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[2011] ZAKZPHC 12
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KwaZulu-Natal Law Society v Singh (1526/2010) [2011] ZAKZPHC 12 (25 March 2011)
1
KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
REPORTABLE
Case
no: 1526/2010
In
the matter between:
KWAZULU-NATAL
LAW SOCIETY
…......................................................................................
APPLICANT
and
VERONICA SINGH
….........................................................................................................
RESPONDENT
JUDGMENT
MADONDO
J
[1]
The applicant seeks an order in terms of section 22(1)(d) of the
Attorneys Act No.53 of 1979 (the Act) striking the name of
the
respondent from the roll of the attorneys on the ground that by
reason of her criminal conviction on the charges of fraud she
is not
a fit and proper person to continue practising as an attorney.
The
applicant contends that the respondent by being placed on the roll of
attorneys she is held out to the public as being worth
of their
trust. This application arises from the confirmation of her
convictions on four counts of fraud by the Supreme Court of
Appeal on
30 November 2009. However, it is common cause between the parties
that at the time of the commission of the crimes of
fraud complained
of and the conviction thereof the respondent was a non practising,
attorney, employed as a public
prosecutrix
at the Magistrate’s Court.
[2]
The applicant is the KwaZulu-Natal Law Society, a juristic person
established in terms of the Act and it brings this application
in its
capacity as both the statutory
custos morum
of the
legal profession
practising
at the side
bar, and the protection of the public in their dealings with the
profession. See
Law Society of the Cape of Good Hope v Holmes
2006(2) SA 139 (C) 145
.
[3]
The respondent is Veronica Singh, a major female attorney, admitted
and enrolled to practise as such, who is presently practising
at
KwaDukuza, KwaZulu-Natal, under the name and style of Veronica Singh
and Associates.
Issue
[4]
The question for decision is whether by reason of her criminal
convictions the respondent is a fit and proper person to continue
practising as an attorney, and, secondly, whether her misconduct
should be visited with an order striking her off the roll.
Factual
Background
[5]
The respondent was on 1 December 2000 convicted in the Pinetown
Magistrate’s Court on eight (8) counts of fraud and she
was
sentenced to three (3) years’ imprisonment on four of them
(counts 3, 4, 6 and 8) taken together as one for the purpose
of the
sentence. On the other (counts 9, 10, 11 and 13), also taken together
for the purpose of sentence, she was sentenced to
three (3) year’s
imprisonment of which two were suspended for five years on condition
that she was not convicted of an offence
of which dishonesty is an
element, committed during the period of suspension.
[6]
The respondent then appealed against convictions and sentences to the
Natal Provincial Division of the High Court. The appeal
was heard on
5 March 2002, and she was successful in having her conviction on four
of those counts reversed (counts 3, 9, 10 and
11). However, her
conviction on counts 4, 6, 8, and 13 was confirmed. But, the Court
set aside the sentence imposed in respect
of such counts and in its
stead it imposed a sentence of three (3) years’ imprisonment,
which was wholly suspended on condition
that she was not convicted of
an offence of which dishonesty was an element, committed during the
period of suspension.
[7]
With the leave of the High Court the respondent appealed against her
conviction on the remaining four counts (counts 4, 6, 8,
and 13) to
the Supreme Court of Appeal. On assessing the evidence by each
individual complainant the Supreme Court of Appeal concluded
that the
State had succeeded in proving the guilt of the respondent beyond
reasonable doubt and that she was correctly convicted
in the
Magistrate’s Court. The Court went on to express the view that
it was also clear that even in respect of the counts
where her appeal
was successful in the High Court, she had a practise of receiving
monies from the members of the public. In the
result the respondent’s
appeal was dismissed on 30 November 2009.
[8]
At the Magistrate’s Court the respondent was facing thirteen
(13) Counts of fraud, alternatively theft. All the charges
were
related to the receipt of certain amounts of money by the respondent
from various traffic offenders. The State alleged that
during the
period May to August 1999, the respondent wrongfully, unlawfully and
falsely and with intent to defraud, gave out and
pretended to various
complainants that she would pay their fines in respect of traffic
summonses and that by means of false pretences
she induced the
aforesaid persons to give her amounts of money, totaling R1250, to
their loss or to the loss of the State whilst
she knew at the time
that she was not entitled to accept such monies and that she was not
going to pay it over to the State.
[9]
The respondent pleaded not guilty to all counts. The State called
various complainants as witnesses who testified that the respondent
defrauded them of certain amounts of money. At the close of the trial
proceedings the Learned Magistrate accepted the evidence
of the State
as true and correct, rejected the version of the respondent as false
beyond reasonable doubt and found her guilty
of eight (8) counts of
fraud.
A
Fit and Proper Person
[10]
The respondent has exhausted her appeal remedies and she stands
convicted of crimes involving dishonesty. The contention of
the
applicant is that while the criminal convictions stand, she is not a
fit and proper person to continue practising as an attorney.
[11]
Section 22(1) (d) of the Act provides:
“
any person who has been admitted and enrolled as
an attorney may on application by the society concerned be struck off
the roll
or suspended from practise by the court within the
jurisdiction of which he practises… if he, in the discretion
of the court,
is not a fit and proper person to continue to practise
as an attorney.”
[12]
With regard to the meaning of the words “a fit and proper
person” in re
Chikweche
1995 (4) SA 284(25)
at 291H-J
,
Gubbay CJ
said the following:
“
Construed in context, the words “a fit and
proper person” allude, in my view, to the personal qualities of
an applicant
– that he is a person of honesty and reliability.
See S v Mkhise; S v Mosia; S v Jones; S v Le Roux 1988(2) SA 868 (A)
at
875d.”
[13]
Such personal qualities, in my view, also include the integrity of
the applicant concerned. The Shorter Oxford English Dictionary
defines the word “integrity” as “sinlessness …
soundness of moral principle; the character of uncorrupted
virtue;
uprightness; honesty, sincerity.
[14]
The profession of an attorney is an honourable one and as such
demands complete honest, reliability and integrity from its
members.
See
Vassen v Law Society of the Cape of Good Hope 1998(4)SA 532
(SCA).
[15]
As
Corbett J
pointed out in
Law Society, Transvaal v
Behrman 1981(4) SA 538 (AD) at 551 E-F
:
“
clearly the Law Society has an interest to ensure
that persons who are admitted, or re-admitted, and enrolled as
attorneys and who
by practising become members of the Law Society are
fit and proper persons to be so admitted or re-admitted. The interest
comprehends
not only the relationship which is created between a
member and Society but also the duties and responsibilities which the
Law
Society assumes in regard to members to the Court and to the
general public.”
[16]
The conduct the respondent committed bears a rational connection with
the object of maintaining the integrity and honour of
the profession.
Undoubtedly, her dishonesty reflects upon her integrity and
character, and it is also relevant for her fitness
to be a member of
a profession, demanding high standards of integrity from its members.
[17]
In terms of section 22(1)(d) of the Act this Court has discretionary
power to strike an attorney off the roll or suspend such
attorney
from practise on the ground that he or she is not a fit and proper
person to continue practising as an attorney. As it
was said in
Jasat
v Natal Law Society 2000(3) SA 44 (SCA) at 51 C-G
and repeated in
Malan and another v Law Society, Northern Provinces 2009 (1)SA 216
(SCA) paragraph 4,
the section contemplates that the Court must
exercise these discretionary powers by way of a three-stage inquiry:
First the Court
must decide whether the alleged offending conduct has
been established on a preponderance of probabilities, which is a
factual
inquiry; second, whether the person concerned in its
discretion is a fit and proper person to continue practising as an
attorney;
and, thirdly whether in all circumstances the person
concerned should be struck off the roll of attorneys or whether an
order suspending
him from practise for a specific period will
suffice. See also
Holmes v Law Society of the Cape of Good Hope
and another (Law Society of the Cape of Good Hope v Homes) 2006(2) SA
139(C).
[18]
The first question to decide is whether the respondent’s
offending conduct has been established on a preponderance of
probabilities. It is an established rule of practise that the
criminal conviction is
prima facie
proof that an attorney
committed that offence, and provided that the offence is of a
sufficiently serious nature, it is treated
as
prima facie
proof
that he or she is unfit to be on the roll of attorneys, the onus
being on the attorney to either show that he or she was wrongly
convicted or to advance circumstances which would justify his or her
remaining on the roll despite conviction. See
Ngwenya v Society of
Advocates, Pretoria, 2006(2) SA 88 (WLD) 90J-91A; Hassim (also known
as Essack) v Incorporated Society of Natal
1977(2) SA 757(A) at
768A-B; Incorporated Law Society, Transvaal v Mandela 1954(3) SA 102
(T) 104A.
[19]
In
exparte Krause
1905 TS 221
at 223,
the principle to be
applied in this regard was stated by
Innes CJ
as follows:
“
The real reason is this – that in most
cases the fact of the criminal conviction shows the man to be of such
a character that
he is not worthy to be admitted to the ranks of an
honourable profession. That is the real ground upon which the Court
acts in
such cases…”
[20]
In
casu,
the respondent concedes the convictions and she does
not dispute the seriousness of the crimes of which she was convicted.
She also
accepts the decision of the Supreme Court of Appeal
dismissing her appeal against both conviction and sentence on four
counts of
fraud. In addition, she accepts the finding by the Supreme
Court of Appeal that she did receive monies in question.
[21]
Further, the respondent concedes that a conviction of fraud carries
with it the
prima facie
taint of dishonesty. Notwithstanding
the conviction the respondent contends that she is a fit and proper
person to continue practising
as an attorney. She alleges that when
she committed these crimes, during the period May to August 1999, she
was heavily pregnant
and suffering from a diabetic pregnancy which
caused her great emotional and psychological strain.
[22]
Also, it has been argued on behalf of the respondent that at the time
of the commission of the crimes in respect of which she
was
convicted, she was a non practising attorney. It is common cause
between the parties that the respondent was admitted and enrolled
to
practise as an attorney of this Court on 23 January 1996. Shortly,
after her admission she was appointed as a public prosecutrix
at
Verulam Magistrate’s Court. She was later transferred to
Pinetown Magistrate’s Court. During 1999 she successfully
applied for a position of a Magistrate. After completing the
Magistrate’s course at Justice College in Pretoria she took
an
appointment as an aspirant Magistrate at Queenstown Magistrate’s
Court, Eastern Cape.
[23]
Also, it is common cause that the respondent has been convicted of an
offence involving dishonesty, which conduct is in compatible
with
that expected of a person who is a fit and proper person to practise
as an attorney of this Court. The contention of the applicant
is that
it has now been established as a fact that the respondent abused the
position of trust which she occupied as an officer
of the Court when
defrauding persons for her own benefit and gain.
[24]
Though it is true that in the present case we are not directly
concerned with the misconduct of an attorney in her professional
capacity, the weight of decided authorities does not make such a
distinction when punishing an errant attorney.
[25]
In the present case it is common cause that the offence the
respondent committed has nothing to do with her practise as an
attorney. It is clear however that the Court will in a proper case
remove an attorney from the roll where he or she has been convicted
of a crime which was not committed in his or her professional
capacity. See
Incorporated Law Society v Transvaal case (supra) at
107 C-D.
The offence convicted need not be related to actual
practising of the profession.
[26]
In this regard
Wessels CJ
(as he then was) in
Solomon v Law
Society of the Cape of Good Hope (supra) at 412 said:
“
The practise … has been to treat the
conviction of an attorney for a criminal offence, whether in his
capacity as an attorney
or not, as
prima facie
unfit to be on the roll of attorney.”
[27]
In
Re Hill; LR (1868) 3Q.B 543
Cockburn CJ
said:
“
When an attorney does that which involves
dishonesty, it is in the best interest of the suitors that the Court
should interpose
and prevent a man guilty of such misconduct from
acting as an attorney of the Court.”
[28]
This brings me to the second question whether the respondent is a fit
and proper person to continue practising as an attorney.
It has been
argued on behalf of the applicant that taking into account the
cumulative effect of all the convictions and the nature
and
seriousness of her misconduct, the respondent falls short of the
standard required of an attorney, and that she is therefore
not a fit
and proper person to practise as such.
[29]
In this regard the question this Court has to decide is whether the
facts which have been put before us and on which the respondent
was
convicted show her to be of such character that she is not worthy to
remain in the ranks of an honourable profession. See
Incorporated
Law Society, Transvaal case (supra) at 108C.
The respondent in
the present case concedes the convictions complained of and the
seriousness thereof and she states that at the
time she was suffering
from a diabetic pregnancy which caused her enormous psychological and
emotional strain. She rather puts
it obliquely that, such a condition
contributed to her succumb to the temptation.
[30]
The mere fact of conviction for an offence, without any regard to its
nature and the degree of moral obliquity in the offender
which its
commission reflects, will not suffice to indicate, even
prima
facie,
that the offender is unfit to be an attorney. See
Incorporated Law Society, Transvaal case (supra) at pp.104, 105.
For a legal practitioner to be said to be unfit to be on the
roll, the misconduct complained of must be of a serious nature to an
extent that it manifests character defect and lack of integrity. See
Incorporated Law Society, Natal v Roux 1972(3)SA 145(N) at 150 B-C
De Linder J.
[31]
The inquiry whether the person concerned in the decision of the court
is not a fit and proper person to continue to practise
as an attorney
involves a weighing up of the conduct complained of against the
conduct expected of an attorney and, to this extent
this entails a
value judgment. See
Jasat case (supra) at p51
. The nature of
the conduct maybe such that it establishes that the person is not fit
and proper to continue to practise as an attorney.
See
Malan’s
case (supra) at 219.
[32]
It is wholly impracticable to determine
expost facto
whether
the respondent is a fit and proper person “to remain” on
the roll of attorneys. See
Prince v President; Cape Law Society
and others 2000(3) 848 (SCA) 857.
It is common cause that the
respondent has for the past eight (8) years been practising for her
own account without any blemish.
Her trust account is administered in
a strict and proper manner, and monies collected on behalf of her
clients are accounted promptly.
There has been no query or complaint
whatsoever to the applicant about any funds given to the respondent
in trust. Also, it is
her contention that for the past eight (8)
years she has been entrusted with large sums of clients monies, often
in excess of R1
million for a single property transaction.
[33]
It is common cause also that the respondent has duly paid over and
accounted for all monies entrusted with her. No allegation
has been
made that her books are not properly kept and that there have been or
are any irregularities in her trust or that she
has misappropriated
any trust monies. Her books have been audited without qualification
and in such every year not an irregularity
has been found. No
complaint has ever been made that she has not been faithfully and
diligently attending to the affairs of her
clients. However, regard
being had to the nature of the conduct of the respondent her conduct
was unprofessional. When the respondent
defrauded the traffic
offenders she was holding a position of trust as officer of the
Court.
[34]
The attorney’s profession is an honourable profession, which
demands complete honesty and integrity from its members.
Undoubtedly,
her dishonesty reflects badly upon her integrity and character.
[35]
Although the present matter concerns a serious criminal conviction
involving dishonest, but it does not involve any element
of lack of
integrity or defective character. In the last eight (8) years of
practise for her own account the respondent has proved
to the
satisfaction of this Court that a particular defect which manifested
itself in 1999, has ceased to play a role in her life
and that there
has been a complete reformation in this regard.
[36]
In the premises, it is impossible to say that the respondent’s
conduct manifests a character defect that warrants the
conclusion
that she is not a fit and proper person to remain on the roll of
attorney. The circumstances of this case are exceptional
in that the
commission of fraud was not the result of a character defect inherent
in the respondent, but rather of a moral lapse
brought about the
pressure she had been subjected to during diabetic pregnancy. By her
conduct subsequent to criminal conviction,
seen in its totality, the
respondent in my judgment has sufficiently demonstrated that she is a
fit and proper person to continue
to practise as an attorney.
[37]
Although all this is to the credit of the respondent, but it cannot
be permitted to deflect the Court from its duty which is
to signify
its strong disapproval and censure of the respondent’s conduct
by making an order which will not leave in doubt
the serious view the
Court takes of conduct of that kind in an attorney. See
Incorporated
Law Society, Natal case (supra) at page 151.
Appropriate
Sanction
[38]
This brings me to an inquiry, namely, whether the appellant should be
removed from the roll of attorneys or whether an order
suspending her
from practise would be an appropriate sanction. See also
Vassen
case (supra) at 587E.
In
Jasat case (supra) at 51H-I
Scott
JA
said:
“
Whether a court will adopt the one course or the
other will depend upon such factors as the nature of the conduct
complained of,
the extent to which it reflects upon the person’s
character or shows him to be unworthy to remain in the ranks of an
honourable
profession (Incorporated Law Society, Transvsaal v Mandela
1954(3) SA 102(T) at 108D-E), the likelihood or otherwise of a
repetition
of such conduct and the need to protect the public.
Ultimately it is a question of degree.” See also
Malan’s
case (supra) at page 219 H per Harms ADP
.
[39]
The respondent has been convicted of an offence involving dishonesty
which is incompatible with integrity, honesty, and reliability
required by the attorney’s profession. However, the fact that
the respondent has committed a misconduct involving dishonesty
does
not necessarily mean that the striking off should follow as a matter
of course. The removal of the legal practitioner from
the roll on the
basis of criminal sentence is entirely dependent on the facts of each
particular case.
[40]
Miller J
in
Incorporated Law Society, Natal case (supra) at
page 149
said:
“
But it goes without saying that offences which
fall within the genus of crimes to which fraud belongs are prima
facie indicative
of unfitness to be on the roll of attorneys and
there are many cases, extending over the past sixty years, in which
attorneys have
been removed from the roll because of convictions for
theft or the like.”
[41]
For an attorney to be struck off the roll his or her misdemeanor must
show dishonesty, a defect of character, and in these
cases
“reformation of character” is the
factum probandum
.
See
Behman v Law Society, Transvaal 1980(4) SA 4 (TPD) 9A.
[42]
The Court has a duty to determine what the particular defect of
character or attitude was before one can begin to establish
whether
an applicant has reformed in respect thereof. It must also inquire
whether the respondent herself properly and correctly
identifies and
appreciates the defect of character or attitude involved. See
Exparte
Aarons (Law Society Transvaal Intervening) 1985(3) SA 286(T) 294
G-H).
[43]
Although the respondent’s submission to temptation meant that
she was at the time not a fit and proper person to be on
the roll of
attorneys, it does not necessarily mean that she has to be struck
from the roll, suspension may be an option. It appears
to me that her
conduct was a moral lapse which will not necessarily recur. The
evidence does not show that her character is so
inherently flawed
that she will necessarily continue to succumb if she remains in
practise.
[44]
The conduct of the respondent of taking the money from the accused
persons appearing in the traffic Court as payment towards
fines
imposed against them under the pretext that she would pay it over to
the State and of misappropriating such monies to herself,
is not in
dispute. But the Court must determine whether the respondent can be
trusted in future to carry out her professional duties
honestly and
in a satisfactory manner. See
Law Society, Transvaal case (supra)
at 558F.
If a court finds dishonesty the circumstances must be
exceptional before a court will order a suspension instead of a
removal. See
Malan’s case(supra) at 221.
[45]
Undoubtedly, the respondent’s dishonesty reflects upon her
integrity and character. The question for decision is whether
it does
so to an extent which justifies removing her from the roll of
attorneys. Indeed, this Court must enquire whether in all
the
circumstances of this case the respondent is to be removed from the
roll of attorneys or whether an order of suspension from
practise
will suffice. See
Jasat’s case (supra).
[46]
When considering what would be an appropriate order in the
circumstances of this case it is necessary to remember that it is
not
the fundamental purpose of these proceedings to inflict punishment on
the respondent. She has already been punished for her
offence by the
court which convicted her. The applicant society brings the matter of
the respondent’s misconduct before this
Court in the interests
of the profession which it serves and in the interests and for the
protection of the public. It is very
properly jealous of the good
name and reputation of the profession and in effect asks this Court
by an appropriate order, to manifest
its disapproval of conduct which
may tend to damage the faith and confidence of the public in the
profession. See
Incorporated Law Society Natal and Lambert v
Incorporated Law Society, 1910 TPD77at 79.
[47]
When deciding upon the appropriate penalty for proven misconduct the
possibility of repetition of the conduct complained of
must be taken
into account.
Law Society of the Cape of Good Hope, case (supra)
165.
A considerable period has elapsed since her conviction. The
respondent has over the years been able to build up a thriving and
successful
practise. She has all along been practising as an attorney
for her own account. The probability, therefore, is that if she is
allowed
to continue practising as an attorney, she will conduct
herself honestly and honourably in future.
Summerly v Law Society
of Northern Provinces 2006(5) SA 613(SCA) 620.
Indeed, it cannot
be said that the commission of the crime of fraud was due to a moral
defect.
[48]
Therefore, I am not satisfied that the respondent is inherently a
dishonest person. She has clearly learnt a hard and painful
lesson.
She now fully understands the extent to which her conduct falls short
of the high standards that are expected of an attorney.
The
repetition of the conduct complained of is, in the circumstances,
highly unlikely. See
Law Society Cape v Peter
2009 (2) SA 18
(SCA)
24, 24 I.
[49]
The last question for decision is whether protection of the public
requires that the respondent must be struck from the roll
of
attorneys. She has in the last eight (8) years been practising for
her own account without any blemish. This, in my view, provides
sufficient proof that since her criminal conviction the respondent
has genuinely, completely and permanently reformed herself of
criminal character, and that she has properly and correctly
identified and appreciated the defect of character or attitude
involved.
See
Exparte Aarons, case at 294 G-I.
[50]
In the premises, factors in this case are extenuating since they do
not manifest character defect and a lack integrity and
reliability.
See
Malan’s case (supra) at 226G.
[51]
Surely, in the circumstances of this case it will be quite
irrational, grossly unfair and not in the public interest to remove
the name of the respondent from the roll. In this regard
Miller
J
in
Incorporated Law Society, Natal case (supra) at 150
B-C
said:
“
The implications of an unconditional order
removing an attorney from the roll for misconduct are serious and
far-reaching. Prima
facie, the court which makes such an order
visualizes that the offender will never again be permitted to
practise his profession
because ordinarily such an order is not made
unless the court is of the opinion that the misconduct in question is
of so serious
a nature that it manifests character defect and lack of
integrity rendering the person unfit to be on the roll. If such a
person
should in later years apply for re-admission, he will be
required to satisfy the court that he is ‘completely reformed
character’”.
[52]
In the result, I am not satisfied that this is the appropriate case
in which an order removing the respondent from the roll
of attorneys
can be granted. Such an action will only be taken if the misconduct
she committed shows that she is unworthy to remain
on the roll of
attorneys. See
Incorporated Law Society, Transvaal case (supra) at
108G.
[53]
In my opinion, her suspension from practise for a period of one year,
which suspension must itself be suspended on appropriate
conditions
for three years, would be desirable and help to redeem the integrity
of the profession. See
Botha, Law Society v Northern Provinces
2009(1) SA 227 (SCA) 235H- 236A.
Order
[54]
In the result the following order is made:
1. The Respondent is suspended from practise as an
attorney for a period of one (1) year.
2. The suspension in paragraph 1 above is suspended for
three (3) years with effect from 10
th
December 2010 on
condition that the respondent is not found to have committed any
dishonest conduct during the period of her suspension.
3. The respondent is ordered to pay the costs of the
application on the scale as between attorney and client.
_______________
NORMAN AJ I agree.
_______________
MADONDO J It is so ordered.
DATE
RESERVED: 10 DECEMBER 2010
DATE
DELIVERED: 25 MARCH 2011
COUNSEL
FOR APPLICANT: ADV VAN ROOYEN
INSTRUCTED
BY: VENN NEMETH & HART INC
(REF:
PRJ DEWES / Brenda/32k038709)
COUNCIL
FOR RESPONDENT: ADV KEMP SC
INSTRUCTED
BY: VERONICA SINGH & ASSOCIATES
C/O
PRAKASH KUSIAL
(REF:
V. SINGH)