About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 253
|
|
Free State Law Society v Gresse (5224/2015) [2015] ZAFSHC 253 (10 December 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION, BLOEMFONTEIN
Case
No.: 5224/2015
In
the matter between:
FREE
STATE
LAW
SOCIETY
Applicant
and
DEON
JACQUE
GRESSE
Respondent
(ID:
[……..])
CORAM:
MOCUMIE et MOLOI, JJ
HEARD
ON:
03 DECEMBER 2015
JUDGEMENT
BY:
MOLOI, J
DELIVERED
ON:
10 DECEMBER 2015
[1]
This is an application by the Free State Law Society for the
striking-off the roll of an attorney practising in the province.
The
respondent is an attorney and practise in partnership at Kroonstad in
the Free State province. The application was not opposed
and there
was no appearance for or on behalf of the respondent on the date of
the hearing.
[2]
The grounds on which the application was based are three-fold:
first, the respondent's delay of a matter in which the
respondent
acted for one BS Mogale and his failure to keep BS Mogale abreast of
the developments in the matter, failure to follow
instructions and
failure to account to his client, the said BS Mogale; second, the
allegations of unprofessional and unethical
conduct by the respondent
referred to the Law Society by the former Judge President of this
division for investigation by the applicant
against the respondent in
a matter that served before him; and third, the embezzlement of an
amount of R500 000-00 from the trust
fund that was used for personal
purposes without the knowledge of the partners in the firm he was
involved with.
[3]
The first complaint was investigated by the Council of the applicant
and the respondent provided proof of certain actions it
wanted the
respondent to do. At a stage, however, the respondent failed to
submit further reports to the Council and also failed
to respond to
further enquiries made by the Council. He simply ignored the
correspondence sent to him by the Executive Officer
of the Law
Society. As far as the second complaint was concerned, the respondent
admitted he was not honest in dealing with the
matter referred to but
indicated he was the only person that suffered damages as a result.
However, the Council later established
that he was again not honest
in that respect. In as far as the third complaint was
concerned a criminal
charge of theft
was laid against the respondent.
The respondent
pleaded guilty in the
magistrate's court to theft and was correctly convicted.
[4]
The enquiry by this court as to whether the respondent is a fit and
proper person to continue practising as an attorney is a
three
stage enquiry as set out in
Jasat
v
Natal
Law
Society,
2000 (3) SA 44
SCA and consist of (a) whether
the alleged offending
conduct has been established
on a preponderance of probabilities. The facts relating to the three
complaints above all point
to the dishonesty of the respondent
on more than the preponderance of probabilities, (b) the second
stage
"involves
a
weighing up
of
the
conduct
complained
of
against
the
conduct expected of
an attorney."
See
Jasat above. This is a value judgement the court must make, (c)
the third stage is whether the conduct complained of warrants
a
striking off or suspension with or without conditions. This is so
because unprofessional, dishonourable or unworthy conduct
may
have different consequences:
Summerlev
v Law
Society, Northern
Provinces,
2006 (5) SA 613
(SCA)
[5]
The admission to the profession as an attorney and the continued
practise as such is premised on honesty - honesty to the client
by
disclosing the progress of a case entrusted to the attorney even if
the facts are against a client, honesty to the Law Society
by
disclosing true facts before it and honesty to the court by doing
everything necessary for the proper administration of justice
with
integrity worthy of the profession. Misappropriation of trust monies
is a worse form of dishonesty which cannot be explained
without
severe sanction; Law Society of the Free State v Mahlomola
Goodwin
Molapo,
Case No 1030/2013. Such misconduct does not only
tarnish the trust the public has vis-a-vis the attorney concerned but
cuts across
the entire profession. The respondent has not explained
to us what exceptional circumstances would have moved him to do what
he
did;
Law Society
of the
Free State
v
Molapo
(2013) ZAFSHC99. He
almost defiantly kept the court in the dark why he would have
acted the way he did. The prestigious status
and dignity of the
profession has been caused severe harm by the conduct of the
respondent and thus his unfitness to practise as
an attorney seems
irresistible;
Malan
&
Another
v
Law
Society of the
Northern
Provinces
2009(1) SA
216(SCA). In the premises the Court cannot find otherwise than that
the respondent is not fit and proper to
continue
practising as an attorney and that the ultimate sanction
is warranted in the circumstances.
[6]
Consequently the following orders are made:
6.
1 That the Respondent's name, Deon Jacques Gresse, be removed from
the roll of attorneys.
6.2
That the Respondent surrenders and delivers to the Registrar of this
court the Respondent's
certificate of enrolment as an attorney of
this court.
6.3
That should the Respondent fail to comply with paragraph 2 within 14
(fourteen) days
of this order, the sheriff of the High Court for the
relevant district be empowered and directed to take possession of
such certificate
and deliver it to the said Registrar.
6.4
The Respondent is hereby removed from office as:
6.4.1
Executor of any estate in respect of which he has been appointed in
terms of Section 51(1)(a)(v) of the Administration of Estates Act,
Act 66 of 1965 or the estate of any person referred to
in Section
72(1); and
6.4.2
Curator or guardian of any minor or other person's property in terms
of Section 72(1), read with Section 54(1)(a)(v) and 85 of the
Administration of Estates Act, Act 66 of 1965, or the estate of any
other person referred to in Section 72(1); and
6.4.3
Trustee of any insolvent estate in terms of Section 59 of the
Insolvency Act,
Act 24 of 1934; and
6.4.4
Liquidator of any company in terms of Section 379(2), read with
Section
379(e) of the Companies Act , Act 61 of 1973; and
6.4.5
Trustees of any trusts in terms of Section 20(1) of the Trust
Property Control Act, Act 57 of 1988; and
6.4.6
Liquidator of any Close Corporation appointed in terms of Section
74
of the Close Corporation Act, Act 69 of 1984.
[7]
That the Respondent 1s ordered to pay
the costs of this application.
____________________
K.J.
MOLOI, J
I
concur.
____________________
B.C.
MOCUMIE, J
On
behalf of the Appellant:
Mr. K Verwey
Instructed by:
Hill, McHardy &
Herbst Inc.
BLOEMFONTEIN
On
behalf of the Respondent:
Adv. F. PIENAAR
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN