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[2019] ZASCA 13
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Pretoria Society of Advocates v Van Zyl (517/18) [2019] ZASCA 13 (14 March 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 517/18
In
the matter between:
THE
PRETORIA SOCIETY OF
ADVOCATES APPELLANT
and
MARGARET VAN
ZYL RESPONDENT
Neutral
citation:
Pretoria
Society of Advocates v Van Zyl
(517/18)
[2019] ZASCA 13
(14 March 2019)
Coram
Ponnan, Majiedt,
Wallis, Swain and Schippers JJA
Heard:
25 February 2019
Delivered:
14 March 2019
Summary:
Removal of name from roll of advocates –
serious misconduct – theft of monies of colleagues –
perjury in answering
affidavit – forging and uttering of bank
statements attached to answering affidavit – interference on
appeal warranted
in respect of sanction imposed by high court –
struck from roll of advocates.
ORDER
On
appeal from
:
Gauteng Division of the High Court,
Pretoria (Tlhapi and Maumela JJ sitting as court of first instance):
1 The appeal is upheld
with costs, on the scale as between attorney and client.
2 The order of the high
court is set aside and replaced with the following order:
‘
(a)
The respondent’s name is removed from the roll of advocates.
(b) The respondent is
ordered to pay the costs of the application on the scale as
between attorney and
client.’
JUDGMENT
Majiedt
JA (Ponnan, Wallis, Swain and Schippers JJA concurring):
[1]
This appeal concerns the appropriateness of the sanction imposed upon
an advocate who, in her answering affidavit, admitted
that she
committed theft, perjury and the forgery and uttering of bank
statements, in an attempt to mislead a court in an application
to
have her name removed from the roll of advocates. On the application
of the appellant, the Pretoria Society of Advocates, the
Gauteng
Division, Pretoria (Tlhapi and Maumela JJ, sitting as court of first
instance) (the high court), ordered that the respondent,
Ms Margaret
van Zyl, be suspended from practising as an advocate for a period of
18 months from the date of its order and to pay
costs. The high court
refused leave to appeal and the appeal by the appellant against that
order is before us with the leave of
this court.
[2]
The facts were largely common cause and can be summarised as follows.
The respondent’s misconduct arose from events while
she was
practising at the High Court Chambers in Pretoria. She occupied
chambers on the second floor and was a member of the appellant.
Most
of the advocates practising on that floor voluntarily joined a floor
fund established to pay certain monthly allowances to
staff and to
pay for social functions and other expenses. The respondent, together
with Mr M D du Preez SC, administered the floor
fund (conventionally,
it seems, this task was allocated to a silk and a junior on the
floor). This entailed, amongst others, operating
the floor fund’s
bank account and reporting regularly to the members in respect of the
administration and finances. The respondent
performed this task with
Mr du Preez from around October 2009 until August 2011 when she moved
out of High Court Chambers.
[3]
Self-evidently, the respondent was required to work closely with Mr
du Preez in executing their tasks in respect of the floor
fund.
Diligent management of the finances, which included proper accounting
at regular intervals, was required. To this end a system
was
developed between them in respect of joint authorisations and joint
decisions when it came to expenditure and concomitant withdrawals
from the bank account. Absent prior discussions and joint decisions,
instances of expenditure and withdrawals had to be communicated
to
each other afterwards. Meticulous record keeping was necessary in
respect of invoices, receipts, cheques, vouchers and the like.
Files
were kept for the floor fund in respect of the administration and
finances.
[4]
At that time, the floor fund had a savings account with Absa Bank.
Initially the bank card was kept in Mr du Preez’s office,
but
both he and the respondent used it to make purchases or withdrawals
from time to time. At some stage the bank card was placed
in the
respondent’s possession. Members made monthly payments of R100.
When it became necessary to incur extraordinary expenses,
such as the
purchase of new equipment, additional contributions were made.
[5]
In the course of 2010 a need arose to purchase new kitchen equipment.
Members were required to make a once-off contribution
of R300 each
and 20 of them did so between October and December 2010. It was
agreed between the respondent and Mr du Preez that
the purchases
would be made by the respondent. In order to obviate the danger of
her keeping cash in her possession, it was agreed
that the respondent
would pay these monies into her personal credit card account. She
assured Mr du Preez that the bank account
was in credit at that time.
[6]
Towards the end of 2010 it became necessary to have a fridge door
repaired. Despite repeated requests by Mr du Preez for the
bank card
to be made available to him to pay for this, the respondent failed to
do so. When the respondent left and moved to another
building in
August 2011, she had still not handed over the card. After her
departure Mr du Preez arranged with Absa Bank during
September 2011
to cancel that card and to issue a new one. At the beginning of 2011
Mr du Preez had requested the respondent to
hand to him the floor
fund files in order for him to prepare a report to members about the
status of the floor fund. She was also
asked to report orally to him.
The respondent left in August 2011 having failed to hand over the
floor fund files or to give the
oral report.
[7]
During September 2011 the respondent was requested to transfer the
funds for the kitchen equipment into the floor fund’s
bank
account. Mr du Preez explained to her that the bank card, together
with her authorisation to operate the account, had been
cancelled.
Upon perusing the fund account’s bank statements for the period
June 2011 to August 2011, which he had obtained
from the bank when
cancelling the former bank card, Mr du Preez discovered that an
amount of R4 850 had been withdrawn from it.
The respondent explained
to him that she had withdrawn these amounts for the kitchen equipment
purchases. She said that she was
unable to withdraw the money from
her credit card account, since that account was blocked by her bank
for want of compliance with
certain FICA
[1]
requirements. She undertook to refund the money as soon as her
account was unblocked (for convenience, I adopt further the reference
to ‘the Blue Bean account’, as the respondent’s
credit card account has been described throughout in the papers).
[8]
Upon perusal of further bank statements for the extended period of
October 2010 to 12 September 2011, Mr du Preez discovered
that two
further amounts of R1 000 each had been withdrawn in January
2011 and February 2011. A total of R6 850 had thus
been
withdrawn between January 2011 and August 2011. It also appeared that
the funds contributed for the kitchen equipment had
not been paid
into the floor fund account.
[9]
The respondent failed to honour appointments for meetings with Mr du
Preez in September 2011 and, as stated, failed to furnish
the floor
fund files and the bank card to Mr du Preez. The floor fund files
were eventually delivered to Mr du Preez on 20 September
2011,
whereupon he discovered that there was a shortfall of R4 739.79 in
respect of the floor fund account. There was a note on
the file that
an amount of R6 105 had been paid into the Blue Bean account. No
invoices, receipts or any other proof of the
funds having been used
for a legitimate purpose accompanied the files. There was a note on
the file that an amount of R6 105 had
been paid into the Blue Bean
account. No proof of purchase of any kitchen equipment could be
traced in the file. A total of R11
144.79 was either unaccounted for
or unexplained as at 21 September 2011.
[2]
The respondent replied to Mr du Preez’s request for an
explanation in an email dated 3 October 2011. The amount of R4
739.79,
which the respondent explained was for the new kitchen
equipment, was repaid into the floor fund’s account on that
date.
On the respondent’s version, this was done after she had
returned the equipment to the various stores from which it had been
purchased. The respondent further alleged that she had paid the
amount of R6 405 into the Blue Bean account.
[10]
The members of the floor fund received a report from Mr du Preez on 3
October 2011. Pursuant thereto, three senior floor members,
Messrs
Bosman SC, Engelbrecht SC and Raath SC, held a meeting with the
respondent on 5 October 2011. A follow up meeting was scheduled
for 7
October 2011, where the respondent, as she had undertaken to do, was
to provide them with statements of her Blue Bean account
and invoices
and receipts in respect of the kitchen equipment. None of these were,
however, forthcoming at the meeting of 7 October
2011. After these
two meetings, Mr Raath sent the respondent several text messages on
her mobile phone, imploring her to have the
matter resolved without
further delay. The responses were unsatisfactory and, eventually, the
respondent failed to respond to the
messages. Following upon the
unsuccessful attempts by the three silks to resolve the matter, first
Mr du Preez and later Mr Botes
SC, referred a complaint to the
appellant. The application to have the respondent’s name
removed from the roll of advocates
followed.
[11]
In her answering affidavit the respondent left the above exposition
of the sequence of events largely uncontested. She alleged
that,
after the problems with her Blue Bean account had been resolved, she
had instructed her bank to close that account and to
transfer the
full closing balance of R8 203.90 into her attorney’s trust
account. On her instructions her attorney paid the
amount of R7 105
into the trust account of the appellant’s attorney. That amount
represented R6 105 as repayment of the capital
and R1 000 as interest
thereon. She alluded to the numerous difficulties she had experienced
in her personal life at that time
and proffered an apology to her
colleagues for her conduct.
[12]
A few excerpts from the respondent’s answering affidavit
deserve mention. First, she commented on her conduct as follows:
‘
Although
I offer my humblest apology, not only for my conduct, but also for
the manner in which it was perceived by my colleagues,
I wish to
state that at no time I had any intention of wrongdoing herein.
There
was no dishonesty on my part
.
’
(M
y
emphasis
). (Vol 1, 105, para 29.2).
This
statement must be understood against the backdrop of her explanation
that the only reason why she had made withdrawals from
the floor
fund’s account, was because her Blue Bean account had been
blocked. According to her she had every intention to
refund the money
once her account was unblocked. She stated that ‘the funds for
the new kitchen equipment were indeed retained
in the Blue Bean
account’. In support of this allegation she attached a copy of
a Blue Bean credit card statement dated 10
October 2011, which
appeared to reflect a credit balance of R8 063.51.
[13]
Second, in respect of the withdrawals made, the respondent said:
‘
I
confirm having been in a position of trust to the members of the
floor fund with regard to all funds of the floor fund. I admit
certain withdrawals may have seemed conspicuous, however trust my
explanation offered herein clarified any suspicions of
misappropriation
of such funds . . .
I
humbly submit there was at no time any misappropriation of funds by
myself as averred.
I
have offered a detailed account of all monies referred to as well as
all withdrawals made and trust my explanation herein clarified
any
uncertainty as to the use and/or withdrawal of any funds.
’
(
My
emphasis
). (Vol 1, 108, paras 31.1 and
31.2).
I
shall revert to these extracts presently.
[14]
Dissatisfied with the incompleteness of the credit card statement
attached to the answering affidavit, the appellant’s
attorneys
requested full disclosure of all transactions from October 2010 until
April 2013. They also sought proof that the funds
paid into the
respondent’s attorney’s trust account (R7 105) had in
fact emanated from a transfer from the respondent’s
Blue Bean
account.
[15]
On 14 March 2014 the hearing in the high court was postponed at the
respondent’s request. This was to enable her to explain
the
apparent discrepancy between the contents of the statement from her
Blue Bean account produced by her at that hearing, and
the allegation
in her answering affidavit that the members’ contributions for
the kitchen equipment had been paid into that
account.
[16]
In a supplementary affidavit the respondent made the following
admissions in a complete volte face from her innocent explanation
in
her answering affidavit:
(a)
She did not pay the amount of R6 105 into the Blue Bean account, as
was apparent from the bank statements put up by her on 14
March 2014.
She acknowledged that she had misled the court in this regard and
apologised for her conduct.
(b)
The initial credit card statement in respect of her Blue Bean
account, attached to her answering affidavit, was not correct.
She
had, in her words, ‘manipulated’ the entries in these
statements, as well as the balance, available money and the
entries
under ‘account summary’. Again, she proffered her
apologies for her conduct, acknowledging that ‘this
conduct is
not the conduct expected of an advocate of this Honourable Court’
(Vol 2, 168, para 3.2). She explained that she
had used the money to
assist her mother. These admissions put paid to the earlier
contentions in her answering affidavit that she
had not acted
dishonestly and that there had been no misappropriation of any funds.
[17]
The high court found the respondent’s conduct ‘reprehensible’,
but declined to strike her name from the roll.
The primary reasons
for imposing an 18 month suspension, appear to be the fact that the
respondent had shown remorse, had repaid
the money and was a first
offender.
[18]
It is well established that in these types of matters, a three-stage
inquiry is envisaged.
[3]
First,
the court must determine whether the alleged offending conduct has
been established on a balance of probabilities –
this is a
factual inquiry. Second, a determination must be made whether the
person in question is a fit and proper person to continue
practising.
This entails, to some extent, a value judgment, but it is essentially
an objective finding of fact.
[4]
And third, the court must decide whether in all the circumstances the
particular person is to be removed from the roll or whether
a
suspension is adequate. In respect of the third question, the court
exercises a discretion. Appellate interference with that
discretion
is limited to instances of a failure to bring an unbiased judgment to
bear on the issue; failure to act for substantial
reasons; or where
the discretion has been exercised capriciously or upon a wrong
principle or as a result of a material misdirection.
[5]
[19]
The high court did not set out in its judgment the offending conduct
it found to have been established as a fact. It is necessary
to recap
the respondent’s offending conduct. First, the respondent stole
money from the floor fund – the shortfall
of R4 739.79 and
the unaccounted amount of R6 405 in respect of the contributions for
the kitchen equipment. Both these amounts
were repaid afterwards by
the respondent. Second, she misled her colleagues, in particular
Messrs du Preez, Bosman, Engelbrecht
and Raath, on whether the money
had in fact been paid into her Blue Bean account. Third, she perjured
herself in her answering
affidavit in a number of respects. And
fourth, she committed forgery and uttering by altering the entries on
her Blue Bean account
bank statement, annexed to her answering
affidavit. The reference in her papers to her having ‘manipulated’
the entries
on the credit card statement, is a misnomer. This is a
stark instance of forgery and uttering, no less.
[6]
[20]
These are self-evidently instances of serious misconduct and include
three criminal offences, theft, forgery and uttering and
perjury.
They involve acts of calculated dishonesty and are in my view
indicative of a serious character defect, rather than a
mere moral
lapse. There are further aggravating features – the respondent
made the damning admissions only when she was compelled
to disclose
the complete, unaltered Blue Bean account statement in order to
explain the discrepancy between her ipse dixit in her
answering
affidavit and the annexures thereto (the bank statements). Further
she made payments from her practice bank account in
the amount of R7
000 into her Blue Bean account only after the application was
launched in the high court. This must be viewed
against the
respondent’s repeated assurances to Mr du Preez and other
colleagues that the contributions had been paid into
the Blue Bean
account. This lie was perpetuated in her answering affidavit under
the guise that she was unable to access these
funds due to her
account having been blocked. And her initial protestations of
innocence that there had been no dishonesty on her
part or a
misappropriation of funds, implied that her colleagues were liars.
[21]
There are several material misdirections in the judgment of the high
court. They relate not only to its factual findings, but
also to its
erroneous application of the law to the facts. First, the high court
found that the respondent’s conduct ‘could
amount to
perjury’. This is a clear case of the crime of perjury and it
was established, not only through the objective fact
of the bank
statements, but also through the respondent’s own admissions.
Second, the finding that the respondent did not
persist with her
deception until the end, is unsustainable on the facts. When the
respondent found herself compelled to disclose
the complete bank
statements, after the hearing of 14 March 2014, she must have known
that the game was up. But for this demand
from the appellant’s
attorneys, she might well have succeeded with her deception and
concealment.
[22]
Third, it is difficult to understand how the respondent’s
repayment of the money could qualify as remorse, as the high
court
found. Even if we accept the respondent’s version that she had
bought and returned the kitchen equipment to the various
stores, she
knew that the money had to be paid into the floor fund account. This
repayment was only made after she had deposed
to her answering
affidavit in April 2013. At more or less the same time she had
altered the bank statements to conceal the fact
the money had never
been paid into her Blue Bean account, as she had maintained all
along. This conduct is not indicative of true
remorse as was
described in
Matyityi,
[7]
‘a gnawing pain of conscience for the plight of another . . .
[t]hus genuine contrition can only come from an appreciation
and
acknowledgment of one’s error’.
[23]
Fourth, the high court did not make a finding as to whether or not
the respondent is a fit and proper person to continue practising
as
an advocate. Although the high court made mention of the three-stage
inquiry, it failed to deal with this second, important
question. It
merely found the conduct to be ‘reprehensible’ before
embarking upon a consideration of the appropriate
sanction. Section
7(1)(
d
) of the
Admission of Advocates Act 74 of 1964
provides
that a court may either suspend a person from practice as an advocate
or order the striking off of his or her name from
the roll of
advocates ‘if the court is satisfied that he [or she] is not a
fit and proper person to continue to practise
as an advocate’.
In
Malan
this court said:
‘
.
. . logic dictates that if a court finds that someone is not a fit
and proper person to continue to practise as an attorney, that
person
must be removed from the roll. However, the Act contemplates a
suspension. This means that removal does not follow as a
matter of
course. If the court has grounds to assume that after the period of
suspension the person will be fit to practise as
an attorney in the
ordinary course of events it would not remove him from the roll but
order an appropriate suspension
.’
[8]
These
remarks apply equally to an advocate.
[24]
And, lastly, the outcome itself is a misdirection. In arriving at the
conclusion that suspension instead of striking off was
the
appropriate sanction, the high court made a decision that in my view
no reasonable court could make on the proved facts. The
inference is
compelling that the high court misdirected the inquiry or acted upon
wrong principles.
[9]
[25]
In view of these misdirections interference on appeal is warranted.
Considering the serious acts of dishonesty on the part
of the
respondent, I am of the view that she is not a fit and proper person
to continue practising as an advocate. As stated, this
inquiry
entails a value judgment based on the established facts. The
respondent’s conduct must be assessed against the conduct
expected of an advocate. The proper administration of justice relies
heavily on the ipse dixit of advocates and attorneys. While
a legal
practitioner owes a duty to represent his or her client fearlessly
and vigorously, there is a concomitant, equally important,
duty as an
officer of the court to serve the interests of justice by acting
honestly at all times.
[10]
[26]
The respondent’s perjury in the answering affidavit must count
heavily against her. An advocate who lies under oath in
striking off
proceedings must know that such dishonesty can be held against him or
her in deciding whether he or she is a fit and
proper person to
continue to practise as an advocate.
[11]
The appellant has strict rules to ensure that its members do not
deceive a court. The theft of monies of colleagues and the forging
and uttering of the bank statements are just as serious. As I have
said, this conduct is indicative of a serious character defect
rather
than a mere moral lapse. This was not the impulsive telling of a lie,
but protracted chicanery. The respondent’s deceit,
concealment
and dishonesty continued over a long time. And it was carefully
planned to hoodwink her senior colleagues and the court.
In the
premises, the respondent is not a fit and proper person to continue
practising as an advocate.
[27]
What remains is the question of an appropriate sanction. The starting
point must be that a court is not imposing a penalty
– the
prime consideration is the protection of the public. A close reading
of the judgment of the high court leaves one with
the impression that
it failed to draw this important distinction. The high court appeared
to have been swayed by the respondent’s
‘remorse’,
the fact that she was a first offender and that she had repaid the
money. This is reminiscent of mitigating
circumstances for sentencing
purposes in a criminal trial. Nowhere did the high court mention and
consider the interests of justice,
the public and the advocates’
profession.
[28]
The factors to be considered are the nature of the offending conduct,
the extent to which it reflects upon the person’s
character or
shows him or her to be unworthy of remaining in the ranks of the
profession, the likelihood or otherwise of the repetition
of such
conduct and the need to protect the public.
[12]
As stated, the respondent’s grave acts of dishonesty are
indicative of a serious character defect. In order to avoid striking
off, the respondent had to satisfy the high court that she would not
in future steal, commit perjury or the forging and uttering
of
documents. There is nothing in the record to persuade me that this is
the case. The extent and premeditation of the respondent’s
dishonesty, deceit and concealment drive me to the inescapable
conclusion that striking off is inevitable. As this court said in
Malan,
‘[i]t is seldom, if ever, that a mere suspension from practice
for a given period in itself will transform a person who is
unfit to
practise into one who is fit to practise’.
[13]
Any order of suspension must bear the condition that the cause of
unfitness is removed during that period.
[14]
[29]
In conclusion: the present set of facts represents an extremely
serious case of misconduct. We would be remiss in letting the
respondent loose on the unsuspecting public. Her professional
integrity has been completely destroyed and she should not be
permitted
to continue in her practice. Removing her name from the
roll of advocates would ensure that, upon seeking readmission, she
would
have to convince a court that she has overcome the serious
character defect of dishonesty.
[30]
As far as the costs are concerned, it was conceded on behalf of the
respondent that costs, both in this court and in the high
court,
should be on the scale as between attorney and client. That
concession was well made – it is settled that this is
the usual
order to be made.
[31]
One last disconcerting aspect requires mention. There was a delay of
more than two years in delivering the main judgment. Sixteen
months
later the judgment refusing the application for leave to appeal
followed. An application to have the name of a practitioner
removed
from the roll involves the question of whether the practitioner
should continue practising and implicates the public interest.
For
these reasons both the practitioner concerned and the public can
rightly expect courts to deal with such a matter expeditiously.
Regrettably, in the present instance the high court failed to do so.
The facts were uncomplicated and became largely common cause
and the
legal principles are well established. It does not serve the
interests of justice to permit delays of this length in these
types
of cases.
[32]
The following order issues:
1 The appeal is upheld
with costs, on the scale as between attorney and client.
2 The order of the high
court is set aside and replaced with the following order:
‘
(a)
The respondent’s name is removed from the roll of advocates.
(b) The respondent is
ordered to pay the costs of the application on the scale as
between attorney and
client.’
________________________
S
A Majiedt
Judge
of Appeal
APPEARANCES:
For
Appellant: A T Lamey with C van Schalkwyk
Instructed
by: Bernard van der Hoven Attorneys, Brooklyn
Rosendorff
Reitz Barry, Bloemfontein
For
Respondent: C A da Silva SC with M Pienaar
Instructed
by: Pretorius & Cilliers, Pretoria
Honey
Attorneys, Bloemfontein
[1]
The
Financial Intelligence Centre Act 38 of 2001
.
[2]
The amount
of R11 144.79 is made up of the shortfall of R4 739.79 in the floor
fund account and an amount of R6 405 collected
from members. One
member’s cheque of R300 was never deposited and thus expired.
[3]
Jasat v
Natal Law Society
2000
(3) SA 44
(SCA);
[2000] 2 All SA 310
(A) para 10;
Malan
& another v The Law Society of the Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA);
[2009] 1 All SA 133
(SCA)
para 4.
[4]
Kekana v
Society of Advocates of SA
[1998] ZASCA 54
;
[1998]
3 All SA 577
(A)
1998 (4) SA 649
(SCA) at 654D-E.
[5]
Giddey
NO v J C Barnard & Partners
[2006] ZACC 13
;
2007
(2) BCLR 125
CC
[2006] ZACC 13
; ;
2007 (5) SA 525
(CC) para 20;
Malan
fn 3, para 13.
[6]
Forgery is
the unlawful and intentional making of a false document to the
actual or potential prejudice of another. Uttering is
the bringing
of the falsified document to the attention of others.
See
C R Snyman
Criminal Law
6ed
(2014) at 532-533.
[7]
S v
Matyityi
[2010]
ZASCA 127
;
2011 (1) SACR 40
(SCA)
[2010] 2 All SA 424
(SCA) para 13.
[8]
Malan
fn
3,
para 8.
[9]
General
Council of the Bar of South Africa v Geach & others, Pillay &
others v Pretoria Society of Advocates & another,
Bezuidenhout v
Pretoria Society of Advocates
[2012]
ZASCA 175
;
2013 (2) SA 52
(SCA);
[2013] 1 All SA 393
(SCA).
[10]
Kekana
fn
4
,
at 655H-J.
[11]
Olivier
v Die Kaapse Balieraad
1972 (3) SA
485
(A) at 500H;
Kekana
fn
4, at 655G.
[12]
Malan
fn
3
,
para
6.
[13]
Malan
fn
3, para 8.
[14]
A v Law
Society of the Cape of Good Hope
1989 (1) SA
849
(A) at 852E-G.