De Beer v Law Society of the Cape of Good Hope (6980/2001) [2004] ZAWCHC 8 (13 February 2004)

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[2004] ZAWCHC 8
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De Beer v Law Society of the Cape of Good Hope (6980/2001) [2004] ZAWCHC 8 (13 February 2004)

“
REPORTABLE”
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 6980/2001
In
the matter between:
JACOB
JOHANNES DE BEER Applicant
and
THE
LAW SOCIETY OF THE CAPE OF GOOD HOPE Respondent
JUDGMENT
: FRIDAY, 13 FEBRUARY 2004
TRAVERSO,
DJP :
[1]
This is an application for the admission of the Applicant as an
attorney of this Court.
[2]
In the present proceedings the Law Society did not intervene and
resolved to abide the decision of the Court.
[3]
This matter has a long history. This history is dealt with in
some detail in a judgment delivered pursuant to a prior application
on 25 April 2002 by Cleaver, J (Potgieter, AJ concurring) in Case
Numbers 6980/2001 and 4032/2000. I believe that it is prudent
to set
out a brief chronology of the events preceding the present
application:
3.1 On
23 March 1999 the Applicant and his twin brother launched a vicious
attack on one General Guyt and his wife, during which
they seriously
assaulted General and Mrs. Guyt. As a result of the aforegoing,
General Guyt lodged a criminal complaint and also
instituted civil
proceedings.
3.2 A
little more than a year later, (31 May 2000), the Applicant launched
an application for his admission as an attorney. In that
application
the Applicant dealt with this incident as follows:
“
Nieteenstaande
bovermelde is ek aangekla van die misdaad van aanranding welke saak
tans teen my hangende is in die Pretoria se Distrikshof.
‘n
Siviele aksie is ook voortspruitend uit bogemelde klagte teen my
ingedien welke aksie ook tans hangende is in die Landdroshof,
Pretoria. Dit is my respekvolle submissie
dat
die Staat kwaadwillig is in hierdie vervolging aangesien ek oor ‘n
goeie verweer beskik en die moontlikheid dat ‘n geregshof
‘n
skuldigbevinding teen my sal vel, onwaarskynlik is.
Wat die siviele aksie betref het ek reeds my regsverteenwoordigers
opdrag gegee om
‘n
teeneis namens my in te stel
juis oor dieselfde redes as wat in die strafvervolging bestaan. Dit
is verder my submissie dat die misdaad waarvan ek beskuldig
word
geen
element van oneerlikheid bevat nie en, behalwe vir die skade wat
hierdie klagte alreeds aan my en my familie veroorsaak het
,
ek verder ernstig finansieël en anders benadeel sal word sou die
Agbare Hof hierdie aansoek weier juis op grond van die omstandighede
bovermeld.”
(Emphasis supplied)
3.3 General
and Mrs. Guyt intervened in the aforesaid proceedings, and opposed
the application for the Applicant’s admission. From
their
affidavits it appears that the Applicant and his brother initially
alleged that General and Mrs. Guyt were attacked by
“two
black men”
and the Applicant and his brother assaulted these two black people,
ostensibly in defence of the Guyts’. In later statements the
Applicant alleged that he acted in self defence.
3.4 It
is evident from the affidavits filed in support of the criminal case
that the State had more than sufficient evidence to warrant
a
prosecution of the Applicant and his brother and that there was never
any suggestion that the prosecution could be malicious
(“
kwaadwillig
”).
3.5 A
perusal of the pleadings in the civil matter also indicates that the
Applicant never filed a counterclaim as suggested by him.
3.6 The
criminal proceedings were brought to a halt by reason of the fact
that the Magistrate recused herself. In the meantime and
by virtue
of the Guyts’ opposition to the Applicant’s application for
admission as an attorney, the Applicant entered into negotiations
with them and the civil claim was settled. The Applicant and his
brother paid a sum of money to the Guyts’ and the Guyts’ in
turn
undertook to withdraw their opposition to the Applicant’s
admission.
3.7 Because
of the opposition to the Applicant’s application, the Law Society
conducted a hearing at which the allegations of assault
were
investigated. During that hearing the Applicant admitted that he was
guilty of the alleged assault, and expressed his regret
about the
incident. Accordingly, the Law Society resolved that if a
certificate of
nolle
prosequi
could
be obtained, they would not oppose his admission. What is of great
significance is that the Applicant, in his endeavours to
persuade the
Law Society not to oppose his application repeatedly stated (on oath)
that the crime of which he was accused of did
not contain any element
of dishonesty and therefore should not stand in his way to be
admitted as an attorney. The Applicant was
therefore acutely aware
that dishonesty would be an obstacle for his admission - yet lying is
the one thing that he persisted in
relentlessly.
3.8 On
10 July 2001 the application was again enrolled and came before Nel,
J. In that application the Applicant, contrary to his
evidence at
the Law Society meeting again denied that he was guilty of assault.
Because of this apparent contradiction, Nel, J called
for
clarification.
3.9 Accordingly
the following order was made:
“
By navraag ontken applikant
dat hy skuldig is aan ‘n aanranding. Dit strook nie met
mededelings aan Wetgenootskap nie. Voordat
applikant toegelaat kan
word behoort aansoek na verhoor verwys te word om te bepaal waaraan,
indien enige gedrag hy hom aan skuldig
gemaak het. Aansoek word
teruggetrek.
”
3.10 Despite
this order the application was again enrolled on 3 August 2001 on the
same papers. On that occasion Traverso, DJP and
Van Reenen, J made
the following order:
“
Saak word teruggetrek. Dit
word gelas dat tensy daar ‘n formele aansoek om kondonasie gerig
word aan Traverso, ARP en van Reenen,
R, sal die saak nie weer op
hierdie stukke ter rolle geplaas word nie.”
3.11 Five
days later a fresh application was launched. That is application
which came before Cleaver J and Potgieter, AJ to which
reference has
been made in paragraph [3] above. One would think that by now the
Applicant would have realised that his lack of candour
and
contradictory statements played a role in the Court’s reluctance to
admit him as an officer of the Court. But it seems that
still the
penny had not dropped! In the founding affidavit he pertinently
denies that he assaulted either one of the Guyts’. It
was only in
his oral evidence before Cleaver, J and Potgieter, AJ that he
admitted his part in the assault.
[4]
It is against this background that the present application should
be viewed.
[5]
It is common cause that the test which is to be applied in a
matter such as this is essentially the same as the test which is
applicable to attorneys seeking re-admission. That test is that we
must be satisfied that there has been a complete and permanent
reformation on the part of the Applicant. See
Nathan
v Natal Law Society & Another
1999(1) SA 706(C) and more particularly the authorities cited at p.
712 A-G.
[6]
The Applicant now admits all these lies, and admits that he
continued to lie until Cleaver, J and Potgieter, AJ referred the
application for oral evidence. He then realised that he would not
withstand cross-examination and decided to start telling the truth.

But even then the Court expressed some doubt as to the true reason
for the Applicant’s new found honesty. Cleaver, J said the
following:
“
Alhoewel hy in getuienis in
hoof gesê het dat hy tot ander en beter insig gekom het toe NEL, R
aangedui het dat die saak na mondelingse
getuienis verwys moet word,
kan dit nie so wees nie, want die tweede aansoek is eers daarna
opgestel en daarin het hy volhard met
die leuens. Ek lei af dat dit
eerder gebeur het toe hierdie Hof self die saak op 15 Februarie na
mondelingse getuienis verwys het.”
[7]
In my view this is a crucial factor in deciding whether the
Applicant should be admitted as an attorney.
[8]
In
my view it is clear that the Applicant only decided to tell the truth
when there was no other way out.
[9]
As pointed out by Cleaver, J the Applicant, despite clear
indications from three Judges that the application could not succeed
in view of the contradictions, made further attempts to have the
matter heard without oral evidence. In his affidavits the lies
continued. From this it must follow that the Applicant was prepared
to take a chance that a newly constituted Court would dispose
of the
application without hearing oral evidence. In other words he was
prepared to use dishonesty as a means to be admitted as
an attorney.
[10]
This is an aspect with which neither the Applicant nor Mr.
Viljoen, who appeared on his behalf, dealt.
[11]
In my view this indicates such a serious lack of judgment on the
part of the Applicant that it cannot be said that he has truly
reformed himself. To stop lying because there is no other way out is
vastly different from realising that dishonesty is wrong and
to
desist from it irrespective of the consequences.
[12]
The Applicant only decided to take the Court in his confidence
when he had no choice
and
had received better advice from Mr. Viljoen. In addition, he only
told his parents the truth in reaction to the “
Hof
se vermaning
”.
[13]
In my view, the fact that the Applicant consulted Dr. Teggin to
establish whether he was a “
serial
liar
”
or not, takes the matter no further. On the Applicant’s own
version he continued to lie, not because of some pathological
disorder,
but because he wanted to avoid whatever the consequences
might have been of his assault on the Guyts’. His dishonesty was a
means
to an end. To suggest that because Dr. Teggin found that he is
not afflicted with a pathological personality disorder, it has been
shown that he is permanently reformed, is without substance.
[14]
Dr. Teggin states that in his view the Applicant is not an
inherently dishonest person. It is now for the Applicant to satisfy
the Court that Dr. Teggin is correct in his statement. He must
satisfy the Court that he will not in the future lie because it is
expedient.
[15]
This he has not done. All he has done is to show that he stopped
lying to the Court, not because he realised that what he was
doing
was wrong, but because he had no choice. He only told his parents
the truth in reaction to “
die
Hof se vermaning”
and as a means to an end.
[16]
In my view the Law Society was correct in their assessment that
this application was premature. I accept that the Applicant
has
suffered financially as a result of his dishonesty, but had he not
persisted in it, the outcome of the various applications may
well
have been different. His persistent dishonesty of course also shows
a great lack of judgment.
[17]
One does not want to destroy a young man such as the Applicant.
What the Applicant must do is to do some introspection about
himself
and his life. He must satisfy himself that no matter what the
temptation, he will not resort to dishonesty as a means towards
an
end. It is with this in mind that the following order is made:
The
Application is dismissed with costs.
The
Applicant is granted leave to apply for his admission as an
attorney, on the same papers duly amplified, when he can satisfy
the
Law Society and the Court that he is a fit and proper person.
__________________________
TRAVERSO,
DJP
I
agree, and it is so ordered:
__________________________
HLOPHE,
JP
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: 6980/2001
In the matter between:
JACOB
JOHANNES DE BEER Applicant
and
THE
LAW SOCIETY OF THE CAPE OF GOOD HOPE Respondent
Counsel for the
Applicant : Adv. H.P. Viljoen SC
Attorneys
for the Applicant : Messrs. John Smith & Associates
(Mr. J.E.H. Smith)
Counsel
for the Respondent : No representation on behalf of the Law Society
of the Cape of Good Hope
(Abides the decision
of the Court)
Attorneys for the
Respondent : No representation on behalf of the Law Society
Date
of Hearing : 8 December 2003
Date
of Judgment : 13 February 2004