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[2009] ZAKZPHC 1
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Kwa-Zulu Natal Law Society v Van Rooyen (11576/07) [2009] ZAKZPHC 1 (3 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
NATAL
PROVINCIAL DIVISION
CASE NO: 11576/07
In the matter between:
KWAZULU-NATAL
LAW
SOCIETY
APPLICANT
and
PETER
EDWARD VAN
ROOYEN
RESPONDENT
JUDGMENT
VAN HEERDEN AJ
1.
Before
us is an application brought by the KwaZulu-Natal Law Society
(“applicant”) to have the name of Peter Edward
van Rooyen
(“respondent”) struck off the roll of attorneys of this
Court.
2.
In
its founding papers applicant, through Mr Alfred Collen Rees its
manager: Regulatory Affairs, contends that respondent is not
a fit
and proper person to continue practise as an attorney because,
according to Mr Rees.
(a)
he
submitted false claims to the Legal Aid Board (“the board”)
in respect of travelling expenses allegedly incurred
by him in
matters where he was instructed by the board;
(b)
in the course of criminal
proceedings instituted against him arising from the aforesaid claims
he, in a plea bargain, admitted that
his conduct in lodging such
claims was wrongful and reckless and resulted in a loss to the board;
(c)
he
was thereafter convicted on five counts of fraud in respect of which
he received a four year term of imprisonment suspended for
five
years.
3.
According
to Mr Rees “
the
facts and circumstances which give rise to the aforesaid criminal
proceeding being instituted against the Respondent”
appear
from an affidavit deposed to by one Peter John Brits, who describes
himself therein as the Legal Support Service Executive
of the board.
This affidavit was received by applicant under cover of a letter of
complaint addressed to it by the board,
the details of the complaint
allegedly being contained therein. This affidavit was annexed
to the founding papers in the
present application and its contents
constitute the basis of the relief the applicant claims.
4.
The
affidavit of Mr Brits, however, is flawed in material respects.
In it’s first five paragraphs information of a general
nature
appears, i.e. the identity of the deponent; a description of the
manner in which legal aid instructions are issued and an
explanation
of the steps normally taken to tax and check a submitted account,
before the board effects payment. However,
in the preamble to
paragraph 6, Mr Brits describes how Avalanche Forensic Services (Pty)
Limited (“Avalanche”) on behalf
of the board, analyzed
various accounts submitted to the board by one Viren Singh in respect
of the latter’s conduct of criminal
cases. Mr Brits then
proceeds to mention that Avalanche in several instances ascertained
that the accounts of Mr Singh cannot
be reconciled with information
presented to the board by
him
.
Mr Brits mentions that Avalanche had managed to identify 821 (Eight
hundred and twenty one) incidents “
in
which claims appear to be irregular
”.
He then proceeds to summarise the nature and extent of the alleged
irregularities but does so on the basis that such
irregularities were
committed by respondent. In paragraph 7 Mr Brits then concludes
that it would appear that “
the
attorney
”
gave out and presented to the board
:
“
7.1
that he was entitled to fees for appearances in Court on dates on
which he did not in fact appear; and/or
7.2
that
he was entitled to fees for appearances in Court on dates on which
the cases concerned did not come before Court; and/or
7.3
that
the was entitled to be reimbursed in respect of travelling expenses
for travelling to a Court on a date on which the legal
practitioner
concerned had previously presented to the board that he was entitled
to be reimbursed by the board for travelling
to the same Court in
respect of another matter; and/or
7.4
that
he was entitled to be reimbursed in respect of travelling expenses
for travelling to Court on dates on which he did not in
fact appear
before Court; and/ or
7.5
that
he was entitled to be reimbursed in respect of travelling expenses
for travelling to Court on dates on which the cases concerned
did not
come before Court.”
5.
In the final
two paragraphs of his affidavit Mr Brits mentions that the total
amount overcharged by “
the
attorney
”,
presented to him by Avalanche, was approximately R468 653.25, and
that he suspects that “
the
attorney
”
might have committed fraud and that it would be appreciated if
applicant could investigate the matter further.
6.
It was
obviously incumbent on applicant to investigate the matter further,
and clarify the confusion. For a start applicant
could not have
known whether it was dealing with a complaint levelled against
attorney Viren Singh or against respondent.
7.
Mr
Rees, who deposed to the founding affidavit on behalf of the
applicant, explains how he, on numerous occasions, unsuccessfully
attempted to contact Mr Brits in order to clarify this confusion.
According to Mr Rees the applicant’s legal representatives
did
eventually manage to contact Mr Brits who apparently gave them the
undertaking that he would furnish an affidavit “
correcting
the errors in his previous affidavit”.
This
undertaking prompted Mr Rees to venture that “
should
it become necessary in these proceedings, I will ask for leave to
supplement this affidavit to include a further affidavit
from Mr.
Brits”.
8.
However, no
such further affidavit was apparently received from
Mr Brits.
If it was, same was certainly not placed before us. Nor, for
that matter, did the Applicant seek to place
before court an
affidavit from Avalanche to either confirm its findings and/or to
clarify the aforesaid confusion from its perspective.
9.
It would
indeed appear that for the following two years applicant did not
carry out any investigations into the matter until it
was advised in
February 2006 that respondent had, already in July 2005, been
convicted of fraud relating to matters he handled
on behalf of the
board.
10.
A flurry of
correspondence then ensued between Mr Rees and respondent and this
resulted in the latter furnishing applicant with
an incomplete copy
of the charge sheet and of the Plea and Sentence Agreement he
concluded with the State. Upon being requested
to do so
respondent also prepared “
written
submissions
”
and presented same to applicant. These documents formed part of
applicant’s founding papers.
11.
The charge
sheet, as placed before Court, was also a confusing document.
It specifies 1662 (One Thousand Six Hundred and Sixty
Two) counts of
fraud against respondent. These counts were, however,
categorised, the details of which apparently appear
in various
columns of the schedule that was supposed to be attached to the
charge sheet, but was not, despite being forwarded to
applicant in
response to its request by respondent under cover of a letter dated
23 November 2006. This omission makes it
difficult, to follow
and understand the charges levelled against the Respondent in the
Regional Court with the necessary degree
of certainty, except that it
is apparent that such charges related to alleged fraudulent claims
for travelling expenses submitted
by respondent to the board.
12.
In
the result this Court was by and large confined to respondent’s
version to determine and understand the nature and extent
of his
alleged transgressions.
13.
Respondent’s
version emerges from the Plea and Sentence Agreement, his written
submissions to applicant and the opposing papers
he filed in this
matter. This version is as follows.
14.
Respondent
commenced practise as a sole practitioner in Mtubatuba in or about
November 1994. According to him the bulk of
his practise
eventually consisted of criminal work and of that approximately 90%
emanated from the board. Initially legal
aid instructions were,
according to him, fewer and manageable but increased rapidly as the
years went by. In the execution
of his instructions and duties
respondent, almost on a daily basis, travelled from Mtubatuba to
places as far north as Ubombo,
Ingwawuma and Kwangwanazi and places
as far west as Vryheid and Paul Pietersburg, and back.
15.
Respondent
explains that from inception accounting to the board in respect of
travel claims in instances of more than one instruction
to the same
venue on the same day was problematic,
inter
alia,
for the following reasons:
(a)
In most such
instances, although an appearance in one matter might initially
coincide with an appearance in one or more other matters,
the
different instructions were often not finalised on the dame day, or
as the same venue for that matter. Some of these
matters would
be transferred to the Regional Court for finalisation, and a period
of six months or more would elapse before a matter
was finalised, and
then periods of up to six years would go by before payment was
received.
(b)
Often
payments were of a composite nature in that payment of a single
cheque or direct deposit was received in respect of any number
of
cases, often with incorrect reference numbers. In some
instances payments were received in respect of certain matters
which
did not correlate with the accounts submitted for such matters and
generally payments were difficult, if not impossible,
to reconcile
with accounts tendered.
16.
Respondent
explains that when he commenced acting for the board in 1994, he
claimed travelling expenses in respect of each matter
he attended at
a specific venue irrespective of whether he attended to another
matter at that venue on the same day. He said
he did so because
he fully expected the board to “
tax
off
”
any duplication.
17.
He
mentions that on Tuesday 29 November 1994, after having been in
practise for some three months and having submitted a total of
16
(sixteen) accounts to the board, he received a telefax from the
Deputy Director of the board, Mr JL Weyers, the contents of
which
fortified his expectation that accounts submitted to the board would
be subjected to a process of taxation to ensure that
duplicated
claims for travelling expenses were not paid.
18.
Respondent
points out that the fact that the board was satisfied with the manner
in which he accounted was confirmed in a subsequent
telephone
conversation with Mr Weyers. The purpose of such call initially
being to explain to him the practical difficulties
of keeping record
of simultaneous appearances on one day, at one or more venues,
especially when such matters were not finalised
on the same day.
He mentioned to Mr Weyers that in the context of his practise still
being unsophisticated this presented
as a real problem, especially
against the background of rapidly increasing instructions to him.
Respondent mentions that
he and Mr Weyers then agreed that Respondent
would endeavour to continue to reflect on his accounts to the
board those matters
where travelling expenses were shared, as he in
any event was in a habit of doing up to then, and that the board
would continue
to tax of any duplication.
19.
Respondent
mentions that in this conversation he and
Mr Weyers also
discussed the possibility of respondent submitting claims for
travelling expenses on a pro rata basis in a
situation where his
appearances at a specific venue and on a specific day coincided.
Respondent says that he did indeed attempt
to account on this basis
at some later stage but explains that this method of accounting
proved to be even more problematic.
20.
In
this regard respondent explained, by way of example, that where the
distance of a return trip between Mtubatuba and Ingwawuma
for
instance was 400 (Four Hundred) kilometres and the tariff R1.00 per
kilometre, his entitlement would in the normal course be
limited to
R400.00 (Four Hundred Rand). However, where he attended to two
matters on that day at the same venue his claims
would reflect a
distance travelled in respect of each matter of 200 (Two Hundred)
kilometres. This method of accounting proved
impractical for
reasons mentioned hereunder and so did his attempt to reduce the
amount instead of the kilometres travelled on
a pro rata basis.
21.
Respondent
explains that during one of his visits to the board in Pretoria he
was advised that the board’s computer program
could not
accommodate a system of reducing on a pro rata basis either the
tariff or distance travelled and that Respondent should
in future
rather continue to submit travelling claims in full in respect of
each instruction as the board’s computer programs
would
automatically tax off any duplications.
22.
Respondent
mentions that the aforesaid arrangements were confirmed by
representatives of the board during the plea bargaining negotiations
at the criminal trial.
23.
According
to Respondent he then continued to submit travelling claims to the
board in respect of each case, irrespective of any
overlapping or
duplication.
24.
As
it turned out, however, the board did tax off some of the claims but,
in many instances, they paid the full amounts claimed in
respect of
travelling in each instance. This resulted in the overpayment
of travelling expenses, and sometimes substantially
so.
Respondent emphasises though that he was never aware of the fact that
he was being overpaid. He mentions, however,
that his counsel
at the criminal trial explained to him that there rested a duty on
him to have checked the payments received from
the board against
claims submitted to it and that, had he done so, he would have
discovered that he was being overpaid in this
manner. This, so
respondent’s counsel explained to him, was enough reason for a
Court to reach the conclusion that
he was sufficiently reckless, on
the basis of
dolus
eventualis,
for
a finding to be made that respondent had the necessary intention to
defraud the board.
25.
Respondent
explains that this advice played an important role in convincing him
to plead guilty to only five of the counts of fraud
levelled against
him on the basis suggested by his counsel.
26.
Respondent
furthermore explains that in his experience the payment of accounts
by the board to attorneys in general had always been
problematic.
He mentions that in 1999, in a letter dated 4 August 1999, he
complained to the board that the latter was indebted
to him in a sum
in excess of R180 000.00 (One Hundred and Eighty Thousand Rand) and
that as a sole practitioner he could hardly
carry this burden.
He says that this letter, as well as a number of follow-up letters,
went unanswered. He mentions
that he unsuccessfully spent many
hours on the telephone trying to arrange meetings with the board to
address the ever increasing
backlog of fees due to him. All of
this, he says, came to nothing. He mentions a Sunday Times
article, dated 31 October
1999, which reported a showdown between the
board and lawyers threatening not to accept any further work from the
board because
of outstanding fees. In this regard he says the
newspaper reported on efforts made by the board to speed up the
payment of,
at that stage, approximately 80 000 (Eighty Thousand)
outstanding fee claims owed by the board to lawyers for work dating
back
as far as 1992. He said these efforts were also futile.
In this regard respondent referred to a document
he
compiled after attending a roadshow at Durban on 29 October 1999 and
where a representative of the board mentioned that, at
that stage,
there were about 400 000 (Four Hundred Thousand) outstanding accounts
totalling approximately R460 million, with some
of the accounts still
dating back to 1992. Respondent also referred to a copy of his
bank account which reflected a deposit
of R28 415.00 (Twenty Eight
Thousand Four Hundred and Fifteen Rand) by the board into his account
without any remittance advice
ever being received in respect of such
payment.
27.
Respondent
proceeds to mention that when payments were eventually received this,
more often than not, occurred many months and often
even years after
the event. He mentions that claims were invariably paid “
in
bulk”
and at any given time represented but a fraction of the total amount
due, owing and payable to him. According to respondent
it was
almost impossible to reconcile payments with accounts submitted and
that if and when a payment was received, it was a “
red
letter day
”
in his office. Respondent explains that it did not occur to him
to spend hours on end attempting to reconcile such
payments with
claims submitted in the distant past, without him having sufficient
information at his disposal to do so. He
mentions that his
staff initially queried payments which were not sufficiently
identified so as to reconcile it with claims submitted,
but that no
response was ever received.
28.
Respondent
mentions that the situation regarding payment from the board did not
improve with the passage of time and when he was
charged he was owed
in the region of R1 112 600.00 (One Million One Hundred and Twelve
Thousand and Six Hundred Rand) by the board.
He explains that
at that stage the accounting system which had gradually evolved in
his office was “rather simple”,
in matters involving the
board, in that the total outstanding amount due to him was
periodically just “
tallied
and eyed
”
and that it was this figure which he kept in mind when payment was
received from the board.
29.
Respondent
mentions that the aforesaid background was discussed at length with
those representing the State during the plea bargaining
negotiations. He says that he took the decision to play open
cards with the State as it was abundantly clear that the board
wished
to proceed with the matter. The resulting trial would have been
of such length and complexity that he would have been
financially
ruined, regardless of the outcome thereof. According to
respondent he wished to avoid this and also the possibility,
however
remote, that he might be convicted and possibly incarcerated.
He says that he was not prepared to take this risk
and was therefore
prepared to enter into the plea bargaining process. He mentions
that it was only after counsel for the
State consulted with the board
and was satisfied that at all stages respondent was owed more money
by the board, than the other
way around, that the plea bargaining
arrangements were finalised and agreed upon.
30.
Respondent
mentions that during the aforesaid negotiations the board agreed that
after the criminal proceeding it would reconcile
its account with him
and pay him what was due. This arrangement, according to
respondent, was confirmed by Mr Brits in a
letter dated 6 July 2005,
a copy of which was attached to applicant’s founding affidavit.
31.
Respondent
mentions that after the criminal proceedings were disposed of he
indeed received from a Mrs Veary of the board an exposition
of what
the board considered to be a summary of his outstanding accounts.
A copy of this document was attached to the respondent’s
answering affidavit in the present proceedings and on the last page
thereof the board tendered to pay to the Respondent “
in
full and final settlement
”
the sum of R315 546.75 (Three Hundred and Fifteen Five Hundred and
Forty Six Rand and Seventy Five cents).
32.
According
to Respondent Ms Veary, subsequently revoked this offer and indicated
to Respondent that he was free to litigate mentioning,
in the
process, that should he decide to do so he should be mindful of the
fact that his claim had already prescribed. Respondent
explains
that he decided not to take matters any further in the circumstances.
33.
Respondent
emphasises that the board had suffered no prejudice or financial
losses, nor were they in danger of doing so as a result
of his
conduct. He mentions that he, in turn, had to write off
considerable amounts of money due to him by the board.
He also
mentions that his conviction had dire and far reaching consequences
for him, one of which was the fact that he could no
longer serve as
councillor, as he previously did and that any application for a
firearm, or emigration, or travel to foreign countries,
now presented
as a problem, as was employment in the formal sector. He argues
that the unfortunate sequence of events in
respect of which he was
found guilty related to a single client only, being the board, who
has in any event stopped all instructions
to him and that there was
accordingly no longer any danger of the situation repeating itself.
He therefore reasoned that
the board no longer needed to be protected
from possible future prejudice by his striking-off. He argues
that the general
public had not been affected in any way at all and
did not require that he be disbarred from practise in order to
protect them
as a body. He emphasises that trust funds were not
involved.
34.
In
reply Mr Rees, on behalf of applicant reasoned that respondent, by
admitting to have submitted two or more claims for travelling
expenses to the same court, on the same day, had in effect,
acknowledged that he committed fraud. Mr Rees argued that
respondent’s
contention that he was instructed by the board to
account in the manner he did should be rejected outright. Mr
Rees accordingly
claims that the name of respondent should be removed
from the roll of attorneys on the basis that he committed fraud.
Mr Rees argued further that respondent’s failure to keep a
proper bookkeeping system, sufficiently adequate to detect duplicated
payments,
per
se,
meant that respondent was not a fit and proper person to practice as
an attorney.
35.
The
approach to be followed when considering whether or not to strike the
name of a practitioner from the relevant roll has been
authoritatively set out in
Law
Society of the
Cape
of Good Hope v Budricks
2003 (2) SA 11
(SCA)
by
Hefer
AP,
at page 13. Referring to the wording of Section 22 (1) (d) of
the Attorneys Act 53 of 1979 (“
the
act
”)
to the effect that an attorney may be struck from the roll or
suspended from practice if he, in the discretion of the court,
is not
a fit and proper person to continue to practice as an attorney, the
learned Acting President pointed out that the practical
manner in
which courts should exercise their disciplinary powers involve a
threefold enquiry:
“
the
court first decides as a matter of fact whether the alleged offending
conduct has been established. If the answer is yes,
a value
judgment is required to decide whether the person concerned is no
longer a fit and proper person as envisaged in s 22 of
the Act.
If the answer is again in the affirmative, the court must decide in
the exercise of its discretion, whether, in
all the circumstances of
the case, the person in question is to be removed from the roll or
merely suspended from practice.”
36.
The
thrust of the offending conduct applicant complains of relates to the
five counts of fraud of which respondent was convicted
in the
Regional Court. The confusing contents of the affidavit deposed
to by Mr Brits and the fact that the charge sheet
placed before us
was inadequate, make it impossible for this Court to consider the
veracity of the bulk of the charges preferred
against respondent in
the Regional Court. In any event, it would appear that
applicant confined its attack on respondent
to the five charges to
which he pleaded guilty. In this regard Mr Rees expressed
himself as follows in paragraph 24 of the
founding affidavit:
“
I
respectfully submit that the respondent’s misconduct, which is
set out above in respect of which he pleaded guilty to five
counts of
fraud and was thereafter convicted, indicate that the respondent is
not a fit and proper person to practice as an attorney
and that, on
this ground, the court ought to strike his name off the roll of
attorneys”
37)
In
the Plea and Sentence Agreement respondent, in respect of the five
counts to which he pleaded guilty, admitted that whilst claiming
for
the travel expenses concerned, he recklessly omitted to indicate to
the board that the said claims coincided with other claims.
He
nevertheless carelessly and with appreciation of the risk that the
board might unwillingly overpay him for such claims, accepted
this
risk by continuing to claim in this manner. He thus foresaw the
risk to the board as a reasonable possibility and reconciled
himself
therewith. It is clear that, by way of the plea agreement,
respondent tendered his plea on the basis of
dolus
eventualis
.
38)
In
his answering affidavit in these proceeding respondent does not seek
to deny the correctness of his aforesaid admissions. Instead
he
was at pains to explain the circumstances which gave rise to his
conduct, such having been narrated in some detail above and
need no
repeating. Applicant in reply did not dispute the circumstances
alluded to by respondent.
39)
Suffice
it to say that such circumstances do not serve to exonerate
respondent from his criminal conduct. The fact remains
though
that carelessness, rather than direct intent, underlies such
conduct. This, in my view, is an important consideration
in the
process of determining whether respondent remains a fit and proper
person to continue practice as an attorney.
40)
The
fact that respondent conducted himself in this careless manner must,
however, not be considered in isolation. The context
within
which this conduct took place is important and in my view the
following surrounding circumstances, alluded to by respondent,
should
carry some weight:
(a) The
fact that respondent’s multiplication of travelling claims was
sanctioned by the board.
(b)
The fact that such claims were submitted openly in the full
expectation that the board would
reconcile same and only pay to
respondent what was due.
(c)
The fact that the board
’
s
tardy payment of outstanding accounts made it extremely difficult for
respondent to detect any overpayment.
41)
Having
regard to the threefold enquiry postulated in the Budricks matter
this court is charged with first having to decide whether
the alleged
offending conduct has been established. In my view it was
established. Respondent’s conduct of simply
“
tallying
and eyeing”
the balance owing to him by the board when payments were made, and
without a bookkeeping system in place sufficiently adequate
to detect
any over payments, amounted to a cavalier approach that was careless
in the extreme.
42)
If
the answer to the first enquiry is “
Yes”
then a value judgment is required to decide whether or not respondent
remains a fit and proper person to continue practice as an
attorney.
In this regard it is perhaps significant that applicant did not seek
to suspend respondent from practice during
the interim and pending
the return date of the
Rule
nisi
.
I must hasten to add, though, that applicant persistently insisted on
respondent’s removal from the roll. Be
that as it may,
respondent has remained in practice since March 2004, when applicant
received a letter of complaint from the board,
and has apparently
done so since then without any blemish. Then, of course, there
are the surrounding circumstances already
mentioned above. Mr
Pretorius, who appeared for the applicant, submitted that the fact
that respondent failed to maintain
a proper accounting system capable
of detecting the overpayments ought to be an additional factor which
weighs against respondent
remaining on the roll of attorneys.
That this should be so cannot be doubted. However, its impact
is, in my view, compromised
by the chaotic manner in which the board
conducted its affairs and specifically, effected payment of
attorney’s accounts.
Respondent’s detailed account
of the board’s failings in this regard went unchallenged, as
did his statement that it
was in the circumstances almost impossible
to account properly to the board. Mr Pretorius also submitted
that respondent’s
transgressions involved dishonesty and that
this should militate against respondent remaining on as an attorney.
I disagree
with Mr Pretorius in this regard. Respondent’s
conduct involved reckless disregard of possible overpayments and not
conscious dishonesty. The difference between these two concepts,
especially in the context of this case, is in my view important.
43)
I
am persuaded that respondent is no longer a fit and proper person
with the meaning of the provisions of s 22(1) (d) of Act 53
of 1979.
In the exercise of the discretion the court has in this regard, the
circumstances and factors referred to by respondent
were carefully
considered, as were the submissions of applicant. In my view
respondent’s conduct, in all the circumstances,
falls short of
that which the court expects from an attorney.
44)
Having
concluded that respondent’s fitness to continue practice as an
attorney has been compromised, the third leg of the
enquiry
postulated in the Budricks matter comes into play. Respondent
needs to be sanctioned, and sternly so. Respondent’s
conduct of duplicating claims for travelling expenses was, however,
shy of being intentional. In the end the absence of intentional
dishonesty (
dolus
directus)
in
respondent’s course of conduct becomes decisive of whether or
not he should be permitted to continue to practise as an
attorney.
The fact remains, that respondent’s transgressions are of a
serious nature and he ought to be punished appropriately.
What
must be kept in mind is that the board in the end suffered no real
financial prejudice. It had, in a manner of speaking,
the last
laugh when successfully threatening prescription as a defence to
respondent’s acknowledged claim of R315 546.75
(Three Hundred
and Fifteen Five Hundred and Forty Six Rand and Seventy Five cents).
I also keep in mind the fact that respondent‘s
actions related
to one single client only and not to the public at large.
45)
The
sanction to be imposed upon respondent depends upon the consideration
and weighing up of many factors relevant to the particular
circumstances of each matter. These include the nature and
extent of the misconduct determined, the extent to which such
conduct
adversely reflects upon respondent’s character or demonstrates
him to be unworthy as a member of the attorney’s
profession,
the likelihood of repetition and the need to protect the public.
In the light of all these considerations the
court, firstly needs to
decide whether respondent’s removal from the roll of attorney’s
is called for. In my
view it is not. The second
consideration is then whether respondent should be suspended from
practice for a certain period.
In my view the severity of the
sanction to be imposed need
s
58
t
o
satisfy the needs to protect society, the profession and the intent
of the errand practitioner.
46)
In
the present matter, as I have indicated, intentional dishonesty
(
dolus
directus)
was
not involved. Respondent has suffered severe punishment and
disabilities flowing from the criminal conviction and the
circumstances in which the misconduct occurred are unlikely to be
repeated in the future. Respondent, however, needs
to be
punished in such a manner as to remind him, for some time to come, of
the seriousness of his misconduct, while improving
his
accounting and administrative skills so as to avoid even inadvertent
repetition of the kind of conduct which gave rise to the
present
proceedings. The sanction must, at the same time also act as a
warning to other practitioners that they too should
guard against lax
and inattentive accounting or administrative practices, which could
result in prejudice to their clients, or
the public at large.
47)
In
my view a sanction involving a suspension from practice, itself
conditionally suspended, coupled with a fine partly suspended,
is
called for in all the circumstances of this matter.
48)
I
propose to make the following order:
1)
Respondent
be and is hereby suspended from the practice of an attorney for a
period of 2 (two) years.
2)
Respondent
is ordered to pay a fine of R20 000.00 (Twenty Thousand Rand), such
payment to be made to the KwaZulu Law Society.
3)
The
order in paragraph 1 and one half of the fine mentioned in paragraph
2 hereof is suspended for a period of 3 (three) years on
the
following conditions:
3.1)
The
respondent is not convicted of a criminal offence for which he is
sentenced to a period of imprisonment without the option of
a fine.
3.2)
The
respondent is not found guilty of professional misconduct by a court
with regards to his practice as an attorney.
3.3)
The
respondent completes to the satisfaction of applicant the Finance and
Bookkeeping module and the Practice Administration module
of the LEAD
course in Practice Management of the Law Societies of South Africa,
at his own cost, within a period of 12 (twelve)
months form date of
this order.
4)
The
Respondent be and is hereby ordered to pay the costs of this
application on the attorney and client scale.
___________________
VAN
HEERDEN AJ
I agree
___________________
Van ZŸL J