Law Society of the Cape of Good Hope v Mpambaniso (3542/2014) [2016] ZAECGHC 46 (17 June 2016)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case No. 3542/2014

Date heard: 26 May 2016

Date delivered: 17 June 2016

In the matter between:

THE LAW SOCIETY OF THE CAPE OF GOOD HOPE

Applicant

and

MILILE MARTIN MPAMBANISO

Respondent

JUDGMENT

BEARD AJ:-

[1] This is an application in which the Applicant seeks an order striking the Respondent’s name from the roll of attorneys of this court and relief ancilliary thereto. The application is brought in terms of section 22 (1)(d) of the Attorneys Act 53 of 1979 (“the Act”). This section provides that “…an attorney may on application by the society concerned be struck off the roll or suspended from practice by the court within the jurisdiction of which he or she practices … if he, in the discretion of the court, is not a fit and proper person to continue to practise as an attorney”.

[2] The relief is sought on the grounds that the Respondent engaged in a pattern of conduct in respect of which he overreached clients (eight such instances are listed in the founding affidavit deposed to by the Applicant) and has been convicted of 28 counts of fraud. It is on this basis that the Applicant avers the Respondent has demonstrated that he is not a fit and proper person to practice as an attorney.

[3] The Respondent was admitted as an attorney of this court on 3 June 1994 and immediately commenced practice for his own account and in partnership with attorney Poswa under the name and style of Poswa, Mpambaniso & Partners. This partnership was dissolved during May 2000 after which the Respondent practiced, once again for his own account, under the name Mpambaniso Attorneys and Administrators of Estates. During November 2014 the Respondent entered into partnership with attorney Qata.

THE APPROACH TO STRIKING APPLICATIONS :

[3] In Jasat v Natal Law Society 2000 (3) SA 44 (SCA) at para. [10] it was held that section 22 (1)(d) of the Act contemplates a three stage enquiry :

“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 section 22(1)(d), the person concerned “in the discretion of the Court” is not a fit and proper person to continue to practise. … It would seem clear, however, that in the context of the section, the exercise of the discretion referred to involves in reality a weighing up of the conduct complained of against the conduct expected of an attorney and, to this extent, a value judgment. The discretion is that of the court of first instance. … 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. This is similarly a matter for the discretion of the court of first instance … Whether a court will adopt the one course or the other will depend upon such factors as the nature of the conduct complained of, the extent to which it reflects upon the person’s character or shows him to be unworthy to remain in the ranks of an honourable profession … the likelihood or otherwise of a repetition of such conduct and the need to protect the public. Ultimately it is a question of degree.” (References omitted)

THE RESPONDENT’S CONVICTION :

[4] The Respondent was convicted of 28 counts of fraud involving a total amount of R54 982.98 on 11 November 2014 by Nepgen J. He was sentenced on 10 December 2014 to a fine of R100 000.00 or one year’s imprisonment with a further three years suspended for five years on certain conditions. The Respondent has not at any stage sought to appeal the conviction and has paid the fine.

[5] The Respondent’s convictions stem from applications which he, on behalf of his clients, launched in the High Court, Bhisho.

In the applications he sought orders compelling the Department of Social Development to consider the various social grant applications

his clients had submitted. Nepgen J found that “…insofar as the relevant bills of costs reflect items relating to the arrangement and holding of consultations with the applicants, the insertion of those items amounted to a fraudulent representation which justifies the conviction of the accused in respect of the amounts which were charged in the bill of costs.” (S v Mpambaniso (unreported, Eastern Cape, Bhisho case number CC02/2006) at p. 84). The Respondent did not give evidence at his

criminal trial. This, he states, was as a result of the advice he received from two “senior and very highly regarded criminal trial advocates”.

[6] Concerning this the Respondent states that he is “…in fact sorry that [he] did not testify at the criminal trial in order to fully explain [his] position to the Court in which event the outcome may well have been different given that … [his] lack of criminal intent in fact applied to all of the charges against [him].” This lack of criminal intent is evident, so the Respondent avers, by the fact that at the time the bills were compiled, he thought that bills of costs were generally drawn in a manner which results in them reflecting “all items of work that could reasonably have been performed in a particular matter, rather than in every instance being a precise

reflection of exactly what work has in fact actually been done.” This argument was made before Nepgen J, who, after noting that no such evidence had been adduced, found that, even if bills were drawn in that manner, the inclusion of an item in a bill of costs was a representation that certain work was done and that if that work was in fact not done, it amounted to a misrepresentation. I am in full agreement with the learned judge on this aspect.

[7] He also, at the time, thought that as “bills are submitted for taxation whenever clients are dissatisfied” this ultimately ensures that the fee charged is fair and reasonable to the client. Similarly, Nepgen J found that the mere fact that bills are submitted for taxation has no effect on whether or not the bills contain items that amount to misrepresentations. Once again, I am in respectful agreement with this finding.

[8] In instances in which an attorney has been convicted of an offence,

“the practice . . . has been to treat the conviction of an attorney for a criminal offence, whether in his capacity as attorney or not, as prima facie evidence that such attorney is unfit to be on the roll of attorneys”.

(Solomon v Law Society of the Cape of Good Hope 1934 AD 401 at 412). Thus, as was held in Hassim (also known as Essack) v Incorporated Law Society of Natal 1977 (2) SA 757 (A) at 765H – 766A :

“…a practice has been followed in our Courts whereby:

(a) the fact of an attorney’s conviction of a criminal offence is regarded as prima facie proof that he had in fact committed that offence, and

(b) of placing upon the convicted attorney the onus of proving either that he was wrongly convicted or that there were circumstances which reduced the degree of his blameworthiness to such an extent that, despite the conviction, he ought to be allowed to continue to practice as an attorney.”

[9] Elaborating on the first requirement, Kumleben and Hefer JJ in Incorporated Law Society of Natal v Hassim (also known as Essack) 1978 (2) SA 285 (N) at 288B – E stated :

“The phrase “prima facie proof” is used in contradistinction to conclusive proof and naturally does not imply that proof of a conviction is necessarily in all circumstances of low evidential value, which for that reason is capable of easy refutation. The weight to be attached to a conviction will differ from case to case. Quite obviously the mere fact of a conviction (if this is all that is placed before Court), or proof of one based on perfunctory or inadequately tested evidence, is of far less cogency than proof of a conviction at the conclusion of a thoroughly conducted and keenly contested trial, the evidence of which is placed before the Court hearing the application. It follows that the reference to an onus in the second of the above-quoted propositions should perhaps be more accurately described as a duty to adduce evidence, not necessarily to prove that the respondent was wrongly convicted, but at least to cast a real doubt upon the correctness of such conviction or convictions, in which event the probative value of the conviction falls away and proof of misconduct justifying the relief claimed must be proved in the ordinary course. In certain instances this may involve the determination afresh of issues which were decided in the criminal trial.”

[10] The Respondent did not challenge that he was convicted nor did he seek to assert that the evidence upon which the State relied for the conviction failed to prove his guilt beyond a reasonable doubt. The conviction accordingly stands. Fraud is an offence involving an element of dishonesty. Accordingly, as in Law Society of the Cape of Good Hope v Mtshabe [2008] ZAECHC 201 (5 December 2008) (per Jones J) “[t]he criminal conviction of fraud was in this case, in the absence of challenge, proper proof on a balance of probabilities of the offending conduct and satisfied the first inquiry.”

[11] In asserting that he would not have been convicted, had he given evidence in his criminal trial, the Respondent is attempting to discharge the onus placed upon him by the fact of his conviction. The Respondent’s assertions regarding his beliefs concerning the manner in which bills of costs are drawn and the protection afforded litigants through the taxation procedure do not, in my view, serve to discharge the onus resting on the Respondent of demonstrating that he was wrongly convicted or reducing his moral blameworthiness to such an extent that he should be permitted to continue to practice as an attorney. Neither assertion establishes that the Respondent lacked the necessary intention to commit the offences of which he was convicted. Both indicate merely that the Respondent believed that he was entitled to include in his bills of costs amounts for items of work that he had not done. The fact that this belief was erroneous does not alter this result; if anything, it strengthens the conclusion that the Respondent was correctly convicted as, based upon this belief, the Respondent knew that included in his bills of costs were charges for items of work that he had not in fact done. He would thus have been aware that he was charging his clients for services he had not rendered which, as a consequence, establishes the existence of intent on the part of the Respondent.

[12] In any event “…fraud is proved when it is shown that a false representation has been made (1) knowingly or (2) without belief in its truth, (3) recklessly, careless whether it be true or false.” (See S v Ostilly and Others (1) 1977 (4) SA 699 (D) at 727H) Although the latter two categories are set out separately, it has been correctly held that that the third category is in truth no more than an instance of the second, as one who makes a representation reckless as to its truth, cannot believe the representation to be true (see Derry v Peek [1889] UKHL 1; (1889) 14 AC 337 (CA) cited with approval in R v Meyers 1948 (1) SA 375 (A) at 382 – 383 and S v Ostilly and Others (1) (supra) at 727H). Stegmann J, in Ex Parte Lebowa Development Corporation Ltd [1989] 4 All SA 492 (T) at 520 – 521 stated the principle thus :

“Fraud is not committed without dishonesty. It necessarily involves an element of conscious deceit on the part of the person making the false representation. That element can never be identified without enquiry as to the state of mind of representor as known to himself. The test is inevitably subjective. Unless the representor is shown to have been aware that his representation will tend to mislead, there is no element of conscious deceit and no fraud. The essential point is that the representor is aware that his representation will tend to mislead not only when he knows that it is false, but also when he knows that it may be false. In the latter case, no less than the former, he practises deceit if he misleads the representee into the belief that he (the representor) believes in the truth of the representation when he (the representor) can have no such honest belief, knowing that the representation may not be true.” (Emphasis in original)

A corollorary of this principle is that “…absence of reasonable grounds for belief in the truth of what is stated may provide cogent evidence that there was in fact no such belief.” (See R v Meyers 1948 (1) SA 375 (A) at 383).

[13] This leads one to question whether a belief such as that held by the Respondent could reasonably have been held by a qualified attorney. I fail to see any basis upon which the Respondent could reasonably have held the belief that bills of costs are drawn so as to include charges for items of work not actually completed, but which could potentially have been undertaken in the prosecution of the client’s claim. The fact that the Respondent is a qualified and admitted attorney who practised for little over two decades prior to his conviction, negates the inference that the Respondent could reasonably have held this belief. Accordingly, the Respondent’s statement of his belief of the manner in which bills of costs are drawn is simply disingenuous.

[14] The Respondent also relies upon a belief that the fee charged to a client would be fair and reasonable, as, when clients are

dissatisfied, the bills of costs are referred for taxation. This ignores that clients, who are not dissatisfied with a bill of costs but are unaware that the bill contains amounts charged for work not actually done by the Respondent, would not elect to have the bill taxed and would thus be charged for services not rendered and work not completed by the Respondent. In other words, as Nepgen J found, the existence of a misrepresentation of this nature contained within a bill of costs is not altered by the right of a client to have that bill taxed.

[15] Accordingly, I am of the view that the Respondent has failed to discharge the onus resting upon him to demonstrate that “…he was wrongly convicted or that there were circumstances which reduced the degree of his blameworthiness to such an extent that, despite the conviction, he ought to be allowed to continue to practice as an attorney.”

OVERREACHING :

[16] I turn now to a consideration of the second ground upon which the Applicant bases its contention that the Respondent should not be permitted to continue practising as an attorney, namely that he has overreached certain of his clients. The founding affidavit deposed to on behalf of the Applicant lists eight such instances. I intend to deal in detail with only two; namely the instance of the Respondent having allegedly overreached Mr Dumse (“Dumse”) and Ms Stata (“Stata”).

[17] Dumse was involved in a motor vehicle collision in 2003 and approached the Respondent to institute a claim against the Road

Accident Fund (“the Fund”). The Respondent and Dumse entered into a written fee agreement delineating the fees the

Respondent would charge for work done, as well as the rate at which interest was to be charged for fees that were unpaid and the rate at which the Respondent’s hourly rate charged would increase with the passing of each 12 month period since the date of his instruction. Summons was issued and Dumse’s claim was settled on 23 February 2010 in terms of which he was awarded an amount of R575 148.25 and his taxed party and party costs. This amount, less the amount of their bill of costs (R21 200.77) was paid by the Respondent’s Grahamstown correspondent attorneys into his trust account on 7 April 2010. Thereafter, the Respondent made an interim payment of R200 000.00 to Dumse (the precise date of which has been disputed by the Respondent, but nothing turns thereon).

[18] The Fund then made a further payment to the Respondent of R212 471.08 as and for the taxed party and party costs. The Respondent therefore received a total amount of R787 619.33 paid into his trust account on behalf of Dumse. Deducting the interim payment made to Dumse, the Respondent retained an amount of R587 619.33, which he claimed as fees. However, according to the Respondent, this was less than that to which he was entitled for his services in terms of his bill of costs. The Respondent, in a document headed “Cash Reconciliation Statement” indicated that there was a shortfall of R105 323.75. As a result, the Respondent contended that he was entitled to an amount of R692 943.08. This would have resulted in Dumse receiving only R94 676.25 of a total amount paid in respect of his claim of R787 619.33.

[19] Dissatisfied with this, Dumse sought the advices of another attorney. This culminated in an application to this court for an order setting aside the fee agreement entered into with the Respondent and in terms of which the Respondent charged Dumse for his services and a further order that the Respondent’s attorney and client bill be referred for taxation on the basis of the prescribed tariff. In his affidavit opposing the application, the Respondent expressed the view that the fees he charged Dumse were both in accordance with the fee agreement and reasonable. The application was heard by Smith J who granted Dumse the aforementioned relief on 14 June 2012.

[20] Smith J stated that in his view, the Respondent’s attorney and client bill was “…grossly exhorbitant, unconscionable, and should not be allowed to stand” (Dumse v Mpambaniso unreported, Eastern Cape, Grahamstown, case number 974/2012 para. [41]). Having found that the Respondent’s conduct was deserving of censure, Smith J ordered that the Respondent pay the costs of the application on the attorney and client scale.

[21] In coming to the conclusion that the fee agreement fell to be set aside, Smith J held that it was unavoidable that the implementation

of certain of the clauses contained in the fee agreement would result in exhorbitant fees. He found further that there was little doubt that this is what the Respondent sought to achieve by concluding the fee agreement in the first place (at para. [47]).

[22] Stata was similarly involved in a motor vehicle accident and approached the Respondent to act against the Fund on her behalf. Her capital award and the party and party costs (inclusive of interest) paid by the Fund totalled R549 696.31, which amount the Respondent was paid on her behalf. The Respondent declined to make an interim payment to Stata as he was concerned that his “costs and disbursements may exceed the capital”. This turned out to be correct, as when the Respondent received his bill drawn by his costs consultant, Mr Ackerman (“Ackerman”)

he noticed that his costs did indeed exceed the capital. He states, however, that he did not study the bill in any detail.

[23] The Respondent’s charges for fees and disbursements exceeded the total amount received from the Fund on Stata’s behalf by R160 681.32. The Respondent thus contended that Stata was indebted to him in that sum, bringing the total amount he charged in terms of his bill to R707 273.32.

[24] The Supreme Court of Appeal, in Melamed & Hurwitz Incorporated v Goldberg [2009] ZASCA 15 (19 March 2009) at para. [3], defined overreaching as follows :

“Where an attorney and his fees are concerned, the word “overreach” may be taken as conveying the extraction by the attorney from his client, by the taking by the former of undue advantage in any form of the latter, of a fee which is unconscionable, excessive or extortionate, and in so overreaching his client that attorney would be guilty of unprofessional conduct.”

[25] That the Respondent overreached certain of his clients is common cause. The Respondent, notwithstanding his assertion in the Dumse application that the fees he charged were reasonable, states in response to this application that he does not dispute that “…in many instances [he] was guilty of overreaching” in that he charged fees far in excess of the High Court attorney and own client tariff; charged fees for professional services rendered when the work had been completed by an unqualified individual; charged several clients a full fee in respect of travelling when attending to more than one matter; and, in addition to the travelling disbursement charged, also charged for time spent travelling.

[26] Accordingly, the offending conduct in respect of the overreaching has been established.

[27] The Respondent attempts to explain this conduct by stating that he relied upon an agreement drafted by a senior costs consultant, namely Ackerman, who was recommended to him by the Applicant’s attorney of record and who assured him that the fees set out in this agreement were reasonable and commensurate with the fees generally charged by attorneys of his experience in similar matters. The Respondent accepted this advice and had his bills drawn by Ackerman, to whom he would send his entire file. He did not, as he admits he should have done, go through the bills once he received them from Ackerman, as he viewed such an exercise as being too time consuming. He also admits that he now undertands that it is ultimately an attorney’s responsibility to ensure that bills of costs are accurate and a true reflection of the actual work that has been done, regardless of who compiles them.

[28] In my view, the Respondent cannot hide behind the advice received from Ackerman. To use the words of Edmund Burke “[i]t is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do.” In a similar vein, Nicholas AJA stated when considering advices contained in an exhibit which he described as “a travesty and palpably absurd”, that “[l]egal advice has no magic which justifies the recipient in jettisoning his common sense.” (See S v Longdistance (Natal) (Pty) Ltd and Others 1990 (2) SA 277 (A) at 283D and I) This dictum applies equally in this instance. The advices and bills drawn by Ackerman resulted in Dumse receiving a paltry R94 676.25 and the Respondent retaining R692 943.08. In the Stata matter, the bills drawn by Ackerman resulted in Stata being indebted to the Respondent in an amount in excess of R160 000.00.

[30] A litigant who institutes action against the Fund after having been injured in a motor vehicle accident does so for one purpose – pecuniary compensation. It is inconceivable that the Respondent could not have realised that his bills were very clearly problematic when he concluded that his client owed him money – he having retained the entire amount paid to her by the Fund. That the bill was drawn by an experienced costs consultant (who retains a fee for drawing the bill equivalent to a percentage of the total thereof) is irrelevant. When the effect of the bill on the award paid to the clients he represented became apparent, the Respondent should have realised, at the very least, that he was over-charging his clients and checked the contents of his bill. He failed to do so and simply continued to charge exhorbitant and extortionate fees of his clients. Whilst he states that he did not intend to overreach his clients, this is in fact what he did, in circumstances in which he should have realised that this was what he was doing and that his conduct fell far short of the mark of that required by an attorney.

[31] In light of the Respondent’s convictions for fraud and the fact that he overreached certain of his clients, it is clear that the Respondent has brought the profession of an attorney into disrepute. Indeed, he accepts as much. However, in my view, the Respondent’s conduct has a more serious consequence – it shows that, for a period of time, the Respondent acted dishonestly.

THE APPROPRIATE SANCTION :

[32] Mr Nelson SC, who appeared together with Mr Taljaard on behalf of the Respondent, correctly conceded that both fraud and overreaching

involve elements of dishonesty (as was held, in respect of overreaching, in General Council of the Bar of South Africa v Geach and Others 2013 (2) SA 52 (SCA) at para. [52]). He also conceded, on the basis of Malan and Another v Law Society, Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216 (SCA) at para. [10], that “if a court finds dishonesty, the circumstances must be exceptional before a court will order a suspension instead of a removal”. He, however, submitted that an order suspending the Respondent from practice would be appropriate, as exceptional circumstances existed for the imposition of such a sanction. This submission was primarily based upon the argument that, after such a sanction having been imposed, there is no reason to suspect that the Respondent would not be fit to practise as an attorney or that there is any risk of repetition or harm to the public if he is allowed to do so.

[33] In support of this submission, reliance was placed upon the fact that the Respondent has not, since the Dumse judgment, been guilty of misconduct. The submission continues that the Respondent has thus, since 2012, conducted himself in a manner befitting the honourable profession of an attorney. In my view, when evaluating the merits of this submission, it is important not to overlook the fact that the Respondent was arrested on charges of fraud on 17 August 2005. The criminal trial then lasted approximately nine years, culminating in the Respondent’s conviction on 8 December 2014. Accordingly, from at least 17 August 2005, the Respondent ought to have been aware that the State was of the view that the manner in which he drew his bills of costs and charged for his professional services was fraudulent. This, in my view, should have prompted the realisation that his beliefs regarding the manner in which bills of costs are drawn were erroneous. It should also have prompted the Respondent to examine more closely all his bills of costs. Had he done so, he should have realised that the manner in which he charged Dumse and the other clients he overreached, was grossly extortionate.

[34] In support of the proposed sanction of suspension from practice, Respondent’s counsel relied heavily on the majority decision of the Supreme Court of Appeal in General Council of the Bar of South Africa v Geach and Others (supra). In this matter, in amplifying the dictum in Malan and Another v Law Society, Northern Provinces (supra) referred to above, Nugent JA (at para. [70]), stated that this :

“…does not purport to lay down a rule of law but expresses what follows naturally from a finding of dishonesty. Once an advocate has

exhibited dishonesty it might be inferred that the dishonesty will recur and for that reason he or she should ordinarily be barred from practice. What was said in Malan means only that when the person concerned has been shown to have been dishonest a court will need to be satisfied that the circumstances of the case are such that that inference, exceptionally, need not be drawn, and thus that striking off need not follow.”

This requires that a court ask whether the circumstances, taken as whole, reveal that it is an exception from those in which it can ordinarily be inferred that the officer of the court concerned will repeat his dishonest conduct and for that reason should not be struck off. This is because the primary function of the court at this stage of the enquiry is to ensure the protection of the public (see Malan and Another v Law Society, Northern Provinces (supra) at para. [4]).

[35] Mr Nelson argued that, as the instances of overreaching in the Geach decision were extreme, both in the amounts by which counsel overreached and the number of times they did so (for example, Geach SC admitted to 82 counts of overreaching, totalling R164 000.00) and, as they were merely suspended from practice for period, a similar sanction should be applied to the Respondent. That this was appropriate, so the argument continued, was even more evident as counsel in the Geach matter had been warned by the Bar Council of the Pretoria Society of Advocates that their conduct amounted to overreaching, but, after ceasing to so act for a period of time, then continued in that vein nonetheless. I am unable to agree with this submission. The distinguishing feature in this matter is that the Respondent has been convicted of 28 counts of fraud. None of the counsel in the Geach matter had been convicted of any criminal offence. In addition, the Respondent ignored the warning he received in August of 2005 when he was arrested for including fraudulent misrepresentations in his bills of costs. Having received this warning, he then failed to closely examine his bills of costs to ensure they were correct. Added to this, when he became aware that his attorney and client fees exceeded the entirety of the amount awarded to Ms Stata by some R160 000.00, he still failed to closely examine his bill of costs. In my view, this indicates a deliberate disregard on the part of the Respondent as to whether or not his bills of costs were in fact acceptable. He simply did not care whether or not he had overreached his clients.

[36] Mr Nelson argued further that, as this application, as well as the criminal proceedings, have had a devastating effect on the

Respondent, both personally and financially, and have also negatively affected his family, there is no likelihood of repetition of the offending conduct. That this is so is particularly apparent, so he submitted, as the Respondent made reparation to the extent possible and has demonstrated “sincere remorse”. He also submitted that, in almost all of the matters in which the Respondent overreached his clients, after complaints were received from those clients, he immediately agreed to a taxation of his bills and repaid the difference to the clients concerned.

[37] However, ‘almost’ is not all. In the Stata matter, the Respondent’s conduct, after being informed of the complaint, can only be described as dilatory. He failed to respond to the Applicant’s correspondence and only agreed to re-draw his bill of costs on the High Court tariff for taxation approximately 11 months after the Applicant had advised him of the complaint. No adequate explanation as to this delay was forthcoming from the Respondent.

[38] It has been held that a plea of guilty from an accused person against whom there is an open and shut case is a neutral factor. In my view, the principle is equally applicable here. The Respondent did admit his wrongdoing. However, having been caught, and there being an overwhelming amount of evidence to establish that his conduct had been dishonest, he could not do otherwise. Regarding remorse, Ponnan JA stated :

“There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one’s error. Whether the offender is sincerely remorseful and not simply feeling sorry for himself or herself at having been caught is a factual question. It is to the surrounding actions of the accused rather than what he says in court that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia, what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions.” (Footnotes omitted)

(See S v Matyityi [2011] 2 All SA 424 (SCA) at para. [13])

[39] I am not convinced that the Respondent has demonstrated sincere remorse. There is no evidence of “a gnawing pain of conscience for the plight of another”. Rather it appears that the Respondent is feeling sorry for himself – he has listed the adverse consequences that have resulted from his conduct but has never demonstrated a true appreciation of the consequences his conduct had for the clients he overreached. Many of these clients constituted a vulnerable group of society – they were indigent, with little education or means of improving their lot in life. They were also all injured in motor vehicle accidents and, judging by the amounts they were awarded, those injuries must have resulted in long-term sequelae. Notwithstanding this, the Respondent sought to retain the bulk of (and in the Stata case, more than) the amount they were awarded from the Fund.

[40] It is correct that the Respondent has explained why he believed that he was entitled to charge as he did, both in relation to his convictions for fraud and the overreaching, which explanations I have dealt with above. However, reading the Respondent’s affidavits as a whole, I am unable to conclude that he has demonstrated a true appreciation of the consequences of his actions for the clients he overreached. Whilst the Respondent made reparations to those he overreached, each of those former clients had to lay a complaint with the Applicant before he did so. In the majority of those matters, the Respondent only made reparations after the Dumse judgment had been delivered.

[36] As regards the personal and financial consequences the Respondent has endured, it is important to bear in mind that this court should not be “…more concerned with the personal circumstances of the respondent than with the protection of the public.” (See Law Society of the Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA) at para. [7]). Such would constitute a misdirection. In light of the finding I have made regarding the lack of true remorse

demonstrated by the Respondent, his personal circumstances are not sufficient to persuade me that there is no likelihood of a repetition

of his conduct. This, coupled with the Respondent’s failure to reduce his moral blameworthiness in respect of his criminal

convictions, leads me to the conclusion that the public would be best protected by an order striking his name from the roll of attorneys.

[37] As a result, I am not satisfied that the Respondent has demonstrated that there are exceptional circumstances justifying the imposition of a period of suspension from practice as opposed to an order striking the Respondent from the roll of attorneys. Accordingly the following order is made:

1. The application for the removal of the Respondent’s name from the roll of attorneys succeeds and there will be an order in terms of prayers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the notice of motion dated 27 August 2014.

_________________________________

M L BEARD

ACTING JUDGE OF THE HIGH COURT

I agree, and it is so ordered

______________________

J.D. PICKERING

JUDGE OF THE HIGH COURT

Appearing on behalf of Applicant: S H Cole

Instructed by: N N Dullabh & Co

Appearing on behalf of Respondent: A Nelson SC (with D J Taljaard)

Instructed by: Netteltons