IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case no: 1949/2024

In the matter between:

THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL Applicant

and

HEINRICH FRANCISCO GONZALES Respondent

Coram: Justice C Fortuin et Justice J Cloete
Heard: 4 December 2024
Delivered electronically: 6 December 2024


JUDGMENT


CLOETE J:

Introduction

[1] This is an application for the striking of the respondent’s name from the roll of
attorneys. In its founding affidavit the applicant’s deponent, Ms M Govender,
who is its Chairperson of the Western Cape Provincial Council, advanced two
grounds, namely that prima facie the respondent (a) misappropriated
R73 320.24 held in trust on behalf of a client, Mr Andre Myburg, during the
period 2022 and 2023; and (b) failed to comply with the applicant’s request for
information in terms of rule 40.2.4 of its rules.1

[2] The applicant launched this application on 29 January 2024 in two parts.
Part A, enrolled for hearing on 20 February 2024, was for an order
suspending the respondent from practice (with the customary attendant relief)
pending the determination of Part B f or his removal. On 20 February 2024,
Gamble J granted the Part A relief (which had not been opposed).

[3] Thereafter Ms Z Surve who is the applicant’s Legal Officer: Curatorship
Department: Risk and Compliance, filed a curatorship report as envisaged in
paragraph 2.4 of the Gamble J order. The report is undated but appears to
have been compiled on or about 15 April 2024. Although no mention had
been made in the applicant’s founding affidavit of a separate complaint
against the respondent by a Ms Goosen, this wa s touched on briefly by
Ms Surve in her report as follows:

‘ • The first complaint was lodged by Ms Goosen, who was
appointed as the firm’s external Accountant, and the second
complaint was lodged by a client of the firm, Mr Myburg;

Both complaints related to the administration of trust funds…’

[4] In her supplementary founding affidavit deposed to on 16 May 2024,
Ms Govender, in dealing with this report, confirmed that no details were
provided by the curator regarding the substance of the Goosen complaint;
attempts by the curator to contact the respondent both directly and via his
attorney to obtain his trust accounting records and client files had been
unsuccessful; the respondent had advised the curator in April 2024 that his

1 Promulgated in terms of the Legal Practice Act 28 of 2014.
firm had been placed in provisional liquidation at the instance of a creditor;
and that by 14 April 2024 the Legal Practitioners Fidelity Fund had not yet
received any claims from the respondent’s clients.

[5] Ms Govender stated that the applicant’s investigating committee had received
two further complaints against the respondent and she would ‘deal briefly with
the more serious complaint’ received from Mr Henry Prins (no details were
provided in relation to the other complaint). The Prins complaint was a failure
by the respondent to account to him as a client for how a sum of R70 000 held
in trust had been expended.

[6] In a further affidavit by a candidate legal practitioner of the applicant’s
attorneys, Mr A Ngoma, deposed to on 10 July 2024, the latter annexed a
document from the respondent dated 3 June 2024 in which he gave his
version of the Myburg and Goosen complaints; did not deal with the Prins
complaint other than that he could ‘account’ for it once he received a copy
thereof; but then also referred to the complaints of a certain Mr Marais, a
Mr Scott Carpenter and a Mr Kroutz. Given that the applicant did not place
any reliance on these other three complaints, they were presumably not
considered by it to be sufficiently seriou s to warrant an approach to this court ,
and I thus do not deal with them.

[7] In the same document the respondent stated the following in relation to the
pending striking-off application:

‘18. I believe further litigation and filing of court papers are
unnecessary legal costs and will protract the finalisation of this
matter.

19. I will agree to a final order to be struck from the roll of practicing
attorneys and co-operate with the LPC and Liquidator in respect
of any further investigation relating to client complaints.

20. I will however reserve the right to respond to the allegations
made on oath by the applicant should it be necessary in the
future.

21. We can reach a settlement on the application, prepare a draft
order, and approach the court.’

[8] In an email from the applicant’s attorney to the respondent dated 7 June 2024
the latter was advised that the applicant could not consent to a striking -off
order since this was a discretion to be exercised by the court based on the
information before it. If the respo ndent wished to place facts or information
before the court he should prepare and deliver formal answering papers; and
that the Prins complaint had been set out in detail in the supplementary
founding affidavit, which the respondent could deal with when fi ling his
answering affidavit.

[9] Part B was enrolled for hearing on 8 November 2024 when it came before
Goliath AJP. It would appear that the respondent had filed an eleventh-hour
explanatory affidavit (which was deposed to on 6 November 2024). It would
also seem that the applicant’s attorney and the respondent (in person)
addressed Goliath AJP who then declined to hear the matter and postponed it
to 4 December 2024 with a timetable for delivery of heads of argument, when
it was allocated to us.

The Myburg complaint

[10] On 26 September 2023 the applicant received Mr Myburg’s complaint which is
annexed to its founding affidavit. He stated that on about 11 January 2022 he
appointed the respondent to assist him in a maintenance dispute with his
former spouse. The res pondent told him to pay the full amount of the
maintenance arrears of R63 320.24 into his trust account pending a round
table meeting which the respondent would arrange with his former spouse.
This was duly paid by Mr Myburg on the same day together with R 8 000
required by the respondent for a ‘consultation fee’ . On 9 June 2022,
Mr Myburg paid a further R10 000 to the respondent at his request as a
deposit for the proposed round table meeting. The meeting was never
arranged by the respondent and eventually Mr Myburg settled the dispute
directly with his former spouse.

[11] On about 30 May 2023, Mr Myburg instructed the respondent to refund him.
The respondent offered to repay this in four weekly instalments commencing
on 5 June 2023. Mr Myburg accepted this arran gement since the respondent
told him that he did not have the funds in his trust account. However the
respondent failed to make payment as agreed and did not respond to
Mr Myburg’s messages thereafter. In the 3 June 2024 document sent by the
respondent to the applicant’s attorneys, he claimed that during ‘the middle
part of 2023’ his firm started to experience financial constraints. On his own
version this was more than a year after the bulk of the monies were paid to
him by Mr Myburg. The respondent confir med he had received those
payments. He alleged however that R63 320.24 was paid by Mr Myburg into
his trust account ‘as a form of security in respect of his pending litigation. With
Mr Myburg’s written confirmation and agreement the amount was transferred
from trust to business, with repayment terms. According to my understanding,
this was a temporary loan agreement between myself and the client.
Unfortunately, due to unforeseen circumstances, repayment of the amount
took longer than anticipated’ but Mr Myburg was refunded ‘in full’ on
30 November 2023. Although the respondent made reference to annexures in
his document these are not before us, but I will deal with those annexed to his
later explanatory affidavit.

[12] The respondent’s statement of account to Mr Myburg annexed as “K” to the
explanatory affidavit reflects that only R61 595.24 was purportedly refunded to
Mr Myburg, not on 30 November 2023 but on 31 May 2023, i.e. about 4
months before Mr Myburg lodged his complaint with the applicant, and about
6 months prior to the alleged repayment. The actual proof of refund, not of the
full amount, but of R63 320.24 dated 30 November 2023, is annexure “M” to
the affidavit.

[13] The respondent could not, as he later claimed, have concluded a ‘temporary
loan agreement’ with Mr Myburg prior to 30 May 2023 when the latter first
demanded repayment. By that date Mr Myburg’s monies had already been
transferred by the respondent without Mr Myburg’s permission from his trust
account to his business account and utilised by the respondent. This is theft of
trust monies which is one of the most serious offences a legal practitioner can
commit. It is made worse by the respondent’s patently fal se attempt to justify
his conduct ex post facto.

[14] It therefore does not assist him to rely on the statement in his document that
‘in hindsight, I should’ve refrained from concluding a loan agreement with the
client and [this] was a bad judgment mistake’; nor does it assist him (in fact it
makes it worse) to claim, as he did in his explanatory affidavit, that ‘at the time
I was unaware it is not permissible to enter into a loan agreement with a
client. It was only after proceedings were initiated by the applicant’s office that
I consulted with an advocate and learn ed that my actions were not in line with
the rules of the Legal Practice Council’ . His other allegation in his explanatory
affidavit that ‘I am very bad with office administration and sho uld rather focus
on practising law instead of running my own practice’ only serves to highlight
the respondent’s shortcomings.

[15] The respondent also claimed in both his document and explanatory affidavit
that the payments by Mr Myburg of R8 000 and R10 000 r espectively were
appropriated to fees for work done ‘as per attached statements’ . These
statements were not however attached and we are left in the dark as to how
the respondent racked up attendances for a bill of R18 000 when, apart from
an initial consul tation for which he seemingly charged R8 000 in a simple
matter, on Mr Myburg’s uncontested version the respondent did no other work
at all. Against this background it is also startling that the respondent initially
wished to deduct a ‘yearly admin fee for managing client security deposit’ of
R1 725 before refunding Mr Myburg (which is also evident from annexure “K”)
although the later proof of payment (annexure “M”) excluded this.

[16] In short therefore the respondent not only stole trust monies but attempted to
mislead both the applicant and the court to evade responsibility. That at the
time of the so -called loan agreement he was practising for his own account
while seemingly oblivious to the prohibition on loaning money from a client is
also serious. As cus todian of the profession we are obliged to take these
factors into account in determining an appropriate sanction.

The failure to comply with the applicant’s request for information in terms of
rule 40.2.4 of the Legal Practice Rules

[17] Rule 40 reads in relevant part as follows:

‘40. Investigation of alleged misconduct

40.1 When a complaint or allegation of misconduct against the
respondent is referred to the investigating committee, that
committee must investigate the complaint or allegation or
cause the com plaint or allegation to be investigated by the
legal officer or by a legal practitioner appointed by the
Council for that purpose.

40.2 For purposes of carrying out its responsibilities in terms of
rule 40.1 the investigating committee may:…

40.2.4 by notice in writing require the respondent, or any employee
of the respondent, to produce to the investigating committee
at a time and place stipulated in the notice, any information
relating to the complaint including, but not limited to, files,
statements, cor respondence, accounting records or other
documents which are in the possession of or under the
control of the respondent or that other person and which
relate to the subject matter of the complaint;…’

[18] On 17 October 2023 the applicant addressed a letter to the respondent
informing him of the Myburg complaint. Included in that letter was a request
for a detailed response ‘supported, where appropriate, by copies of
documents and relevant accounting records ’. The respondent was given a
deadline of 24 October 2023, failing which the matter would be referred to an
investigating committee for consideration. In a follow -up email of 24 October
2023, Ms Surve confirmed her telephone conversation with the responden t
wherein he had agreed to avail himself for the inspection with the investigative
committee of the applicant. Ms Surve’s email recorded that : ‘I confirm that
writer requested your urgent availability and you advised that you were in the
process of moving premises and would contact the writer with confirmation to
arrange a date within the next week’. On the same date the respondent sent
an email to Ms Surve confirming that he was in the process of relocating his
office to Dwarskersbos on the West Coast; tha t all his records, documentation
and files were already packed up and in transit; but that he would gladly co -
operate with an inspection and investigation and suggested that it be held on
10 November 2023. This was followed by a formal notice dated 7 November
2023 from the applicant to the respondent in terms of rule 40.2.4 in relation to
the information and documentation required.

[19] A mere two days later, on 9 November 2023, the respondent informed the
applicant by email that he had decided to close his fir m and would respond to
various complaints lodged against him. What he also stated in that email is
that he had accepted alternative employment ; would be returning to the
‘corporate sphere’; and that in order to ‘wind up any last strings, I will respond
to all the baseless complaints hereunder by end of November 2023 in writing’.
One of those ‘baseless complaints’ was that of Mr Myburg as is evident from
the applicant’s email to the respondent of 7 November 2023 thereunder.

[20] On 14 November 2023 the applicant informed the respondent by email that
notwithstanding his decision to close his firm, he was still required to produce
the following information: (a) trust reconciliations together with trust bank
statements as at 28 February 2022, 28 February 2023 and 31 October 2023;
and (b) the trust creditors’ ledgers and all information in respect of the
complaints lodged by Ms Goosen, Mr Myburg, Mr Carpenter and Mr Marais.
The respondent simply failed to reply , despite several follow-ups by the
applicant. Accordingly during December 2023 the m atter was referred to an
investigating committee for urgent consideration.

[21] On 1 and 4 December 2023 the investigating committee recommended that
the matter be referred: (a) for adjudication by a disciplinary committee; and
(b) to the Western Cape Provincial Council for authorisation of an urgent
application to suspend the respondent from practising as an attorney,
inclusive of a curatorship order, pending the finalisation of a disciplinary
hearing into the matter. Although on the papers before us there is no evidence
that a disciplinary hearing ever took place, the Gamble J order was not made
conditional upon the respondent being suspended from practice pending the
outcome of such a hearing , and in relation to Part B, that order called upon
the respondent to show cause why his name should not be struck from the roll
of legal practitioners.

[22] I have already referred to the report of the curator which confirmed that her
attempts subsequent to her appointment to contact the respondent both
directly and via his attorney to obtain his trust accounting records and client
files had been unsuccessful; and that the respondent advised her in April
2024 that his firm had been placed in provisional liquidation.

[23] The first formal response seeming ly received by the applicant from the
respondent was his document dated 3 June 2024. The reasons he gave
therein for failing to comply with the applicant’s rule 40.2.4 requirements were
the financial constraints experienced from mid -2023 and the subsequent
eviction of him and his family from their home. He stated ‘the above
mentioned are the reasons for me not attending to enquiries by your office
during the last part of 2023 or availing myself to onsite inspections’. These
reasons only need be stated to be rejected, given that they had nothing to do
with the respondent’s failure to comply with rule 40.2.4.

[24] In addition, contrary to the respondent’s earlier communication that he had
ceased practising and would be returning to the ‘corporate sphere’ , he
disclosed that he had in fact joined a firm of attorneys in Malmesbury as a
‘consulting attorney’ and transferred most of his client files to that firm. It was
only as result of the urgent application which served before Gamble J that the
firm terminated his employment. He also then attempted to lay blame on
another set of attorneys who he allegedly appointed during February 2024 to
assist h im with the applicant’s investigation and – importantly – claimed to
have provided that firm with ‘records, information and contents of client files to
address some of your office’s queries. Unfortunately I have learn ed that [they]
failed, alternatively ne glected to forward these documents to yourself.
Therefor I have decided to correspond with your office directly to expedite the
process’. He made allegations in similar vein in his subsequent explanatory
affidavit.

[25] On his own version the respondent misle d the applicant when he informed it
he was returning to the ‘corporate sphere’ in the full knowledge of a pending
investigation against him relating to mismanagement of trust funds. He had no
intention of doing so at the time. Instead he obtained employmen t at another
firm of attorneys and transferred most of his client files there. There was
nothing to prevent him from making his records and files available to the
applicant once these reached their destination (from Paarl to Malmesbury)
given his represent ation to the applicant that they were all ‘in transit’ . That
many of these records were indeed available is borne out by the respondent’s
subsequent allegations in both his document and explanatory affidavit that
they were handed over to another firm of at torneys to make them available to
the applicant’s attorneys. Also disturbing is the respondent’s stance in
October/November 2023 that Mr Myburg’s complaint (amongst others) was
baseless. This all demonstrates that the respondent lacks the required degree
of professionalism and integrity to practice as an attorney.

The Prins complaint

[26] Mr Prins lodged a complaint with the applicant in which he stated that on
23 November 2021 and 14 December 2021, he made two deposits into the
respondent’s trust account of R38 030.50 and R100 000 respectively. The
purpose was for the respondent to represent Mr Prins in the High Court in a
dispute pertaining to his late father’s estate. The first payment was made in
settlement of the respondent’s invoice of 8 November 2021; the second
payment of R100 000 was ostensibly made as a further deposit to the
respondent for anticipated future legal services.

[27] On 1 February 2022, 29 March 2022 and 25 July 2022, Mr Prins repeatedly
requested the respondent to account to him for work done. On 7 February
2023 the respondent finally reverted to Mr Prins, annexing the statement of
account of his local Cape Town correspondent with a balance due of
R68 864.94. The respondent advised Mr Prins that he had previously (on
16 January 2022) paid R30 000 to the correspondent from funds which he
held in trust (i.e. the R100 000 deposit of 14 December 2021), but that
Mr Prins had to make arrangements for payment of the balance of
R68 864.94. According to the applicant, that explained what became of the
sum of R30 000 but as far as the balance of the deposit is concerned,
amounting to R70 000, the respondent had simply failed to account to
Mr Prins despite a further email from Mr Prins to him dated 1 June 2023.

[28] In terms of clause 3.8 of the code of conduct for legal practitioners 2 a legal
practitioner shall:

‘account faithfully, accurately and timeously for any of their clients’
money which comes into their possession, keep such money separate
from their own money, and retain such money for so long only as is
strictly necessary.’

[29] In terms of clause 13.1 of the code any breach thereof constitutes
misconduct. The applicant alleged that despite what happened to the balance

2 Published in GN 168, GG 42337 of 29 March 2019.
of the deposit being peculiarly within the respondent’s knowledge, he had
failed, despite several requests, to account for these funds.

[30] In his explanatory affidavit the respondent acknowledged that he had failed to
account properly to Mr Prins. For the first time he annexed what appears to be
a printout of his business account ledger spanning the period 2 November
2021 to 31 May 2022, and a 5 page invoice only dated 9 October 2023 but
covering the period 28 October 2021 to 30 May 2022. The respondent also
alleged that ‘at present, I am unable to fully investigate the matter due to
restricted access to Lex pro, which I am currently working to restore with the
assistance of the liquidator. Once my access is fully reinstated, I will conduct
a thorough review of the matter. If it is found that an accounting error was
made, I will take immediate steps to rectify the issue and, if necessary,
arrange for any refund owed to Mr Prins. Based on my initial investigation, it
appears that the issue was likely a clerical error related to the posting of
accounts, and not a case of misappropriation of trust funds.’ The point is that
despite the elapse of more than a year , the respondent has only been able to
conduct what he refers to as an ‘initial investigation’; and on his version he is
currently destitute. Accordingly, this is cold comfort for Mr Prins.

Discussion

[31] The applicant is the successor -in-title to the erstwhile Cape Law Society , a
juristic entity established in terms of s 56(a)(i) of the now repealed Attorneys
Act3 (“the Attorneys Act”) and which served as the regulatory body for legal
practitioners in the Western Cape. In terms of s 114 of the Legal Practice Act 4
(“the LPA”) every attorney and conveyancer admitted by the High Court and
authorised to be enrolled as such in terms of the Attorneys Act prior to
1 November 2018 is regarded as having been admitted to practice in terms of
the LPA. The applicant is statut orily enjoined, in terms of s 5 of the LPA, to
regulate all legal practitioners and to enhance and maintain the integrity and
status of the legal profession.

3 No. 56 of 1979.
4 fn 1 above.

[32] The respondent was admitted as an attorney of the Northern Cape Division of
the High Court on 16 April 2014; was enrolled as an attorney of this court on
8 December 2017 and such with the applicant; and at the time of the
complaints giving rise to this application had been practising as sole director
of HFG Attorneys Inc since 1 March 2018.

[33] Section 22(1)(d) of the Attorneys Act provided as follows:

‘22. Removal of attorneys from roll. – (1) 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 c ourt within the jurisdiction of which he or she
practises—
…
(d) if he, in the discretion of the court, is not a fit and proper person
to continue to practise as an attorney.’

[34] The LPA does not contain a provision similar to s 22(1)(d) of the Attorneys
Act. However s 44(1) of the LPA provides that the LPA does not in any way
derogate from the power of the High Court to adjudicate upon and make
orders in respect of matters concerning the conduct of a legal practitioner,
candidate legal practitioner or juristic entity.

[35] Accordingly, the underlying principle espoused by s 22(1)(d) of the Attorneys
Act, i.e. that a practitioner may be struck from the roll if he or she is no longer
“fit and proper” remains applicable. In any event, notwithstanding the repeal of
the Attorneys Act, both the common law and s 44 of the LPA vest the Court
with the necessary jurisdiction to hear striking applications and to determine if
the respondent is a fit and proper person to remain on the roll of attorneys.

[36] The approach to the exercise of the court’s discretion in a matter such as this
is settled law: see, inter alia, Jasat v Natal Law Society5; and Malan & Another
v Law Society Northern Provinces. 6 It is a three -stage enquiry. The first is
whether the cond uct complained of has been established on a balance of
probabilities. This is a factual enquiry. It is clearly established in the present
case. The second stage, which is a discretionary evaluation, necessarily calls
for the conduct complained of to be wei ghed against the standard of the
profession, which is partly value judgment and partly objective fact. The
respondent is guilty of theft of trust funds, misleading his client Mr Myburg as
well as the applicant and this court; and is oblivious to his profes sional duties
in administering trust monies as the evidence before us has shown.

[37] The third and final stage of the enquiry is whether the delinquent practitioner
should be struck from the roll or suspended. Again, this involves the exercise
of a discretion. As was stated by Rogers J in The Cape Law Society v Du
Toit:7

‘Prima facie striking off is the appropriate sanction for the protracted
dishonesty of which the respondent had been guilty. Suspension
reflects a view that the person is likely to be rehabili tated after a period
but suspension on its own will seldom bring this about – there will
usually be a need for ancillary conditions directed at aiding the process
of rehabilitation. It is for the delinquent attorney who seeks the lesser
sanction of suspens ion to place the Court in a position to formulate
appropriate conditions (see Malan supra paras [7] -[10]). The
respondent has placed nothing before us to suggest that suspension
would be appropriate…’

[38] The respondent is indeed still relatively young (he is 36 years old). I will
accept in his favour that he suffered from severe depression which he has
now taken steps to address. He pleads for a second chance in the form of a

5 2000 (3) SA 44 (SCA).
6 2009 (1) SA 216 (SCA).
7 Unreported decision in this Division under case no. 553/16 of 10 February 2017.
suspension and has annexed two references from individuals as to his alleged
good cha racter. He also has a family to support . All these are mitigating
factors.

[39] However on careful consideration of the evidence I am unpersuaded that the
respondent has a true appreciation of his character defects. That being the
case, one cannot be reassured that he will in future act in accordance with
such an appreciation. He has also not placed anything before the court to
enable it to formulate appropriate conditions even if minded to impose a
suspension. There is simply not enough to show that a suspension with
attendant conditions will have the desired result. At present the re spondent is
regrettably a threat to any potential client, given his track record of
maladministration; but he has also brought the profession into disrepute. It is
of the utmost importance that the public is able to rely on the trustworthiness
and absolute integrity of members of the legal profession.

[40] I thus propose the following order:

1. The respondent’s name is struck from the rolls of attorneys;

2. The respondent shall surrender and deliver to the Registrar of this
Court his certificate of enrolment as an attorney;

3. In the event of the respondent failing to comply with the provisions
of paragraph 2 above within one (1) week from date of service of this
order by email from the applicant’s attorney, the Sheriff is authorised
and directed to ta ke possession thereof and deliver same to the
Registrar; and

4. The respondent shall pay the costs of this application on the scale as
between attorney and client.


_______________
J I CLOETE

FORTUIN J

I agree and it is so ordered.

_______________
C M FORTUIN


For the applicant: Mr H Von Lieres,
Instructed by: Von Lieres Cooper Barlow (Aviwe Ngoma)
For the respondent: In person