more disgraceful or
dishonourable than a
deliberate, contemptuous and flagrant violation of a court order?
It is hard to conceive any misconduct
worse than the misconduct the
respondent committed. I shudder to think of the legally adverse
consequences on the members
of the public he unlawfully and
unsuccessfully represented under the false pretext that he was a fit
and proper attorney to represent
them whereas he knew, all too well,
that he had been suspended and interdicted from practising as such.
[23] In the light of all
this I am of the firm view that the respondent’s misconduct has
so tarnished his character and professional
profile that he is no
longer a fit and proper person to be allowed to continue practising
as an attorney. Reyneke
supra
act 303 – 370.
In my
view and for the reasons enumerated above the second leg of the
enquiry also has to be decided against the respondent.
[24]
As regard the third leg of the enquiry, we are called upon to decide
whether, in all the circumstances of the instant matter,
the
respondent’s name must be permanently removed from the roll or
whether the respondent must merely and temporarily be
suspended from
practice. We are called upon to embark upon this last mile of
the road by virtue of the preceding finding
that the respondent is
not a fit and proper person anymore to continue practising as an
attorney. At this junction we have to determine
the final leg of the
inquiry by the exercise of discretion entrusted to us.
Buddricks
supra
at 13 – 14 A – B.
[25]
The final decision we have to make basically concerns a choice of an
appropriate sanction to be imposed on the respondent.
Obviously
the question of a sanction arises only where the first two legs of
the inquiry have been decided against the respondent,
as in the
instant matter. The sanctioning of a delinquent attorney
requires the exercise of a discretion by the court.
At this
third stage of the inquiry we now have to determine, through the
proper exercise of the discretion entrusted to us, whether
the
respondent, an attorney whom we have already found guilty of gross
misconduct on the strength of which we have also found him
not to be
fit and proper person to carry on practising as an attorney, deserves
to have the ultimate sanction of being struck off
the roll or whether
the sanction of being merely suspended from practice would suffice.
Summerly
supra
(2), at 615 I – F.
[26]
Elsewhere in this judgment I alluded to the distinction between the
2013 application and the 2015 application. I indicated
that the
relief previously sought by the applicant against the respondent
contained an alternative prayer for the mere suspension
of the
respondent. However the relief currently sought contains no
such a prayer. The applicant decided to go for the
jagular this
time around. Now the applicant seeks an order for the
respondent’s outright striking off. Upon my
comparative
reading of the previous founding affidavit and the current founding
affidavit I sensed that now the applicant’s
attitude has
hardened and that now the tone has become unsympathetic towards the
respondent. The applicant’s deponent
and president
contended that the contemptuous conduct of the respondent was so
serious that it warranted nothing less than the
ultimate penalty –
striking – off.
[27]
The understandable frustrations of the applicant demonstrated the
natural indignation, often unspoken, of our society at large
when a
lawyer betrays the ethical ethos, norms and standards of his
honourable vocation. The applicant has, through his
contemptuous, disgraceful and dishonourable actions severely
tarnished the image of the lawyering community. The gravity of
his misconduct justifies the submission of counsel for the applicant,
Mr Williams, that the respondent deserves to be struck-off.
I
am persuaded by counsel’s submission.
[28]
During the hearing of his previous application the respondent orally
made certain representations to our colleagues. His undertakings,
which were incorporated into the court order, so moved the court
that, in the end he was merely suspended where striking-off was
looming large on the horizon. The facts of the current application
indicated that he dismally failed to honour his undertakings.
It would seem that he never had any serious intentions to honour his
word. In short he deliberately deceived the court.
He
apparently did virtually nothing after his suspension to facilitate
the sale of his practice. He, with contempt, disregarded
his
suspension order. He continued to practise as an attorney as if
the suspension order did not exist at all. The
applicant’s
envoy visited his office and found out that, as far as the respondent
was concerned, it was still business as
usual.
[29]
The respondent has had the benefit of a prior suspension. The
suspension did not have the desired rehabilitative effect
on him.
He shamelessly abused the opportunity he was given to rehabilitate
himself. He is not a novice in the legal
profession yet
he remains unrepentant and delinquent. The magnitude of his
shameful behaviour strongly militates
against his request that he be
merely suspended.
[30]
Shortly before the commencement of these proceedings on 20
th
August 2015, Mr Williams handed copies of the respondent’s
letter dated 19
th
August 2015, addressed to the applicant’s attorneys. I
choose to label the letter “exi a”. The
respondent’s
suspension order of 2013 cannot be confirmed. I
cannot accede to his request. Firstly, the suspension order
lapsed on 5
th
May 2015, six days before these proceedings were initiated. I
suppose that by asking that his suspension order be confirmed
he
meant to say his suspension order be extended but it may well be that
he meant what he said. Secondly I cannot accede
to his request
because it would be irregular to do so on the strength of a letter.
It will be recalled that the respondent
did not file an answering
affidavit.
[31]
An attorney’s neglect to submit one unqualified annual trust
audit certificate is a serious matter. The respondent
failed to
do so not once but thrice before he was suspended. He was given ample
opportunity by the applicant to mend his ways but
failed. Since
the suspension two more annual trust audit certificates had to be
submitted by the respondent. There
is no reason to believe that
he complied with the applicable rule in respect of the financial
years which ended on 28
th
February 2014 and 28
th
February 2015. All these acts of neglect are matters of grave
concern.
[32]
Over a period of 5 years the respondent has defaulted. He did
not submit the required annual trust audit certificates.
That
is the one thing. Over a period of approximately 14 months, the
respondent deliberately, and with contempt, defied
a court order.
This is the other thing. The respondent was suspended
approximately 22 months ago. However it appears
that
notwithstanding the passage of such a long period of time, the
respondent’s still has no insight into the magnitude
of the
misconduct he has committed. In his letter, “exi a”,
he expressed no remorse for what he did. His
remorselessness is
telling against him.
[33]
In all the circumstances of this particular matter I am convinced
that we cannot exercise our discretion in favour of the respondent
as
regards the sanction. In the light of these I am inclined to
decide the third leg of the enquiry as well against him.
[34] I hold the view, and
it is a very firm view, that if we were to suspend the respondent
again, then our decision would not be
compatible with a proper
exercise of judicial discretion. Having considered all the
proven factual averments, in the light
of all the circumstance of
this case, I have come to the conclusion that the ultimate sanction
of removal or striking-off is the
only appropriate and fitting
sanction for the respondent for what he did. I would,
therefore, grant the relief as fully set
out in the notice of motion
read with “anx x” thereto.
[35]
Accordingly I make the following order:
35.1
That
the respondent is not a fit and proper person to continue practising
as an attorney of this court;
35.2
That
the name of the respondent is hereby removed from the roll of
attorneys of the Free State High Court;
35.3
That
the respondent is directed to surrender and to deliver his
certificate of enrolment as an attorney to the registrar of the
Free
State High Court within 7 days from the date on which this order is
served on him;
35.4
That
the sheriff of this court is directed and authorised to take
possession of the aforesaid certificate, wherever it may be found,
and to deliver it to the registrar of the Free State High Court in
Bloemfontein, should the respondent fail to do so on his own
accord;
35.5
That
the prayers as set out in paragraph 8 of the suspension order read
with “anx x” under case number 2209/2013 as
amended are
granted; and
35.6
That
the costs of this application shall be born and paid by the
respondent on the scale as between attorney and client.
_____________
M.H.
RAMPAI, J
I
concur
_______________
R.
MOKOENA, AJ
On behalf of
applicant: Adv. A Williams
Instructed
by:
RAMOTHELLO
RAYNARD INC.
BLOEMFONTEIN
On behalf of
respondent: No appearance