Eastern Cape Society of Advocates v Vusani (3189/2012) [2014] ZAECGHC 93 (31 October 2014)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 3189/2013

DATE HEARD: 16/10/2014

DATE DELIVERED: 31/10/2014

NOT REPORTABLE

In the matter between:

EASTERN CAPE SOCIETY OF ADVOCATES

APPLICANT

and

NCEBA WELLINGTON VUSANI

RESPONDENT

Advocate – application to have name of respondent struck off roll of advocates – applicant having standing to apply for striking off of non-member – respondent not a fit and proper person – contravened referral rule, performed functions of attorney and devised stratagem to conceal unprofessional conduct – admission that respondent used attorney as attorney of convenience – respondent’s name ordered to be struck off the roll of advocates.

JUDGMENT

PLASKET J

[1] The applicant, the Eastern Cape Society of Advocates, has applied in terms of s 7 of the Admission of Advocates Act 74 of 1964 (the Act) for an order striking the name of the respondent, Mr NW Vusani, from the roll of advocates, alternatively that he be suspended from practice, further alternatively that another appropriate sanction be imposed upon him, and that he be directed to pay the costs of this application.

[2] The matter is opposed by the respondent on two bases: that the applicant has no ‘jurisdiction’ over him – and hence does not have standing; and that he has not conducted himself in the unprofessional manner alleged by the applicant.

Standing

[3] The respondent has taken the point that the applicant has no standing to bring these proceedings because he is not a member of the applicant.

[4] Section 7(1) of the Act provides that ‘a court of any division may, upon application, suspend any person from practice as an advocate or order that the name of any person be struck off the roll of advocates’, inter alia, ‘(d) if the Court is satisfied that he is not a fit and proper person to continue to practice as an advocate’.

[5] Section 7(2) provides:

‘Subject to the provisions of any other law, an application under paragraph (a), (b), (c) or (d) of subsection (1) for the suspension of any person from practice as an advocate or for the striking off of the name of any person from the roll of advocates may be made by the General Council of the Bar of South Africa or by the Bar Council or the Society of Advocates for the division which made the order for his or her admission to practice as an advocate or where such person usually practices as an advocate or is ordinarily resident. . .’

[6] A similar argument to that of the respondent was raised in De Freitas & another v Society of Advocates of Natal (Natal Law Society intervening)[1] in which the constitutionality of s 7(2) was challenged because it gave the various societies of advocates ‘jurisdiction’

over non-members.

[7] Langa DP held that the submission that societies of advocates had disciplinary jurisdiction over non-members was not correct: instead, s 7(2) of the Act gives them ‘standing to apply to Court for an advocate to be disciplined’ and it is the court that exercises disciplinary power.[2] He held further that before the section was enacted the courts had always recognised the standing, at common law, of societies of advocates to bring proceedings such as these.[3] Finally, he held that as no constitutional right was infringed by s 7(2) leave to appeal against the court below’s finding that it was not inconsistent with the Constitution was refused.[4]

[8] Despite being forewarned by the applicant’s heads of argument on this point, the respondent persisted in his attack on the applicant’s standing. He was, however, not able, either in his heads of argument or in his argument before us, to refer us to any authority in favour of his argument, to distinguish De Freitas or suggest any basis upon which we may not be bound by it. We are, of course, bound by De Freitas. The respondent’s attack on the standing of the applicant is devoid of merit.

The facts

[9] The applicant, in its founding affidavit deposed to by its chairman, Mr Marius Swanepoel, alleges that the respondent is guilty of unprofessional conduct because: (a) he engaged in activities that properly fall within the ambit of the functions of an a attorney by, inter alia, accepting instructions from members of the public; (b) while conducting himself in this way, he operated outside of the statutory scheme created by ss 78 and 79 of the Attorneys Act 53 of 1979; and (c) in order to operate in this way, he devised a stratagem to conceal the true nature of his activities.

[10] The complaint against the respondent was made to the applicant by Mr CTA Minnaar, a director of the attorneys firm GP Van Rhyn, Minnaar and Co Inc of Uitenhage. It arose from his dealings with the respondent in a divorce matter in the Regional Court, Port Elizabeth in which Minnaar acted for the plaintiff and the respondent for the defendant. I shall set out their dealings, in the paragraphs that follow, that led to the complaint being lodged. Those are not in dispute.

[11] On 19 September 2011, Minnaar received a strangely framed notice of opposition in this matter. The body of the notice stated:

‘BE PLEASE TAKE NOTICE THAT the Defendant files his Notice of intention to defend the Plaintiff’s Summons with Particulars of Claim and pray to the above Honourable Court for the dismissal of the Plaintiff’s claim with costs.

KINDLY TAKE NOTICE THAT the Respondent appoints the address of JF STOFFELS ATTORNEYS. 42 BLOEMKOMBOOM STREET, 1A BUILDING, GAMBLE, UITENHAGE c/o SWARTS ATTORNEYS, 80 STANFORD ROAD, KORSTEN, PORT ELIZABETH to receive all correspondence in this proceedings.

KINDLY TAKE NOTICE THAT the Defendant is praying to the above Honourable Court to condone service of all documents to the Plaintiff’s Attorney address in Uitenhage.’

It is noteworthy that the street name of the attorney is incorrectly spelt. In addition, the reference at the bottom of the notice was:

‘(REF:JF STOFFELS/Adv. Vusani/pe/nss//11)’.

[12] During October 2011, Minnaar wrote two letters to Stoffels, the attorney mentioned in the notice, care of his Port Elizabeth correspondent. On 12 December 2011, he received a letter, not from Stoffels or his correspondent, but from the respondent. It stated in part, with reference to the divorce matter:

‘Kindly be informed that the matter is ready for trial and my instructions is to finalised this matter as quickly as I can.

Please be informed that a settlement agreement may be arranged even if we have a trial date that we request a trial date as soon as possible.

Do not hesitate to contact me if you need anything.’

[13] The letterhead of the letter was: ‘ADV N.W.VUSANI.’ It gave a postal address of 42 Bloekomboom Street, Uitenhage, a cell phone number and a fax number. It gave an office address, being Urban Foundation Centre, Ponana Tini Road, KwaNobuhle, Uitenhage. The postal address was the address of Stoffels’ practice and the office address was the address of the respondent’s chambers (as later confirmed by him to Minnaar telephonically). The letter contained the following reference:

‘NW Vusani/F Stoffels//11’.

[14] On 14 December 2011 Minnaar sent a fax to the respondent in which he said he was ‘somewhat at a loss to understand what your involvement in this matter is’. Minnaar then said:

‘Our understanding of the situation is that Defendant is entitled to be represented by an Attorney who is entitled to instruct Counsel to assist him. However, Counsel is not entitled to communicate directly with the Plaintiff’s attorneys. What we do not understand is: -

3.1 Are you an Attorney employed with JF Stoffels Attorneys or are you an Advocate and a member of the bar?

3.2 If you are a practicing Advocate would you please explain why your address is the same of (sic) JF Stoffels Attorneys?

3.3 Are you an admitted Advocate and are you practicing as an Advocate or are you an admitted Attorney or Candidate Attorney and are you practicing as an Attorney?

We need clarity on these issues before we are able to respond to your letter of 12 December 2011.’

[15] Minnaar spoke telephonically to the respondent on 12 January 2012 and his contemporaneous file note recorded their conversation as follows:

‘1. I asked him whether he is an Attorney or an Advocate and he says that he is an Advocate and that he acts independently.

2. He says that he acts on the instructions of Stoffels Attorneys.

3. He stated that 42 Bloekomboom Street Uitenhage on his letterhead is in fact the address of Stoffels Attorneys.

4. I asked him to give me Stoffels Attorneys’ fax number and he gave me 041 988 3184 and Mr Stoffels’ cell number is 083 476 9193.

5. He says that he practices from Urban Foundation Centre, Ponanatini Road, KwaNobuhle.

6. I asked him why his fax number is identical to that of Stoffels and he says that when he is instructed by a specific attorney he uses that specific Attorney’s details.

7. He says he is consulting with Stoffels tomorrow and he will get Stoffels to call me tomorrow.’

[16] On 17 January 2012, Minnaar wrote a letter to Stoffels. He recorded that Stoffels’ Port Elizabeth correspondent had informed him that it was no longer acting in the matter. He asked for details of Stoffels’ new correspondent. He then referred to three letters that he had sent to Stoffels and recorded that he had not received a reply from Stoffels to any correspondence addressed to him.

[17] By letter erroneously dated 20 January 2011 (rather than 20 January 2012) the respondent wrote to Minnaar to say that ‘I am instructed by Mr Stoffels from JF Stoffels Attorneys, 42 Bloekomboom Street, Gamble, Uitenhage herein’. He attached a copy of his admission certificate.

[18] On 1 February 2012, Minnaar wrote to the respondent to make settlement proposals in the divorce matter. On 2 February 2012, the respondent wrote back, agreeing to certain of the proposals and suggesting others.

[19] On 14 March 2012, Minnaar sent a letter of complaint in respect of the respondent to the chairman of the applicant.

[20] Despite that, correspondence between Minnaar and the respondent continued. So, for instance, on 27 March 2012 the respondent

sent Minnaar a letter attaching a draft deed of settlement. On 29 March 2012, Minnaar wrote back to the respondent. The letter

took forward the settlement of the matter. On 24 April 2012, the respondent sent a letter to Minnaar attaching an amended deed of settlement. Various other letters passed between them as they endeavoured to settle the matter.

[21] While the interactions between the respondent and Minnaar as detailed above are not in dispute, in the founding affidavit, Swanepoel seeks to draw certain inferences from these facts. I shall deal with some of these and the respondent’s answers below. They are relevant to the factual matrix within which this matter must be decided.

[22] First, Swanepoel, having set out the details that the respondent gave Minnaar in the telephone conversation of 12 January 2012, said:

‘The Respondent’s explanation, with respect, does not bear scrutiny. By writing directly to Mr Minnaar in the manner in which he did he was performing the duties of an attorney which, as an advocate, he is not entitled to do. The use of the address of the attorneys allegedly instructing him on his letterhead does not alter this fact. On the contrary, it is a stratagem directed as misleading the recipient of the letter into believing that he acts on the instruction of that firm of attorneys when he is not. It is accordingly dishonest. Had the Respondent intended to be transparent on this score he would no doubt have expressly reflected that address and fax number as being that of his instructing attorney’.

[23] The respondent’s answer to this paragraph is:

‘The content of this paragraph is not admitted.’

[24] In relation to the failure on the part of Stoffels to reply to any of Minnaar’s correspondence, particularly his letters raising ‘what was patently irregular conduct on the part of the Respondent’, Swanepoel drew the conclusion that the reason for the failure was that the respondent was ‘never properly instructed by the defendant’. One would have expected a full disclosure by the respondent as to how and when he was briefed. Instead his answer was this:

‘It is strange that Mr Stoffels cannot respond stating to Mr Minnaar that he did not receive instructions in this action if he did not and further that Mr Stoffels signed the pleadings.’

[25] When Swanepoel dealt with the respondent’s letter to Minnaar erroneously dated 20 January 2011, he said that the respondent, in this letter, had asserted ‘falsely, as it later transpires, that he acts on instructions from JF Stoffels Attorneys’ and that, as with other letters written by him, this one also contains an invitation ‘to contact him – as opposed to his attorney – if there is any need’. He concluded that ‘[s]elf-evidently, the Respondent intended to continue dealing with the matter as an attorney’.

[26] The respondents answer to this paragraph is:

‘I disagree with the content of this paragraph in that when I was approached by a client I used to informed (sic) a client that Mr

Stoffels is my instructing Attorney and he would sent (sic) him a bill after the matter is finalised and that was the case in this

action as it was in other cases.’

[27] Swanepoel, in dealing with the deed of settlement, made the point that it had obviously been prepared by the respondent himself,

referring to what Stoffels had reported to the Cape Law Society in a letter.[5] He also made the point that, in the conduct of the matter, all of the correspondence was between Minnaar and the respondent, with no involvement on the part of Stoffels at all.

[28] To this the respondent’s answer was:

‘The content of this paragraph is noted and add that Mr Minnaar was doing the same thing I was doing knowing so, that such conduct is wrong and inappropriate.’

[29] When Swanepoel dealt with whether the respondent was a fit and proper person, he made the points that he had accepted instruction directly from members of the public, which was unprofessional conduct (paragraph 33.1), and that he performed the work of the an attorney and operated outside the provisions of ss 78 and 79 of the Attorneys Act (paragraph 33.2), before concluding as follows (paragraph 33.3):

‘In doing so, the Respondent has displayed a lack of honesty, which dishonesty was deliberate and intentional. I say this because he self-evidently knew and understood the requirement that he, as an advocate, be instructed by an attorney. He purported to comply with this requirement by devising a stratagem, which was both dishonest and misleading, in conjunction with Mr Stoffels’ secretary which allowed him to perform the work of an attorney. That stratagem included the façade of an attorney’s address on his letterhead, a façade obviously designed to mislead by concealing his true activities. He has, in truth, throughout received instruction directly from the client and in all probability, has also received payment directly from the client in the matter for the “services” he has purported to render to him’.

[30] The respondent’s answer to these allegations is:

‘AD PARAGRAPH 33.1 THEREOF

The content of this paragraph is disputed.

AD PARAGRAPH 33.2 THEREOF

To respond to this paragraph I aver as follows, currently I am briefed by Mr Stoffels and I am in possession of a file of Mr Lantoor to draft an application for rescission of judgment, a judgment taken by the firm of GP van Rhyn, Minnaar Attorneys in Mr Minnaar is a director, and submit, that in my opinion Mr Stoffels is reluctant to deal with GP van Rhyn, Minnaar Attorneys.

AD PARAGRAPH 33.3 THEREOF

The content of this paragraph is strongly disputed.’

[31] The respondent, in his answering affidavit, either admits or ‘notes’ virtually every material fact. For instance, he admitted the following – and I quote from Swanepoel’s affidavit – in respect of the letter that he sent to Minnaar dated 12 December 2011:

’11.1 the letter is on the Respondent’s own letterhead – and not that of the attorneys allegedly representing the defendant;

11.2 the “office address” appears to be the address from which the Respondent previously practiced. (Subsequent correspondence from the Respondent reflects that he now practices at 58 Constitution Street, Uitenhage, Eastern Cape);

11.3 the “postal address” is that of JF Stoffels Attorneys;

11.4 the reference is now said to be “NW Vusani/FStoffels/11”;

11.5 the Respondent, an advocate, writes on behalf of the defendant to attorneys GP Van Rhyn, Minnaar & Co. – attorneys for the plaintiff;

11.6 without reference to any attorney, the Respondent refers to his instructions which are to finalise the matter as quickly as he can;

11.7 again without reference to any attorney, he invites a possible settlement of the matter;

11.8 the Respondent requests that Mr Minnaar contact him – as apposed to his instructing attorney – should Mr Minnaar need anything; and

11.9 the letter is signed by the Respondent, again without any reference to an attorney.’

[32] For the rest, the respondent’s denials are nothing but bare denials. I have cited some of particular importance above. Where explanations are given, they often do not help the respondent. For instance, in answer to allegations made by Stoffels in the letter to the Cape Law Society that the respondent used him as a front, the respondent said:

‘Content of this paragraph is admitted save part that I used Mr Stoffels as front, as I have already stated above in paragraph 20 that after the matter is finalised Mr Stoffels’ duty was to bill the client and that is the reason I informed the client that Mr Stoffels is my instructing attorney.’

[33] To the statement made by Swanepoel that, in the circumstances, the respondent’s name should be struck off the roll of advocates, he gave this response:

‘I admit that I did wrote letters to an Attorney but dispute that there was dishonest in my conduct and further submit that Mr Stoffels sign a Notice of intention to defend dated 19 September 2011 and Defendant’s Plea accompanied by the counterclaim dated 28

October 2011 and submit that my instructing Attorney cannot be trusted in this matter. I further submit that I did informed him that Mr Minnaar had asked him (Mr Stoffels) to call him. I further submit that after the General meeting I attended of my Bar, I was informed by our member of our disciplinary committee that it is against the ethics of the Bar to communicate with the opposite party and since then I amended my conduct.’

[34] In motion proceedings in which final relief is sought factual disputes are resolved on the papers by an acceptance of those facts alleged by the applicant that are either common cause or are not disputed as well as those facts alleged by the respondent that are in dispute.[6] That is the general rule. There are exceptions to it. As Harms DP said in National Director of Public Prosecutions v Zuma,[7] the situation may be different ‘if the respondent’s version consists of bald or uncreditworthy denials, raises fictitious

disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers’.

[35] In Wightman t/a JW Construction v Headfour (Pty) Ltd & another[8] Heher JA dealt with the way in which courts should consider the adequacy of a respondent’s denial in motion proceedings for

purposes of determining whether a real, genuine or bona fide dispute of fact had been raised. He stated:

‘A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say “generally” because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter.’

[36] As I have stated, the respondent either admits or does not dispute much of the evidence adduced by the applicant. To the extent that the respondent has denied allegations made by the applicants, those denials are so lacking in substance that they do not suffice to raise a real, genuine and bona fide dispute of fact. The matter must accordingly be decided on the facts alleged by the applicant.

Analysis

[37] The proper approach to cases of this kind – irrespective of whether the respondent is an advocate or an attorney – involves a three-stage enquiry. First, it must be determined whether the offending conduct alleged by the applicant has been established on a balance of probabilities. Secondly, if so, it must be determined whether the respondent is or is not a fit and proper person to continue to practice. This involves a weighing of the respondent’s conduct against what one would expect of an advocate or attorney. Thirdly, if it is concluded that the respondent is not a fit and proper person, the court must decide whether his or her name should be struck off the roll of advocates or attorneys or whether another less severe sanction may be appropriate.[9]

[38] The facts that have been proved establish that the respondent accepted instructions from a member of the public without having been briefed by an attorney; that he wrote letters to Minnaar as though he was an attorney and not counsel; that he involved himself in negotiations to settle the matter on the direct instructions, one assumes of his client, rather than Stoffels; that he drafted and amended a deed of settlement which he despatched directly to Minnaar; that, on his own admission, he used Stoffels as a front, advising clients who approached him directly that ‘Mr Stoffels is my instructing attorney’ and that Stoffels would ‘sent him a bill after the matter is finalised’; and that he inscribed the details of Stoffels’ practice on his letterhead in an apparent attempt, misleading, misguided and transparent as it was, to create the impression that he had been briefed by Stoffels.

[39] In Rösemann v General Council of the Bar of South Africa[10] the appellant’s conduct had been similar, in some respects, to the respondent’s in this case. On the referral rule and the work of an attorney that an advocate is not permitted to do, Heher JA said the following:[11]

‘[28] At this point the referral rule and its implications (as to which see De Freitas and Another v Society of Advocates of Natal and Another 2001 (3) SA 750 (SCA) at 756C - 760I and 764C - 765A and Commissioner, Competition Commission v General Council of the Bar of South Africa and Others 2002 (6) SA 606 (SCA) at 620C) become significant. An advocate in general takes work only through the instructions of an attorney. The rule is not a pointless formality or an obstacle to efficient professional practice, nor is it a protective trade practice designed to benefit the advocacy. The rule requires that an attorney initiates the contact between an advocate and his client, negotiates about and receives fees from the client (on his own behalf and that of the advocate), instructs the advocate specifically in relation to each matter affecting the client's interest (other than the way in which the advocate is to carry out his professional duties), oversees each step advised or taken by the advocate, keeps the client informed, is present as far as reasonably possible during interaction between the client and the advocate, may advise the client to take or not take counsel's advice, administers legal proceedings and controls and directs settlement negotiations in communication with his client. An advocate, by contrast, generally does not take instructions directly from his client, does not report directly or account to the client, does not handle the money (or cheques) of his client or of the opposite party, acts only in terms of instructions given to him by the attorney in relation to matters which fall within the accepted skills and practices of his profession and, therefore, does not sign, serve or file documents, notices or pleadings on behalf of his client or receive such from the opposing party or his legal representative unless there is a Rule of Court or established rule of practice to that effect (which is the case with certain High Court pleadings but finds no equivalent in magistrate's court practice). The advocate does not communicate directly with any other person, save opposing legal representatives, on his client's behalf (unless briefed to make representations), does not perform those professional or administrative functions which are carried out by an attorney in or from his office, does not engage in negotiating liability for or the amount of security for costs or contributions towards costs or terms of settlement except with his opposing legal representative and then only subject to the approval of his instructing attorney. (This catalogue does not purport to be all-embracing. It is intended only to illustrate the sharpness of the divide and to point the answer to other debates on the same subject.)

[29] It follows from the preceding overview that an instruction by an attorney to represent a client is not a proper instruction if

(a) it is not specific in identifying the work to be carried out by the advocate;

(b) it confers on the advocate a general discretion to litigate on behalf of his client;

(c) it expressly or impliedly authorises the advocate to by-pass the attorney or to run litigation without the particular participation of the attorney which I have described;

(d) it purports to authorise counsel to carry out any function which is not the proper function of an advocate or is properly the function of an attorney in the sense that it would normally be carried out only by an attorney or in or from his office.’

[40] As to the way in which the appellant had conducted himself and organised his mode of practicing, Heher JA said:[12]

‘The aforegoing discussion leaves no doubt as to the proper domain of the challenged activities of the appellant which are the subject of the appeal. The signing of the summonses and notice of motion and the furnishing of the name, address and telephone number of the legal practitioner on such documents belong among the bread and butter activities of an attorney. Nor can the context of his conduct be ignored: a nominal instructing attorney in Pretoria, clients in the Cape (one being the company for whom the appellant had previously worked as a legal adviser), an obvious expectation that the attorney would do no more than discuss the matters with counsel if he called upon her to do so, while he would drive the litigation. The appellant showed a complete lack of insight into his proper professional role. Confused he may have been, but having chosen to practise in a particular field of expertise he was guilty of negligence in failing to equip himself with the necessary knowledge to enable him to do so properly and within the legal and practical constraints of the profession.’

[41] The facts of this case establish that the respondent, in his dealings with Minnaar in the divorce matter, breached the referral rule that is central to the practice of an advocate – and part of the law of the land.[13] He did this by taking instructions directly from the client and proceeding to represent him, with Stoffels acting, at best, as an

attorney of convenience who signed the notice of intention to defend, the plea and counter-claim, and doing nothing else. (In his letter to the Cape Law Society, Stoffels said that he did not even have a file in the divorce matter.) The respondent also conducted himself as an attorney by corresponding directly with Minnaar, proposing ways of settling the matter and drafting and amending the deed of settlement. This is unprofessional conduct on both scores.[14]

[42] The respondent’s conduct fell far short of the conduct expected of an advocate. It has thus been established that he is not a fit and proper person to practice as an advocate. I turn now to the question of sanction.

[43] In Malan & another v Law Society, Northern Provinces[15] Harms ADP dealt with the alternative sanctions of striking off and suspension. He held:

‘Second, logic dictates that if a court finds that someone is not a fit and proper person to continue to practice as an attorney, that person must be removed from the roll. However, the Act contemplates a suspension. This means that removal does not follow as a matter of course. If the court has grounds to assume that after the period of suspension the person will be fit to practice as an attorney in the ordinary course of events it would not remove him from the roll but order an appropriate suspension.’

[44] Harms ADP continued to state, in the same paragraph, that it is ‘seldom, if ever, that a mere suspension from practice for a given period in itself will transform a person who is unfit to practice into one who is fit to practice’ and so it is ‘implicit in the Act that an order of suspension must be conditional upon the cause of the unfitness being removed’. If this is not so, the person will simply sit out the period of suspension and return to practice with the same disability or inability. He concluded, still in the same paragraph:

‘In other words, the fact that a period of suspension of, say, five years would be a sufficient penalty for the misconduct does not mean that the order of suspension should be five years. It could be more to cater for rehabilitation or, if the court is not satisfied that the suspension will rehabilitate the attorney, the court ought to strike him from the roll. An attorney, who is the subject of a striking-off application and who wishes a court to consider this lesser option, ought to place the court in the position of formulating appropriate conditions of suspension.’

[45] In this matter there is aggravation present. Apart from the violation of the referral rule and the respondent doing work that is the proper province of an attorney, he devised a stratagem to give the impression that he was working on the instructions of an attorney. That the insertion of the details of Stoffels on his letterhead was a stratagem is clear from his explanation to Minnaar and his own admissions that I have quoted that when he was approached directly by a client, he would inform the client that ‘Mr Stoffels is my instructing attorney’ and that Stoffels’ role was limited to signing pleadings and notices and billing clients on his behalf. All of this implies that the respondent’s misconduct was systematic and that he knew that what he was doing was unprofessional and wrong.

[46] That, in turn, raises the spectre of dishonesty in the way he conducted his practice and in the way in which he conducted this

case. On the one hand, he stated in his answering affidavit that he only found out that he was not allowed to conduct himself as he did when he was informed of this by a member of the organisation to which he belongs. As was submitted on behalf of the applicant, this explanation does not withstand scrutiny in the light of the respondent’s own admissions. Secondly, before us, he insisted

that he had done little wrong: all that he had done was to write a few letters. In his heads of argument, for instance, he stated that the ‘only aspect the Applicant proved is the fact that the Respondent wrote a letter to an attorney and the rest is speculation since the Applicant is trying hard to get the Respondent strike off the roll of Advocates’. Later in his heads of argument he submitted ‘that the Applicant’s application is not made on honest and in the best interests of justice in that the Applicant speculate in all of the allegations he made, only the letter wrote by the Respondent but further this letter did not cause any harm, damages or any prejudice’. All of this also shows a lack of insight into his misconduct.

[47] In these circumstances, I am of the view that a suspension from practice for a period will not serve the purpose of redressing the character defect that has rendered the respondent unfit to practice as an advocate. The only appropriate sanction is for his name to be struck off the roll of advocates.

The order

[48] I make the following order.

(a) The respondent’s name is struck off the roll of advocates.

(b) The respondent is directed to pay the applicant’s costs of this application, including the costs of two counsel.

___________________

C Plasket

Judge of the High Court

I agree.

__________________

G Goosen

APPEARANCES

Applicant: SC Rorke SC and TC Gauss instructed by Whitesides

Respondent: In person (GM Yeko Attorneys)

[1] De Freitas & another v Society of Advocates of Natal (Natal Law Society intervening) 1998 (11) BCLR 1345 (CC).

[2] Para 8.

[3] Para 9.

[4] Paras 9-10.

[5] Stoffels wrote this letter in response to an affidavit deposed to by Minnaar as part of a complaint against Stoffels to the Cape Law Society. The applicant endeavoured to obtain an affidavit from Stoffels in these proceedings but he failed to co-operate: he did not arrive at a consultation, avoided telephone calls and failed to answer SMS’s. This conduct does not reflect well on Stoffels. Far better is expected of an officer of the court.

[6] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-I.

[7] National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 26. See too Plascon-Evans (note 6) at 634I-635D.

[8] Wightman t/a JW Construction v Headfour (Pty) Ltd & another [2008] ZASCA 6; 2008 (3) SA 371 (SCA) para 13.

[9] General Council of the Bar of South Africa v Geach & others 2013 (2) SA 56 (SCA) para 50 (Nugent JA) and para 128 (Wallis JA); Kekana v Society of Advocates of South Africa [1998] ZASCA 54; 1998 (4) SA 649 (SCA) at 654C-E; Malan & another v Law Society, Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216 (SCA) para 4.

[10] Rösemann v General Council of the Bar of South Africa 2004 (1) SA 568 (SCA).

[11] Paras 28-29.

[12] Para 35.

[13] Commissioner, Competition Commission v General Council of the Bar of South Africa & others 2002 (6) SA 606 (SCA) para 19.

[14] Society of Advocates of Natal v De Freitas & another (Natal Law Society intervening) 1997 (4) SA 1134 (N) at 1172G-1173H; De Freitas & another v Society of Advocates of Natal & another 2001 (3) SA 750 (SCA) paras 18-19; General Council of the Bar of South Africa v Matthys 2002 (5) SA 1 (E) para 46.

[15] Note 9 para 8.