Summary of Judgment

1. Introduction

These proceedings concerned a disciplinary application brought in the Western Cape High Court for the removal (striking off) of an advocate from the roll on the ground of professional misconduct.

The applicant was The Cape Bar Council, acting in its capacity as the body bringing the complaint and seeking disciplinary relief. The respondent was Mr Roelof Stephanus Visser, an advocate admitted to practise on 13 July 2000.

The application was unopposed. The respondent was personally served with the notice of motion and founding papers on 24 April 2013, but filed no answering papers and advanced no defence. The matter was heard on 23 August 2013 and judgment was delivered on 27 August 2013 by Ndita J, with Gamble J concurring.

The general subject-matter was the respondent’s alleged departure from the referral nature of the advocates’ profession, including allegations that he accepted instructions directly from a lay client, handled money in circumstances where advocates do not operate trust accounts, failed to account, and failed to cooperate with the Bar Council’s inquiries.

2. Material Facts

The court treated as material that the respondent was an admitted advocate, but it was common cause that he was not a member of the Cape Bar or any constituent bar of the General Council of the Bar of South Africa. The court nevertheless accepted that the High Court has inherent disciplinary jurisdiction over practitioners for misconduct, irrespective of bar membership.

The misconduct allegations arose from a complaint received by the Cape Bar Council in or about September 2011 from Mr Enock Mathavele. Mr Mathavele alleged that he paid R35 000 into the respondent’s bank account. The payment was described as the purchase consideration for a property Mr Mathavele wished to buy from Ms Melanie Haarhoff, and it was alleged that the respondent was to attend to matters connected with the transaction (which the court treated as work reserved for attorneys).

According to the complaint as relied upon, the respondent failed to attend to the transfer, resulting in the seller cancelling the sale. The respondent allegedly did not repay the R35 000 despite demands and, instead, repeatedly promised that repayment would occur the next day.

The Cape Bar Council wrote numerous letters to the respondent between 15 September 2011 and 30 November 2012, drawing attention to the allegations and calling for an explanation. The respondent failed to respond. By 15 November 2012 Mr Mathavele confirmed that he still had not received repayment.

In the application itself, despite personal service and notice of the hearing, the respondent placed no facts before the court to dispute, contextualise, or negate the allegations. The court therefore proceeded on the basis that there was no explanation for the conduct and no version put forward in opposition.

3. Legal Issues

The central questions for determination were whether the applicant had established, on the facts placed before the court, that the respondent had engaged in the alleged misconduct and whether, in consequence, he was not a fit and proper person to continue to practise as an advocate.

The dispute required the court to decide, first, an issue of fact (whether the offending conduct was established on a balance of probabilities on the uncontroverted evidence) and, second, an issue involving the application of law to fact and an evaluative judgment (whether that conduct demonstrated lack of fitness to practise and whether the appropriate sanction was suspension or striking off under the governing statute and the court’s discretion).

A further issue concerned the appropriate costs order, including whether costs should be awarded on the attorney and client scale (as sought) or on the ordinary scale.

4. Court’s Reasoning

The court located the disciplinary power within the framework of the Admission of Advocates Act 74 of 1964, emphasising that admission depends on the court being satisfied that a person is fit and proper, and that the court may later withdraw the permission to practise, permanently or temporarily. The court also accepted, with reference to authority, that disciplinary control by the courts extends to advocates irrespective of bar membership.

In addressing the nature of the misconduct, the court accepted that the advocates’ profession in South Africa is generally a referral profession. While acknowledging that exceptions to the referral rule exist, the court considered that the respondent’s conduct did not fall within those exceptions. The court highlighted the practical and protective rationale for the referral model, particularly that advocates are not required to keep trust accounts, which materially affects client protection where money is received directly from the public.

The court applied the established disciplinary approach that requires a court first to determine whether the alleged misconduct is proved on a preponderance of probabilities, and then to consider whether the practitioner remains fit and proper. The court treated the respondent’s lack of response—both to the Cape Bar Council’s correspondence over an extended period and to the litigation itself—as leaving the allegations effectively unanswered.

On the uncontroverted evidence, the court found the offending conduct established on a balance of probabilities. The court evaluated the conduct as showing dishonesty and a brazen disregard for professional rules. The court considered as a serious aggravating feature that the respondent took money from a member of the public and made no attempt to repay it. The judgment further characterised the conduct as falling “squarely” within the ambit of the criminal offence of theft, and reasoned that such conduct undermines public confidence in legal practitioners and brings the profession into disrepute.

Having reached the conclusion that the respondent was not fit and proper, the court exercised its discretion on sanction and held that, in all the circumstances, the appropriate outcome was striking off rather than suspension. The judgment additionally recorded that, if the complainant wished to pursue criminal remedies, the Cape Bar Council was urged to assist as necessary, and the court directed that the judgment be forwarded to the prosecuting authority.

On costs, the court declined to grant the punitive scale sought (attorney and client). It reasoned that the respondent’s conduct during the litigation did not warrant that specific mark of disapproval. The court distinguished a decision relied upon by the applicant where attorney-and-client costs had been ordered, noting differences including a tender of such costs in that matter and unsuccessful opposition by respondents there, whereas the present respondent did not oppose.

5. Outcome and Relief

The court ordered that the respondent’s name be removed from the roll of advocates.

The respondent was ordered to pay the Cape Bar Council’s costs of suit, including costs consequent upon the employment of two counsel, on the ordinary scale (not attorney and client).

The Registrar was directed to forward a copy of the judgment to the Director of Public Prosecutions, Western Cape.

Cases Cited

De Freitas v Society of Advocates of Natal 2001(3) SA 750 (SCA).

General Council of Bar of SA v Geach 2013 (2) SA 52.

Kekana v Society of Advocates of South Africa [1998] ZASCA 54; 1998 (4) SA 649.

Legislation Cited

Admission of Advocates Act 74 of 1964, section 3(1).

Admission of Advocates Act 74 of 1964, section 7(1).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Western Cape High Court held that the uncontroverted evidence established, on a balance of probabilities, that the respondent advocate accepted instructions directly from a member of the public, performed work reserved for attorneys, received money without the protections associated with attorneys’ trust accounts, failed to account and repay the money, and failed to respond to the Bar Council’s correspondence and the application.

The court held that this conduct demonstrated dishonesty and disregard for professional rules, rendered the respondent not fit and proper to practise, and justified the sanction of striking off. Costs were granted against the respondent on the ordinary scale, including the costs of two counsel, and the judgment was forwarded to the Director of Public Prosecutions.

LEGAL PRINCIPLES

The court applied the principle that the Admission of Advocates Act 74 of 1964 empowers a court both to admit persons to practise as advocates on the basis that they are fit and proper, and later to withdraw that permission by suspension or striking off where fitness is not maintained.

The court applied the established disciplinary methodology that requires, first, proof of misconduct on a preponderance of probabilities, and second, an evaluative determination whether the practitioner is fit and proper, followed by a discretionary choice of sanction.

The judgment reaffirmed that, notwithstanding bar membership, the courts retain inherent disciplinary jurisdiction over legal practitioners in cases of misconduct or unprofessional conduct.

In considering misconduct involving direct receipt of funds from the public, the court relied on the rationale that advocates generally do not maintain trust accounts, and that the referral character of the advocates’ profession serves important protective functions for the public; conduct bypassing that structure and involving dishonest handling of client funds is particularly serious and may justify removal from the roll.