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[2010] ZAWCHC 102
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Law Society of the Cape of Good Hope v Roodt (18621/2009) [2010] ZAWCHC 102 (28 May 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
Case No:
18621/2009
In
the matter between:
THE
LAW SOCIETY OF THE CAPE OF GOOD HOPE
Appellant
v
PETRUS
JOHANNES ROODT
Respondent
JUDGMENT DELIVERED ON
28 MAY 2010
Allie,
J
[1 ] The Law Society of
the Cape of Good Hope seeks to have the name of the respondent,
Petrus Jacobus Roodt struck off the roll
of attorneys of this court.
Further relief is sought to compel the respondent to deliver his
certificate of enrolment as an attorney
to the Registrar of this
court, failing which the Sheriff should be authorised to take
possession and so deliver the certificate.
An order is also sought to
compel the respondent to deliver his books of account, records, files
and documents pertaining to his
practice as an attorney to the
Director of the Society who should be appointed as curator to
administer and control the trust funds
of the respondent. The
applicant also prays that the respondent be interdicted from
operating on his trust account. Lastly the
respondent is to be
directed to pay the fees and expenses of the curator and any person
consulted by the curator.
[2] The respondent was
admitted as an attorney in the Transvaal Provincial Division, as it
then was, on 10 January 1995 and enrolled
in this division as an
attorney on 12 March 2002. He practised as an attorney for his own
account in Wynberg, Cape Town from 25
February 2002. On 10 May
2004, he was interdicted from practising as an attorney by this
division under case no. 3432/2004.
[3] On 3 October 2003,
the respondent caused the sum of R22 500,00 being a debt collection
payment made by a debtor of his client,
to be deposited into his
business bank account. That was a contravention of Section 78(4) of
the Attorneys Act 53 of 1979 and numerous
rules of the Society.
[4] On 5 December 2003 a
purchaser of immovable property paid to respondent R164 000 as a
deposit. The respondent proceeded to transfer
R79 000 of that money
into his business account. That was a contravention of Section 78(4)
of the Attorneys Act and of various
rules of the Society and of
Section 26(1)(a) of the Alienation of Land Act. Section 26(1)(a)
reads as follows:
"No
person shall by virtue of a deed of alienation relating to an erf or
a unit receive any consideration until such erf or
unit is
registrable."
As
the amount misappropriated by the respondent formed part of a deposit
on a purchase price, the property was not registrable and
the
respondent was not entitled to "receive" the money.
[5] On 19 December 2003 a
client paid R300 000 to the respondent who was obliged to pay the
money over to another attorney. Respondent
only paid over R100 000
and failed to pay the balance of R200 000.
[6] On 30 May 2007 the
respondent concluded a plea and sentence agreement relating to the
three counts of theft that he was charged
with in the Special
Commercial Crimes Court. He admitted stealing money from his trust
account and to being reckless in operating
his trust account. He was
sentenced to 7 years imprisonment, which was suspended for 5 years on
condition that he pays the Attorneys
Fidelity Fund the sum R274 000.
By 15 October 2007 he had paid the Fidelity Fund in full.
[7] The Attorneys
Fidelity Fund paid out claims and incurred expenses in the amount of
R346 060,96 arising out of the respondent's
misappropriation of
funds.
[8] On 25 September 2009,
the respondent gave notice of his intention to oppose this
application. The respondent failed to file
his answering papers.
[9] The respondent
contravened Section 78(4) of the Attorneys Act, 1979 which provides
that:
"Any practising
attorney shall keep proper accounting records containing particulars
and information of any money received,
held or paid by him for or on
account of any person, of any money invested by him in a trust
savings or other interest-bearing
account referred to in subsection
(2) or (2A) and of any interest on money so invested which is paid
over or credited to him".
[10] He has also
contravened several of the rules of the Law Society of the Cape of
Good Hope. He has further contravened Section
26(1)(a) of the
Alienation of Land Act.
[11] Attorneys are
officers of the court and a high standard of honesty and integrity is
expected of them because they are the
people in whom the public ought
to have sufficient confidence to trust them with their affairs and
with their funds.
[12]
In
Incorporated
Law Society, Tvl v Visse and Others
1958 (4) SA 115
(T) at 131 D-G
the
court said the following concerning the position of an attorney.
"The court admits
an attorney to the profession and he is put in a position to conduct
matters of trust with the public. He
occupies a position of great
confidence and power and the court is entitled to demand a very high
standard of honour from him in
the profession. The law exacts from
him uberrimae fides where he acts as agent for others; that is the
highest possible degree
of good faith. It is, therefore, essential
that the public should be able to rely implicitly on the integrity
and good faith of
any attorney they may wish to employ. ...For the
sake of the public, and no less the profession, it is of the utmost
importance
to enforce on all attorneys the high standard of duty
which rests upon them and demand the great integrity which is
expected of
them."
[13]
In
Law
Society Transvaal v Matthews
1989 (4) SA 389
(T)
the
court held
as
follows at 395:
"An attorney is a
member of a learned, respected and honourable profession and, by
entering it, he pledges himself with total
and unquestionable
integrity to society at large, to the courts and to the
profession...."
[14] In Law Society of
the Cape of Good Hope v Budricks
2003 (2) SA 11
(SCA) at 17i-j the
court held as follows:
"Not
only did he treat the board's instructions with disdain but in the
process committed about the worst professional sin
that an attorney
can commit by misappropriating trust funds. He did so methodically
over a substantial period of time and in respect
of large sums of
money."
[15] tn applying the
three-stage inquiry set out in
Jasat
v Natal Law Society
2000 (3) SA 44
(A)
in
the exercise of the court's disciplinary function as provided for in
Section 22 of the Attorneys Act, firstly the offending conduct
has
clearly been established in as much as it has been acknowledged by
the respondent. Secondly the respondent is not a fit and
proper
person to continue to practise as contemplated by Section 22(1 )(d)
of the Attorneys Act in as much as he has breached a
fiduciary duty
and position of trust that he held as an attorney and as someone
entrusted to operate an Attorney's Trust Account.
The circumstances
surrounding the theft of the trust monies in this case are very
grave. I am of the view that an appropriate sanction
that will
protect society from such conduct and prevent the respondent from
dealing with trust funds until he can satisfy the court
that he has
rehabilitated, is an order that he be struck off the roll of
attorneys.
[16] An order is made
in terms of paragraphs 1 to 11 of the Notice of Motion.
ALLIE, J
I
agree
FORTUIN, J