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[2013] ZAWCHC 171
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Cape Bar Council v Silinga (9988/12) [2013] ZAWCHC 171 (30 October 2013)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
Case no: 9988/12
In the matter
between:
THE CAPE BAR
COUNCIL
..................................................................
Applicant
and
THEMBELANI
SILINGA
....................................................................
Respondent
JUDGMENT: 30
OCTOBER 2013
Schippers J:
This is an
application by the Cape Bar Council (“the Council”) for
an order striking the respondent’s name from
the roll of
advocates, in terms of s 7(1)(d) of the Admission of Advocates
Act 74 of 1964 (“the Act”), on the
basis that he is not
a fit and proper person to continue to practise as an advocate.
The respondent has
given notice of his intention to oppose the application. However, he
did not deliver an opposing affidavit
until two minutes before the
application was heard on 18 October 2013. Before that, on 7
September 2012 he filed a document in
which he raises a number of
preliminary points, in essence that the Council has acted
procedurally unfairly in not holding a
disciplinary hearing before
launching this application. He says that this iscontrary to the
provisions of s 3(1) of the Promotion
of Administrative Justice Act
3 of 2000 (PAJA), and that the application is premature and falls to
be dismissed with costs.
The application
for a postponement
As already stated,
on the morning of the hearing on 18 October 2013, the respondent
delivered an application to postpone the matter.
The Council opposed
the application. In the founding affidavit the respondent says that
a postponement is necessary to give his
legal representatives “an
opportunity to acquaint themselves with the matter at hand”.
He goes on to say that he
is being assisted on a
pro bono
basis; that he approached counsel for advice on 11 October 2013;
that counsel referred him to his attorneys of record; and that
the
attorneys had moved to new premises and could not immediately assist
him. His answering affidavit in the striking-off application
(unsigned) is incorporated by reference in the founding affidavit in
the application for a postponement.Mr Fisher, who appeared
for the
respondent, confirmed that the latter had drafted the answering
affidavit. We allowed the late filing of the answering
affidavit and
the respondent was thus not prejudiced.
After hearing
argument by Mr Fisher,the application for a postponement was
refused, essentially for the following reasons. The
respondent’s
unpreparedness was due to slackness. It was not explained. And given
the nature and history of the matter,
and the prejudice to the
Council and members of the public, we considered that it would not
be fair and just to grant a postponement.
1
The striking
off-application was launched on 23 May 2012. On the same day the
founding papers were served on the respondent personally
by the
sheriff at the Commercial Crimes Court, Bellville. On 6 June 2012
the respondent filed a notice of intention to oppose.
However, he
did not file any answering affidavit as he is required to do by the
Rules of Court. There is no explanation for this.
On 7 September 2012
the respondent filed a document styled, “Points
in Limine
”.
Still, no answering affidavit was filed. On 23 April 2013 the
Council’s supplementary affidavit was served by the
sheriff on
the respondent’s mother in Langa. Between that date and the
date of the notice of set-down -16 September 2013
– some five
months - the respondent did not deliver an answering affidavit.
There is no explanation for this either.
On 19 September
2013 the notice of set-down was served on the respondent’s
mother and on 11 October 2013 the respondent
approached his
attorneys. There is likewise no explanation for his inaction between
19 September 2013 and 11 October 2013.
What all of this
shows, is that the respondent, an advocate, has been inexcusably
slack in delivering his answering affidavit.
He has not advanced any
reasonwhy he could not file the answering affidavit annexed to the
founding affidavit in the application
for a postponement, sooner.
That answering affidavit is a response to both the founding and
supplementary papers in the striking-off
application.
There are serious
allegations of dishonesty and misconduct against the respondent,
involving the administration of justice, the
public and the
interests of the profession. The matter therefore does not brook any
delay.
On his own showing,
the respondent was not prejudicedby the refusal of the postponement
sought. The founding affidavit in the
postponement application
states that alternatively to making changes to the answering
affidavit in the striking-off application
and preparing heads of
argument, the respondent’s counsel “will argue the
matter on the papers as it stands, including
the draft Answering
Affidavit”.
That is precisely
what happened. Pursuant to the refusal of the postponement, Mr
Fisher argued the striking-off application, with
reference to and in
reliance upon,the answering affidavit.
The grounds for the
application may be summarized as follows. The respondent is
dishonest. He falsely informed the court that
he was acting on the
instructions of an attorney when this was not the case. He accepted
instructions directly from members of
the public without being
instructed by an attorney or the Legal Aid Board. The respondent is
guilty of gross non-discharge of
professional duty. On more than one
occasion he failed to appear in court after criminal cases in which
he represented accused
persons were postponed by prior arrangement
with him for trial. In some of these cases the accused had been in
custody for months.
The respondent performed the functions of an
attorney without being admitted as an attorney. He solicited payment
of money from
a member of the public in contravention of s 83(10) of
the Attorneys Act 53 of 1979 and the rules governing the conduct of
advocates.
There are four
complaints against the respondent. The first three concern
dishonesty and gross non-discharge of professional duty,
in respect
of which three regional court magistrates have made affidavits. The
fourth complaint was made by a member of the public,
Ms Gladys
Ntloko (“Ntloko”), to whom the respondent rendered
services as an attorney and failed to account for the
sum of
R10 000.
The complaint by
Magistrate Marais
The late
MrMarthinusMarais (“Magistrate Marais”) who at the
relevant times presided in Parow Regional Court 3, lodged
the first
complaint with the Council. In his affidavit he states that on 10
June 2009the respondent represented MrMeshack (“Meshack”)
on a charge of robbery with aggravating circumstances. He asked the
respondent who his instructing attorney was. The latter replied
that
he had been instructed by Ralawe Attorneys of 100 Voortrekker Road,
Goodwood. The case was postponed to 2 July 2009.
The respondent did
not appearon 2 July 2009. An attorney, MrObose (“Obose”)
appeared for Meshack. He told the court
that he was standing in for
the respondent and Magistrate Marais noted on the charge sheet that
Obose, who confirmed that he
was in possession of trial particulars
in the case, was the instructing attorney. The case was postponed to
3 August 2009. I
pause to mention that Meshack, in an affidavit,
says that he does not know Obose at all and never dealt with him;
and that he
instructed the respondent directly at his (the
respondent’s) house.
The respondent did
not appear on 3 August 2009. The case was then postponed to 21
August 2009 for him to be present at court.
When the case was
called on 21 August 2009 the respondent was absent. However, at
15h43 the case was recalled and the respondent
appeared. He
apologised for not appearing on 3 August 2009 and informed the court
that the reason for his absence was “a
lack of financial
instructions”. He told the court that the case could be set
down for trial as he had been placed in funds
to conduct the trial;
and that he would get the further particulars from Obose. The case
was postponed to 24 August 2009 for
the arrangement of a trial date.
On 24 August 2009
the respondent appeared and confirmed that he had sufficient funds
to represent Meshack. The case was postponed
to 29 September 2009
for trial in the backlog court, by prior arrangement with the
respondent. That court was established specifically
to lessen the
burden on the rolls of other regional courts.
However, on 29
September 2009 the respondent did not appear in court. There was no
instructing attorney. Meshack and accused no.
2, the State witnesses
and the attorney for accused no. 2 were present. The prosecutor, Mr
Van der Berg (“Van der Berg”),
telephoned the respondent
who told him that he was he was driving through Worcester at the
time, on his way back to Cape Town.
The respondent wanted to arrange
a date for further particulars. Van der Berg refused and reminded
him that the case had been
set down for trial, and that the
respondent should appear in court as he was about an hour away. The
respondent insisted on arranging
a date and said that he was not
ready to proceed with the trial. All of this is contained in an
affidavit by Van der Berg, which
the respondent has neither
challenged nor disputed.
The respondent
simply did not come to court on 29 September 2009. The State
obviously could not proceed with the trial. Meshack
informed the
court that he had appointed the respondent himself and that there
was no instructing attorney. Due to the respondent’s
non-appearance, the matter was postponed to 6 October 2009 and
referred back to Parow Regional Court.
On 6 October 2009
the respondent did not appear. Oboseagain appeared and informed the
court that neither he nor the respondent
was going to represent
Meshack any further. The latter then informed the court that he
wished to approach another attorney.
The respondent does
not really dispute the contents of the affidavit by Magistrate
Marais. His answer to the allegation that Obose
was his instructing
attorney is startling and indicative of his dishonesty. He says that
he “bears no knowledge”
of the allegation and “puts
applicant to the proof thereof”. One would have thought that
the respondent, an officer
of the court, and one from whom the
highest standard of conduct is exacted by the profession and the
Courts, would simply state
whether or not Obose, who appeared not
once, but twice on his behalf, was his instructing attorney.
The reason for the
respondent’s evasiveness is not far to seek. He told
Magistrate Marais that Ralawe Attorneys had instructed
him. Indeed
this is common cause. But the statement that Ralawe were the
instructing attorneys is not true. MrRalawe (“Ralawe”),
an attorney who practises at 100 Voortrekker Road, Goodwood, has
deposed to an affidavit in which he says that he never instructed
the respondent; that he has never held any monies in trust on behalf
of the respondent; and that he has never shared offices
with the
respondent. There is simply no reason for Ralawe to fabricate this
evidence. And its truth and reliability is underscored
by the fact
that Obose– not Ralawe - on two occasions stood in at court
for the respondent on dates to which the case had
been postponed.
This could only have happened with the prior arrangement of the
respondent. In fact, the respondent informed
the court on 21 August
2009 that he would obtain the further particulars from Obose. He has
not denied this. Then there is the
undisputed evidence of Meshack
that there was no attorney involved and that he had instructed the
respondent directly.
These facts
conclusively show that the respondent lied to the court when he said
that RalaweAttorneys had instructed him. By the
same token he misled
the court into believing that he was instructed by an attorney when
he knew that Meshack had instructed
him directly.
It follows that Mr
Fisher is mistaken when he submits that there is a bonafide dispute
of fact regarding the identity of the respondent’s
instructing
attorney. There is no dispute of fact, let alone a bona fide one. In
any event, the Supreme Court of Appeal (SCA)
in
Van
der Berg
2
has held that the
Plascon-Evans
rule
3
is not appropriate
in proceedings to discipline a practitioner, as an applicant’s
role in proceedings of this kind is not
that of an ordinary
adversarial litigant.
Aside from his
dishonesty, there is no question that the respondent grossly
neglected his professional duty to the court and his
client; and
brought the administration of justice into disrepute.He assured the
court that he had sufficient funds to represent
Meshack. But he
failed to appear when the case was set down for trial on 29
September 2009 - on his own version not because there
were no funds,
but because he had not prepared. Furthermore, he had no intention of
appearing in court that day and even when
Van der Berg requested him
to come to court, the respondent simply failed to appear. And this
after the trial date had been arranged
with him and the State was
ready to proceed with the trial. As Magistrate Marais says, the
court and the witnesses were inconvenienced;
the right of the
accused to a speedy trial was compromised; and when witnesses
eventually testify it could be many years after
the fact.
In addition, the
respondent is guilty of unprofessional conduct for having accepted
instructions directly from a member of the
public. It has been
affirmed by the SCA that advocacy is a referral profession, and that
it is misconduct for an advocate to
be counsel in a case without the
intervention of an attorney.
4
The complaint by
Magistrate Van Zyl
On 23 June 2009,
the respondent represented MrNtenetya (“Ntenetya”)
before Regional Court Magistrate, Ms Elsa Van
Zyl (“Magistrate
Van Zyl”) in Parow Regional Court 2.Ntenetya had been in
custody since 19 February 2009.
The respondent also
informed Magistrate Van Zyl that he had been instructed by Ralawe
Attorneys, and asked that the case be postponed
so that he could
obtain further particulars from the State. The case was postponed to
27 July 2009.
On 27 July 2009 the
respondent did not appear in court. Ntenetya gave the respondent’s
cellphone number to the court. Thereafter
the prosecutor
unsuccessfully tried to contact the respondent on that number. The
case was then postponed to 3 August 2009 in
order for the respondent
to be present at court.
On 3 August 2009
the respondent did not appear. Ntenetya told the court that he had
spoken to the respondent who had assured him
that he would be
present at court on 3 August 2009.The prosecutor again
unsuccessfully tried to contact the respondent on his
cellphone. The
accused’s father, MrTamsanquaNtenetya, informed the court that
he had instructed the respondent directly
without the intervention
of an attorney and that he had paid the respondent to represent his
son. This information was provided
after the court informed
MrNtenetya senior of its intention to report the respondent to the
Council.
The respondent has
never explained his absence from court and Magistrate Van Zyl did
not hear from him since his appearance in
her court on 23 June 2009.
The respondent does
not dispute any of these facts, save to deny receiving any money
from MrNtenetya senior. He states that he
went to court (he does not
say precisely when) but could not appear on behalf of Ntenetya as a
legal aid attorney had already
been appointed. This is opportunistic
and contrived, apparently in response to the magistrate’s
statement that Ntenetyahad
informed the court that he no longer
wanted respondent to represent him and that he would apply for legal
aid. However, there
is no explanation for the respondent’s
failure to appear in court on 3 August 2009.
For the reasons
already advanced, the respondent’s statement to Magistrate Van
Zyl that he had been instructed by RalaweAttorneys,
was untrue.
As in the case of
Meshack, the respondent accepted instructions without the
intervention of an attorney.
The complaint by
Magistrate Cupido
It appears from
therecord of proceedingsin the case of
S v Yakaba
in Parow
Regional Court 4, that the respondent represented MrYakaba
(“Yakaba”) for the first time on 10 December 2008
and
thereafter on numerous occasions when the case was postponed in 2009
until his last appearance as Yakaba’s counsel
on 28 January
2010.
The record also
shows that when the case was postponed on 12 December 2008, for
trial on 29 April and 30 April 2009, the respondent
informed the
court that he had received further particulars in the case and that
financial instructions had been sorted out.
However, on 29
April 2009 the case was postponed to 4 May 2009 and transferred to
the backlog court.
In a later
appearance on 1 December 2009, the case was postponed to 28 January
2010 for trial. The date was arranged with the
respondent. In his
affidavit Acting Regional Court Magistrate, MrGraham Cupido
(“Magistrate Cupido”), says that eight
consecutive days
were allocated to the trial; and that the State intended to call six
witnesses and the defence, four.
However, on 28
January 2010 the trial could not proceed. The respondent informed
the court that he had struggled with Yakaba for
financial
instructions and that he had informed the court of this previously.
He asked for permission to withdraw from the case.
The magistrate says
that he expressed his displeasure and dissatisfaction with the
respondent’s decision to withdraw on
the day of the trial,
given that the case had been set down for eight consecutive court
days by prior arrangement with the respondent.
The respondent
however denies that his conduct in failing to advise the court
timeously of his intention to withdraw is unprofessional.
He says
that there were discussions between him and Yakaba’s mother.
However, no details of these discussions are given,
more
specifically as regards the question whether he had been placed in
funds. What is clear, however, is that when he appeared
for Yakaba
on 1 December 2009 and the case was postponed for trial, the
respondent did not inform the magistrate that he did
not have
sufficient funds to conduct the trial. On the contrary, he had
informed the court on a previous occasion that financial
instructions had been sorted out.
As in the case of
Meschack
, the trial date had been arranged with the
respondent and he knew that eight consecutive days had been set down
for the trial.
However, on the first day of the trial he applied to
withdraw as Yakaba’s counsel, citing a lack of funds as the
reason.
His conduct prejudiced Yakaba and the other accused persons
in that their right to a speedy trial was compromised. The court and
the State witnesses were also inconvenienced. The respondent’s
conduct was unprofessional and brought the administration
of the
criminal justice system into disrepute.
The record also
shows that when the respondent applied to withdraw from Yakaba’s
case on 28 January 2010, he informed the
court that he was
instructed by Ralawe attorneys. As already stated, this is not true.
The
Ntloko complaint
In her affidavit
Ntloko says that her deceased daughter had an account at Capitec
Bank, Phillipi, Cape Town, containing about
R39 000. She needed
the money for the maintenance of her daughter’s minor son who
lives with Ntloko and for funeral
debts. In January 2010 the bank
advised her to approach the Master of the High Court, Cape Town, to
gain access to the money,
which she did.
At the Master’s
office a man named Thembani told her that only an attorney could
withdraw the funds from the bank account.
Ntloko asked him how much
an attorney would cost. Thembani replied that it was a free service.
Subsequently he introduced her
to the respondent whom he said was an
attorney.
Ntloko signed a
written document in terms of which she nominated the respondent as
executor in the deceased’s estate. On
8 January 2010 the
respondent signed an undertaking and acceptance of the Master’s
directions. On a letterhead entitled,
“Advocate
TembelaniSilinga”, the respondent wrote to the Master in which
he said that he had been instructed by the
deceased’s mother
to assist in the administration of the estate; and that he would
comply with the Administration of Estates
Act and the regulations
and directives of the Master. The letter is undated but the Master
apparently received it on 11 January
2010.
On 11 January 2010
the Master issued a letter of authority certifying that the
respondent was authorized to take control of the
assets of the
estate of the late ZolekaNtloko. An amount of R39 174.64 in
Capitec Bank was recorded as an asset in the estate.
Thereafter, Ntloko,
Thembani and the respondent went to Capitec Bank in Cape Town where
he opened a new bank account which he
controlled. He transferred all
the money into that account. He withdrew the sum of R10 000,
gave it to Ntloko and toldher
that she should call him when she
needed more money.
A week later Ntloko
phoned the respondent. When she could not reach him she went to
Thembani at the Master’s office. He
told her to wait for the
respondent as he was in court. The respondent arrived later and
Ntloko asked him for the rest of the
money. The respondent replied
that he would give her only R2 000. Ntloko protested that she
had debts to pay and needed
the money to support the deceased’s
minor son. The respondent and Thembanispoke separately. Ntloko says
that the respondent
returned, kneeled in front of her, and asked
whether he could trust her and if she would make a case against him.
She did not
answer him as she did not understand what he meant.
Thereafter they went to the bank where the respondent withdrew the
sum of
R22 000. He gave R19 000 to Ntloko and kept R3 000
for himself. She asked him why he had kept the R3 000 when
she
had been told that an attorney would be appointed for free by the
Master. He did not answer her. He made some calculations
on his hand
to show costs which he had incurred. He did not give her any
receipts.
Ntloko says that
she received only R29 000 of the deceased’s money. She
called the respondent many times thereafter.
He refused to take her
calls. She unsuccessfully tried to find out where his offices were.
She went to look for him at certain
places, but was told that other
people were looking for him as well.
Later Ntloko went
to the police to lay a charge against the respondent. The police
asked her to get his telephone number from
the Master’s
office. There she saw Thembani who asked whether Ntloko was coming
to see him. She told him why she was there.
Thembanireplied that she
was wasting her time by laying a charge against the respondent
because, in Ntloko’s words, “he
was an important
advocate and nothing would come of it”. He also said that she
would “get into trouble and get locked
up”. She heard
nothing further from the police.
Subsequently, on
the advice of her ward councillor, Ntloko went to see Ms Andrews at
Legal Resources Centre(LRC),who contacted
the respondent for the
balance of the money. The respondent promised to deliver a chequeto
LRC the next day. He failed to do
so.
In the answering
affidavit the respondent says that Ntloko’s claim “is
nothing but a bunch of lies of (
sic
)a person with highly
malicious intent; that he later realized that Ntloko had him
appointed the executor, in his words, “with
the sole intention
of withdrawing the money from Capitec bank, and not to administer
the estate of her late child. She simply
wanted all the money for
her own selfish needs”. He denies that he took more than
R3 000 for his costs and says that
Ntloko took all the money in
bits and pieces. He goes on to say thatwhen assisting Ntloko, his
actions “were above board
and regular, in consonance with the
established practices as prescribed by law”.
But that is not so.
The Ntloko complaint plainly shows that the respondent performed the
functions of an attorney without being
subject to the restrictions
imposed on attorneys. It also illustrates the real and substantial
danger to the public when advocates
handle public money, without a
trust banking account for the receipt and retention of a client’s
money, as required by
the Attorneys Act.
Unlike an attorney,
the respondent, an advocate, has no trust banking account,
prescribed for the protection of clients and in
the public interest.
No amount standing to the credit of such an account is regarded as
forming part of the assets of the attorney.
Neither may such amount
be attached on behalf of any of the attorney’s creditors. Any
shortfall in the account may in proper
circumstances be recovered
from the Fidelity Fund. A client who does not employ an attorney and
instructs an advocate directly
does not have the same protection or
any protection at all.
For these reasons,
the SCA in
De
Freitas
held
that an advocate should not perform the functions of an attorney,
and upheld the referral rule.
5
Cameron JA said:
“
For so long as the
statutory absence of trust fund protection continues, it provides, in
my view, a compelling reason in the public
interest for the courts to
enforce the referral rule. It follows at the very least that the
first applicant, in soliciting the
payment in question, acted
unprofessionally and improperly and rendered himself subject to
appropriate sanction by the Court
.”
6
Thus, there can be
no question that the respondent acted unprofessionally when he
accepted an instruction directly from Ntloko
without the
intervention of an attorney.
The respondent’s
conduct is aggravated by the fact that he has not accounted for at
least R7 000 of the money held
in Capitec bank. He admits that
Ms Andrews of LRC called him and that he told her that he would give
Ntloko a breakdown of the
costs of administering the estate. More
than three years later, and despite his statement thatNtlokogave him
“no opportunity
to prepare reporting documents”, he has
not produced a single piece of paper to show that his conduct was,
as he says,
above board and regular.
Then there is
Ntloko’s evidence that she went to the police; that even
before she did, the respondent asked her not to do
so; that he
undertook to deliver a cheque to LRC which he failed to do; and that
she received only R29 000 comprising two
amounts – R10
000 and R19 000. The respondent concedes that he retained
R3 000. On the probabilities Ntlokocould
thus not have taken
all the money in bits and pieces as the respondent alleges, and the
balance of some R7 000 remains unaccounted
for.
In all of this, the
respondent’s attitude to his conduct, which is indicative of a
lack of honesty and integrity, is disturbing:
he says that when the
money in the Ntloko estate was finished, he “celebrated
thinking [that he] would have her off his
back”.
The
appropriate order
Section 7(1)(d) of
the Act provides that a court may suspend any person from practice
as an advocate or order his name to be struck
off the roll of
advocates if it is satisfied that he is not a fit and proper person
to continue to practise as an advocate.
It will immediately
be noted from the provisions s 7(1)(d) of the Act that a court has
the power to suspend or disbar an advocate
if it is satisfied that
he is not a fit and proper person to continue to practise. It
follows that the preliminary point that
the respondent has not been
treated fairly because he was not subjected to a disciplinary
hearing before the Council launched
this application, has no merit.
So too, his claim that his rights under PAJA have been infringed.
In
Kekana
,
7
Hefer
JA set out the proper approach to an application under s 7(1)(d) of
the Act, as follows. The court first has to decide whether
the
alleged offending conduct has been established on a balance of
probability and if so, whether the person in question is a
fit and
proper person to practise as an advocate. The latter finding to an
extent involves a value judgment, but in essence it
is an objective
finding of fact and discretion does not feature. But once there is a
finding that he is not a fit and proper
person to practise, the
court has a discretion whether to order suspension or striking-off
from the roll.
8
Given the
complaints outlined above, I have little hesitation in concluding
that the Council has proved, on a balance of probability,
that the
respondent breached the duties owed to the court and his clients. He
deceived and misled three courts into believing
that he was
instructed by Ralawe Attorneys. He knowingly concealed the truth
that his clients had directly instructed him. It
has also been
proved that the respondent is guilty of gross non-discharge of
professional duty. He failed to appear in court
to defend his
clients on more than one occasion, without any or adequate
explanation and after the trial dates had been arranged
with him. In
so doing, he disregarded the important role an advocate plays in the
conduct of court cases and in the administration
of justice. It has
also been demonstrated that the respondent is guilty of
unprofessional and improper conduct by repeatedly
accepting
instructions without the intervention of an attorney.
The respondent’s
assertion that in dealing with his clients he “has conducted
himself with scrupulous honesty”,
is simply wrong. He failed
to fulfil the duties of an advocate with honesty, reliability and
integrity both in relation to his
duties to his clients and to the
Courts. In his behaviour he brought the administration of justice
and the profession into disrepute.
9
It follows that the
respondent is not a fit and proper person to practise as an
advocate, and the next question is whether he
should be suspended or
struck off the roll.
Mr Fisher urged us
not to make an order striking the respondent’s name from the
roll of advocates, because, so he submitted,
the respondent had
merely breached the referral rule and was guilty of contempt of
court in failing to appear on numerous occasions
in the regional
court, which should have been dealt with by that court. Mr Fisher
also submitted that the respondent’s
particular circumstances
and background, more specifically the difficulties which he had to
face in qualifying as an advocate,
justify an order of suspension.
In my view these
submissions are unsound. I have empathy with the respondent who
comes from a disadvantaged background and whose
personal
circumstances were not favourable. But equally, there are many
attorneys and advocates who also rose above adverse personal
circumstances, yet have not made themselves guilty of misconduct.
As was stated in
Van
Der Berg
,
the enquiry before a court called upon to exercise its disciplinary
powers in relation to advocates is not what constitutes
an
appropriate punishment for a past transgression, but rather what is
required for the protection of the public in the future.
10
The SCA has
consistently held that if a court finds dishonesty, there must be
exceptional circumstances before it will order a
suspension from
practice instead of a removal from the roll.
11
In
Geach
12
Nugent
JA said that this does not purport to lay down a rule of law but
expresses what follows naturally from a finding of dishonesty.
Once
an advocate has acted dishonestly it might be inferred that the
dishonesty will recur and for that reason he should ordinarily
be
removed from the roll, unless a court is satisfied that the
circumstances of the case are such that that inference need not
be
drawn.
13
The particular
circumstances of this case, the nature of the misconduct (which
includes dishonesty), the extent to which it reflects
upon the
respondent’s character, the absence of exceptional
circumstances, the likelihood of a repetition of misconduct
and the
need to protect the public, impel me to the conclusion that the
respondent is unworthy to remain in the ranks of the
profession. His
misconduct was deliberate, flagrant and serious, and shows a lack of
integrity, judgment and insight.
For these reasons,
I consider that the only appropriate order is removal from the roll
of advocates.
I would make the
following order:
The respondent’s
name is struck from the roll of advocates of this Court.
The respondent is
ordered to pay the applicant’s costs on an attorney and client
scale.
SCHIPPERSJ
I agree.Itis so
ordered.
GRIESEL J
JUDGMENT
BY : SCHIPPERS J
(GRIESEL
J Agrees and it is so ordered).
For
the Applicant(s) : Adv. R LIDDELL
Instructed
by : BISSET BOEHMKE McBLAIN
Per:
R OMAR
11
TH
Floor Triangle House
22
Riebeeck Street
Cape
Town
For
the Respondent(s) : Adv. W FISHER
Instructed
by : N ALLEN ATTORNEYS
Per:
MARK MEYER
Suite
116, 1
st
Floor
Hassans
Parow Heights
264
Voortrekker Road
Parow
c/o
Keith Hamblin & Co.
1
st
Floor, Benzal House
Barrack
Street, Cape Town
Date(s)
of hearing : Friday, 18 OCTOBER 2013
Judgment
delivered : Wednesday, 30 OCTOBER 2013
1
Myburgh
Transport v Botha t/a SA Truck Bodies
1991 (3) SA 310
(NmS) at
315B-G.
2
Van
der Berg v General Council of the Bar of SA
[2007]
2 All SA 499
(SCA) para 23.
3
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 620
(A)
at 643E-635D.
4
De
Freitas and Another v Society of Advocates of Natal and Another
2001 (3) SA 750
(SCA). Van der Berg n 2 para 2.
5
De
Freitas
n 4 para 11.
6
De
Freitas
n 4 para 14 per Cameron JA.
7
Kekana
v Society of Advocates of South Africa
[1998] ZASCA 54
;
1998 (4) SA 649
(SCA).
8
Kekana
n 7 at 654C-E.
9
Hayes
v The Bar Council
1981 (3) SA 1070
(ZA) at 1081A-1082D.
10
Van
Der Berg
n 2 para 50.
11
Malan
and Another v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) para 10.
12
General
Council of the Bar of South Africa v Geach and Others
2013 (2) SA 52
(SCA).
13
Geach
n
12para 69.