Swartzberg v Law Society, Northern Provinces

• Jurisdiction: South Africa
• Judge: Mpati DP, Mthiyane JA, Nugent JA, Cloete JA and Ponnan JA
• Judgment Date: 28 March 2008
• Citation: 2008 (5) SA 322 (SCA)
• Docket Number: 83/07
• Hearing Date: 21 February 2008
• Court: Supreme Court of Appeal
• Counsel: SJ Maritz SC for the appellant. AT Lamey for the respondent.

Ponnan JA: D

[1] In his book Confessions of an Uncommon Attorney, Reginald L Hine observes somewhat wryly:

The law, precisely because it is not an exact science, is a most exacting profession, and you will find its practitioners driven to do other E things - preferably illegal - to preserve their health of mind.

One instinctively recoils, I am sure, at the breadth and harshness of that indictment and yet, albeit infrequently, one encounters conduct, as here, that is wholly incongruous with the calling of an honourable profession - conduct that may well serve to support that charge.

F [2] The appellant, Mr Isaac Swartzberg, applied to the Pretoria High Court for his readmission and enrolment as an attorney. The application was opposed by the respondent, the Law Society of the Northern Provinces (the Law Society). Bosielo J (Pretorius J concurring) dismissed the application with costs, but granted leave to the appellant to appeal to G this Court. The appellant, who is presently 77 years old, was originally admitted as an attorney on 18 October 1955 and practised as such in Pretoria for some 44 years. On 13 August 1999 and on the application of the Law Society, the appellant's name was struck from the roll of attorneys by Mynhardt J.

H [3] In brief the gist of the complaints against the appellant were that he had failed to keep proper books of account both in general and as to trust moneys over a protracted period resulting in deficiencies in his trust account of approximately R249 000. Moreover, he had devised a stratagem to conceal those shortages which remained undetected from at least I 1996 until August 1998. He thus successfully hoodwinked his auditor into certifying that his books of accounts were being properly maintained and on the strength of that secured a fidelity certificate from the Law Society.

[4] For a fuller appreciation of the appellant's wrongdoing, however, it is J nonetheless necessary to refer in greater detail to the allegations levelled

Ponnan JA

by the Law Society against him in its application for his striking-off. A First, the appellant had been instructed to prosecute a third party claim on behalf of a certain Mr Uys. The claim was settled during 1994 and after payment of disbursements and deductions for fees a balance fell due for payment to his widow, Mr Uys since having died. By the time that payment was ultimately effected by means of a trust cheque to Ms B Uys there were no longer any funds standing to her credit in the appellant's trust account. It followed therefore that the appellant had utilised trust moneys standing to the credit of one of his other clients to effect the payment in question to Ms Uys.

[5] Second, one of the appellant's clients, a Mr Jacobs, alleged that he C had been overcharged by the appellant, who had allegedly also not properly accounted to him. A disciplinary enquiry was held by the Law Society, before which the appellant declined to testify. The disciplinary committee concluded that the appellant had accepted money from a client for professional work for which he did not properly account and in D the light of the fact that he had charged a seemingly exorbitant fee, he was guilty of overreaching.

[6] Third, one of the appellant's clients, Ms Van der Linde, had lent and advanced the sum of R100 000 to the appellant. The appellant failed to effect repayment in accordance with his loan agreement with Ms Van der E Linde. Ultimately summons had to be issued on her behalf by new attorneys who had been instructed by her to recover the moneys. Before doing so, however, her new attorneys encountered considerable difficulty in persuading the appellant to release her file to them.

[7] Fourth, Mr Bambise was employed for a period in excess of 20 years F as a messenger by the appellant. During 1995 Mr Bambise's wife died and he was appointed the executor of her deceased estate. He turned to the appellant for assistance. On 31 January 1996 an amount of R198 356,35 was paid into the appellant's trust account in favour of that estate. It was withdrawn that very day by the appellant and a fee for the G full amount was debited to that account. Mr Bambise was forced to consult another firm of attorneys to recover those moneys. The appellant eventually acknowledged his indebtedness to Mr Bambise by signing an acknowledgment of debt in his favour. He did not however comply with his obligations under the acknowledgment and in due course summons H had to be issued against him. Although the appellant denied all of the essential allegations in his plea and sought to delay finalisation of the matter by seeking a postponement, ostensibly on the basis that the matter was the subject of a disciplinary enquiry, he eventually settled the matter on the day of the trial. Notwithstanding the written settlement I agreement and a consent to judgment, subsequent payment of the agreed instalments in reduction of his indebtedness to Mr Bambise was neither timeous nor in full. As at 13 August 1999 the total repaid by the appellant to Mr Bambise was a paltry R21 000. It thus fell to the fidelity fund of the Law Society to thereafter make good the shortfall. J

Ponnan JA

A [8] Although the appellant initially sought to oppose the application for his striking-off, he did not persist with his opposition. Nor did he file an answering affidavit in response to the allegations levelled against him by the Law Society.

[9] Flowing from those allegations the appellant was arraigned in the B Pretoria Regional Court during 2000 on a charge of theft of R220 000 from his trust account. He was convicted on his plea of guilty and sentenced to a fine of R100 000 or three years' imprisonment. He elected to pay the fine. A further term of two years' imprisonment was conditionally suspended for a period of four years. One such condition C was that he repay the amount of R220 000 to the fidelity fund of the Law Society within seven days of sentence. That condition he duly complied with.

[10] During August 2002 the appellant brought an application - which was subsequently withdrawn - for his readmission. Of that application D the appellant states in his present founding affidavit:

Prior to the launching of the application I appeared before a committee of the Law Society in an attempt to persuade the Law Society that I qualified for readmission. Despite the fact that the Law Society was not so satisfied I brought the application. However, in due course I was advised by those representing me that the application would probably E not succeed, and I proceeded to withdraw the application.

[11] Eighteen months later, as the appellant puts it, he renewed the application for his readmission as an attorney. That application was dismissed with costs on the attorney-and-client scale by Daniels J F (Makhafola AJ concurring) on 29 November 2004. In dismissing the application, Daniels J stated:

When one reads the applicant's version of events it is difficult to understand why and on what basis he was ever charged. His explanation is exculpatory and he displays . . . a disregard of the facts. The applicant clearly does not understand the gravity of his errant ways. If G he does not understand he cannot be heard to say he has remorse.

[12] On 19 December 2005 the appellant deposed to his founding affidavit in support of the application which is the subject of this appeal. He there states:

H I have studied all the papers in the two aforesaid applications, as well as the judgment of His Lordship Mr Justice Daniels. I am ashamed by the realisation that I never actually came to terms with the fact that my acts of dishonesty demonstrated a material defect of character. On re-reading my own papers, it became clear to me that I continued to consider myself an honest man who had succumbed to an isolated act I of dishonesty, as to which I offered various excuses.

[13] On 6 February 2006 the appellant appeared before the Council of the Law Society. He thereafter filed a supplementary affidavit. The purpose, so he contends, was twofold: first, he had been informed by the Council of the Law Society that he 'had not made sufficient disclosure of J the reasons for his demise as an attorney'; and, second, he had been

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requested to deal 'specifically with those persons who had been A reimbursed by the attorneys' fidelity fund'. In his supplementary affidavit the appellant describes his conduct thus:

To hide what I was doing I used a mechanism of reversing fees debits from time to time to balance the books. This is subterfuge because the reversal of debits was not accompanied with any payment at all. In this way the actual trust deficit continued to grow. B

He further states:

I recognise that my conduct was reprehensible and unbecoming. . . . I have overcome the trait of dishonesty displayed by me completely.

[14] Where a person who has previously been struck off the roll of C attorneys on the ground that he was not a fit and proper person to continue to practise as an attorney applies for his readmission,

the onus is on him 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 D 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.

(Per Corbett JA in Law Society, Transvaal v Behrman E 1981 (4) SA 538 (A) at 557B - C.)

[15] In considering whether the onus has been discharged the court must

have regard to the nature and degree of the conduct which occasioned F applicant's removal from the roll, to the explanation, if...