Law Society of the Cape of Good Hope v Windvogel

• Jurisdiction: South Africa
• Judge: Foxcroft J, Selikowitz J, Brand J
• Judgment Date: 29 March 1995
• Citation: 1996 (1) SA 1171 (C)
• Docket Number: 11522/94
• Counsel: A G Binns-Ward for the applicant. D J Jacobs for the respondent.
• Court: Cape Provincial Division

F Foxcroft J:

This is an application by the Law Society of the Cape of Good Hope for the striking of respondent's name from the roll of attorneys of this Court. An order is also sought requiring respondent to surrender and deliver to the Registrar of this Court his certificate of enrolment as an attorney. The notice of motion contains a number of ancillary prayers G relating to possible non-compliance with this Court's order and other consequences of the desired striking-off.

The application was unopposed until due for hearing on 24 February 1995. The respondent informed applicant's attorneys on the previous evening that he wished to apply for a postponement of the application and for condonation for his late filing of notice of intention to defend. He also H applied that the related interdict under case No 11522/94 be postponed for hearing on the same day as the application to strike off.

The respondent was granted leave to oppose and the matter postponed until 10 March 1995 by consent. It was further ordered that costs of the postponement would stand over for determination on that date. I should I add that the respondent had tendered, in para 4 of the notice of motion of 24 February 1995 requesting a postponement, to pay the applicant's costs of the postponement of both applications, namely the striking-off and the interdict.

The notice of motion to which I have referred was not filed when the matter was due to commence on 24 February, and it stood down for the J necessary papers to be prepared.

Foxcroft J

A The respondent thereafter filed an opposing affidavit on 3 March 1995, and the applicant filed replying affidavits on 7 March 1995.

In his heads of argument prepared before opposition emerged, Mr Binns-Ward, who appeared for the applicant, drew attention to the essential complaints against the respondent. These were that he had been B delinquent in his administration as curator bonis of the estate of one T J Brown and had actually misappropriated some of the funds of the patient which were held by him in trust as curator bonis.

Secondly, the respondent had failed to keep proper books of account, more particularly in respect of trust account transactions, and there had been C a substantial shortfall in the respondent's trust accounts on many occasions.

When the matter was argued before us, Mr Binns-Ward stressed the most serious aspects of this matter, namely the breach of trust as a curator bonis and misappropriations from the patient's funds.

The respondent admitted that he had for a period of more than a year D failed to comply with the requirements of this Court and those set by the Master in respect of his administration as curator bonis of the said estate, and had acted in contravention of the terms of his curatorship by making payments (subsequently said by the respondent to be loans) to two persons, Vraagoom and Daniels. The respondent also admitted that he had E acted carelessly and negligently in not obtaining any security from these so-called borrowers of trust funds.

In regard to the allegation by Mr Burman, the president of the Law Society, that the respondent had stolen R5 000 from the moneys which he had held on behalf of Brown, the respondent concedes that this sum was F paid into his personal banking account, but he maintains that it was never his intention to deprive Brown of this money and had accordingly not stolen it. Later in his affidavit in reply to the same allegation by Mrs Hoffmann, the applicant's director, the respondent says that all transactions conducted in respect of Brown's trust ledger account were recorded and that the term 'disbursement' used by his bookkeeper in regard G to his unauthorised loans to Vraagoom and Daniels was incorrect. The respondent maintained that he had advised his bookkeeper that these sums were loans and that he was not aware that his bookkeeper had described them as disbursements. The respondent went on to say that when the incorrect description subsequently came to his notice, he did not consider H that it warranted changing. In para 5.4 of his opposing affidavit he deals further with this sum of R5 000, saying that he intended to invest it on behalf of the client, but one Moolman was unable to process the investment plan and for this reason he, the respondent, had the cheque endorsed and deposited it into his personal banking account with the intention of paying it to Moolman at a later 'mutually convenient stage'. I He goes on to say that although he subsequently used the money, he

'. . . remained aware and ready to pay it over to Mr Moolman for the investment plan previously discussed with him. Unfortunately, due to a combination of work pressures and negligence, I never did so until applicant started its investigation. I then explained the position to J applicant and promptly replaced the R5 000 but

Foxcroft J

A could - due to the onset of the investigation - not proceed with the investment plan.'

As Mr Binns-Ward pointed out, the withdrawal of this sum occurred in June 1993, and a year later the funds were still in the hands of the respondent.

B I agree with the applicant's counsel's submission that the respondent's attempted explanation in this regard is not credible and that the only inference which could reasonably be drawn is that the respondent committed theft.

The respondent also admits that on 11 February 1993 he transferred R10 000 C from the moneys he held on behalf of Brown to his business account in respect of fees for which he had never rendered an account to Brown and/or the Master, who requires such costs to be taxed before payments can be made.

Mr Binns-Ward submitted, correctly in my view, that the conduct described D above was sufficient, standing alone, to require the respondent to be struck off the roll of attorneys. In addition to these specific instances of dishonesty, there were general problems associated with the trust account and a disregard by the respondent of shortfalls in this account on many occasions. What is more, the respondent had on 30 September 1993 E drawn a cheque on his trust account in an amount of R18 922,08 in respect of fees due to him which he had anticipated receiving, but had not yet received.

Mrs Hoffmann refers in her replying affidavit to the complaint lodged by a client, a Mrs Van der Ventel, who approached the applicant after she had F not received payments of the proceeds of a sale of her immovable property. This issue was first raised on his papers by the respondent in his application for postponement of the main application, and the respondent's answer in broad terms is that he launched an investigation which revealed that one of his employees, a Mr Sampson, had without the respondent's knowledge deposited the proceeds of the sale into the business account of G the practice and had issued a business cheque to Mrs Van der Ventel for the amount due to her. Mrs Hoffmann adds that after she investigated this matter the respondent came to see her on 25 November 1994 to tell her that he had seen Mrs Van der Ventel the previous evening and that he had now paid her the proceeds of the transfer. He said that the proceeds of the sale had accidentally been paid into the business account and that Sampson H was sorry that he had not told her the truth the previous day.

There is a further affidavit from the said Sampson, who supports Mrs Hoffmann's affidavit as to what transpired when she visited him, and he records his regret at having misled her into thinking that Mrs Van der Ventel had been paid.

I Whatever the exact details of this aspect of the matter may be, the important point is that the respondent, despite the earlier order of this Court in regard to the strict...