Botha and Others v Law Society, Northern Provinces

• Jurisdiction: South Africa
• Judge: Mpati P, Brand JA, Cloete JA, Ponnan JA and Snyders JA
• Judgment Date: 19 March 2009
• Citation: 2009 (3) SA 329 (SCA)
• Docket Number: 50/08
• Hearing Date: 19 February 2009
• Counsel: BP Geach SC (with J Vorster) for the appellants. AA Louw SC (with HJL Vorster) for the respondent.
• Court: Supreme Court of Appeal

Botha and Others v Law Society, Northern Provinces
2009 (3) SA 329 (SCA)

2009 (3) SA p329

Citation	2009 (3) SA 329 (SCA)
Case No	50/08
Court	Supreme Court of Appeal
Judge	Mpati P, Brand JA, Cloete JA, Ponnan JA and Snyders JA
Heard	February 19, 2009
Judgment	March 19, 2009
Counsel	BP Geach SC (with J Vorster) for the appellants.; AA Louw SC (with HJL Vorster) for the respondent.

Flynote : Sleutelwoorde B

Attorney — Misconduct — Removal from roll — Whether appropriate — Transgressions including chaotic and dishonest bookkeeping, and touting by giving kickbacks for referrals — Lack of insight and contrition shown — Removal from roll appropriate. C

Attorney — Misconduct — Appropriate order — Suspension or removal from roll — Protection of public overriding punishment of wrongdoer — Offending attorneys giving disingenuous explanations for their actions, showing lack of integrity, openness and insight into extent of transgressions (keeping of disorderly books and touting) — Attorneys not fit to practise and removal D from roll, not mere suspension, appropriate.

Attorney — Misconduct — Appropriate order — Suspended suspension from practice — Order not appropriate where found that attorney not fit and proper person to practise — In such cases only actual suspension or removal from roll appropriate. E

Headnote : Kopnota

The respondent law society applied in the High Court under s 22 of the Attorneys Act 53 of 1979 for the removal of the three appellants (partners in an attorneys' practice) from the roll of attorneys (and, in the case of the first and second appellants, also from the roll of conveyancers) on the ground that they were not fit and proper persons to continue practising. The common-cause facts on which the respondent brought its application F were, first, that the books of account kept by the appellants' practice reflected a trust shortage in excess of R12 million; second, that the appellants were touting for work; and third, that numerous of the appellants' clients and some colleagues had raised complaints of unprofessional and dishonourable conduct by the appellants in their relationships with clients and colleagues. The High Court found that the appellants were not G

2009 (3) SA p330

A fit to continue practising and granted an order suspending them from practice for a period of two years. The appellants appealed against that decision to the Supreme Court of Appeal. There they contended that the High Court erred in concluding that they were not fit and proper persons to continue practising and that the penalty imposed by the High Court was excessive in the circumstances. They sought a fine in lieu of an order of B suspension. The respondent counter-appealed against the penalty only, contending that the High Court erred in the exercise of its discretion and ought to have struck the appellants from the roll of attorneys and, in the case of the first two appellants, also from the roll of conveyancers.

Held, that the appellants' books of account were totally incompatible with the C requirements of the profession and to describe this situation as chaotic was appropriate. The appellants' persistence to the contrary showed a lack of insight and responsibility. (Paragraph[11] at 334D - E.)

Held, further, that the appellants were dishonest in their denial of touting for work. It was apparent from the books of account that the appellants had given'kickbacks' to certain estate agents for referring work to their practice. They were dishonest in their bookkeeping and in their explanation to the D court. (Paragraphs [12] and[16] at 334F - H and 336G - H.)

Held, further, that on these facts alone, and without the need to delve into the individual complaints, the conclusion was inevitable: the court a quo had been correct in concluding that the appellants were not fit and proper persons to practise. (Paragraph[20] at 337G.)

Held, further, as to the appellants' argument that their suspension from practice E should be suspended, that it would be anomalous to make such an order once it had been found that they were not fit and proper persons to practise. (Paragraph[21] at 337H - 338A.)

F Held, further, that at the penalty stage of the inquiry the function of the court was primarily to protect the public rather than punish the appellants. (Paragraph[22] at 338B.)

Held, further, that the appellants had been dishonest, had shown a lack of integrity and openness and had shown no insight into the extent of their transgressions, and that an order suspending them from practice would only be appropriate if there was some way in which it could be expected that they would overcome those character traits during their suspension. Since it was impossible to look into the future and know that the public would be G adequately protected after a period of suspension, the sensible approach was to prevent the appellants from practising until they were able to prove that they had reformed to the point that they could be allowed to practise again. (Paragraph[23] at 338C - E.) Order of the court a quo set aside and replaced with an order striking the names of the appellants from the rolls of attorneys and conveyancers. (Paragraph [28] at 339C - F.)

Cases Considered

Annotations H

Reported cases

Botha v Law Society, Northern Provinces2009 (1) SA 227 (SCA): dictum in para [3] applied

Incorporated Law Society, Transvaal v Visse and Others; Incorporated Law I Society, Transvaal v Viljoen1958 (4) SA 115 (T): referred to

Jasat v Natal Law Society2000 (3) SA 44 (SCA) ([2000] 2 All SA 310): applied

Law Society of the Cape of Good Hope v Budricks2003 (2) SA 11 (SCA) ([2002] 4 All SA 441): dictum in para [7] applied

Law Society, Transvaal v Matthews1989 (4) SA 389 (T): dictum at 394G - I J applied

2009 (3) SA p331

Malan and Another v Law Society, Northern Provinces2009 (1) SA 216 (SCA): A applied

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 623 (A): referred to

Prokureursorde van Transvaal v Kleynhans1995 (1) SA 839 (T): dictum at 853G - H applied. B

Case Information

Appeal from a decision in the Transvaal Provincial Division (Pretorius J and Raulinga AJ). The facts appear from the reasons for judgment.

BP Geach SC (with J Vorster) for the appellants.

AA Louw SC (with HJL Vorster) for the respondent. C

Cur adv vult.

Postea (March 19).

Judgment

Snyders JA: D

[1] All three appellants are attorneys and the first and second appellants are also conveyancers. They practised in partnership under the name De Jongh & Pienaar (the firm) until they were suspended [1] from practice for a period of two years by an order of the Pretoria High Court.

[2] The appellants appeal against this order and seek a suspension of the E High Court order on suggested conditions. They contend that the court a quo, due to factual misdirections, incorrectly concluded that they are not fit and proper persons to practise as attorneys and/or conveyancers and imposed a penalty that is excessive in the circumstances. They seek the following order on appeal: F

1.

That the appellants are found to be fit and proper individuals to continue practising as attorneys and conveyancers.

2.

That the appellants are fined an amount of R50 000.

3.

That the appellants are suspended from practising as attorneys and G conveyancers for a period of six months which suspension is wholly suspended for a period of three years on the condition that the appellants are not found guilty by a disciplinary committee or other competent functionary of any transgressions of the rules of the respondent concerning the management of their financial affairs. H

[3] The respondent, in a counter-appeal, supports the finding that the appellants are not fit and proper persons to practise, but contends that the trial court erred in the exercise of its discretion by imposing the I

2009 (3) SA p332

Snyders JA

A penalty that it did as it should have struck the appellants from the roll of attorneys and, in the case of the first two appellants, the roll of conveyancers. [2]

[4] Section 22(1) of the Attorneys Act 53 of 1979 (the Act) prescribes a three-stage inquiry, as was summarised in Jasat v Natal Law Society B 2000 (3) SA 44 (SCA) ([2000] 2 All SA 310) at 51C - H:

First, the Court must decide whether the alleged offending conduct has been established on a preponderance of probabilities . . . . The second inquiry is whether, as stated in s 22(1)(d), the person concerned'in the discretion of the Court' is not a fit and proper person to continue to C practise . . . . The third inquiry is whether in all the circumstances the person in question is to be removed from the roll of attorneys or whether an order suspending him from practice for a specified period will suffice.

[5] The first stage of the inquiry involves a purely factual finding whereas D both the second and third stages involve the exercise of a discretion, which can only be interfered with on appeal when the court of first instance did not exercise its discretion judicially. [3] The findings of the court a quo in respect of the first stage were largely common cause and not contentious in this appeal. In relation to the second stage of the inquiry the appellants rely on several alleged...