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2012
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[2012] ZAGPPHC 211
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Law Society of the Northern Provinces v Sidwell (20408/08) [2012] ZAGPPHC 211 (13 September 2012)
NOT
REPORTABLE
IN THE
NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO: 20408/08
DATE:13/09/2012
In
the matter between:
LAW
SOCIETY OF THE NORTHERN
PROVINCES
..............................................
Applicant
and
VERNON
GUYS
SIDWELL
…..................................................................................
Respondent
JUDGMENT
Tuchten
J
:
1.
The applicant Law Society applies for the name of the respondent to
be struck off the roll of attorneys and for the usual relief
associated with such an application.
2.
The Law Society raises a number of grounds of alleged misconduct
against the respondent but during argument the representative
of the
Law Society confined its case to only two of these. On the view I
take of the matter, it is necessary to refer to only one,
the first
charge advanced in the founding affidavit. The charge relates to a
third party ciaim the respondent handled for Mrs TS
Mathibe.
1
3.
It is common cause on the papers that Mrs Mathibe was successful in
her claim against the Road Accident Fund and that the RAF
paid a
total of R513 617,71 in instalments during the period September 2005
to January 2006 to the respondent as her attorney in
settlement of
Mrs Mathibe's claim. The order in terms of which the RAF was ordered
to pay this amount also directed the RAF to
pay Mrs Mathibe's party
and party costs.
4.
Mrs Mathibe laid a complaint with the Law Society, alleging that the
respondent had not told her of the payments he received,
that she
obtained confirmation of the payments from the RAF and confronted the
respondent with the fact of the payments. She says
that the
respondent promised to pay her what he owed in February 2007 but
failed to do so. She said that she had been unable to
contact the
respondent because he did not keep appointments or answer his
telephone. Mrs Mathibe then appointed attorneys to recover
the money
she was owed. The respondent paid her R260 277,50 on 19 June 2007.
Mrs Mathibe then withdrew her complaint against the
respondent.
5.
The respondent admits failing to account to Mrs Mathibe. But he says
that they had become friends and he made her certain cash
advances
against the ultimate success of her claim which he was handling. He
says that he fell into financial difficulties because
he was unable
to fund the renovations he was carrying out at his home. This, he
says, he confided to Mrs Mathibe who then offered
to lend him the
money she hoped to recover but had by then not yet recovered in
settlement of her claim against the RAF.
6.
Indeed, the respondent goes further. He said he had reservations
about the ethics of borrowing money from a client under these
circumstances. So, he says, he consulted a "senior attorney"
who told him that it was "not unethical" to obtain
loans
from clients but that the practice was "highly frowned upon".
The respondent does not divulge whether he asked
why the practice of
taking loans from clients should be frowned upon if it was not
unethical to do so. Nor does he suggest that
he asked about the basis
on which such practice should have been frowned upon. The respondent
provided neither the name of the
alleged senior attorney nor the date
on which this remarkable advice was allegedly given to him.
7.
Be that as it may, the respondent further maintains that on 27 July
2005, he accepted Mrs Mathibe's offer to lend him the proceeds
of her
claim. The loan was to be for three months, free of interest because
the respondent had given Mrs Mathibe advances on her
claim free of
interest.
8.
Mrs Mathibe's claim against the RAF was settled on 1 September 2005.
The court order reflecting the settlement provided for four
monthly
payments of R120 092,50, amounting in all to R480 370 during the
period September 20 December 2005. The respondent says
that at a
consultation on 5 September 2005 Mrs Mathibe agreed that the
respondent could borrow all the money he had received on
her behalf,
which he proceeded to do, as and when he needed it for his
renovations.
9.
However, in December 2005, the respondent had not received the bond
finance for which he was hoping, apparently because of his
poor
credit record. He says he then arranged an appointment with Mrs
Mathibe and explained the position to her.
10.
The respondent attached to his answering affidavit an affidavit by
Mrs Mathibe herself in which she stated that she had read
the
opposing affidavit of the respondent and purported to "confirm
the correctness [of the opposing affidavit of the respondent]
insofar
as it refers to me." I regard this confirmatory affidavit as
wholly valueless. There is a detailed affidavit by Mrs
Mathibe
delivered as part of the Law Society's replying affidavit affirming
her version as conveyed in her original complaint against
the
respondent and denying the loan.
11.
As these are motion proceedings and there are disputes of fact, the
Plascon-Evans rule applies. The starting point is that
where there is
a dispute as to the facts, final relief such as that being sought in
this application should only be granted if
the facts as stated by the
respondent together with the admitted facts in the applicant's
affidavits justify such an order. Where
it is clear that facts,
though not formally admitted, cannot be denied, they must be regarded
as admitted. In certain instances,
however, the denial by respondent
of a fact alleged by the applicant may not be such as to raise a
real, genuine or bona fide dispute
of fact. Where the allegations or
denials of the respondent are so far-fetched or clearly untenable,
the court is justified in
rejecting them merely on the papers.
2
12.
Recognising that the truth almost always lies beyond mere linguistic
determination, the courts have said that an applicant who
seeks final
relief on motion must, in the event of conflict, accept the version
set up by his opponent unless the letter's allegations
are, in the
opinion of the court, not such as to raise a real, genuine or bona
fide dispute of fact or are so far-fetched or clearly
untenable that
the court is justified in rejecting them merely on the papers. A
real, genuine and bona fide dispute of fact can
exist only where the
court is satisfied that the party who purports to raise the dispute
has in his affidavit seriously and unambiguously
addressed the fact
said to be disputed. There will of course be instances where a bare
denial meets the requirement because there
is no other way open to
the disputing party and nothing more can therefore be expected of him
or her. But even that may not be
sufficient if the fact averred lies
purely within the knowledge of the averring party and no basis is
laid for disputing the veracity
or accuracy of the averment. When the
facts averred are such that the disputing party must necessarily
possess knowledge of them
and be able to provide an answer (or
countervailing evidence) if they be not true or accurate but, instead
of doing so, rests his
case on a bare or ambiguous denial the court
will generally have difficulty in finding that the test is satisfied.
A court will
have such difficulty "generally" because
factual averments seldom stand apart from a broader matrix of
circumstances
all of which needs to be borne in mind when arriving at
a decision. A litigant may not necessarily recognise or understand
the
nuances of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations made by the other
party.
But
when he signs the answering affidavit, he commits himself to its
contents, inadequate as they may be, and will only in exceptional
circumstances be permitted to disavow them. There is thus a serious
duty imposed upon a legal adviser who settles an answering
affidavit
to ascertain and engage with facts which his client disputes and to
reflect such disputes fully and accurately in the
answering
affidavit. If that does not happen it should come as no surprise that
the court takes a robust view of the matter.
3
13.
The test, however, is a stringent one. Often, after evidence has been
led and tested by cross-examination, things turn out differently
from
the way they might initially have appeared.
4
14.
In my view, the version of the respondent is unacceptably bald. I
have mentioned that he has not disclosed the name of the "senior
attorney" who allegedly advised him that his proposed conduct
was ethically permissible although highly frowned upon. Had
the
respondent's version been genuine, I have no doubt that he would have
not only disclosed the name of his advisor, but also
tried to obtain
an affidavit from him. The respondent does not suggest that he asked
why such conduct should be frowned upon if
it was not unethical.
15.
It is incumbent on a party who relies on the alleged fact of legal
advice as a defence or as mitigation to give a full account
of the
advice allegedly received and to produce the evidence of the alleged
advisor if such be available. That proposition is self-evident
and
has been consistently affirmed by the courts.
5
The account of the advice allegedly given to the respondent is
anything but full.
16.
If there had been a loan, the respondent would in some form or
another have made a record of its terms or, at the very least,
of its
existence. He would have accounted to Mrs Mathibe so that if there
ever were any dispute as to the existence or the terms
of the alleged
loan, he could produce the writing as proof of the transaction. When
Mrs Mathibe instructed attorneys to recover
what was owing to her
from the respondent, the respondent would have written to the
attorneys to explain his position. Even when
he was pressed for the
money, he did not account. The probabilities are strongly against the
respondent. It is most unlikely that
Mrs Mathibe, who when she laid
her complaint with the Law Society worked for Kentucky Fried Chicken
in Pretoria North, would have
agreed to lend the respondent her
entire award from the RAF and that without any provision for
interest. There is not a single
scrap of paper to support the
respondent's version. Nor is there anything to suggest that the
respondent ever advanced his version
of a loan before he deposed to
his answering affidavit in the present application on 31 October
2008.
17.
In Mrs Mathibe's case too, the RAF was ordered to pay her party and
party costs. The respondent's answering affidavit is silent
as to
whether he taxed a bill and recovered these costs. In my view,
especially given the respondent's precarious financial position,
he
would not have overlooked this chance of bringing in some more money.
The strong probability, to put it at its lowest, is that
the
respondent indeed recovered the party and party costs but did not
account to Mrs Mathibe for this sum.
18.
To this day, the respondent has not accounted in any form to Mrs
Mathibe. In my view, the only acceptable inference to be drawn
from
this failure, within the context of the present proceedings, is that
the figures of a proper accounting would not bear out
the
respondent's version of a loan, with a subsequent temporary inability
to pay, followed finally by payment in full.
19.
In my view, for the reasons given, the respondent's version falls to
be rejected on the papers. It therefore follows that he
has been
shown to have misappropriated the proceeds of Mrs Mathibe's claim and
to have advanced an untruthful defence in an attempt
to escape the
consequences of his actions.
20.
The conduct which in my view has been established against the
respondent demonstrates that he is not fit to remain on the roll
of
attorneys.
21.
Even on the respondent's own version, which I have rejected on the
papers, he is not a fit and proper person to remain on
the roll of
attorneys. On that version, well knowing himself to be a poor credit
risk, he allowed Mrs Mathibe to agree to a loan
of her entire award
with nothing on paper to prove the alleged fact or the terms of the
loan, without interest and without security,
though he believed that
his doing so was highly frowned upon by the profession.
22.
On the respondent's version, he put himself into a position in which
his own interests conflicted with those of his client and
created a
situation highly advantageous to himself and strongly prejudicial to
the interests of Mrs Mathibe. He has never accounted
to her, which
means that the actual amount of the alleged loan, which only the
respondent could know,
6
has never been identified. Indeed, to this day, the actual amount of
the alleged ioan remains unknown. Although the alleged loan
was only
for a period of three months from 27 July 2005, he only repaid heron
19 June 2007. Such conduct is so reprehensible that
it warrants the
removal of the name of the respondent from the roll of attorneys.
23
.The respondent has not suggested that he is aware of the impropriety
of his conduct. The respondent's attitude in his answering
affidavit
was that he had done nothing wrong. He asked in his answering
affidavit that the application be dismissed, with attorney
and client
costs against the Law Society. Although counsel for the respondent
conceded during argument that the respondent had
been guilty of
unprofessional conduct, no apology or other indication that the
respondent had appreciated the error of his ways
or was capable of
reforming himself was forthcoming during the hearing. On any basis,
an order merely suspending the respondent
from practising for a
specified period would be inappropriate.
24.
An order is made striking the respondent's name off the roll of
attorneys in terms of prayers 1 to 12 inclusive of the notice
of
motion.
NB
Tuchten
Judge of the High Court
13 September 2012
I agree.
S
Desai
Judge
of the High Court
13
September 2012
1
The
second charge related to Mr Kekana, also a third party plaintiff,
whom the respondent is alleged to have overcharged and to
whom he is
alleged to have failed properly to account. However the gravamen of
this charge was not adequately ventilated in the
sffid2v''s.
2
Piascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
3 SA 623
A 634F-635C.
3
Wightman
l/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008
3 SA 371
SCA paras 12-13
4
National
Scrap Metal (Cape Town) (Pty) Ltd and Another v Murray and Roberts
Ltd and Others
2012
5 SA 300
SCA para 22
5
See
RvMeischke's
and Another
1948
3 SA 704
A 711;
S
v Abrahams
1983
1 Sa 137
A 1'!6g; Heg Consulting Enterprises (Pty) Ltd and Others V
Siegwart and Others
2030 1 SA 507
C 522B.
6
Because
the amount of the alleged loan was the difference between the
capital sum, plus what was recovered on the party and party
bill,
less what was owed to the respondent for advances, fees and
disbursements.