Law Society of the Cape of Good Hope v Forbes (1419/2005) [2005] ZANCHC 106 (27 October 2005)

Reportable: Yes / No

Circulate to Judges: Yes / No

Circulate to Magistrates: Yes / No

IN THE HIGH COURT OF SOUTH AFRICA

(Northern Cape Division)

Case no: 1419\2005

Date heard: 2005\10\27

Date delivered: 2005\10\27

In the matter of:

THE LAW SOCIETY

OF THE CAPE OF GOOD HOPE APPLICANT

versus

ELGIN MAURICE FORBES RESPONDENT

Coram: MAJIEDT J et MOLWANTWA AJ

JUDGEMENT

MAJIEDT J:

This is an unopposed urgent application for the striking off the Roll of Attorneys of this Court of the name of the respondent as well as for certain ancillary relief which I do not deem necessary to repeat in this judgement. Although the application is unopposed, I am of the view that a short judgement is warranted herein in order to furnish reasons for the respondent’s striking off.

The respondent had been admitted as an attorney of this Court on 23 November 2001. He is a member of the applicant Law Society and he resides and also practices as Elgin Forbes and Associates at 36 Halkett Street, New Park, Kimberley.

The following are the salient facts in this application – these facts emanate from the affidavits of Mr. P. Horn, the Vice-president of the applicant Law Society, Mr. MS Neethling, Mr. CJ Conradie, who is the Registrar of this Court, and Mr. HJ Brand, the former Registrar’s Senior Clerk of this Court (who had retired on 31 August 2005):

a) In and during September 2002 Mr. Neethling had consulted the respondent with a view to instituting proceedings for divorce. Over a period of time, namely from 30 September 2002 until 7 May 2004, he paid to respondent the total sum of R3750.00 for the respondent’s professional services in respect of the aforementioned divorce proceedings.

b) Mr. Neethling avers further that he was informed by the respondent that the matter would be heard on the last Friday in February 2005. He was informed however, by the respondent a day prior to the aforementioned date, that the respondent had been unable to secure the date for the matter to be heard and had secured a date for the first Friday in May 2005. On the day prior to the first Friday in May 2005, Mr. Neethling was again advised by the respondent that the matter would not proceed and that the hearing would have to be postponed to the second Friday in July 2005.

c) On the day preceding the second Friday in July 2005, Mr. Neethling attended at the offices of the respondent, but found the offices vacant and he was informed that respondent had moved out of that building.

d) Mr. Neethling then telephoned the Registrar of this Court and was informed that no record could be found of divorce proceedings instituted in his name. He was also informed at that time that the applicant had brought an interdict application against the respondent and that the respondent was consequently not entitled to practise as an attorney at that stage.

e) As a consequence of advice furnished to him by the Registrar, Mr. Neethling consulted with attorney D. Pretorius of Haarhoffs Inc. Thereafter Mr. Neethling had a chance encounter with the respondent’s wife in town and she furnished Mr. Neethling with the respondent’s cell phone number. Mr. Neethling then contacted the respondent by telephone and he was informed by the respondent that his divorce would proceed on the 9th of September 2005. The respondent also arranged with Mr. Neethling to meet at the respondent’s offices (which were then situated at his house at 36 Halkett Road) on 8 September 2005 at 14:00.

f) Mr. Neethling duly met with the respondent on 8 September 2005 at 14:00 and during this meeting the respondent explained to Mr. Neethling what would happen at the divorce hearing at the High Court the following day.

g) Mr. Neethling met the respondent at the High Court the following day and after waiting for approximately half an hour in a waiting room, he was informed by the respondent that he had been divorced. Although Mr. Neethling enquired as to why he had not been called to give evidence, he was assured by the respondent that, since the matter was undefended, there was no need for him to give evidence. Mr. Neethling was also informed by the respondent that he could collect his divorce order in due course from the respondent’s office.

h) On 27 September 2005 the respondent advised Mr. Neethling telephonically that he could collect his divorce order, which Mr. Neethling indeed received from respondent at 17:30 that day. He was handed a “Court Order” which forms an annexure to the papers before us.

i) During the next day Mr. Neethling attended at the High Court and exhibited the aforementioned divorce order to Mr. Conradie, the Registrar. He was informed by Mr. Conradie after a search of his office that there was no such case number as the one appearing on the “divorce order” and that there was in fact no file opened for a divorce action in the name of Mr. Neethling. Mr. Conradie also advised Mr. Neethling to report the matter to the police, which Mr. Neethling did on 28 September 2005.

j) Both Mr. Conradie and Mr. Brand averred firstly that Mr. Brand had no longer been in the employ of the Department of Justice on 9 September 2005 (when the “divorce order” had purportedly been issued under the signature of Mr. Brand) and secondly that the signature appearing on the “divorce order” is not that of Mr. Brand.

For the sake of completeness I must make mention of the fact that the applicant had previously brought the following applications against the respondent in this Court:

a) Under case no. 434\04 issued on 22 April 2004 for inter alia an interdict pending the obtaining of the respondent of a Fidelity Fund certificate for the period 1 January 2004 until 31 December 2004 as prescribed in terms of section 41(1) of the Attorneys Act, 53 of 1979. The respondent had subsequently complied with the applicant’s requirements and was issued with his Fidelity Fund certificate for the year 2004.

b) Under case no. 209\05 issued on 23 March 2005 a similar application as the one mentioned in (a) above. This application was granted on 6 May 2005. The respondent subsequently complied with the applicant’s requirements and was issued with his Fidelity Fund certificate on 14 September 2005. Consequently the respondent was not entitled to practise as an attorney, in the absence of a Fidelity Fund certificate, for the period 1 January 2005 to 13 September 2005.

It is clear from the facts set out hereinabove that the respondent has:

a) Committed fraud towards Mr. Neethling and potentially to the public at large by deceiving Mr. Neethling into believing that he had in fact finalised his divorce.

b) Created or caused to be created a non-existing court order by forging or causing the forging of the signature of Mr. HJ Brand.

c) Had failed to carry out his professional duties towards his client, Mr. Neethling (from whom he had received R3750.00 for his professional services) in a competent and timely manner in breach of the applicant’s Rule 14.3.10.

d) Generally speaking, failed to maintain the highest standards of honesty and integrity expected of an attorney of this Court and has in fact made himself guilty of dishonourable and unworthy conduct.

Hefer AP in Law Society of the Cape of Good Hope v Budricks 2003(2) SA 11 (SCA) at 13 J – 14 A set forth the requirements for an attorney to be suspended or struck from the Roll of Attorneys of the High Court as follows:

“[2] In terms of s 22(1)(d) of the Attorneys Act 53 of 1979 an attorney may be struck from the roll or suspended from practice 'if he, in the discretion of the Court, is not a fit and proper person to continue to practice as an attorney'. The practical manner in which the Courts exercise their disciplinary powers is trite. As explained in cases like Jasat v Natal Law Society 2000 (3) SA 44 (SCA) at 51B - I and Law Society of the Cape of Good Hope v C 1986 (1) SA 616 (A) at 637E - G, the enquiry is threefold. The Court first decides as a matter of fact whether the alleged offending conduct has been established. If the answer is yes, a value judgment is required to decide whether the person concerned is not a fit and proper person as envisaged in s 22(1). And if the answer is again in the affirmative, the Court must decide in the exercise of its discretion whether, in all the circumstances of the case, the person in question is to be removed from the roll or merely suspended from practice.”

In the present matter it is manifestly clear that the respondent is guilty of gross misconduct in the form of dishonesty of a most serious nature. I have no doubt whatsoever that, due to his aforementioned offending conduct, the respondent is not a fit and proper person to continue to practise as an attorney of this Court. This is a most serious matter and in all the circumstances I am absolutely convinced that he should be struck from the Roll of Attorneys. The requirements set forth in the Budrick’s case, supra, have therefore been complied with.

It appears from the affidavit of Mr. Horn, that it has come to his attention that Mr. Neethling has, apparently at the behest of the respondent, withdrawn the criminal charge which he has laid against the respondent with the South African Police Service. The respondent’s conduct constitutes in my view prima facie evidence of the criminal offence of forgery and uttering and probably fraud as well. This is a matter which requires further

investigation, since the respondent’s offending conduct has been potentially prejudicial, not only to Mr. Neethling directly, but also to the general public at large. One can only speculate as to whether any clients of the respondent had also been deceived and defrauded like Mr. Neethling herein. It is in the interests of justice that the relevant authorities investigate this matter further so as to protect the general public.

It is ordered as follows:

That the Respondent’s name is struck off the Roll of Attorneys of this Honourable Court.

That the Respondent surrenders and delivers to the Registrar of this Honourable Court his Certificate of Enrolment as an Attorney.

That should the Respondent fail to comply with the provisions of the preceding paragraph of this Order within 2 (TWO) weeks from the date of service hereof, the Sheriff for the District in which such Certificate of Enrolment are, is empowered and directed to take possession of and deliver same to the Registrar of this Honourable Court.

That the Respondent deliver his books of account, records, files and documents containing particulars and information relevant to:-

any moneys received, held or paid by the Respondent for or on account of any person;

any moneys invested by the Respondent in terms of Section 78(2) and/or Section 78(2A) of Act No. 53 of 1979 of the Republic of South Africa;

any interest on moneys so invested which was paid over or credited to the Respondent;

any estate of a deceased person, or any insolvent estate, or any estate placed under curatorship of which the Respondent is the executor, trustee or curator or which the Respondent is administering on behalf of the executor, trustee or curator of such estate; and

the Respondent’s practice as an Attorney,

to the curator appointed in terms of paragraph 11 hereof, provided that as far as such books of account, records, files and documents are concerned the Respondent shall be entitled to have access to them, but always subject to the supervision of such curator or a nominee of such curator.

That should the Respondent fail to comply with the provisions of the preceding paragraph of this Order within 1 (ONE) week after service thereof upon him or after a return by the person entrusted with the service thereof that he has been unable to effect service thereof on the Respondent, as the case may be, the sheriff for the district in which such books of account, records, files and documents are, be empowered to take possession of and deliver them to such curator.

That such curator shall be entitled to hand over to the persons entitled thereto all such records, files and documents as soon as he has satisfied himself that the fees and disbursements in connection therewith have been paid or satisfactorily secured or that same are no longer required by the curator.

That a written undertaking by a person to whom the records, files and documents referred to in paragraph 6 above are handed to pay such amount as may be due to the respondent, either on taxation or by agreement, shall be deemed to satisfactory security for the purposes of the preceding paragraph hereof provided that such written undertaking incorporates a domicilium citandi et executandi of such person.

That such curator be empowered to require that any such file, the contents of which he may consider to be relevant to a claim, or possible or anticipated claim, against him and/or the respondent and/or the respondent’s clients and/or the Attorneys’ Fidelity Fund (herein referred to as “the Fund”) in respect of money and/or other property entrusted to the respondent, be re-delivered to such curator.

That the Respondent is interdicted and prohibited from operating on his trust account(s) as defined in paragraph 11 hereof.

That the Director, failing whom, the Acting Director, failing whom, the Deputy Director, failing whom, the Acting Deputy Director, failing whom, the Assistant Director, failing whom, the Acting Assistant Director for the time being of the Applicant, is appointed as curator to administer and control the trust accounts of the Respondent comprising the separate banking accounts opened and kept by the respondent at a bank in terms of Section 78(1) of the said Act No. 53 of 1979 and/or any separate savings or interest-bearing accounts as contemplated by Section 78(2) and/or Section 78(2A) of the said Act No. 53 of 1979, in which moneys from such trust banking accounts have been invested by virtue of the provisions of the said sub-sections or in which moneys in any manner have been deposited or credited (the said account(s) being herein referred to as “trust account(s)” with the following powers and duties:-

subject to the approval of the Board of Control of the Fund, to sign and endorse cheques and/or withdrawal forms and generally to operate upon the trust account(s), but only to such extent and for such purpose as may be necessary to bring to completion current transactions in which the Respondent was acting at the date of this order;

subject to the approval and control of the Board of Control of the Fund, to recover and receive and, if necessary in the interests of persons having lawful claims upon the trust account(s) and/or against the Respondent in respect of money held, received and/or invested by the Respondent in terms of Section 78(1) and/or Section 78(2) and/or Section 78 (2A) of the said Act No. 53 of 1979 (hereinafter referred to as “trust moneys”), to take legal proceedings which may be necessary for the recovery of money which may be due to such persons in respect of incomplete transactions in which the Respondent may have been concerned and which may have been wrongfully and unlawfully paid from the trust account(s) and to receive such moneys and to pay the same to the credit of the trust account(s);

to ascertain from the Respondent’s books of account the names of all persons on whose account the Respondent appears to hold or to have received trust moneys (hereinafter referred to as “trust creditors”) and to call upon the Respondent to furnish him, within 30 (THIRTY) days of the date of the Order or such further period as he may agree to in writing, with the names, addresses of and amounts due to all trust creditors;

to call upon the trust creditors to furnish such proof, information and affidavits as he may require to enable him, acting in consultation with, and subject to the requirements of the Board of Control of the Fund, to determine whether any such trust creditor has a claim in respect of money in the trust account(s) and, if so, the amount of such claim;

to admit or reject, in whole or in part, subject to the approval of the Board of Control of the Fund, the claims of any such trust creditor, without prejudice to such trust creditor’s right to access to the civil courts;

having determined the amounts which he considers are lawfully due to trust creditors, pay such claims in full, but subject always to the approval of the Board of Control of the Fund;

in the event of there being any surplus in the trust account(s) after payment of the admitted claims of all trust creditors in full, to utilise such surplus to settle or reduce, as the case may be, firstly, any claim of the Fund in terms of Section 78(3) of the said Act No. 53 of 1979, in respect of any interest therein referred to and, secondly, without prejudice to the rights of the creditors of the Respondent, the costs, fees and expenses referred to in paragraph 12 of this Order, or such portion thereof as has not already been separately paid by the Respondent to the applicant, and, if there is any balance left after payment in full of such claims, costs, fees and expenses, to pay such balance, subject to the approval of the Board of Control of the Fund, to the Respondent, if he is solvent, or, if the Respondent is insolvent, to the trustee(s) of the Respondent’s insolvent estate;

In the event of there being insufficient trust moneys in the trust account(s) to pay the claims of trust creditors reflected in the books of account of the Respondent in full:

10.8.1 subject to the approval of the Board of Control of the Fund, to close the trust account(s) and pay the credit balance(s) to the Fund and to require the credit balance(s) to be placed to the credit of a special trust suspense account in the name of the Respondent in the Fund’s books;

10.8.2 to refer the claims of all trust creditors to the Board of Control of the Fund to be dealt with in terms of the provisions of the said Act No. 53 of 1979; and

10.8.3 to authorise the Board of Control of the Fund to credit the credit balance(s) referred to in 11.8.1 above to its “Paid Claims Account” when the Fund has paid, in terms of Section 26 of the said act No. 53 of 1979, admitted claims of the trust creditors in excess of such credit balance(s), provided that, notwithstanding the aforegoing, the said Board shall be entitled, in its discretion, to transfer to its “Paid Claims Account” the amount or amounts of any claim or claims as and when admitted and paid by it;

subject to the approval of the Chairman of the Board of Control of the Fund, to appoint nominees or representatives and/or consult with and/or engage the services of attorneys and/or counsel, and/or accountants and/or other persons, where considered necessary, to assist such curator in carrying out the duties of the curator; and

to render from time to time, as curator, returns to the Board of Control of the Fund showing how the trust account(s) has (have) been dealt with, until such time as the said Board notifies him that he may regard his duties as terminated.

THAT Respondent be and is hereby directed:-

to pay the fees and expenses of the curator, such fees to be assessed at the rate of R300,00 per hour, including travelling time;

to pay the reasonable fees and expenses charged by any person(s) consulted and/or engaged by the curator as aforesaid;

to pay the costs of and incidental to this application on a scale as between attorney and client;

within 1 (ONE) year of him having been requested to do so by the curator, or within such longer period as the curator may agree to in writing, to satisfy the curator, by means of the submission of taxed bills of cost, or otherwise, of the amount of fees and disbursements due (to the Respondent) in respect of his former practice, and should he fail to do so, he shall not be entitled to recover such fees and disbursements from the curator without prejudice, however, to such rights, if any, as he may have against the trust creditor(s) concerned for payment or recovery thereof.

12. It is directed that the Registrar of this Court must forward a copy of this judgement to the Director of Public Prosecutions, Kimberley.

_____________

SA MAJIEDT

JUDGE

I concur:

____________________

BC MOLWANTWA

ACTING JUDGE