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[2013] ZAGPPHC 57
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Law Society of the Northern Provinces v van der Merwe (9644/12) [2013] ZAGPPHC 57 (15 February 2013)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 9644/12
DATE:15/02/2013
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
........................
APPLICANT
AND
DANIEL
JOACHIM JACOB VAN DER
MERWE
…...................................
RESPONDENT
JUDGMENT
Wright,
AJ
1.
In this unopposed application the Law Society of the Northern
Provinces seeks orders striking the name of the Respondent from
the
Roll of Attorneys, that he surrenders and delivers to the Registrar
of this Court his certificate of enrolment, the appointment
of a
curator to the financial affairs of the Respondent’s practice
and ancillary relief.
2.
The evidence shows a shortage on the Respondent’s trust account
and that a number of the Respondent's clients have laid
complaints in
regard thereto. The Respondent has not co-operated with the Law
Society or attempted to explain his behaviour or
the shortage on his
trust account. In one case the Respondent failed to refund an amount
of over R500 000 from his trust account.
In another case the
Respondent has failed to account for the sum of R260 000. In yet
another case the Respondent has failed to
account for the sum of over
R95 000.
3.In
Summerley v Law Society of the Northern Provinces 2006 (5) SA (SCA)
613 at para 2, Brandt JA held that it had become settled
law that the
application of Section 22(1 )(d) involves a threefold enquiry. The
first enquiry is aimed at determining whether the
Law Society has
established the offending conduct upon which it relies, on a balance
of probabilities. The second question is whether,
in the light of the
misconduct thus established, the attorney concerned is not a “'fit
and proper person to continue to practise
as an attorney”. The
exercise of the discretion at the second stage “involves, in
reality, a weighing up of the conduct
complained of against the
conduct expected of an attorney and, to this extent, a value
judgment”. The third enquiry again
requires the Court to
exercise a discretion. At this stage the Court must decide, in the
exercise of its discretion, whether the
person who has been found not
to be a fit and proper person to practise as an attorney deserves the
ultimate penalty of being struck
from the Roll or whether an order of
suspension from practise will suffice.
4.
In my view the evidence warrants the striking of the Respondent’s
name from the Roll of Attorneys and the other relief
sought.
5.
The order I propose is to grant the relief sought in paragraphs 1-12
of the notice of motion for the Applicant dated 16 January
2012.
GC
WRIGHT AJ
MAGARDIE
AJ
I
agree and it is so ordered