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[2013] ZANCHC 15
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Law Society of the Cape of Good Hope v Van der Westhuizen (272/2013) [2013] ZANCHC 15 (31 May 2013)
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HIGH
COURT OF SOUTH AFRICE
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO: 272/2013
HEARD:
26/04/2013
DELIVERED:
31/05/2013
In
the matter between:
THE
LAW SOCIETY OF THE CAPE OF GOOD HOPE
.................................................
APPLICANT
and
PIETER
STEFAN VAN DER WESTHUIZEN RESPONDENT
....................................
RESPONDENT
CORAM:
Pakati J; Erasmus AJ
JUDGMENT
1.
On 26 April 2013 we granted an order in terms of prayers 1, 2 and 3
of the Notice of Motion dated 19 February 2013. In terms
of this
order the respondent was suspended for a period of one year from
practicing as an attorney for his own account, as a director
of a
professional company contemplated in section 23 of the Attorneys Act,
No 53 of 1979 (‘the Act’), or as a professional
assistant
in charge of a branch office of any practice. This order of
suspension was suspended for a period for 5 years from date
of the
order on certain conditions. The respondent was further ordered to
pay the costs of the application on attorney and client
scale.
2.
We indicated that reasons for the order would follow. These are our
reasons.
3.
The applicant lodged the application on 19 February 2013. The
application was personally served on the respondent on 20 February
2013. He did not oppose the application.
4.
We are empowered to grant the order by virtue of section 22(1)(d) of
the Act. The approach that a court should follow in matters
of this
nature is threefold:
1
4.1.
The court must find on a balance of probabilities that the respondent
is guilty of the conduct which forms the basis of the
application;
4.2.
If the court so finds, it must exercise a discretionary value
judgment as to whether the respondent is a fit and proper person
to
be permitted to continue practicing as an attorney or not.
4.3.
The court must take into account the circumstances in the matter
whether or not to grant an order striking or suspending the
respondent from practice.
5.
The profession of an attorney requires absolute honesty, integrity
and reliability from a practitioner.
2
Where
he acts for others, the law expects uberrima fides, which means the
highest possible degree of good faith.
3
He
owes the highest standard of trust not only to the Court and the
public at large, but also to the Law Society of which he is
a
member.
4
6.
The background to this application and the facts thereof appear from
the papers. A certain couple (Mr and Mrs Jagiello) were
married to
each other in community of property. Mr Jagiello consulted attorney
Van Zyl on 10 May 2010, the date following the marriage,
in regard to
entering into an ante-nuptial contract. Jagiello was advised that
such a contract could not be entered into after
marriage and
explained to him that a court order was needed to change their
property regime.
7.
Some time later Van Zyl’s firm received instructions from a
client to recover monies from Mr Jagiello. It was discovered,
after
interpleader proceedings were filed and it was alleged that the
Jagiello’s were married by ante-nuptial contract. It
appeared
from the marriage certificate that the Jagiello’s were married
on 9 May 2010. Van Zyl reported the matter to the
applicant.
6.
The applicant forwarded a complaint to the respondent on 14 March
2012. The respondent, in a letter dated 17 March 2012, provided
a
detailed explanation to the applicant. The respondent, when
approached by Jagiello after conclusion of his marriage, requested
a
Notary Public, Mr De Waal Esterhuyse of De Waal Esterhuyse Attorneys
in Melkbosstrand and enquired from him whether he was willing
to
execute an ante-nuptial contract in terms of a power of attorney
which the respondent had backdated to 7 May 2010, a date before
the
marriage took place. The respondent proceeded to certify that the
couple had signed a power of attorney in his presence on
7 May 2010,
to enter into the ante-nuptial contract. The ante-nuptial contract
was executed and back-dated to 7 May 2010. It was
registered in the
Deeds Office in Cape Town.
8.
In his response to the complaint, the respondent stated that he acted
in the way he did because of an inexplicable and insane
moment. He
advised the applicant that he pleaded guilty to such charge as the
applicant may bring against him. He furthermore set
out mitigating
factors.
9.
The applicant concluded that the respondent was guilty of
unprofessional conduct and had contravened certain of the applicant’s
rules and resolved to lodge the application.
10.
The Applicant’s conduct falls far short of the standards the
Court expects from an attorney. He has contravened the Act
and the
applicant’s rules. He is guilty of unprofessional,
dishonourable and unworthy conduct and has brought the attorney’s
profession into disrepute. His conduct was potentially prejudicial to
third parties and was prejudicial to his creditor.
11.
The sanction to be imposed lies within in the sole discretion of the
court. Courts have generally required Law Societies to
take a view on
a matter to assist the court in deciding on the necessary sanction,
which it has done in this matter.
5
Given
the respondent’s immediate acknowledgment of his guilt, his
regret and contrition and the fact that he neither made
an attempt to
conceal the truth, nor to mislead the applicant and the court, the
view taken by the applicant cannot be faulted.
_________________________
S
L ERASMUS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
I
agree.
_________________________
B
PAKATI
JUDGE
NORTHERN
CAPE DIVISION
For
the Applicant: P Horn
Haarhoffs
Inc Kimberley
1
Summerly
v Law Society of the Northern Provinces
2006 (5) SA 613
at 615 B –
F; Jasat v Natal Law Society
2003 (3) SA 44
at 44 D – E; Law
Society of the Cape of Good Hope v C
1986 (1) SA 616
(A); Law
Society of the Cape of Good Hope v Budricks
2003 (2) SA 11
(SCA) at
13 I – J and 14 at A - B.
2
Vassen
v Law Society of the Cape of Good Hope
[1998] ZASCA 47
;
1998 (4) SA 532
(SCA) at 538
3
Incorporated
Law Society, Transvaal v Visser & Others 1958(4) SA 115 (T) at
131
4
Law
Society of the Cape of Good Hope v Holmes 2006(2) SA 139 (PD) at 145
F – G and 149 I
5
Incorporated
Law Society, Transvaal v G
1953 (4) SA 150
– referred to in
Law Society of the Cape of Good Hope vs C supra, on 638 I