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[2002] ZAGPPHC 2
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Law Society of the Northern Provinces v Soller (992/2001) [2002] ZAGPPHC 2 (26 November 2002)
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE NO: 992/2001
26 November 2002
Not reportable
Not of interest to
other judges
IN THE MATTER
BETWEEN
THE LAW SOCIETY
OF THE
NORTHERN
PROVINCES
.......................................................................................
APPLICANT
AND
PETER CLIVE
SOLLER
......................................................................................
RESPONDENT
JUDGEMENT
BERTELSMANN J:
1. The applicant,
The Law Society of the Northern Provinces, applies for the striking
off of the respondent from the roll of attorneys.
2.
The
application
is advanced on a number of grounds which will be enumerated below.
3 . The respondent
has raised a veritable welter of defences against the application,
which will be dealt with during the course
of this judgement.
4. During argument,
the applicant was represented by Mr. Labuschagne, whereas the
respondent appeared in person. He was assisted
in court by one Paul
Rheeders. (“Rheeders”). The respondent alleged that
Rheeders was not acting in a capacity as attorney,
but as an
assistant or a friend.’ The relationship between Rheeders and
the respondent will be examined later.
THE APPLICANT
The applicant is the
Law Society of the Northern Provinces incorporated as the Law Society
of the Transvaal.
It is a society as
contemplated in Chapter 3 of the Attorneys’ Act, Act 53 of
1979, (“the Act”) in which the Law
Society of the
Transvaal is described as a juristic person in s 56 (c).
In terms of s 57 of
the Act, every practitioner in any province must be a member of the
Law Society of that province.
Because of the
disappearance of the former Transvaal Province, the applicant society
has renamed itself as the Law Society of the
Northern Provinces.
THE RESPONDENT
The respondent is
Peter Clive Soller, an adult attorney admitted to practice as such on
the 2
nd
of September .1969, presently practicing as Soller
and Associates at 54 Grenville Road, Savoy, Johannesburg, Gauteng.
THE ISSUES
The issues before
the coiirt are the following:-
1. Whether the
respondent is a,fit and.proper person to be allowed to continue in
practice as an attorney of this court, which involves
an inquiry into
the question whether the applicant has proved its allegations of
misconduct and incompetence against the respondent;
2.
Whether the applicant has the necessary
locus
standi
to
bring the present application;
3. Whether, if
any.flaw is to be found in the respondent’s conduct or
competence, he should be suspended from practice rather
than struck
off.
4. Whether the
application can be.determined on the papers or needs to be referred
to oral evidence.
5. Whether the
applicant was obliged to conclude a disciplinary enquiry before
launching the present proceedings or not.
6. Whether the
applicant allowed itself to be unduly influenced by outside parties
to launch this application rather than to continue
with a
disciplinary enquiry.
THE
APPLICANTS
LOCUS STANDI
1.
The respondent'challenged the applicant
’
s
locus standi,
alleging
, that as it had changed its name to the Law Society of the Northern
Provinces (which he may have misconstrued as “the
Law Society
of the Northern Province”), it had ceased to exist as the Law
Society operating in the former Transvaal, and
in particular in
Gauteng, where the respondent has his practice. For this reason, so
the argument ran, the Law Society had no
locus
standi
to
approach this court.
2.
The respondent had hardly commenced upon this part of his argument
when he realized that he had proceeded from an incorrect premise
of
fact. He wisely abandoned any further reliance upon the the argument
that the.applicant did not have the required
locus
standi
to
apply for his striking off.
3.
In any event, this Court has the inherent power to take cognizance of
the conduct-of its officials. The respondent is an attorney
of this
Court. Should it become clear that he is no longer fit to practice,
this Court can act
mero
motu
in
suspending him or striking him off. The Court can act in this fashion
on its own accord, or can receive information from any
interested
party or any
amicus
curiae
.
4.
Even if the applicant had no
locus
standi,
this
would not assistthe respondent in preventing this Court from dealing
with the matter and from acting upon those facts which
are
established on the papers.
THE HEARING
As the respondent
appeared in person, and particularly as he was inclined to stray
beyond the bounds of the papers from time to
time, the Court
requested that a running record of the arguments be prepared. Where
necessary, reference will be made to the transcript.
THE RESPONDENT’S
COMPLAINT THAT APPLICANT FAILED TO CONCLUDE A DISCIPLINARY ENQUIRY
1. It is common
cause that the respondent appeared at a disciplinary enquiry that had
been arranged by the applicant prior to the
present proceedings being
launched.
2.
The
disciplinary proceedings in turn were preceded by a meeting of the
applicant’s council held on the 3
rd
of April 2000, at which the respondent appeared.
3. He was then
charged with
3.1 A failure to
consistently attend disciplinary enquiries;
3.2 A failure to
account in terms of the rules of the Law Society to his clients or
former clients;
3.3 A failure to
keep a proper accounting record;
3.4 Having conducted
inappropriate correspondence with colleagues and the applicant;
3.5 A conviction for
contempt of court by the Cape of Good Hope Provincial Division of the
High Court of South Africa;
3.6 Inappropriate
conduct toward a colleague who had acted for his former wife in
certain maintenance proceedings.
The respondent made
some reply to these charges, but eventually it was decided that the
complaints would be referred to a disciplinary
committee which would
meet on the 5
th
of May 2000.
The
respondent was taken ill before that date, whereupon the proceedings
were postponed
sine
die
and
the respondent was requested to provide medical, certificates within
fourteen days that he had indeed been incapacitated.
On the 19
th
of May 2000 these medical certificates had not yet been produced and
the applicant decided to launch the present enquiry.
The respondent has
argued at some length that this decision:
1. has deprived him
of fair administrative procedure;'
2. constitutes an
unlawful step on the part of the applicant because the applicant is
in terms of the provisions of ss 71 and 72
of the Act obliged to
conduct a disciplinary enquiry prior to lodging an application for
the striking off or suspension of an attorney;
and
3. has deprived him
of an opportunity to lead oral evidence, to call for the viva voce
evidence by complainants and witnesses against
him and to
cross-examine them.
The
respondent also attributes improper motives to the applicant, which
are said to underlie the decision to launch the present
procëedings.
This aspect of the matter will be dealt with
infra.
The first objection
raised by the respondent, namely that he was deprived of a fair
administrative procedure by the institution
of the present
application is clearly without merit and can be dismissed out of
hand. The respondent was given the opportunity
to deal with all
complaints against him in open court before an independent tribunal.
There is no suggestion that the trial that
he received in these
proceedings was anything but fair and strictly in accordance with the
Constitution as well as the rules of
this Court’s procedure and
the law relating to evidence.
There can be no
suggestion of any prejudice in tne proceedings themselves.
The
argument that-the applicant society is obliged to conduct a
disciplinary, enquiry, or to finalize disciplinary steps that have
been embárked upon before deciding to launch an application to
Strike off, is misconceived. S 71. of the Act reads
inter
alia
as
follows under the heading
“
Inquiry
by council into alleged cases of unprofessional or dishonorable or
unworthy conduct
-
A council may in the
prescribed manner enquire into cases of alleged unprofessional or
dishonorable or unworthy conduct on the part
of any attorney, notary
or conveyancer...”
S 72 reads as
follows under the heading
“
Council's
disciplinary powers -
“
(1)
A council conducting an enquiry in terms of s 71
may
find
the person concerned guilty of unprofessional or dishonorable or
unworthy conduct and may... ”
S 22 of the Act says
the following under the heading
“
Removal of
attorneys from roll.
-
(i)
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 practice by the court within the jurisdiction of
which
he practices......”
Quite apart from the
aforegoing, the present proceedings are disciplinary proceedings
conducted by this court -
“
Hierdie
Hof het inherent die jurisdiksie om te beslis oor die geskiktheid van
prokureurs. Sy jurisdiksie ontleen hy nie uitsluitlik
aan a.22 van
die Wet op Prokureurs nie.
Law
Society of the Cape of Good Hope
v
C
1986
(1) SA 616(A)
op 638 C tot 639 F. Kyk ook
Pesskin
v The Incorporated Law Society
1966(3)SA
719(T), waarin beslis is dat die Hof inherente jurisdiksie het om
prokureurs toe te laat. Dit volg dat waar hierdie Hof
hierdie
bevoegdheid het, die Hof ook die applikant kan toelaat om die nodige
gegewens voor hom te plaas. Hierdie Hof het die bevoegdheid
om sy eie
prosedure te reël. Dit is per slot van rekening ‘n
dissiplinêre ondersoek, nie ‘n siviele geding
nie. Die
vraag of die jurisdiksie wat die applicant aan a. 22 van die Wet op
Prokureurs ontleen geldig is, is dus nie wesenlik
nie. Die
geskilpunte draai om die geskiktheid van die respondent om as
prokureur te praktiseer nie om die applicant
se
locus standi
nie...”
Per
Van Dijkhorst J in
Prokureursorde
van Transvaal
v
Kleynhans,
1995(1)SA
839 (T) at 851 E to G.
It
follows that the respondent has no right to insist upon a
disciplinary enquiry being held prior to steps being taken for his
removal from the roll. In fact, this Court could
mero
motu
initiate
steps to strike the respondent’s name off the roll of
attorneys, and could do so, albeit notionally, without reliance
upon
the applicant’s co-operation or, indeed, against the
applicant’s wish.
It may further be
argued that the respondent would have been subjected to . more
prejudice Had the applicant first conducted a disciplinary
enquiry
and thereafter launched the present proceedings. This would have
involved the respondent in considerable additional cost
and waste of
time.
Regarding
the respondent’s third argument that he has been deprived of
the opportunity to have witnesses testify and cross
examined, and
thereby to extract evidence from persons who might otherwise be
reluctant to support his cause, a moment’s
consideration will
indicate that this objection, too, is without merit. The applicant is
in terms of s 22 of the Act obliged to
launch application proceedings
for the respondent’s removal from the roll. It is trite that in
application proceedings, the
court may consider only thosejacts which
are common cause, not truly challenged or, if
bona
fide
in
dispute, those which are placed before court by the respondent The
respondent has the right to request that deponents supporting,the
applicant’s claim should be cross-examined in an appropriate
case. No specific request of this nature was directed to this
Court
during the present proceedings. No actual prejudice has been shown to
have been caused to the respondent by the nature and
form of the
present litigation against him. In particular there exists no factual
basis upon which it could be argued that any
deponent who testified
under oath against him would, or might, have sung a different tune if
subjected to cross-examination. It
will further clearly emerge from
this judgment that the findings that are made against the respondent
are based upon matters that
are common cause on the papers or have
crystallized incontrovertiblv into proven fact.
THE RESPONDENT’S
ALLEGATION THAT THE APPLICANT WAS UNDULY INFLUENCED BY OUTSIDE
PARTIES TO ABANDON THE DISCIPLINARY ENQUIRY
AND TO LAUNCH THE PRESENT
PROCEEDINGS FOR STRIKING OFF.
1. The respondent is
firmly convinced that he is the victim of a conspiracy against Him by
Various individuals, institutions and
governments.
2. During the course
of the hearing he identified four categories of participants in the
conspiracy against him -
(a) A former
president of the applicant society, a former chair man of the Legal
Aid'Board and a former director of the Legal Aid
Board;
(b) The United
States Government;
(c) The South
African Government; and
(d) The entire Bench
of the Cape Provincial Division of the High Court of South Africa.
3. These four
entities are said by the respondent to have individually and
collectively improperly influenced the applicant to abandon
the
disciplinary proceedings against him and to institute the present
application.
4. Each of the four
entities was alleged by the respondent to have ulterior motives.to
destroy him by way of these proceedings.
They were the
following -
(a) In respect of
(a) above
Like other
practitioners, the respondent experienced considerable frustration
during the second half of the nineties in his attempts
to collect
payment of hissfees due to him by the Legal Aid Board. He was
apparently involved in some vigorous exchanges with the
Legal Aid
Board on this issue. He also made submissions to the Parliamentary
Portfolio Committee on Justice relating to the sorry
state of affairs
prevailing in legal aid matters. This, the respondent surmises, could
not have endeared him to the three personalities
he mentioned by
name.
In his answering
affidavit filed during February of2001, he further relates that
during the second half of 1999, he received information
from a well
placed source whose name he declined .to reveal, that the three
personalities concerned were engaged upon down loading
pictures of
child pornography at the offices of the Legal Aid Board at the
taxpayer’s expense.
He was handed a
several hundred pages of computer printouts, which he found necessary
to annex to his answering affidavit Not one
of these computer
printouts is linked directly to any of the three persons he has
accused of this practice.
The respondent
stated in argument, however, that he had been told that .the agency
responsible for the Legal Aid Board’s access
controLsystem
would provide him with proof that the three persons were indeed
responsible for the alleged immoral conduct. No such
proof was ever
forthcoming, but in spite thereof the respondent reported the matter
to the Head of the South African Police, the
Heath Commission, the
Head of the Child Protection Unit, the Minister.of Justice and-the
Minister of Police.
No
action appears to have been taken upon the respondent’s
reports, probably because of the absence of any evidence connecting
the three persons to the alleged misconduct. In spite thereof, the
respondent in his answering affidavit states some fifteen months
after the event that “.......regrettably so it is obvious, my
report of and concerning (the name of one of the persons involved)
went unheeded, although not by the press It is clear that the
respondent at no stage had any evidence linking any of the three
personalities to the alleged misconduct. In an affidavit filed at the
last day of the hearing, the respondent relates a further
conversation with another prominent individual, who--allegedly was
told that one of the persons concerned admitted having looked
at some
of the offending material on six or seven occasions for purposes of
establishing whether such material was indeed available
on the
internet. The evidence presented by the respondent is not.enough to
justify an investigation by any of the organs he approached
with his
information. Much less does it justify the suggestion that the
information is true or, as he would have it, a proven fact.
His
papers are devoid of any suggestion how the three persons, apart.from
their official status, influenced the decision of the
applicant's
council to launch the p
resen
t
proceedings, in preference to a disciplinary enquiry.
The aforegoing
demonstrates that the respondent is prepared to level extremely
serious accusations at.persons who occupy responsible
positions in
society without a shréd ofproof, and to staunchly maintain
thereafter thát the averments are true.
It also demonstrates
that the respondent is able to convince.himself of the truth of
far-fetched allegations without any tangible
evidence to support the
same.
This event is no
isolated incident, but one of a series of similar statements made by
the respondent.
Ad
(b)
The
United States Govemment:-
The respondent
relates that he was requested by a member of the FBI to conduct
investigations on its behalf prior to the Federal
Bureau of
Investigation pperiing a South African office.
In
spite, of the fact that he did perform his mandate, his fees were not
paid and hé was forced to bring an duplication for
the arrest
tanquam suspectus
de fuga
the
FBI member concerned. Respondent alleges further that he received an
oral undertaking from the American ambassador that his
fees would be
paid; whereupon the gentleman concerned was released. Respondent was
not paid.
The
self-same gentleman has remained in contact with persons in South
Africa and sent a derogatory e-mail to the respondent after
learning
of the present application. From this the respondent concludes that
the applicant must be in contact with the American
Government (the
gentlemen concerned is alleged to be a Judge in the United States of
America at the moment) and must have been
. influenced by the
American Govëmmwít'td prefer the present proceedings
against the respondent.
Prima
facie,
this
reasoning-appears to be flawed. It is certainly not the most
plausible conclusion to which one could come on the “evidence”
presented by the respondent. It cannot meet the standard of proof in
civil proceedings
-see.Hoffmann,
Evidence
;
4
th
ed.,
p.
590;
What interest the
United States of America’s Government might have in ensuring
that the present proceedings are brought against
the respondent
rather than see a disciplinary enquiry conducted, has remained
largely unexplained; as has the alleged conspiratorial
contact
between the United States Government and its alleged co-conspirators.
Ad
(c)
The
South African Government.
The respondent has
been involved in a most acrimonious divorce from his former wife,
which has led to protracted and bitter litigation
about access to the
only child ofthat marriage, Ross.
The
litigation has had unfortunate implications for the respondent and
other parties, some of which are enumerated in the decision
of
SollervSoller200l(l)SA
570(C).
As part and. parcel
of this protracted litigation, the former Mb. Soller apparently
contacted certain members of Parliament'and
the present Deputy
Minister of Justice in an attempt to enlist their support for her
efforts to retain custody of her child and
to restrict the
respondent’s access to the boy.
Certain
correspondence passed between the Deputy Minister of Justice, the
Member of Parliament and the applicant in which the complaints
raised
by the respondent’s former wife were brought to the applicant’s
attention.
Given the gjave
implications of the judgement by Thring, J., to which I will turn in
a moment, the applicant was in duty bound to
investigate the
complaints which were laid before it.
The respondent has
seen therein the dark hand of conspiracy and collusion between the
Government, the Cape Provincial Diviáon’s
Judges, and
the other co-conspirators against him.
What motive the
South African Government arid the other co-conspirators might have to
influence the applicant to choose the present
form of proceedings
still remains unexplained.
Ad
(d)
The
Judges of the Cape of Good Hope Provincial Division
of
the High Court of South Africa
After the aforesaid
divorce, the respondent’s former spouse moved to Cape Town,
which became the forensic battleground where
repeated jousts between
the former partners were carried out in the High Court. The
respondent experienced intense frustration
at repeated failures to
gain access to his son in the manner which he desired.
Eventually, during
the year 2000, the aforesaid judgement was delivered by Thring J.
describing the conduct of the respondent against
the then Judge
President of that division as well as its present Deputy Judge
President. It is unnecessary to repeat what is stated
there. Suffice
to say that the respondent’s remarks are flagrantly and
expressly contemptuous of the judges concerned.
The applicant has
advanced the respondent’s attitude toward the Judges of the
Cape High Court as one of the grounds upon which
the respondent ought
to be removed from the roll of attorneys.
The respondent’s
actions are common cause, as indeed they must be. More significantly,
however, the respondent has not only
confirmed that he attributed the
actions and sentiments to the Judges as set out in the judgement, but
emphasized before us that
he stood by every word that he said.
Not content
therewith, he included the whole of the Cape Judiciary and an acting
Judge of that division in the accusation that all
of them were biased
and prejudiced against him.
Developing this
theme further, the ,respondent accused a former Judge President of
that division of having participated in an attempt
to murder the
respondent while the said former Judge President was still an eminent
silk.. The attempt to murder the respondent
was allegedly perpetrated
by-placing oil drums on a landing strip upon which the respondent was
ábout to land a privateaircraft
that he piloted himself.
The evidence which
the respondent advanced for this accusation - which in turn was said
to have motivated the former Judge President
to act unfairly and
dishonestly toward him - was far-fetched, to say the least.
In addition, the
respondent accused the Deputy Judge President of the division of
having harbored a grievance against him for many
years, resulting
from an incident in which she and the respondent were involved while
she was still a member of the Bar. The language
in which her actions
were described by the respondent was unbridled and extreme.
The collective bias
of the Cape of Good Hope Provincial Division’s Judges was then
said to. have led to a conspiracy, together
with the respondent’s
other opponents, to improperly bring about the applicant’s
decision to institute these proceedings.
The respondent is
visibly tormented by his personal conviction that these powerful
entities are conspiring against him. However
sad this situation may
be, it does not detract from the fact that the respondent has seen
fit to attack all the Judges of an entire
division of the High Court
of South Africa in the most ill - tempered and unrestrained fashion
possible, and has hurled accusations
of gross misconduct at other
persons and entities without any evidence that could pass muster at
all. Regardless of the respondent’s
personal pain, his actions,
deplorable in themsélves, clearly evidence his utter inability
to consider these matters objectively
and dispassionately. Whatever
his personal feelings, as an officer of the couithe must
have-appreciated that his contemptuous actions
towards the judiciary
constituted a very serious professional transgressions. His
insistence that his accusations, grotesque as
they are, are the
truth, not only adds insult to injury, but demonstrates clearly that
the respondent does not have, or does no
longer have, the ability
to.reflectmaturely upon matters upon which he is engaged as an
attorney. His uncritical'assertion of his
own convictions as the
absolute truth demonstrates that he is a danger not only to himself^
but also to his clients and the public
at large. The transgressions I
have described are serious. The mindset which produced them renders
the respondent unfit to practice
as an attorney of this court.
During argument, the
respondent emphasized that his altercations with the Cape Judiciary
should' be seen as an.isolated chain of
events prompted by his
concerns about his son and his frustrations in failing, to gain,
proper access to him. There was no chance
that this inappropriate
behaviour would be repeated in future, the respondent asserted. This
prediction had no sooner been made
than it was proved to be false:
angered by the judgement of Southwood J., with which I deal
below,respondent launched a vicious
personal attack upon the notice
of appeal and an application to have the judgement set aside. His
comments yet again constitute
a contempt of this Court. The
respondent is a serial offender in this regard: disappointment with
the result of litigation in which
he is involved habitually results
in unprofessional and unbecoming actions toward the judiciary and the
Court.
THE RESPONDENT’S
APPLICATION AGAINST THE APPLICANT TO INTERDICT THE LATTER’S
ANNUAL GENERAL MEETING
On
the 22
nd
of October 2002, the respondent, as applicant, launched an urgent
application to interdict the applicant, as respondent, from holding
its annual general meeting on Saturday, the
2
nd
of
November 2002.
The
application was launched as a matter of urgency, based upon the
respondent’s objection to
a
meeting
being held on the Jewish Sabbath. It was of the essence of the
averments of urgency, and the explanation for the lateness
of the day
upon which the application was brought, that the respondent allegedly
received notice of the meeting only on the if
11
of
October 2002.
In its answering
affidavit, the applicant provided compelling evidence that the
respondent had indeed received notice of the Annual
General Meeting
during August of this year already. In particular, the applicant
provided proof that the respondent had on the
26
th
of
September 2002 himself given notice of his intention to raise a
constitutional objection against the applicant’s present
composition, on much the same grounds as those which were
abandonéddúnng these proceedings. The respondent’s
notification to the applicant referred to the notice of the Annual
General Meeting, which he clearly had received.
Southwood J.
dismissed the urgent application with costs. In his judgement, he
said the
;
fóllowing:
“
the
(applicant) has demonstrated convincingly that there are objective
grounds for concluding that the (respondent) is not truthful
about
when-he first received notice of the meeting.......
On the evidence it
can safely be concluded that the (respondent) received notice of
the;meeting on a date earlier that the 11
th
of October
2002 and there are objective reasons for finding that he is not being
truthful.about when the meeting was first brought
to his attention or
to his notice.”
Southwood,
J. referred the papers in the urgent application to this court to
consider the respondent’s apparent untruthfulness
as well as
other
prima facie
transgressions
committed by the respondent that emerged during the hearing of that
matter, and to which I will refer below. The
respondent was given
leave to file a replying affidavit.in the present proceedings to.
deal with the question of when he received
the notice of the meeting.
The respondent
reacted to this judgement by filing.an application for leave to
appeal. The finding of apparent unfaithfulness on
his part is not
adverted to in this application, but a severe personal attack is
launched upon Southwood J, alleging that he was
prejudicedand biased
against the respondent Decause of a long standing personal and
acrimonious relationship between respondent,
and the learned Judge.
When
the Court enquired further about the respondent’s startling
failure to avail himself of the opportunity to dispel any
suggestion
that he had been untruthful in an application before the High Court,
the respondent initially referred us to ah application
which was
apparently launched on or about the 6
th
of November 2002 for an order setting aside Southwood J’s
order and judgement. This application is based upon the averment
that
Southwood J was clearly prejudiced and biased against the respondent.
Such prejudice and bias was said to have, arisen from
the fact that
the respondent and Southwood J, when he was still eminent silk, were
on opposite sides in the matter of
Van
Rensburg
v.
Milliner.
Case
no. 19526\90 heard in the Witwatersrand Local Division on the 28
th
of September 1990. A copy of the application to set aside
Soiithwood’s judgement and orders, under case no. 312&2002,
was made available to the Court. The respondent again fails to deal
with the alleged untruthfulness on his part, although he refers
to
the passage in the judgement that I have.had already quoted in part.
Eventually, arid on
thie fpurth day of the hearing, the respondent saw. himself
constrained to file-a further affidavit,, in an
attempt to place yet
further documentation relating to the Government’s interference
in his affairs before the court. Although
the issue of his affidavit
in the matter before Southwood J had been raised.in.argument more
than once, and it had been brought
to his attention that it was
important to dispel the impression that he had failed to speak the
truth under oath, the respondent
again did not deal with that issie
at all.
The failure to do so
at this late stage, after the matter had been repeatedly and
expressly brought to his attention, admits of
only one
plausibleconclusion-the respondent did lie in his application against
the applicant when he_stated that h^receivediioticeof
the applicant’s
Annual General Meeting only.on the 11
th
of October 2002.
Once
this finding has been made, it is almost Unnecessary to deal with
other issues which arise on the papers. A practitioner who
knowingly
lies under oath to the court whose officer he is,, is unfit to
practice and there can be but one way of dealing with
him he must be
struck off. The situation is aggravated by the fact that Spoelstra
J., in his aforesaid judgement in the case of
Van
Rensburg v Milliner,
held
that the respondent had designedly and.deliberately subverted the
truth in those proceedings.
THE RESPONDENT'S
RELATIONSHIP WITH MR. PAUL RHEEDERS
It emerged during
the proceedings before Southwood J. that the respondent presently
employs a professional assistant, Mr. Paul Rheeders,
who has been
suspended from practice by an order of this court dated the 7
th
of June 2002. In his judgement, Botha J records that Mr. Rheeders
described himself as a minority partner in the respondent’s
practice at that stage. The respondents letterhead indicated that Mr.
Rheeders was a partner in the film. Mr. Rheeders did not
have then,
and still does not have, a fidelity fund certificate.
We were informed
from the Bar that Mr. Rheeders was suspended because of a.shortfall
in his trust account. Whatever the reason,
leave was sought to appeal
against Botha J.’s judgement, which was. refused.
A petition to the
Honourable Chief Justice was also unsuccessful.
The respondent
claims to have received news of the dismissal of the petition only
shortly before the start of the hearing in this
matter.
He staunchly
defended his decision to employ Mr. Rheeders in his last affidavit,
citing his own poor health and Mr. Rheeders’
commitment to hís
clients and their interests as reasons to justify this state of
affairs. He also indicated that the Constitutional
Court would be
approached in the near future on Mr. Rheeders’ behalf, although
the grounds for an appeal to that court were
not outlined.
It is self-evident
that in the absence of a special dispensation, no practitioner is
entitled to employ a suspended attorney in
a professional capacity.
It is not only contemptuous of this court to do so, but constitutes
in itself a flagrant breach of the
duty which rests upon every
officer of this court to maintain the integrity of his profession. To
employ an unqualified person
, is a criminal offence, committed by
both the respondent and Mr. Rheeders. Even if considered on its own,
this transgression might.be
sufficient to justify the respondent’s
removal from the roll. Seen in the light of the respondent’s
other actions,
it supports the finding that the respondent is a
serial offender who habitually holds the High Court and its Judges in
contempt
and treats its orders in similar fashion.
THE RESPONDENT’S
REMARKS CONCERNING SOUTHWOOD J. IN THE APPLICATION TO HAVE THE
LATTER’S JUDGEMENT SET ASIDE
The
papers in this application demonstrate that the respondent has
yetagain, and on the flimsiest of grounds; seen fit to impugn
the
integrity, honesty and competence of a Jiidge of the High Court in
intemperate language. The .fact that this attack was perpetrated
only
a.few days before the hearing of this application commenced, which
seeks the removal of the respondent’s name from the
rollof-attorneys on,the;grounds-of.
inter,
alia
similar
misconduct against the Judges of the Cape High Court, proves
conclusively that the respondent does not learn from the past
mistakes and reacts with compulsive aggression whenever thwarted by a
court. This reveals a personality totally unsuitéd
to meet the
demands of the attorneys’ profession.
THE
RESPONDENT'S ATTACK UPON MR. STEMMETT
On the 15
th
of October 2002, and while the urgent application to interdict thé
applicant’s Annual General Meeting was being prepared,
.the
respondent wrote a Iétter to the applicant’s president,
Mr. J. Stemmett.
A copy thereof was
annexed to the papers by the applicant.
The letter consists
of a.string of vile,offensive andderogatory personál attacks
upon the character, intelligence and integrity
of the applicant’s
president. It is a prime example of the respondent’s
unfortunate tendency. to resort to language
redolent of Billingsgate
and to insult and defamation whenever he, rightly or wrongly,
perceives himself to be unfairly hampered
in the pursuit of a
personal goal.
The letter, sent to
a professional colleague,holding his own society’s highest
elected office, is utterly unbecoming of an
officer of this court.
It confirms the
conclusion that the respondent habitually lapses into unprofessional
conduct whenever his interests are not advanced
by those in authority
to the extent which he demands. This reveals a flaw in the
respondent’s character which is so grave
that he cannot be
permitted to practice as an attorney any longer.
THE CASE OF MR.
G.J. VAN MELSEN
Mr. Van Melsen is a
non-custodian father who has been divorced.from his wife . Like the
respondent, he experienced problems in the
exercise: of his access to
his child.
On the papers it is
not denied that the respondent advised Van Melsen to pay monies into
the respondent’s trustaccount which.he
ought to have paid in
respect of maintenance. The respondent does not deny that he
received, and accepted, at least initially,
instructions to raise
the'defence that a father .who is :denied.access tohis. child in
respect of whom a maintenance order exists;
is not obliged to páy
such maintenance. This defence was to be tested in courts of higher
jurisdiction than the Maintenance
Court.
As the law stands at
present, that defence does not avail a father who has been ordered
bya competent court to pay maintenance for
his children.
It
is furthermore a criminal offence to fail to pay maintenance, and to
advise or encourage a client not to do so, is to become
a
particeps
criminis
.
It is clear that
such conduct is unbecoming of an officer of the court.
Mr. Van Melsen has
also complained to the applicant that the money that had been paid
into the respondent’s trust account
was notrepaid to him. The
respondent raises the defence that he is entitled to retain the
moneys in respect of fees as agreed with
Mr.. Van Melsen or with a
certain Mr. . Dêávall, who assisted Mr. Van Melsen on
behalf of an association; acting -for
maintenance - paying fathers
experiencing problems to gain access to their children.
In the light of the
findings of fact made on the issues dealt with above, it is
unnecessary to resolve this dispute on the papers.
THE COMPLAINT OF
MRS KUHNERT
The respondent
prizes himself on his ability to handle intricate medico -legal
matters.
Mrs. Kuhnert was a
client who suffered damage to her skin after having undergone
specialist treatment.
The respondent
instituted a damages action on her behalf against the two
practitioners involved, who are regarded as the leading
lights in
their field.
The particulars of
blaim were drafted by the respondent without the assistance of an
expert and the proceedings weré basically
abandoned once it
became clear that no medical evidence supportingthe patient’s
claim would be forthcoming.
The action is
indicative of the piratical recklessness with which the respondent
approaches important litigation.
He admittedly failed
to deal with Mrs. Kuhnert’s queries and thereby transgressed
the rules of the applicant.
A similar situation
may have.existed with regard to another client, Mr. Chait, who had a
similarly horrific experience as Mrs. Kuhnert,
although he suffered
from a different medical condition. Again, the findings on the issues
dealt with already render it necessary
to delve deeper into these
allegations against the respondent.
THE COMPLAINTS
RELATING TO NON PAYMENT OF ACCOUNTS AND FAILURE TO REACT TO
CORRESPONDENCE
Several complaints
that the respondent failed to communicate with his clients, failed to
pay his correspondents and failed to react
to letters which were
addressed to him have been made on the papers. A particularly serious
complaint relates to respondent’s
dealings with Mr.Silva, from
whom he admittedly received R94 000 00. Respondent alleges that this
money was devoted to payment
of his fees. The relationship between
the respondent and Mr. Silva is seriously fractured, however, because
of the fact that; the
respondent accuses Mr.‘Silva of having
broken into his office together with the respondent’s former
partner, and’of
having removed his files and the electronic
equipment upon which accounting data were stored. In the light of
what has been stated
above, it is not necessary to deal in detail
with the various averments in this respect, or indeed with the
várious complaints
raised by the applicant’s witnesses.
It is clear that at some stage , or another, the respondent’s
accounting records
were not written up properly, allegedly because
his records were stolen.
It does appear as
though it took an inordinate amount of time for the respondent to
restore his bookkeeping to some semblance of
order. Ordinarily, these
charges would be serious in themselves, but they pale into
insignificance compared to the findings that
the respondent has
1. deliberately lied
to this court in the application to interdict the applicant’s
Annual General Meeting;
2. failed to deal
with this charge of dishonesty on three separate subsequent occasions
although given the opportunity to do so;
3. made grossly
contemptuous remarks of the members of the Bench of the Cape of Good
Hope Provincial Division;
4. made completely
unsubstantiated charges of attempted murder against the former Judge
President of that division;
5. made serious
defamatory allegations of and concerning another Judge, a former
president of the applicant and a senior official
of the Legal Aid
Board in regard to their alleged involvement in studying child
pornography;
6. made further
contemptuous remarks of Southwood J on facts which can by no stretch
of the imagination justify this action;
7. written a grossly
offensive letter to the president of the applicant;
8. employed, and
continues to employ, a person who has been suspended from practice in
a professional capacity;
9. failed to purge
his contempt of the Judges of the Gape Provincial Division, although
invited to do so;
10. aided and
abetted a client to disobey a court order and commit a crime;
11. advanced
fanciful theories about international conspiracies on the flimsiest
of grounds and .thereby demonstrated that he no
longer possesses the
clarity of mind and detachment which is required from an officer of
this court.
All the above
findings are based, as J have already, said, upon common. cause facts
as they appear on>the papers, or as they
emerge . incontrovertibly
from'the respondent’s affidavits, heads of argument or the
respondent’s address to the Court.
None require further
evidence and none could be changed by any facts which have not
yetbeen brought to the Court’s notice.
Issues which are not
crystal clear on the papers have not been taken into consideration.
THE CONDUCT OF
THE PRESENT LITIGATION
The respondent
suffers from a severe disability to separate the gran from the chaff.
This is demonstrated in striking fashion by
the way in which he
conducted the present litigation.
Technical defences
were raised against the application which had no hope of success. On
the merits, reams of paper were filed which
bore no, or only passing
releyance to the issues at hand. In particular; the filing of
hundreds of examples of computer printouts
from the internet,
allegedly demonstrating that child, pornography sites had been
accessed, was clearly unnecessary, irrelevant
and vexatious. His
affidavit and some of the letters that respondent has written are
couched in a garrulous, rambling and loquacious
style, often missing
the point at issue altogether. The respondent is clearly unable to
identify issues, concentrate thereupon
and deal with them
appropriately.
THE CONCLUSION
The above facts
prove that the respondent is not only unfit to practice, but also
that he is no longer able to practice. He has
developed unfortunate
deficiencies in his character, which have made him prone to serial
unprofessional conduct. He is also afflicted
by serious shortcomings
in his personality resulting in a lack of insight, detachment,
objectivity and professional judgement.
The respondent cannot
continue to practice he has become a danger to society and an
embarrassment to his profession.
There can
consequently be only one order-
The
respondent is struck off the roll of attorneys in terms of the draft
order, annexure X hereto.
E. BERTELSMANN
JUDGE OF THE HIGH
COURT
I agree.
I.W.B. DE
VILLIERS
JUDGE OF THE HIGH
COURT