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[2012] ZAGPPHC 13
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Law Society of the Northern Provinces v Burgers (70383/10) [2012] ZAGPPHC 13 (29 February 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRCIA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: 70383/10
DATE:29/02/2012
IN
THE MATTER BETWEEN:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
.......................................
APPLICANT
(Incorporated
as the Law Society of the Transvaal)
And
BAREND
JACOBUS
BURGERS
........................................................................
RESPONDENT
JUDGMENT
TOLMAY.
J:
[1]
An order was granted on 24 February 2012 and we indicated at the time
that reasons for that order will be given during the week
of 27
February 2012. The reasons for the order follow:
[2]
On 7 December 2010 the applicant brought an urgent application for
the suspension of the respondent in terms of sec 22(1 )(d)
of the
Attorneys Act 53 of 1979 (the Act) from practice as an attorney. The
respondent filed opposing papers but despite this an
order to that
effect was granted.
[3]
The respondent filed an application for leave to appeal to this
order, which was withdrawn in due course. The respondent tendered
the
wasted costs occasioned by that application.
[4]
The applicant now seeks an order in terms of sec 22(1 )(d) of the Act
for the removal of the respondent's name from the roll
of attorneys
with ancillary relief on the ground that the respondent is no longer
a fit and proper person to practise as an attorney.
No one appeared
on behalf of the respondent at the hearing of this application.
[5]
The respondent was admitted as an attorney on 17 June 1999 and he
practised as a single practitioner for his own account under
the name
and style of Barend Burgers Attorneys.
[6]
The question whether an attorney is a fit and proper person to
practise as an attorney requires a three fold enquiry from the
Court,
namely:
(a)
whether the offending conduct has been established on a preponderance
of probabilities, if so
(b)
it must be decided whether the person concerned is a fit and proper
person to practise as an attorney, this requires a value
judgment,
and if not
(c)
it must decide in it's discretion (which also requires a value
judgment) whether the attorney should be suspended for a period
of
time
or removed from the roll
1
.
[7]
A complaint by Enslin Attorneys prompted the applicant to bring this
application. Enslin Attorneys, who represented a certain
Mr Du Toit
complained that Du Toit deposited R70 800-00 into respondent's trust
account for a property related transaction. The
transaction did not
materialize and as a result the respondent demanded repayment of the
money. Initially the attorneys had difficulty
in contacting the
respondent. After sending a letter of demand the respondent on 23
November 2009 made an offer to repay the amount
in instalments of R2
000-00 per month. The response sent by the respondent to the
attorneys stated that the respondent did not
have the funds to pay
the amount outstanding. Van Rooyen, the curator, confirmed in his
report that as at 17 December 2004 the
respondent's trust banking
account showed a balance of only R6 409-24. A trust deficit existed
in the amount of R64 390-76 on this
transaction as at December 2004.
The curator's report that was filed on 24 January 2012 indicated that
the respondent's trust account
showed a deficit for approximately six
years pertaining to this transaction. The respondent eventually paid
R15 000-00 in favour
of the complainant on 2 July 2009. The curator's
investigation furthermore revealed continuous deficits in the trust
account pertaining
to various transactions.
[8]
After the investigation by the curator it transpired that apart from
the aforesaid, several other contraventions of the Act
and the
applicant's rules by the respondent occurred, the facts pertaining to
these contraventions are set out in the curator's
report. The
following are examples of these contraventions:
a)
The respondent confirmed to the curator, Mr Van Rooyen that he had
access to the firm's trust account through his business account
which
made it possible for him to effect payments from the trust account
into the business account from automated teller machines.
b)
The respondent also told Mr Van Rooyen that amounts were transferred
from the trust account to the business account when he exceeded
his
overdraft facility on his business account. Respondent explained that
the business banking account had an overdraft facility
of R25 000-00
and transfers were made when this limit was almost exhausted. In the
premises transfers were made from the trust
account into the business
account in an irregular manner.
c)
The respondent's firm's accounting records were inadequate and no
supporting documents were made available to Mr Van Rooyen except
for
certain trust bank statement and files.
d)
The respondent advised Mr Van Rooyen that since the inception of his
firm he has not kept any business accounting records and
never
submitted tax returns.
e)
The respondent filed unqualified audit reports for the periods ending
2007, 2008, 2009 and 2010, in the light of various irregularities
the
reports should not have been unqualified.
f)
An inspection of files of a number of clients followed. The curator
reported that the respondent utilised one client's funds
to subsidise
another client, and by so doing misappropriated the client's trust
funds, fees debited did not correspond with the
time at which the
work was concluded and fees were debited in an irregular manner.
[9]
The respondent contravened the following rules of the applicant:
•
Section
78(1) of the Act in that the Respondent failed to keep sufficient
funds in his firm's trust banking account to satisfy his
obligations
to trust creditors. Read with Rules 68.3 and 69.5 in that the trust
account was not used as it should have been used
and therefore is at
risk of having lost its identity;
•
Sections
78(4) of the Act read together with Rules 68.1 and 68.2 of the Rules
in that the Respondent's firm did not retain such
accounting records
as are necessary to represent fully and accurately in accordance with
generally accepted accounting practice
the, transactions and records
containing particulars and information of all moneys received, held
and paid by it for and on account
of any person:
•
Rule
68.5 of the Rules in that the Respondent failed and/or neglected to
regularly and promptly update his firm's accounting records;
•
Rule
89.7 in that the Respondent, without lawful excuse, delayed the
payment of trust money after due demand was given to him;
•
Rule
68.7 in that the Respondent did not, within a reasonable time aftej
the performance or earlier termination of his mandate,
account to his
client in writing;
•
Rule
68.8 in that the Respondent did not pay any amount due to his client
within a reasonable time; and
•
Section
70 of the Act in that the Respondent initially refused to comply with
a direction of the Applicant to produce for inspection
to a person
authorised thereto the account records of the firm.
[10]
In his opposing affidavit the respondent states as follows:
"I
struggle with the bookkeeping part of my practice and I was merely
trying to survive. I only had Std 7 accounting, and barely
scraped
through the bookkeeping admission exam. But because I could not
afford a bookkeeper I was forced to do the bookkeeping,
and I wish I
had alternatives to consider at the stage, but I did not. I believed
that all I have to do is keep on practicing and
that someday I will
get the breakthrough, but the breakthrough came later than I
anticipated". "I know that my bookkeeping
was wrong, and I
believe I have been blind to the extent that my trust account
bookkeeping has deteriorated. Mr Van Rooyen opened
my eyes to all the
deficiencies in my firm's administration".
"I
submit that at the time of drafting this opposing affidavit my trust
creditors have all been paid where there were trust
deficits".
[11]
He then goes further to say that he should be allowed to practise as
an attorney under supervision. This excuse for the respondent's
failure certainly does not suffice and is totally unacceptable.
[12]
As was stated in Law Society v Matthews
2
:
"Failure
to keep proper books of account is a serious contravention and
renders an attorney liable to be struck off the roll
of practitioners
or liable t& suspension; and the Courts have repeatedly warned
practitioners of the seriousness of such a
contravention. See Cirota
and Another v Law Society, Transvaal (supra at 193 F-G). The
seriousness is again underlined in rule
89 read with rule 89.11 of
the applicant's rules which provides that it is unprofessional; or
dishonourable or unworthy conduct
on the part of a practitioner to
contravene the provisions of the Attorneys Act or the applicant's
rules."
[13]
The respondent's response to the curator's report as contained in his
letter of 19 December 2010 is superficial and does not
deal with the
contraventions of the applicant's rules. I must also state that his
actions illustrate that he does not merely lack
the necessary
bookkeeping skills, but impact directly on the question of whether he
is a fit and proper person to practise as an
attorney. It is clear
that he does not take responsibility for his actions nor does he show
any insight in his failure to act professionally.
The respondent
pertinently refrained from dealing with the facts and allegations
contained in the applicant's affidavit and the
curator's report.
[14]
After evaluating all the facts I am satisfied that the offending
conduct has been established. The nature of the respondent's
conduct
is of such a nature and deviates to such an extent from what is
required of an attorney that I am satisfied that he is
not a fit and
proper person to practise as an attorney.
[15]
In the exercise of that discretion, and having due regard to the
facts in this case, I am satisfied that the respondent's name
should
be removed from the roll. The contraventions especially his abuses of
his trust account and his inability to take responsibility
for his
conduct supports this conclusion. His conduct poses a real threat to
clients and cannot be condoned or tolerated.
-----------------
R
G TOLMAY
JUDGE
OF THE HIGH COURT
I
agree, and it is so ordered:
B
R SOUTHWOOD
JUDGE
OF THE HIGH COURT
1
Kaplan
v Incorporated Law Society Transvaal 198 (2) SA p 762 at page 782
A-C; Reyneke v Wetsgenootskap van die Kaap die Goeie
Hoop 1994(1) SA
page 359 at page 369-370; Jasat v Natal Law Society 2000(3) SA 44
(SCA) at 51 B-J and Malan v The Law society
of Northern Provinces
568/2007 2ASCA 90 (123/09/2008) at 4 - 9
2
1989(4)
SA 389 at p 395 E-F