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[2013] ZAWCHC 87
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Law Society of the Cape of Good Hope v Adams (19773/12, 26509/10) [2013] ZAWCHC 87; 2013 (2) SACR 480 (WCC) (11 June 2013)
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
Case No: 19773/12 &
26509/10
In the matter between:
THE LAW SOCIETY OF
THE CAPE OF GOOD HOPE
APPLICANTANT
And
HADLEY ELSWORTH
ADAMS
RESPONDENT
Coram
: TRAVERSO DJP & ROGERS J
Heard: 22 FEBRUARY & 7 June 2013
Delivered: 11 June 2013
______________________________________________________________
JUDGMENT
______________________________________________________________
ROGERS J:
Introduction
There are two applications before us by the Law Society
of the Cape of Good Hope (‘the Law Society’) in which
the
respondent is an attorney Mr HE Adams (‘Adams’). In
the first application the Law Society seeks an order that Adams
be
imprisoned for 30 days for contempt of court; in the second
application the Law Society asks that Adams be struck from the
roll
of attorneys.
The matter initially served before us on 22 February
2013. There had been no notice of opposition nor had answering
papers been
filed. Despite this circumstance, our
prima facie
view was that certain aspects needed to be explained by the Law
Society and admissible evidence of certain allegations needed
to be
adduced. We were thus minded to postpone the matter (despite the
absence of opposition) to afford the Law Society an opportunity
to
supplement its papers. In the event Adams appeared in person at the
hearing on 22 February 2013. He said that he wanted to
oppose the
application and requested time to do so. We thus postponed the
hearing to 7 June 2013 with directions for the filing
of
supplementary papers by the Law Society on matters identified by the
court and for the filing of answering and replying papers
and heads
of argument. The Law Society duly filed its supplementary papers on
22 March 2013. Adams failed to deliver answering
papers timeously or
at all.
At 15h52 on 6 June 2013 (the day before the postponed
hearing) Adams sent a faxed letter to the Law Society’s
attorneys
which the latter in turn forwarded to the presiding judge
at 16h24. In his letter Adams says that he had been ‘diagnosed
with chronic liver’ and is thus unable to travel, that he has
requested his doctor to refer him to Groote Schuur Hospital,
that he
expects to be in Cape Town by the end of June 2013 and would thus be
‘available’ on any date between 25 and
30 June 2013.
(Those dates lie within court recess.) He goes on to say that he has
compiled certain of his affidavits ‘except
the complaints
relating to the Le Roux and Felixes’ which he apparently
intends dealing with while in Cape Town. (As will
appear hereunder,
the Le Roux and Felix complaints are central to the Law Society’s
case against him. Adams provides no
information as to what is
contained in the affidavits he has already prepared nor does he
explain why they have not already been
filed.) He says that he is
‘currently financially stricken’ but that he is a
‘strong believer of the audi alterem
partem rule’ and
will ‘oppose this application by any means’.
Adams did not appear at the hearing on 7 June 2013. Mr
Bean, who appeared for the Law Society at the postponed hearing,
opposed
a further postponement of the matter. The court refused the
postponement and then heard Mr Bean on the merits of the
applications.
As will appear here under, the contempt application
was issued as long ago as 08 December 2010. Adams filed a notice of
opposition
on 14 January 2011 but failed to file any answering
papers. The striking-off application was issued on 16 October 2012.
Adams
did not even file a notice of opposition in response to that
application. When he appeared in person before us on 22 February
2013 he had thus taken no steps of substance in regard to either of
the applications, despite the serious allegations made therein
against him and despite the fact that one of those applications had
been issued more than two years previously. Our order of
20 to
February 2013 required Adams to file his answering papers by 22
April 2013 and to file heads of argument by 30 May 2013.
Having been
granted this indulgence, he ignored our directions and instead sent
the fax previously mentioned on the afternoon
before the hearing.
Viewed against the history of delay and inactivity on his part, the
letter does not begin to make out a proper
explanation for his
conduct. At very least a substantive application for a postponement
properly motivated by affidavit should
have been delivered.
I now turn to the merits of the two applications. Adams
was admitted as an attorney of this court on 13 February 1998. He
practised
thereafter at times as a professional assistant and at
times for his own account. Since July 2007 he practised for his own
account
with an office in Mitchell’s Plain.
On 16 April 2009 the Law Society launched an
application against Adams to interdict him from practising as an
attorney pending
his obtaining a fidelity fund certificate for the
year ending 31 December 2009 as required by s 41(1) of the
Attorneys Act
53 of 1979 (‘the Act’). According to the
founding papers in the interdict application, Adams had failed
despite reminder
to file his audit report which was due by 31 August
2008; had failed to pay his law society membership fee for the
financial
year 1 July 2008 to 30 June 2009; had failed to apply for
his 2009 fidelity fund certificate; and had failed to pay the
resultant
R1 000 administrative fine imposed on him.
On 6 May 2009 Adams filed a notice to oppose the
interdict application. However, he did not file answering papers. On
29 June
2009 (the day before the hearing of the interdict
application), Adams contacted the Law Society’s attorney, Ms
Omar, to
request a postponement of the hearing. On the morning of
the 30 June 2009 there was a telephonic discussion between Ms Omar
and
Adams during which she informed Adams that her instructions were
to oppose a postponement and that the matter would proceed on
that
day. Adams accepted this and advised that he was not going to oppose
the application. An order was duly granted in Adams’
absence.
Later that day Ms Omar spoke again with Adams and informed him that
an interdict had been granted in terms of the notice
of motion.
Adams requested that she leave a copy of the order for him at her
firm’s reception desk, which she did (he made
this request
because he was constantly moving between Cape Town and Queenstown).
Ms Adams only discovered in March 2010 that
Adams had failed to
collect the order. She then arranged for the order to be formally
served by the sheriff, such service being
effected on 11 March 2010.
It is thus clear that Adams was aware of the order on the day it was
granted and the contempt application
and his conduct in general must
be adjudicated on this basis, even though formal service occurred
only in March 2010.
On 21 December 2009 the Law Society received a
complaint against Adams (dated 23 November 2009) from a Mr and Mrs
Felix relating
to Adams’ handling of a matter in which they
had instructed him to oppose an eviction order (‘the Felix
complaint’).
On 22 January 2010 the Law Society sent a
complaint to Adams for comment. He failed to respond. The complaint
was sent to him
again on 2 and 18 March 2010, and he again failed to
respond. The Felix complaint would or should also have alerted the
Law Society
to the fact that Adams was acting contrary to the
interdict order of 30 June 2009.
On 25 June 2010 the firm Miller Bosman Le Roux (‘MBLR’)
lodged a complaint with the Law Society against Adams, alleging
that
he had contravened the interdict by acting for a Mr Marais in a
matter in the Strand Magistrate’s Court where MBLR
acted for
the other party. The Law Society in its papers refers to this as the
Le Roux complaint. Further documentation in the
Le Roux complaint
was supplied to the Law Society by MBLR on 20 July 2010 and 16
August 2010. The Law Society did not put the
Le Roux complaint to
Adams for comment but resolved instead to launch the contempt
application in the course of which Adams would
have an opportunity
to respond to the Le Roux complaint.
The contempt application was issued on 8 December 2010
and served on Adams on 13 January 2011. Annexed to the founding
affidavit
in the contempt application were all the papers in the Le
Roux complaint. Adams filed a notice of opposition but failed
thereafter
to serve answering papers. On 2 March 2011 an order was
made through the chamber book requiring Adams to file his answering
papers
within 15 days, failing which [a] Adams would be barred from
doing so without the leave of the court and [b] the Law Society
would be entitled to roll the matter on the unopposed roll.
The chamber book order was served on Adams on 31 March
2011 by affixing it to the door of his residence at 32 Glenwood
Street
Mitchell’s Plain; and was served on him again,
personally, on 5 November 2011. Adams still did not file answering
papers.
During the period January to May 2012 there was telephonic
contact between officials of the Law Society and Adams during which
the latter expressed a desire to ‘sort everything out’
and promised on several occasions promised to attend at the
Law
Society’s offices to collect the notice of set down, promises
he failed to keep. On 22 September 2012 a notice of set
down was
served on Adams personally at an address in Queenstown in the
Eastern Cape, notifying him that the contempt application
would be
heard on 28 November 2012 (this was on the unopposed roll in third
division).
Prior to the arrival of the date for the hearing of the
contempt application, the Law Society on 16 October 2012 launched
its
application to have Adams struck from the roll. The notice of
motion specified 22 February 2013 as the date for the hearing of
the
application if it was unopposed. This application was served on
Adams personally on 29 October 2012, again at the Queenstown
address. As noted earlier, Adams did not file a notice of opposition
and did not deliver answering papers.
On 28 November 2012 the contempt application came
before Cloete AJ in third division. In view of the pending
striking-off application,
she postponed the contempt application for
hearing simultaneously with the striking-off application on 22
February 2013.
The matter came before us initially on 22 February 2013
on which date the court made the order previously mentioned. At the
hearing
on 7 June 2013 the Law Society was represented at the
hearing by Mr Bean, who filed full heads of argument. There was no
appearance
for Adams.
The striking-off application
In terms of s 22(1)(d) of the Act an
attorney may be struck off the roll if he, in the discretion of the
court, is not a fit and
proper person to continue to practise as an
attorney. This entails a three-stage enquiry:
1
[a] The court must first decide
whether the alleged offending conduct has been established on a
preponderance of probabilities.
[b] The second enquiry is whether,
with reference to this conduct, the attorney is a fit and proper
person to continue to practise
as an attorney. This is expressed as
being a discretion but in reality involves a weighing up of the
conduct complained of against
the conduct expected of an attorney,
this being a value judgement. [c] The third enquiry is whether in
all the circumstances
the person should be removed from the roll or
whether an order suspending him from practice for a specified period
will suffice.
This is also a discretionary matter in which relevant
factors include the nature of the offending conduct, the extent to
which
it reflects upon the person’s character or shows him to
be unworthy to remain in the ranks of an honourable profession, the
likelihood or otherwise of a repetition of the offending conduct,
and the need to protect the public. Ultimately it is a question
of
degree.
In regard to the third of the above
enquiries, there are three matters to be borne in mind:
2
[a] The main consideration is the
protection of the public. The court should not be viewed, first and
foremost, as imposing a
penalty. [b] Second, and although logic
dictates that if a person is not a fit and proper person to practise
as an attorney he
should be removed from the roll, the Act
contemplates not only permanent removal but suspension from
practice. Permanent removal
reflects that the court regards the
misconduct as so serious that it manifests character defects and
lack of integrity rendering
the person unfit to be on the roll.
Suspension, on the other hand, reflects a view that the person is
likely to be rehabilitated
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, and it is for the delinquent attorney who seeks the
lesser sanction of suspension
to place the court in a position to
formulate appropriate conditions. [c] Third, prior cases are of
limited value in the exercise
of the discretion, since each case is
unique.
[i] The offending conduct
As to the first enquiry (the
offending conduct), it is appropriate to have regard to the
allegations made in both the striking-off
application as
supplemented and the contempt application. Adams has been afforded
an opportunity to respond to both applications.
An attorney who was
able to refute the allegations or place them in a more favourable
light would be expected to respond, whether
the allegations are
imputed to him in the form of the striking-off application or a
contempt application. The contempt papers
were, furthermore, annexed
to the founding affidavit in the striking-off application. An
attorney is an officer of the court.
The Law Society protects the
interests of the public by placing facts before the court. The
court, which is the final repository
of disciplinary jurisdiction
over its officers, must determine how to deal with the allegedly
delinquent attorney.
3
Adams was guilty of several breaches of the Law
Society’s rules which led to the institution of the interdict
proceedings
in April 2009. Those breaches may perhaps be viewed as
administrative in nature though it would be wrong to limit their
characterization
to this. In terms of s 41(1) of the Act an
attorney is prohibited from practising on his own account unless he
is in possession
of a fidelity fund certificate. A breach of this
prohibition is, in terms of s 83(10), a criminal offence punishable
by a fine
of not more than R2 000 or imprisonment not exceeding
six months or both. On 17 September 2008 the Law Society sent all
attorneys under its jurisdiction, including Adams, the application
forms for their 2009 fidelity fund certificates and requested
that
the completed applications be returned by 20 October 2008. Adams
failed to apply for his 2009 fidelity fund certificate.
Quite apart
from the interdict order, he thus committed a criminal offence by
practising as an attorney during 2009 and 2010
(as the Felix and Le
Roux complaints show that he did).
I have said that Adams committed a
criminal offence, namely a contravention of s 83(10).
In
so holding I do not lose sight of the fact that in
S v Theledi
1993 (2) SA 403
(T) it was held that it is not an offence for a
practitioner
to practise without a fidelity fund certificate
– the court held that s 83(10) applies only to a
non-practitioner.
This conclusion appears to me, with the greatest
of respect, to be untenable. Section 83(10) plainly envisages that
the persons
at whom the prohibition is directed are persons who
could notionally obtain a fidelity fund certificate. Only an
admitted practitioner
can obtain such a certificate. The offence
which the Acts creates in respect of non-practitioners who
purport to practise
as practitioners (ie without being an admitted
attorney, notary or conveyancer) is contained in s 83(1). If s
83(10) applied
only to non-practitioners, it would add nothing to
s 83(1) and the reference therein to the absence of a fidelity
fund certificate
would in addition be nonsensical. Roux J, with whom
Strydom J concurred, acknowledged in
Theledi
that his
interpretation was ‘absurd’ (404D-E). I see no reason to
adopt an interpretation which is both nugatory and
absurd. Although
it may have been more felicitous for s 83(10) to have referred
to any practitioner who acts as such, I
see no particular difficulty
in interpreting the words ‘any person who… purports to
act as a practitioner’
as referring to a practitioner
practising without a fidelity fund certificate, ie a practitioner
who practices despite the fact
that in terms of s 41 he or she
may not lawfully do so. In a number of subsequent cases, including
cases decided by the
Supreme Court of Appeal, it has been taken for
granted that an attorney who practices without a valid fidelity fund
certificate
contravenes s 83(10): see
Law Society of the
Northern Provinces v Mamatho
2003 (6) SA 467
(SCA) para 1;
Summerley v The Law Society of the Northern Provinces
2006
(5) SA 613
(SCA) para 4;
Law Society of the Northern Provinces v
Mogami
[2007] ZANWHC 64
para 13;
Law Society of Northern
Provinces v Reinecke
[2008] ZAGPHC 218
;
Law Society of
Northern Provinces v Baloyi
[2010] ZAGPPHC 166 para 13.
Adams made matters worse by adding to this statutory
contravention a violation of the interdict order of 30 June 2009. He
accepted
instructions from the Felixes (in the eviction matter) in
September 2009 and from Mr Marais (in the Le Roux matter) in
May/June
2010.
Although one can infer Adams’ knowing breach of
the order from the mere fact that he had knowledge of the order, one
has
it from his own mouth. The document which MBLR submitted to the
Law Society on 16 August 2010 in connection with the Le Roux
complaint was an affidavit made by Adams on 27 July 2010 in which he
sought to explain his conduct in the Strand Magistrate’s
Court
on 14 June 2010 with reference
inter alia
to his fear
in the face of an alleged threat by an attorney from MBLR to have
Adams arrested for practising as an attorney when
he was prohibited
from doing so. Adams also stated in this affidavit that he had
appeared sometime previously in the magistrates
court in Philippi at
a time when (so he asserts) the presiding magistrate knew that Adams
was not permitted to act as an attorney.
The Le Roux complaint reveals
another serious matter. In the affidavit just mentioned (which
appears to have been made by Adams
in support of an application by
Mr Marais to set aside an order granted on 14 June 2010) Adams
admitted that he tried to obtain
a postponement of the case on 14
June 2010 by falsely claiming to the magistrate that his client was
in the Eastern Cape. Adams
admitted that this was a lie. This act of
dishonesty appeared clearly from the contempt application and was
also highlighted
in the Law Society’s supplementary papers in
the striking off application. The Law Society’s allegation
that Adams
thereby ‘perjured’ himself is not technically
accurate, because Adams was not giving evidence under oath when he
told the magistrate that his client was in the Eastern Cape.
Nevertheless, for a legal practitioner to mislead the court with a
deliberate falsehood is scarcely less serious than perjury. It has
been repeatedly said that it is crucial for the administration
of
justice that courts should be entitled to rely on the veracity of
statements made to them by counsel
4
and the same is undoubtedly true of
attorneys.
There are additional acts of misconduct associated with
the Felix complaint. It appears from their complaint that Adams in
September
2009 agreed to take on their case. He required and was
paid (in cash) a deposit of R3 450. Thereafter, so the Felixes
assert,
Adams did nothing in the case, failed to keep appointments
and gave them false telephone numbers. He also claimed that he had
instructed Adv G Papier in the matter but when the Felixes contacted
the advocate the latter said that he had not had any dealings
with
Adams. The Felixes did not get their money back.
The Law Society submitted that Adams misappropriated
trust funds in the amount of R3 450. In the absence of an
answer from
Adams I think this additional complaint has been made
out. The cash which Adams received from the Felixes was immediately
impressed
with a trust and should have been deposited into his trust
account until he rendered the agreed services and became entitled to
transfer the money from his trust account to his business account.
According to the information contained in the Law Society’s
supplementary papers, Adams’ trust account at Standard Bank
was closed during May 2008. There is also evidence that Adams
attended at the Law Society’s offices in March 2010 as part of
his endeavour to have the interdict lifted and that he informed
the
Law Society’s Ms Marli Herman on this occasion that his trust
bank account was dormant. It would appear, therefore,
that he never
deposited the Felixes’ money into a trust account. One can
thus rule out the possibility that there is a
credit of R3 450
in his trust account and that he has merely failed to refund a sum
which he still has in trust. On the
evidence before the court, he
never became entitled to appropriate the money to his own use. It
follows that he stole the Felixes’
money.
In its supplementary papers the Law Society refers to a
further instance of misappropriation of trust money by Adams. This
concerns
an instruction which Adams accepted from a Mr Jamiel Davids
during March 2011 to assist him with an application for a liquor
licence. For that purpose Davids entrusted a sum of R20 700 to
Adams. According to the affidavit which Mr Davids filed with
the
Attorneys Fidelity Fund in November 2011 the said money was stolen
by Adams. Adams has not responded to this or to any of
the other
allegations made by the Law Society in the striking-off and contempt
applications.
(ii) ‘Fit and proper’ assessment
I have no doubt in my mind that on the uncontested
evidence Adams is not a fit and proper person to continue in
practice as an
attorney. He practised without a fidelity fund
certificate in 2009 and 2010, in contravention of the Act and in
knowing contravention
of a court order. The inference of a wilful
and
mala fide
contravention of the Act and of the order is
justified, particularly in the absence of any response.
I am inclined to think, particularly in the light of
Adams’ failure to offer any response to the contempt and
striking-off
applications, that this is enough to sustain a finding
that he is not a fit and proper person. Nevertheless, his conduct in
the
Felix and Le Roux complaints and in the Davids matter places the
issue beyond doubt. In the Felix matter he took their money, did
no
work, tried to fob them off with false information and made himself
guilty of misappropriating trust funds. In the Le Roux
matter he
lied by his own admission to the presiding officer in the Strand
Magistrate’s Court on 14 June 2010. In the Davids
matter he
misappropriated R20 700.
(iii) The appropriate sanction
A person who deliberately and persistently violates the
Act and a court order, and who is capable of the dishonesty which
Adams
has exhibited, should
prima facie
be removed
permanently from the roll. Adams has not filed answering papers and
has done nothing to displace this
prima facie
view nor
explained how, through appropriate conditions, he might be
rehabilitated during a period of suspension. On the contrary,
his
failure to respond to serious allegations against him in three
successive applications by the Law Society confirms the picture
of a
thoroughly unreliable and unprofessional person not worthy of the
trust and confidence of members of the public.
I thus consider that the Law Society is entitled to a
striking-off order in accordance with the standard terms contained
in the
notice of motion.
The contempt application
The findings made above justify that further conclusion
that Adams’ contempt has, in accordance with the criminal onus
which
applies in such matters, been proved beyond reasonable doubt.
In considering the appropriate sanction, I take into
account that the same conduct is in part the foundation for the
striking-off
order which is to be made. Although the striking-off
order is primarily concerned with the protection of the public, it
also
constitutes from Adams’ perspective a severe personal
sanction. He will permanently be deprived of the opportunity to earn
a living as an attorney. I thus consider that the penalty imposed
pursuant to his contempt of court should not be directed at
imposing
further punishment but at providing him with a strong inducement not
to violate the prohibition which will now exist
against his
practising as an attorney. Of course, this prohibition will now be
sourced directly in the Act (particularly ss 83
(1) and (4)) rather
than in a court order, but it remains important that Adams should
not in future pass himself off as a person
entitled to practise as
an attorney. I would thus sentence him to a period of imprisonment
of 30 days, such imprisonment to be
suspended on appropriate
conditions.
Conclusion
This court has already had occasion to remark on the
need for the Law Society to act promptly when it has information of
misconduct
by a practitioner, and the court has deprecated delays
which are not satisfactorily explained: see
Law Society of the
Cape of Good Hope v Zietsman
[2010] ZAWCHC 219
paras 7-16).
Regrettably the present case is another instance where the Law
Society failed to act with due expedition –
indeed, this is a
more egregious example than
Zietsman
. On receipt of the Felix
and Le Roux complaints it should have been obvious to the Law
Society that Adams was
prima facie
guilty of serious
misconduct in violating the interdict, in misappropriating trust
funds and in having made dishonest statements
in court. These
matters should have been promptly investigated, and this should have
led to the institution of striking-off proceedings
by not later than
the latter half of 2010, coupled (if this was thought appropriate)
with a contempt application. The supplementary
papers which the Law
Society filed do not satisfactorily explain why it took until
October 2012 for the Law Society to decide
to seek Adams’
striking-off. It is quite possible that the leisurely way in which
the Law Society dealt with this matter
has caused prejudice to
members of the public who have dealt with Adams as an admitted
attorney (for example, Mr Jamiel Davids,
who lost R20 700 in
his dealings with Adams in 2011). The Law Society’s founding
papers were also unsatisfactory in
that certain of the complaints
against Adams were not supported by admissible evidence. I trust
that this is the last occasion
on which this court will have to
comment adversely on matters of this kind.
Regarding costs, I do not think that Adams should be
required to meet the costs associated with the appearance on 22
February
2013. Even if Adams had not belatedly appeared on that date
to oppose the application, it would have been postponed because of
the unsatisfactory nature of the Law Society’s founding
papers.
I would make the following order:
The striking-off application
(a) The respondent’s name is struck from the roll
of attorneys of this court.
(b) Further orders are made in accordance with paras 2 –
11 of the notice of motion, including (in accordance with para 11.3
of the notice of motion) an order that the respondent pay the
applicant’s costs of and incidental to the application on a
scale as between attorney and client, excluding however the costs of
the appearance on 22 February 2013.
The contempt application
(a) It is declared that the respondent committed
contempt of this court’s order of 30 June 2009 in case 7680/09
by practising
as an attorney at least during August 2009 and May and
June 2010.
(b) The respondent is sentenced to a period of
imprisonment of 30 days, the whole of which is suspended for five
years on condition
that the respondent is not convicted of contempt
of the said order in case 7860/09 or of contempt of the order in case
19773/12
(by which the respondent has been struck off the roll of
attorneys) or of a contravention of any offence contained in section
83
of the Attorneys Act 53 of 1979 where such contempt or
contravention is committed during the period of suspension.
(c) The respondent shall pay the applicant’s costs
on the scale as between attorney and client, excluding however the
costs
of the appearance on 22 February 2013.
TRAVERSO DJP:
[35] I agree and it is so ordered.
______________________
TRAVERSO, DJP
______________________
ROGERS J
APPEARANCES
For Applicant: Mr G. Bean
Bisset Boehmke McBlain
Cape Town
For Respondent: No appearance
1
See
Jasat v Natal Law Society
2000 (3) SA 44
(SCA) para 10;
Malan
& Another v Law Society
,
Northern
Province
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) para
4-6.
2
See
Malan supra
para 7-10
3
See,
for example,
Solomon v Law Society of the Cape of Good Hope
1934
AD 401
at 409;
Kaplan v Law Society,Transvaal
1981 (2) SA 762
(T) at 781 C;
Society of Advocates of South Africa
(
Wits
Division v Edeling
1998 (2) SA 852
(W) at 860 B-C.
4
See,
for example,
Ex parte Swain
1973
(2)
SA
427
(N) at 434 H. .