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[2015] ZAWCHC 23
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Theron v Law Society of the Cape of Good Hope (6602/13) [2015] ZAWCHC 23 (6 March 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: 6602/13
DATE: 06 MARCH 2015
In the application of
SERVAAS DANIEL
THERON
..........................................................................................
APPLICANT
(for his re-admission as attorney
and conveyancer)
And
THE LAW SOCIETY OF THE
CAPE OF GOOD
HOPE
..................................................................
INTERVENING
RESPONDENT
Coram: NDITA & ROGERS JJ
Heard: 13 FEBRUARY 2015
Delivered: 6 MARCH 2015
JUDGMENT
ROGERS J (NDITA J concurring):
[1] The applicant (‘Theron’)
applies for his re-admission and re-enrolment as an attorney and
conveyancer. The application
is opposed by the intervening respondent
(‘the Law Society’).
[2] Thereon was admitted as an attorney
and conveyancer on 9 July 1980. Thereafter he practiced as a
professional assistant and
later as a partner of the firm Guthrie &
Thereon. This firm was founded by his grandfather and continued by
his father. At
the times relevant to the present case Theron was in
charge of the firm’s Caledon branch.
[3] The firm’s auditors,
Badenhorst Auditors, reported certain apparent irregularities
concerning Theron in the latter part
of June 2009. The firm wrote to
the Law Society on 24 June 2009, summarising these irregularities and
Theron’s explanations
and sought guidance on the way forward.
[4] Thereon resigned from the firm on
30 June 2009 and has not since practised as an attorney. On 22 July
2009 he and his former
partners concluded a settlement agreement in
terms whereof Theron was to forfeit the value of his share in the
partnership and
pay a substantial amount to the firm. The settlement
agreement was varied on 28 August 2009.
[5] During October 2009 Badenhorst
Auditors furnished an audit report to the Law Society. Theron
provided his comments on the report
and Badenhorst Auditors responded
to those comments.
[6] On 20 April 2010 the Law Society
issued an application to interdict Theron from practising pending a
striking-off application.
Theron filed a notice of opposition but
subsequently abandoned the opposition. He says he did so on counsel’s
advice and
because he was in any event not practising. The interdict
was granted on 4 February 2011.
[7] On 3 August 2011 the Law Society
issued an application for Theron’s striking-off. Theron
delivered a notice of opposition.
When he failed to file his
answering papers in accordance with an extension granted by the Law
Society, the latter applied for
an order to compel which was granted
on 25 November 2011. On 21 December 2011 Theron filed his answering
papers. The application
was heard on 4 May 2012. Theron was
represented by counsel who submitted that Theron should be
temporarily suspended rather than
struck off. On 17 May 2012 this
court (Traverso DJP, with Saldanha J concurring) delivered judgment.
The court ordered that Theron’s
name be struck from the roll of
attorneys and conveyancers. There was no appeal against the judgment.
[8] The present application for
re-admission was issued on 29 April 2013, that is about 11 months
after the striking-off order.
Theron’s founding affidavit was
accompanied by affidavits from various character witnesses. By way of
a letter dated 20 May
2013 the Law Society identified certain matters
it usually expected an applicant for re-admission to address. This
led to a supplementary
founding affidavit by Theron together with a
further character affidavit. In February 2014 the Law Society, not
being satisfied
with the case for re-admission, delivered an
application to intervene to oppose. During July 2014 Theron filed his
replying papers
which included supplementary affidavits by the
character witnesses aimed at remedying criticisms of those affidavits
made by the
Law Society.
[9] At the hearing before us Theron was
represented by Mr M Verster (the heads having been drawn by Messrs JJ
Botha SC and Verster).
Mr Koen of the Law Society’s attorneys
of record appeared for the Law Society.
[10] The re-admission application is
governed by s 15(3) of the Attorneys Act 53 of 1979, which reads in
relevant part as follows:
‘(3) A court may, on application
made in accordance with this Act, re-admit and re-enrol any person
who was previously admitted
and enrolled as an attorney and has been
removed from or struck off the roll, as an attorney, if –
(a) such person, in the discretion of
the court, is a fit and proper person to be so re-admitted and
re-enrolled;…’.
[11] The principles which apply in such
applications were recently set out, with reference to relevant
authority, in the majority
judgment of Ponnan JA in Swartzberg v Law
Society, Northern Provinces
[2008] ZASCA 36
;
2008 (5) SA 322
(SCA). The onus is on the
applicant to convince the court on a balance of probabilities that
there has been a genuine, complete
and permanent reformation on his
part; that the defect of character or attitude which led to his being
adjudged not fit and proper
no longer exists; and that, if he is
re-admitted, he will in future conduct himself as an honourable
member of the profession and
will be someone who can be trusted to
carry out the duties of an attorney in a satisfactory way as far as
members of the public
are concerned (para 14). In considering whether
the onus has been discharged the court must have regard to the nature
and degree
of the conduct which occasioned the applicant’s
removal; the explanation if any afforded by him for such conduct
which might
mitigate or aggravate the heinousness of the offence; his
reaction to the enquiry into his conduct and the proceedings to
secure
his removal; the lapse of time between his removal and
application for re-admission; his activities subsequent to removal;
his
expressed contrition and its genuineness; and his efforts at
repairing the harm which his conduct may have occasioned to others
(para 15).
[12] The attitude of the Law Society to
the applicant’s re-admission is a factor of importance.
Although it is not a condition
precedent for re-admission that the
Law Society should be so satisfied, considerable weight must be given
to its attitude (para
18).
[13] One of the factors mentioned above
is the lapse of time between the applicant’s removal and his
application for re-admission.
In Pugh v Incorporated Law Society
1909
TS 154
Innes CJ observed that the sanction of striking-off reflects
the very grave nature of the attorney’s wrongdoing. Though one
not could fix a definite period for rehabilitation, ‘it is
under ordinary circumstances hopeless for him to approach the
Court
until a very considerable number of years has elapsed’ (at 56;
see also Simpson v Incorporated Law Society
1909 TS 103
; Kaplan v
Incorporated Law Society, Transvaal
1981 (2) SA 762
(T) at
775H-776D). In Pugh a re-admission application, brought just under
three years after the striking-off, was dismissed. In
Ex parte Aarons
(Law Society, Transvaal, Intervening)
1985 (3) SA 286
(T), where an
application was refused, the applicant’s counsel referred the
court to various cases in which re-admission
was granted after what
the court regarded as relatively short periods (at 300C-F). These
periods ranged from three to nine years.
[14] I turn now to a consideration of
the conduct for which Theron was struck from the roll. After an
apparently unblemished career
of many years, he came under financial
pressure during the course of mid-2007 after he and his wife
separated and he became embroiled
in an acrimonious divorce. He had
to pay her maintenance while attempting to sustain a new household
and meeting his son’s
university expenses.
[15] Over the period September 2008 to
March 2009 Theron paid various personal expenses from his firm’s
trust account, debiting
the amounts to various deceased estates and
other clients in respect of whom the firm held trust monies. These
personal expenses
included his obligations to SARS, university fees,
MTN, Volkswagen and the Western Province Rugby Union. The total
amount improperly
drawn in this way, as admitted by Theron, was R415
686. In respect of certain other amounts he had explanations which Mr
Koen was
willing to accept for purposes of the present proceedings.
[16] Of the said amount of R415 686,
all but R17 000 was debited to deceased estates. In the striking-off
application Theron said
that what he had done was draw trust cheques
in favour of the firm to the debit of the estates, deposit the
cheques back into the
firm’s trust account and then credit the
monies to trust ledger accounts in his own name against which he
thereafter drew
cheques for his personal expenses . He claimed that
the amounts represented interim executor’s fees which the firm
could
lawfully have charged but in respect of which he had not
actually raised debits in accordance with proper accounting practice.
His conduct, so he alleged, was to the prejudice of his partners
rather than the trust clients, because he was effectively
appropriating
the full benefit of the fees to himself.
[17] The balance of R17 000 was debited
to monies held on trust in respect of a conveyancing transaction.
Theron said that the amount
represented ‘wasted costs’
which his firm could lawfully have levied in connection with
amendments to contractual documents
and for which the purchaser had
accepted liability. He admitted, however, that the wasted costs had
not been debited as fees. He
claimed, once again, that this
prejudiced his partners rather than a trust client.
[18] In the Law Society’s
replying affidavit in the striking-off, delivered on 20 March 2012,
its deponent said that Theron
was being dishonest in asserting a
belief that his firm was entitled to interim executor’s fees.
Given that he was an experienced
attorney, he must have known,
according to the Law Society, that in terms of
s 51(4)
of the
Administration of Estates Act 66 of 1965
an executor was not entitled
to receive any remuneration before the estate had been distributed as
provided for in
s 34(11)
or
s 35(12)
as the case might be unless such
payment was approved in writing by the Master. It was pointed out
that Theron had not alleged
the existence of such approval by the
Master.
[19] Theron did not attempt to deal
with the latter aspect by way of a supplementary answering affidavit.
He did make a supplementary
affidavit on the day of the hearing, 4
May 2012, in which he sought to introduce evidence of the settlement
agreement reached between
himself and the firm. That supplementary
affidavit, which the court refused to receive, did not touch on what
the Law Society had
said regarding the interim executor’s fees.
[20] In her judgment in the
striking-off application, Traverso DJP said that Theron was being
‘insincere’ when he stated
that the monies were debited
to the deceased estates in the belief that he was entitled to interim
executor’s fees. She accepted
the Law Society’s criticism
of the explanation. She said that Theron’s explanation showed
that he was ‘prepared
to attempt to justify his actions in a
dishonest manner in order to try and minimise his culpability’.
[21] In the present proceedings Theron
in his founding papers repeated his explanation concerning the
debiting of the monies to
the deceased estates and the conveyancing
client without addressing what the Law Society had said regarding
s
51(4)
of the
Administration of Estates Act and
what this court said
in that regard in the striking-off judgment.
[22] Another complaint which the Law
Society relied on in the striking-off application concerned a cheque
which Theron caused to
be drawn on the firm’s trust account in
favour of himself and which he debited to the trust ledger account of
Mr PJ Rust
(‘Rust’). This happened on 22 October 2008.
Rust was a former colleague of Theron who had resigned from the firm
in
June 2007 and opened a furniture business in Caledon. The firm
owed Rust money in respect of his withdrawal from the partnership.
The trust ledger account in question related to the firm’s said
obligation to Rust.
[23] Theron’s explanation was
that in October 2008, at a time when he was involved in bitter
divorce proceedings, his sister,
who worked at a bank, facilitated a
bank loan to him of R50 000. Of this sum she retained R20 000. Theron
caused the balance of
R30 000 to be paid into the firm’s trust
account and credited to Rust’s ledger account. The money, he
said, was never
Rust’s money. He (Theron) had only dealt with
the funds in this way because he wanted to prevent his wife and her
lawyers
from learning of the loan. Because he was obliged to make all
his bank statements available to them, they would have discovered
the
loan had he deposited the money into his own account. He said the
money was paid into the trust account in this way for Rust’s
credit with the latter’s knowledge and approval. Rust made a
confirmatory affidavit to this effect.
[24] The Law Society in reply said that
the explanation demonstrated that Theron had no inclination to
differentiate between trust
and business monies. In her judgment
Traverso DJP agreed but added that the explanation demonstrated that
Theron had used the trust
account in an attempt to mislead his wife,
her lawyers and ultimately the court and that this pointed to a
character defect and
lack of integrity.
[25] In his supplementary founding
affidavit in the present proceedings Theron added some detail
regarding the Rust matter which
he had not mentioned in the
striking-off application. He alleged that he had initially intended
to use the sum of R30 000 to acquire
an interest in Rust’s
close corporation (which conducted the furniture business), which was
why he had credited the money
to Rust’s trust ledger account.
He later decided against the investment and then wrote a trust cheque
in his own favour for
R27 000 so that he could pay his son’s
university fees. This explanation, so it seems to me, is at odds with
what Theron
said in his answering affidavit in the striking-off
application. In the earlier proceedings Theron did not claim that the
money
had been paid into the firm’s trust account and credited
to Rust’s name in connection with any proposed investment
transaction; he specifically said it was done to conceal the proceeds
of the loan from his wife.
[26] Certain other matters were dealt
with in the striking-off application. Cheques for Theron’s
personal expenses had been
debited to trust ledger accounts in the
name of the JB Beukes Testamentary Trust and Mrs E Bothma. In the
Beukes matter, Theron
alleged that one of the cheques was in payment
of tax owed by the widow, Mrs Hester Beukes, and that the other two
cheques, totalling
R15 000, were part of loans of R60 000 and R100
000 which Mrs Beukes had agreed to make to him. In the striking-off
application
the Law Society criticised this explanation because no
written loan agreements in support of his version were attached. In
the
present proceedings Theron attached documents signed by Mrs
Beukes on 4 March 2009 and 6 May 2009 confirming that she had lent
him R60 000 during 2008/2009 and a further R100 000 during April
2009. He said that the late Mr Beukes had worked for some years
as
the firm’s bookkeeper and that he had been handling Mrs Beukes’
financial affairs for more than ten years.
[27] Mr Koen for the Law Society argued
the case on the footing that his client was not able to dispute
Theron’s version regarding
the Beukes matter. I must
nevertheless observe that I entertain what I regard as a legitimate
sense of unease at the notion of
an attorney obtaining personal loans
from an elderly widow and then obtaining written consents from her
after the event. Indeed,
in Law Society of the Northern Provinces v
Dube
[2012] 4 All SA 251
(SCA) the court went further, stating that
it was ‘irregular and unethical’ for an attorney to
borrow money from a
client (paras 21 and 25). Another feature which
disturbs me about the Beukes matter is the following. Theron
disclosed for the
first time, as an attachment to his replying papers
in the present proceedings, an affidavit made by his erstwhile
partner Mr van
Rooyen (‘Van Rooyen’) on 19 February 2013,
ie about two months before the re-admission application was issued.
In that
affidavit Van Rooyen listed payments which the firm had made
to trust clients from monies refunded to the firm by Theron after his
resignation and stated that to the best of his knowledge there were
no other monies due to clients. Theron appears to have procured
this
affidavit as confirmation of the latter fact, and he produced it as
part of his replying papers in support of his assertion
that full
reparation had been made. However, Van Rooyen’s affidavit
indicates that the amount owed to the JP Beukes Testamentary
Trust
was R407 125,75 and that this indebtedness was reflected in
acknowledgments of debt dated 4 March 2009, 6 May 2009 and 15
June
2009. Theron in his explanations referred only to the first two
acknowledgments of debt totalling R160 000. It is also not
clear why,
if these were loans concluded between the client and Theron
personally, the firm found it necessary to make the reimbursement
to
the client. I am not convinced that the court has heard the full
story regarding these loans.
[28] In regard to the Bothma matter,
Theron explained the three trust cheques drawn in payment of his
personal expenses as being
repayments to himself of loans he had made
to Mrs Bothma at a time when she was strapped for cash pending the
sale of her late
husband’s property. The Law Society again
criticised the explanation because no evidence of a written loan
agreement was
presented. In the present proceedings Theron attached
two documents signed by Mrs Bothma which appear to confirm his
explanation.
[29] In paying his personal expenses
out of trust funds totalling R415 686, Theron, apart from breaching
rules 13.13.7
and
13.13.9
of the Law Society’s rules, committed
theft. Until such time as invoices were passed for services duly
rendered to the relevant
deceased estates and other clients, the
funds held for them on trust had to be retained intact (Law Society
of the Cape of Good
Hope v Tobias
1991 (1) SA 430
(C) at 442F-I). The
fact that Theron might have believed that his firm would be entitled
to raise fees for the amounts in question
does not detract from this
simple proposition (cf Law Society of the Cape of Good Hope v
Budricks
2003 (2) SA 11
(SCA) paras 9-10). Both in the striking-off
application and in the present proceedings Theron seems to have
failed to appreciate
this. In his answering affidavit in the
striking-off application he denied having misappropriated trust
funds, claiming that his
accounting practice had not always been
correct and that this was to the prejudice of his partners rather
than the clients. I am
by no means satisfied from his affidavits in
the present case that he appreciates the true character of his
misconduct or sees
it in its true light.
[30] Furthermore, the exculpatory
version he offered, if it were regarded as ameliorating the
misconduct, depends for its cogency
on the premise that his firm was
entitled to debit the amounts in question as fees to the relevant
estates. I have already observed
that Theron has failed in the
present proceedings to address what the Law Society and this court
said in the previous proceedings
regarding
s 51(4)
of the
Administration of Estates Act. In
the absence of evidence of the
Master’s written consent, his firm was not entitled to debit
the fees at the time he used
the trust funds in question. He has not
frankly conceded that he knew this to be the case. There is also no
evidence that his firm
ever became entitled to charge the fees in
question or did in fact charge them. Theron has not claimed that the
firm has done so
nor indicated that he has attempted to obtain
evidence from his former partners in that regard.
[31] Van Rooyen’s affidavit,
which existed at the time Theron launched the re-admission
application but which he only produced
as part of his replying
papers, may perhaps suggest that some of those fees were raised,
since otherwise one might have expected
a greater amount to have been
refunded to trust clients. However, Van Rooyen’s affidavit was
not produced as evidence that
any particular fees had been charged
but rather in support of a contention that he had made full
reparation to the firm and clients.
The affidavit was only produced
in reply. It raises certain unanswered questions. For example there
is the discrepancy in the amount
borrowed by Theron from the JP
Beukes Testamentary Trust. The affidavit mentions refunds which the
firm had to make to certain
deceased estates not mentioned in the
complaints canvassed in the striking-off. In other instances there
are discrepancies in the
amounts involved. For example, in the
striking-off application the amount in respect of the estate of the
late JJ du Toit was R10
000 whereas Van Rooyen’s affidavit says
that R50 000 had to be refunded. In respect of the estate of the late
JP le Roux
the amount mentioned in the striking-off application was
R20 000 whereas Van Rooyen’s affidavit refers to a refund of
R45
713.
[32] Although Theron’s misconduct
in the above respects infected only a small part of an otherwise
unblemished career, it
was nevertheless not an isolated lapse. He
perpetrated it over a period of at least six months by way of a
number of payments for
his personal benefit.
[33] In regard to the Rust matter, I
have already commented on what seems to be a shifting of Theron’s
ground from the striking-off
application to the re-admission
application. His explanation in the striking-off application
justified the criticism made in Traverso
DJP’s judgment. There
is no reason to doubt the truth of his admission in the previous
proceedings that he intended to conceal
the loan proceeds from his
wife in the divorce proceedings. The justness of the criticism
arising from that conduct has not been
fully and frankly conceded in
the current proceedings.
[34] I accept that a strong motivation
for Theron in seeking re-admission is to restore the reputation of
his family, which has
a long legal tradition. However, he has also
stated in his replying affidavit that he has relatively few years
left to practise
professionally, that he has many financial
commitments and cannot survive purely on the salary he earns with his
current employer,
Lifestyle Financial Services. While there is no
shame in earning reasonable fees as a lawyer, it is not irrelevant
that part of
Theron’s motivation to resume practice is the
monetary burden imposed by current commitments. Financial stress was
the reason
for his previous lapses and will, it seems, continue to be
a pressure which he will need to be able to resist, regardless how
hard
it presses.
[35] In the light of the above
considerations and the very short period which passed from the time
of the striking-off to the institution
of the re-admission
application, it is difficult to see how even the most convincing
character evidence from third parties would
enable a court to be
satisfied of a genuine, complete and permanent reformation on
Theron’s part. But in any event the character
evidence does not
have this very convincing character. The force of the affidavits from
certain lay acquaintances of Theron is
inevitably reduced by the fact
that the deponents are not lawyers with an appreciation of the very
high standards which the court
expects from practitioners and by the
fact that they are his friends or associates with a natural sympathy
for his plight. A further
difficulty with those affidavits is that
the deponents all had a very high regard for Theron until they learnt
of his misconduct,
ie were not able to perceive his character flaws
at the time he was perpetrating the misconduct. And then, fairly
shortly after
he shared with them his fall from grace, they became
convinced of his contrition and that he would not err again. It seems
to me
that all of them held this view, ie that he was fit to continue
practising as an attorney, before Theron was struck off the roll
in
May 2012. For example, Mr Louw, a financial broker, says that after
an initial period of mistrust he began to entrust deceased
estates to
Theron as from October 2009. Mr du Toit, a credit manager, says that
although his initial reaction was one of mistrust
he subsequently
recovered full confidence in Theron. He refers to their frank
discussions over the last three years. However, this
court was not
satisfied that Theron was a fit and proper person to remain on the
roll at the time he was struck off in May 2012.
The primary focus of
character evidence thus needed to be reformation in character
subsequent to the striking-off.
[36] There was a character affidavit
from one attorney, being Rust. He too, though, is Theron’s
friend, which may affect his
impartiality. Furthermore, in the
striking-off proceedings he filed a confirmatory affidavit regarding
Theron’s explanation
for the debit of R30 000. It would be
unfair to Rust, who is not a party to these proceedings, to express
criticism of him but
the cogency of his affidavit in support of
Theron’s character in the present proceedings is I fear
diminished by his apparent
confirmation in the earlier proceedings of
the fact that he allowed Theron to use his (Rust’s) trust
account to conceal the
loan proceeds from Theron’s wife.
[37] An additional character witness
was introduced as part of Theron’s supplementary founding
papers. The affidavit in question
was by Dr JW Burger (‘Burger’),
a minister in the NG Church. Theron was a member of Burger’s
congregation in
Caledon but there was little contact for five years
until Theron contacted him in June 2013 to request an interview.
Theron evidently
wished if possible to have Burger’s support in
the re-admission application. Burger summarised the interview in his
affidavit.
His concluding recommendation in paragraph 10 was that
Theron be given a chance to practise again, that he had learnt a
harsh lesson
and that he would tackle the remaining few years of his
professional life with honesty and commitment. Burger expressed the
view
that Theron was not inherently an unreliable person.
[38] However, paragraphs 8 and 9
presented some difficulty for Theron, as the Law Society pointed out
in its opposing papers. In
those paragraphs Burger said that Theron
in the interview expressed the view that he had not set out to behave
unethically but
had committed accounting errors (‘… dat
hy nie doelbewus oneties wou optree nie, maar wel boekhoukundige
foute begaan
het’). He did not want to prejudice anyone but his
decisions under pressure had been wrong decisions. He felt guilty for
the damage he had caused to the firm’s reputation, for the
community’s disillusionment and for the harm the affair had
caused in his relationship with his children. Theron regarded the
striking-off as very harsh (‘dat die tugmaatreëls
baie
streng was’) and not in keeping with the nature of his
misconduct. He had been able to explain most of the charges against
him but was not given the opportunity to put his case to his
partners. He needed to process these emotions and had made progress
in doing so.
[39] For obvious reasons, the above
statements by Theron to Burger do not inspire confidence that he has
yet appreciated the true
import of his misconduct. In response to the
Law Society’s criticisms in this regard, the applicant filed a
further affidavit
from Burger as part of his replying papers. The
latter stated that Theron had indeed admitted during the interview
that he had
mismanaged and misapplied trust and business funds and
that what he had done under financial pressure of the divorce was
unethical.
Regarding paragraph 9 of his earlier affidavit, Burger
said that Theron had hoped that he would be suspended rather than
struck-off
but now accepted the sanction and wished to carry on with
his life if afforded the opportunity.
[40] I am left somewhat uncertain as to
what exactly Theron intended to convey to Burger. While I have no
reason to doubt the sincerity
of what Burger says in his
supplementary affidavit, I also see no reason to doubt that he
accurately conveyed, in paragraphs 8
and 9 of his earlier affidavit,
the impression made on him by Theron during the interview. Burger
does not say that he interviewed
Theron again in order to clarify
matters. I do not think, in the circumstances, that this single
interview, with its equivocal
import on matters crucial to the
re-admission, can be given significant weight.
[41] Theron also delivered, as part of
his replying papers, an affidavit by a Dr S Badenhorst, a counselling
psychologist who interviewed
him on three occasions for a total
period of five hours during May and June 2014. She subjected him to
certain psychometric tests.
Her interpretation of the evaluation was
that he ‘has relative low ego strength, is uncertain about
himself, and finds it
difficult to cope with life demands’,
that as a result of his limitations ‘he attempts to present
himself in a more
positive light than what he is’, that he
attempts to please others to win their approval, which explains his
behaviour in
the past. His ‘rigidness is overruled by his
attempt to accommodate others’, which results in him
‘experiencing
feelings of guilt’. After his fall from
grace he lost hope for the future and experienced high levels of
anxiety, using alcohol
as a coping mechanism. He admitted that he had
‘made a mistake’ and showed remorse. He had suffered a
great deal from
humiliation in the community. He had also suffered
financially, physically and emotionally. He was ‘adamant not to
overstep
any unethical boundaries ever again’. She says: ‘The
opinion exists that the possibility for similar offences are
unlikely’.
Her recommendation was that the possibility of
restoring Theron to his professional role receive ‘positive
consideration’.
[42] In my view, Badenhorst’s
recommendation, which seems to me to be tentatively expressed, does
not appear to flow from
the tests she applied and her assessment of
Theron’s personality. I do not doubt that she genuinely thinks
he should be given
another chance but I do not find in her report an
expert assessment which gives the degree of assurance of reformation
of character
required for re-admission.
[43] I have taken into account that
Theron has paid a substantial amount to the firm, both as reparation
to clients and for damage
caused to the firm’s reputation, and
that there are no outstanding claims by trust creditors. This,
however, is not in itself
evidence of reformation (though a failure
to have made reparation would have called into doubt the genuineness
of the remorse expressed
by Theron).
[44] In matters like this one may feel
a measure of sympathy for the applicant. It is not the purpose of
this judgment to condemn
Theron. It is possible that he would serve
the community with diligence and integrity if re-admitted. However,
the court must remind
itself that the primary focus of its
disciplinary jurisdiction is the protection of the public, not the
punishment of the errant
attorney (Malan & Another v Law Society,
Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) para 7; Budricks supra para
7). It is not the court’s function, when considering
re-admission, to give the applicant
‘another chance’. The
court does not, in order to refuse relief, need to be satisfied that
the applicant is not a fit
and proper person to practise as an
attorney. It is for the applicant to discharge the onus of convincing
the court on a balance
of probabilities hat there has been a genuine,
complete and permanent reformation on his part and that the defect of
character
or attitude which led to his being struck-off no longer
exists and that he will if re-admitted conduct himself as an
honourable
and trustworthy member of the profession. I am not
satisfied on these matters, from which it follows that the
application must
be dismissed with costs.
NDITA J
ROGERS J
APPEARANCES
For Applicant: Mr M Verster
Instructed by: Bellingan Muller
8 Zinnia Street
Ridgeworth
Bellville
For Intervening Respondent: Mr SJ
Koen
Bisset Boehmke McBlain
11th Floor, Triangle House
22 Riebeek Street
Cape Town