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[2012] ZAGPPHC 119
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Law Society of the Northern Provinces v Van Der Merwe (40666/2006) [2012] ZAGPPHC 119 (19 June 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
CASE
NO.: 40666/2006
DATE:19/06/2012
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
.......................................
APPLICANT
V
ROELOF
JOHANNES VAN DER
MERWE
.........................................................
RESPONDENT
JUDGMENT
WEBSTER
J
1.
The applicant seeks an order that the respondent, an admitted
attorney be suspended from practice and further that he surrender
his
certificate admitting him to practise and further ancillary relief
i.a. that a curatorbonis'be appointed to administer and
control the
respondent's trust account including accounts of insolvent and
deceased estates or any independent accounts opened
and held by the
applicant in any bank in the Republic of South Africa in accordance
with the provisions of section 78(1) of Act
53 of 1979 and/or any
separate savings trust or accounts contemplated in accordance with
the provisions of sections 78(2) and 78(2A)
of Act 53 of 1979; an
further ancillary relief ordinarily granted by this court in order
for the curator bonis to take possession
and charge of all trust fund
records and the like to safeguard the interests of the respondent's
clients, correspondent attorneys,
etc. pending the institution of
proceedings to have the respondent's name struck off from the role of
attorneys as he is not a
fit and proper person.
2.
The applicant was admitted as an attorney of this court on 25 April
2005. Except for the initial Fidelity Fund certificate that
is issued
upon an attorney's admission as such all subsequent Rule 70
certificates are issued only upon the filing by a practitioner
of an
auditor's report for the period ending 28 February of each and every
succeeding year after admission: such certificate has
to be submitted
on or before 31 August of every year.
3.
The purpose of the Rule 70 auditor's report is to satisfy the Law
Society that the practitioner has kept proper books of account
and
that all trust funds of clients have been properly and correctly
accounted for. Failure to file the necessary auditor's report
constitutes an offence in terms of Rule 89.11.
4.
The respondent's, according to the founding affidavit, failed to
submit his auditor's report for the year ending (28 February)
following his admission and in respect of subsequent years. Various
complaints were made against the respondent. As a result thereof
the
respondent was summoned to appear before a disciplinary committee.
The disciplinary committee did not proceed with the inquiry
- it
referred the matter to the Council of the Law Society for
reconsideration.
5.
The respondent's conduct giving rise to this application consists of
his failure to provide the Rule 70 auditor's reports and
various
complaints. Briefly summarised they are:
(i)
C.E. Pienaar: the respondent was instructed to represent Ms Pienaar
in a family matter. The respondent failed to file the necessary
answering affidavit; failed to advise his client of the date of
hearing; failed to attend a round table conference and failed to
furnish Ms Pienaar with a statement of account;
(ii)
Rule 70 auditor's reports: the first report was submitted 3 years
late; the second was submitted 2 years late; the third was
submitted
1 year late. When the matter was heard the court was informed that
the respondent had filed all auditor's reports that
he was obliged to
file and further that it appeared that there was no shortfall in his
books of account;
(iii)
Failure to attend court, misleading the court on whether his client
had properly instructed him or not resulting in the delay
in the
prosecution of a trial in the Regional Court. The complaint was
submitted by the President of the Regional Court: Gauteng.
He was
candid enough to explain that "...in the event that my client
instructed me to delay the matter by postponing the case
as long as
many times necessary as she was waiting for her funds to
arrive
from the UK, such delays should be layed at her door, not mine, as I
obviously had to execute her instructions...";
(iv)
Misappropriation of trust funds: the respondent admits that he
misappropriated R70 000 being damages recovered from the Road
Accident Fund on behalf of Ms A.M.E. Hoffman.
6.
The respondent admits his transgressions and that he acted
unprofessionally. He blames his book-keeper for his failure to file
the auditor's reports. He admits (i) conducting himself
unprofessionally; (ii) failing to keep proper books of account; (iii)
practising without a fidelity fund certificate; (iv) misappropriating
the R70 000 due to Ms Hoffman. There are various other complaints
against the respondent. These are of unprofessional conduct in
matters in which he was instructed or where he failed to respond
to
communications from clients, the applicant, correspondents and
colleagues.
7.
The respondent filed a lengthy answering affidavit deposed to on 16
March, 2007. An excerpt from paragraph 2 thereof [page 176]
reads as
follows: "Ek het enkele jare gelede as gevolg van onbesonnenheid
en die stres van my beroep op 'n sosiale basis begin
om
afhanklikheidsvormende middels te gebruik en daarmee te
eksperimenteer. In die afgelope 2 jaar het ek totaal afhanklik van
hierdie middels geraak en is ek tans vir alle praktiese doeleindes
verslaafaan hero/en. Die misstappe wat ek begaan het waarna hierbo
en
in die verklaring hierin verder verwys word, het telkens geskied by
geleentheid waar my oordeel aangetas was as gevolg van die
gebruik
van die afhanklikheidsvormende middel. Ek opper dit nie as 'n
verskoning nie, maar wens aan te dui dat ek volledig insig
het in my
probleem en het ek om daardie rede reeds alle stappe geneem om binne
die volgende week of twee in die Elim Kliniek te
Kempton Park
opgeneem te word en is dit my vaste voorneme of totaal te
rehabiliteer. Sedert ek hierdie besluit geneem het, poog
ek om so min
as moontlik van die middel te gebruik, maar die afhanklikheid van so
'n ernstige verdowingsmiddel is van so 'n aard
dat ek dit nie sonder
hulp en bystand sal kan doen nie."
8.
He undertook further in that affidavit that: "Verdermeer
onderneem ek om die foute wat ek wel begaan het en soos wat ek
later
hierin in detail sal aandui, nie weer in die toekoms sal gebeur nie
en dat ek reeds alle maatreels getrefhet om stiptelik
te voldoen aan
die reels en kontrolemaatreels wat binne die struktuur van die
professie bestaan. Ek smeek date k in hierdie aangeleentheid
nog 'n
kans gegun sal word om my bona fide te bewys in die nakoming van die
reels van die orde met betrekking tot spesifiek die
aangeleenthede
waar ek fouteer het en andersins en dat selfs in die geval waar
hierdie Agbare Hof dit sou oorweeg om my te skors
vanwee die erns van
oortredings, sodanige skorsing opgeskort sal word om my die
geleentheid te gee om mypositiewe voorneme om van
my probleem van
verslawing te genees en daarna die reels stiptelik na te kom in die
praktyk te kan bewys."
9.
The applicant, in its reply points out that, having been offered the
opportunity to rehabilitate himself the respondent "...continued
with the similar conduct towards his clients and there were further
complaints..." and that "...the only suitable remedy
in
those circumstances is that the respondent be struck from the roll'.
10.
Mr Botes sought an indulgence to hand in an additional affidavit. Ms
Asmal, for the respondent, had no objection. Leave to do
so was duly
granted. The new evidence tendered in the said affidavit is that the
respondent again submitted himself for treatment
in March of this
year. He was admitted to the rehabilitation centre from 3 August 2011
to 8 March 2012. He received treatment and
medication and was
subjected to various tests. He also underwent a psychological test
and clinical evaluation. On the day preceding
the date of hearing he
had again subjected himself to a test which confirmed that there were
no traces of any drugs in his body.
11.
The court was further informed that the respondent had (i) written up
his trust account books and his auditor had submitted
all outstanding
Rule 70 certificates; (ii) had been issued with fidelity fund
certificates for the year ending December 2008, December
2009,
December 2010, December 2011, and December 2012: these were issued on
27 February 2012. We were re-assured that there was
according to Mr
Faris, the respondent's official charged with investigations of
practitioner's trust account books, currently no
risk with regard to
trust funds in the respondent's trust account.
12.
Ms Asmal submitted that the respondent had a long history stretching
over eight (8) years during which he had failed to conduct
himself as
an officer of this court. He had not been amenable to basic
disciplinary measures. He had failed to honour undertakings
and
attend meetings with officials of the respondent. He had become aware
of his drug addiction problem as way back as 2007. He
had re-assured
the respondent then that he was in a rehabilitation centre and had
undertaken to submit reports at three months
intervals. The
respondent had only submitted reports in October, 2007, July, 2008
and December, 2008. She submitted that the respondent's
track record
indicated a proclivity towards recalcitrance rather than reformation
and rehabilitation as had been the case in the
past. She submitted
that the respondent had proved to be unreliable. She emphasized that
the applicant had accorded the respondent
more than an adequate
opportunity to rehabilitate himself. She moved for an order in terms
of the order prayed.
13.
Mr Botes made an impassioned appeal for the court to find that the
respondent had, over the last year, made progress which had
eluded
him over years: the respondent had shown commitment to total change
in both his private life and in his practice. The respondent
was, he
submitted, prepared to subject himself to discipline, had undertaken
to continue with his rehabilitation programme, psychiatric
treatment
and regularly submit monthly results of clinical tests that he will
be subjected to.
14.This
matter has a long history. On the papers as they stood without the
recent developments there could have been no doubt whatsoever
that
the applicant's evidence established conclusively that the
respondent's conduct fell far short of the standards expected by
this
court of its officers. I would have had no hesitation in granting the
relief sought by the applicant. The recent developments,
however,
indicate that the respondent has undergone a total metamorphosis. The
writing up of his books could only have been achieved
through total
co-operation by the respondent with his bookkeeper and auditor, if
that had been necessary.
15.
It is clearly early days for the court to form any view as to whether
the respondent will sustain the standards that have eluded
him thus
far or whether he will slide back into his old ways. The
preponderance of probabilities suggests that he is unlikely to
maintain the discipline required of him. It is against this
background that the court has to consider the rescue intervention
suggested by Mr Botes. He had suggested that this court grant an
order suspending the respondent from practice but suspending the
order on certain terms and conditions.
16.
In reply, Mrs Asmal emphasized the history of the matter and the fact
that the applicant had been immensely patient with the
respondent.
She high-lighted the fact that the respondent had extended the very
"life-line" now sought and emphasized
that it had not
worked in the past.
17.
It is one of the fundamental time-honoured traditions of our courts
that justice should be dispensed fairly, without fear or
favour.
Those who have erred or transgressed should be dealt with
appropriately. That, however encompasses various issues one of
which
is the element of mercy, not maudlin pity, however.
18.
The use of prohibited drugs such as those used by the respondent is a
universal phenomenon and problem. Its victims are not
limited but are
from all walks of life even in countries where the sentences imposed
are the death penalty. This country has demonstrated
through the
abolishment of the death penalty just how valued the right to life
is. The order sought by the applicant whilst only
a suspension is, as
already indicated earlier on, a precursor to an application to a
striking off. This court is obliged to examine
whether the facts in
this case justify an order that will set in motion striking off
proceedings.
19.
The recent developments as set out in the affidavit handed up and
accepted during argument portray a last-ditch effort by the
respondent to save his profession. Unlike in the past, he has made a
significant success with the serious problem of trust books
not
having been written up. That no irregularity was reported on by his
auditor is a clear indication of the respondent's integrity.
In the
known instance of misappropriation of Mrs Hoffman's money the
respondent made a clean breast of the facts and undertook
to pay her
within 30 days. Payment thereof is one of the conditions of the
suggested order.
20.
When the above facts are considered in context, it is my view that
the respondent deserves a measure of mercy in the form of
an
opportunity to complete the process of rehabilitation he has embarked
upon. The process contains the input of experts. A reprieve
against
being struck off will, on the probabilities, be not only sobering but
will serve as encouragement for the respondent.
21.
In the circumstances I would grant the order proposed on behalf of
the respondent.
22.
The following order is made:
1.
The Respondent is suspended from his practice as attorney for a
period of 6 (six) months.
2.
The Respondent is ordered:
2.1
to subject himself to any internal disciplinary proceedings of the
Applicant arising out of the complaints against him which
resulted in
the launching of this application;
2.2
to subject himself to intensive medical and psychological treatment
in respect of his addiction to cocaine and/or heroin;
2.3
to furnish Ampath Pathologists with urine samples once a month (every
30 days) with the specific purpose to determine if there
are any
elements and/or traces of opiates and/or heroin and/or cocaine in his
body;
2.4
to subject himself to physiological therapy by Dr EJM Matthews with
the specific purpose to monitor and/or facilitate the treatment
of
his drug dependence;
2.5
to proceed with the therapy which is prescribed by Dr C Naidoo with
the specific purpose of rehabilitating him from the use
of any drugs
and/or other substances;
2.6
to instruct Ampath Pathologists to furnish all results of urine tests
to the Applicant with the specific purpose to determine
whether any
opiates and/or cocaine and/or heroin is present in his body or
physical system; and
2.7
to instruct Dr EJM Matthews to furnish the Applicant with a progress
report every 3 months in respect of the Respondent's prognosis
in
respect of the psychological treatment that he receives.
3.
The Respondent is ordered to pay to Mrs AME Hoffman the amount of
R70,000.00, pursuant to the settlement agreements under case
numbers
16159/2008 and 15453/2008, within 30 (thirty) days from date of this
order;
4.
The suspension as referred to in paragraph 1 above is suspended for
a period of 5 (five) years subject to the Respondent not
being found
guilty of any contravention of the Applicant's Rules and/or
Regulations for a period of 5 years from date hereof. In
the case of
the Respondent being found guilty of any contravention of the
Applicant's Rules and/or Regulations within a period
of 5 (five)
years of the date hereof, the Respondent will immediately be
suspended from his practice as an attorney of this Court
for a period
of 6 (six) months subject to the Applicant being entitled to take any
further steps (which includes an application
for the striking of the
Respondent's name from the Roll of Practicing Attorneys) against the
Respondent; and
5.
The Respondent is ordered to pay the costs of this application on the
scale between attorney and client.
G.
WEBSTER
JUDGE
IN THE HIGH COURT
I
agree.
N.
KOLLAPEN
JUDGE
IN THE HIGH COURT