Law Society of the Cape of Good Hope v Swanepoel (1835/2013) [2015] ZAECGHC 82 (27 August 2015)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 1835/2013

DATE HEARD: 06/08/2015

DATE DELIVERED: 27/08/2015

In the matter between

THE LAW SOCIETY OF THE CAPE OF GOOD HOPE

APPLICANT

and

ANNE MARIA JOHANNA SWANEPOEL

RESPONDENT

JUDGMENT

ROBERSON J:-

[1] In this application the applicant law society seeks an order that the respondent’s name be struck from the roll of attorneys of this court, and other relief. The application is brought in terms of s 22 (1) (d) of the Attorneys Act 53 of 1979 which provides:

“22. Removal of attorneys from roll.—(1) Any person who has been admitted and enrolled as 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 practises—

(a) …………………………………

(b) …………………………………

(c) …………………………………

(d) if he, in the discretion of the court, is not a fit and proper person to continue to practise as an attorney; or

(e) …………………………………”

[2] The respondent was admitted as an attorney of this court on 1 April 1999 and commenced practice on her own account on 18 October 2000 under the name Anne Swanepoel Attorneys.

[3] The application is brought on the ground that the respondent stole the sum of R90 000.00 entrusted to her by a client, thereby demonstrating that she is not a fit and proper person to practise as an attorney.

BACKGROUND

[4] The respondent stood trial in the Regional Court and was convicted, after pleading not guilty, of the following offences:

1. Theft of R90 000.00 from a client Faeez Ching and/or Advocate Terence Price.

2. A contravention of s 83 (9) of the Attorneys Act 53 of 1979, in that she failed to keep proper accounting records in respect of monies received by her for the account of Ching.

3. A contravention of s 83 (9) of Act 53 of 1979 in that she failed to deposit R30 000.00 into her trust account, such amount having been received by her on account of Ujen Singh.

4. A contravention of s 83 (9) of Act 53 of 1979 in that she failed to keep proper accounting records in respect of the money received on account of Singh.

[5] The respondent was sentenced on 2 February 2012 to three years’ correctional supervision in terms of s 276 (1) (h) of the Criminal Procedure Act 51 of 1977 for the theft, and fines for the other offences. She served the sentence and paid the fines.

[6] It is necessary to set out the chronology of events following the respondent’s criminal trial.

[7] The present application was launched on 30 March 2012 in the Port Elizabeth High Court. It was subsequently transferred to the Grahamstown High Court. It was set down for hearing on the uncontested opposed roll on 8 August 2013 because no answering

affidavit had been delivered. The respondent brought an application to stay the striking off application pending the finalisation of her appeal against her criminal convictions. The parties agreed that the striking off application and the application to stay would be held in abeyance until 11 November 2013 which was the date on which the respondent’s application for condonation for the late filing of her application for leave to appeal was to be heard in the Regional Court. On that day the application for condonation was struck from the roll. The respondent’s application for condonation was eventually dismissed on 14 May 2014.

[8] The applicant re-enrolled the striking off application for hearing on the uncontested opposed roll on 7 October 2014. On that day the respondent delivered her answering affidavit and the application was postponed sine die. The applicant delivered its replying affidavit on 4 May 2015. According to the court file the notice of set down for hearing on 6 August 2015 was served on the respondent’s attorneys on 7 July 2015. (Both parties state that it was served on 6 June 2015. This date is incorrect.)

APPLICATION FOR POSTPONEMENT

[9] On 30 July 2015 the respondent delivered an application for a postponement sine die of the striking off application, for hearing on 6 August 2015. The applicant opposed the application, which was dismissed with costs on the attorney and client scale, with reasons to follow. Those reasons are now provided.

[10] In her affidavit in support of a postponement, the respondent stated that after leave to appeal her conviction was refused in June 2013 she briefed Advocate Moorhouse to petition for leave to appeal. She continually telephoned him to enquire about progress but received no response to her enquiries. She stated that there was a general lack of communication between her and Moorhouse and she expressed her dissatisfaction to him, to no avail. She also requested Stuart Laubscher Attorneys to act for her but they did not want to be her attorneys of record. The respondent also briefed Moorhouse to represent her in the striking off application. Moorhouse did not decline the brief and was in possession of all her papers in both matters.

[11] After receiving the notice of set down the respondent enquired from Moorhouse about progress in both matters but for reasons unknown to her he had not moved expeditiously in either matter. The respondent also briefed Advocate Harker who was unable to obtain the papers from Moorhouse or Loubscher. A further factor was that Moorhouse was not available on 6 August 2015 and would only be available on 8 and 15 October 2015.

[12] According to the respondent if a postponement was refused she would not be properly represented in the striking off application and would accordingly be prejudiced in a matter which had potentially disastrous consequences. A postponement would enable her to find out from Moorhouse why no progress had been made and to decide whether or not to appoint another counsel.

[13] The applicant’s stance was that given the history of the matter the application for a postponement was a delaying tactic. It was pointed out that the respondent is not a lay litigant and that she had sufficient time not only to pursue her petition but also to brief another counsel if she was not satisfied with Moorhouse’s conduct. The applicant further pointed out that presently there is no application pending before this court for condonation for the late filing of an application for leave to appeal.

[14] In Persadh and Another v General Motors South Africa (Pty) Ltd 2006 (1) SA 455 (SECLD) at para [13] Plasket J set out the principles governing applications for a postponement as follows (footnotes omitted):

“The following principles apply when a party seeks a postponement. First, as that party seeks an indulgence he or she must show good cause for the interference with his or her opponent’s procedural right to proceed and with the general interest of justice in having the matter finalised; secondly, the court is entrusted with a discretion as to whether to grant or refuse the indulgence; thirdly, a court should be slow to refuse a postponement where the reasons for the applicant’s inability to proceed has been fully explained, where it is not a delaying tactic and where justice demands that a party should have further time for presenting his or her case; fourthly, the prejudice that the parties may or may not suffer must be considered; and, fifthly, the usual rule is that the party who is responsible for the postponement must pay the wasted costs.”

[15] The applicant has attempted to have the application heard since 8 August 2013. Delays since then were at the instance of the respondent, caused by her application for condonation and leave to appeal her convictions. Her application to the Regional Court was in itself late, and more than a year has passed since her application for condonation was dismissed, yet to date no petition has been lodged. Given the length of time since the respondent was sentenced, the prospects of her taking further steps to challenge her convictions appear slim. An application to strike an attorney’s name from the roll is a matter involving the protection of the public. The respondent has continued to practise since her convictions and the applicant has a duty to pursue its application without an inordinate delay.

[16] The respondent’s explanation concerning her petition frankly, in my view, lacked credibility. If she briefed Moorhouse in June 2013 after her leave to appeal was refused, it was inconceivable that he did not respond to her telephone calls and provide her with an explanation for the lack of progress. The respondent avoided saying whether or not she actually spoke to Moorhouse and merely made the vague statement that “he has not made himself available to me in order to attend to my enquiries surrounding my case”. If, as she stated, the delay in filing the petition was directly contrary to her instructions, then, especially because she is an attorney, she had ample reason and time to brief another counsel, not only for the petition but also for the striking off application. The respondent offered no compelling reason for her conduct in effectively allowing Moorhouse to hold on to the brief for so long and not to act in accordance with her instructions. Considering the nature of the brief, and the consequences for an attorney convicted of theft, her conduct was incomprehensible. In the result the respondent did not take the court into her confidence and did not explain the true reasons for her failure to lodge her petition and her lack of preparedness for the striking off application. In the circumstances it was reasonable to conclude that the application for a postponement was a delaying tactic and the applicant was not to be further prevented from pursuing its procedural right to have the matter heard.

[17] Counsel who moved the postponement application on behalf of the respondent was only briefed for that application. After the postponement was refused, the respondent informed the court that Mr Harker was present to appear on her behalf in the striking off application, but that neither she nor Mr Harker had a copy of the application papers. The matter stood down until the afternoon to enable them to peruse the papers. Before the matter resumed we were assured (in chambers) by Mr Harker that he was prepared to argue.

STRIKING OFF APPLICATION

[18] The circumstances underlying the respondents’ conviction for theft were summarised in the founding affidavit. During 2004 Ching instructed the respondent to act as his attorney in his murder trial. He requested her to brief Price in the matter. The respondent told Ching that she required R100 000.00 for Price’s fees, R10 000 .00 for her fees, and R20 000.00 for Dr. Ian Meyer’s fees. Ching made payments to the respondent in the amounts of R30 000.00 and R20 000.00, which amounts were deposited into her trust account. No receipt was issued to Ching. The respondent used the R20 000.00 to pay Meyer.

[19] During March 2005 one William Smith, a friend of Ching, handed R90 000.00 in cash to the respondent to cover Ching’s

legal costs. The respondent did not deposit this money into her trust account and kept it in her safe. She did not issue a receipt to Smith. Later in March 2005, at Ching’s request, the respondent issued him with a receipt for R140 000.00.

[20] The respondent failed to pay Price his fees for representing Ching and in December 2005 Price issued summons against the respondent for payment of R63 840.00. During January 2006 the respondent borrowed R60 000.00 from one C J Swanepoel, which amount was deposited into her trust account on 23 January 2006, the balance of which at the time was R34 665.03. The respondent then paid Price R63 840.00.

[21] The respondent borrowed a further sum of R60 000.00 from one R Swanepoel, which sum was deposited into her trust account on 9 February 2007, the balance of which at the time was R6 894.14.

[22] Ching also issued summons against the respondent and she paid Ching the sum of R56 000.00 on 12 February 2007.

[23] The respondent retained the amount of R90 000.00 given to her by Smith and subsequently used it for her personal requirements.

[24] In her answering affidavit the respondent stated that she had requested a deposit of R100 000.00 from Ching for Price’s

fees and R20 000.00 for Meyer’s fees. She did not request a deposit for her own fees and intended to account to Ching at a later stage. She did not however ever seek to recover any fees from Ching.

[25] The respondent admitted that she had received the two payments from Ching which were deposited into her trust account, and that she had paid Meyer R20 000.00. With regard to the R90 000.00 received from Smith, who was a client of hers, she stated that he did not at the time he gave her the money tell her that it was for Ching’s legal costs. Smith did not instruct her to deposit the money into her trust account and asked her to keep it for him in her safe. She only learned later from Ching that Smith had told Ching that the money was for Ching’s legal costs. At this stage she issued the receipt to Ching. The respondent admitted all the averments concerning the claims of Price and Ching, the amounts borrowed by her and paid and deposited into her trust account, and the balances in her trust account at the time. She admitted using the R90 000.00 for her personal requirements but said that she did so after settling the claims of Price and Ching.

[26] In response to the averment that she was not a fit and proper person to practise as an attorney, she stated that if her name was struck from the roll she would be unable to earn an income and support herself and her minor child. As a result of the events underlying the criminal trial, she realised that her accountant was not providing adequate service and appointed two further accounting firms. Since 2005 her books of account have been audited and the applicant has issued her with a Fidelity Fund certificate, which she presently still holds. In the ten years since the events concerning the Ching monies she has continued to practise and there have been no complaints made against her.

[27] In Malan and Another v Law Society, Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216 (SCA) at para [4] Harms ADP restated the principles applicable to striking off applications as follows:

“As was said in Jasat v Natal Law Society 2000 (3) SA 44, [2000] 2 All SA 310 (SCA) at para 10, s 22(1)(d) contemplates a three-stage inquiry:

First, the court must decide whether the alleged offending conduct has been established on a preponderance of probabilities, which is a factual inquiry.

Second, it must consider whether the person concerned ‘in the discretion of the Court’ is not a fit and proper person to continue to practise. This involves a weighing up of the conduct complained of against the conduct expected of an attorney and, to this extent, is a value judgment.

And third, the court must inquire whether in all the circumstances the person in question is to be removed from the roll of attorneys or whether an order of suspension from practice would suffice.”

Offending conduct

[28] The offending conduct relied upon by the applicant is the theft of monies entrusted to the respondent by a client. The respondent was convicted of this theft following a criminal trial and at this time there is no appeal or petition to this court pending. The conviction stands.

[29] In Hassim v Incorporated Law Society of Natal 1977 (2) SA 757 (A) the court considered and confirmed the practice which had been followed by the courts in applications for the striking off of an attorney, 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.”

See also Law Society of the Cape of Good Hope v Mtshabe [2008] ZAECHC 201 (5 December 2008) where Jones J said, with reference to Hassim (supra) that:

“The 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.”

[30] In Incorporated Law Society, Natal v Hassim 1978 (2) SA 285 (N) the court considered the application of the above statement in Hassim. At 288B-E the court said:

“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 proposition 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.”

[31] It will be noted from the respondent’s answering affidavit that save for the reason why she did not deposit the R90 000.00 into her trust account, she admitted all the other allegations relevant to the theft. In my view her bare assertion that Smith requested her to keep the money in her safe and did not instruct her to deposit it into her trust account is insufficient to cast doubt on the correctness of the conviction. The magistrate’s judgment was annexed to the founding affidavit. It is apparent from the judgment that the respondent also maintained in the criminal trial that Smith had requested her to keep the money in her safe and that she learned later that the money was paid to her in respect of Ching’s legal costs. The magistrate did not accept this evidence and found that the money was paid to her for Ching’s legal costs and for no other purpose. The respondent offered no criticism in her answering affidavit of the magistrate’s findings and judgment, which followed on a detailed analysis of the evidence of a number of witnesses, including the evidence of the respondent. She pointed to no aspect of the evidence or the magistrate’s evaluation thereof which demonstrated that he was wrong in his findings. Mr Harker submitted that the applicant had not proved the offending conduct on a balance of probabilities and that it should have evaluated the correctness of the conviction and considered whether or not there was a reasonable prospect of success on appeal. Such an approach is not consistent with the authorities and nothing further was required from the applicant to

prove the offending conduct. In the result the conviction for theft was proof for the purposes of the striking off application that the respondent committed the offence and the offending conduct relied upon by the applicant was therefore established.

Is the respondent not a fit and proper person to practise as an attorney?

[32] In order to determine this question the respondent’s offending conduct must be measured against the standard of conduct expected from an attorney. In Vassen v Law Society of the Cape of Good Hope [1998] ZASCA 47; 1998 (4) SA 532 (SCA) at 538G-I Eksteen JA said the following about the attorneys’ profession:

“ …………. it must be borne in mind that the profession of an attorney, as of any other officer of the Court, is an honourable profession which demands complete honesty, reliability and integrity from its members; and it is the duty of the respondent Society to ensure, as far as it is able, that its members measure up to the high standards demanded of them. A client who entrusts his affairs to an attorney must be able to rest assured that that attorney is an honourable man who can be trusted to manage his affairs meticulously and honestly. When money is entrusted to an attorney or when money comes to an attorney to be held in trust, the general public is entitled to expect that that money will not be used for any other purpose than that for which it is being held, and that it will be available to be paid to the persons on whose behalf it is held whenever it is required. Here once the respondent Society has been created to ensure that the reputation of this honourable profession is upheld by all its members so that all members of the public may continue to have every confidence and trust in the profession as a whole.”

[33] The respondent failed to use the R90 000.00 for the purpose for which it was held; it was not available when it was required and she had to borrow to pay Price and Ching. She used the money for her own needs. She was convicted of theft, an offence involving dishonesty, committed in the course of her practice as an attorney. Clearly her conduct fell far below the standards expected of an attorney and demonstrated that she is not a fit and proper person to practise as an attorney.

Appropriate order

[34] In dealing with this stage of the enquiry, Harms ADP in Malan (supra) said at para [6]:

“As pointed out in Jasat, the third leg is also a matter for the discretion of the court of first instance, and whether a court will adopt the one course or the other depends 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.”

And at para [10] he said:

“Obviously, if a court finds dishonesty, the circumstances must be exceptional before a court will order a suspension instead of a removal.”

[35] I am of the view that there are no exceptional circumstances in the present case. The respondent persists in denying the theft and thereby displays no insight into the seriousness of her conduct. She even suggested that her accountant at the time was somehow responsible for what happened. This lack of insight and failure to acknowledge that what she did was wrong militates strongly against a suspension. On the contrary the need to protect the public is indicated. The fact that the respondent has continued to practise without complaints against her does not in my view negate the seriousness of the offending conduct.

[36] In Mtshabe (supra), one of the arguments on the respondent’s behalf against a striking off order was based on the excellent character references provided by the respondent, and the fact that he had not committed further acts of criminal conduct since he committed the fraud of which he was convicted. The respondent’s proven track record of honesty since the fraud, the nature of the work he had done in the meantime and the manner in which he had performed the work indicated, so it was submitted, that the respondent was fully reformed and should not be struck off the roll. At para [13] Jones dealt with this argument as follows:

“I accept that an attorney may in appropriate circumstances be allowed to remain on the roll even after the commission of fraud (Incorporated Law Society, Natal v Roux 1972 (3) SA 146 (N)). Furthermore, proof of rehabilitation has in the past been regarded as a requirement for the re-admission of an attorney who has been struck off for unprofessional or dishonest conduct. But in those cases there was the clearest evidence to prove a complete and genuine transformation, so that the court was able to accept with confidence that an attorney with a blemished past

may safely be re-admitted without risk to the legal profession or the public who will have to rely on his integrity in the future. A long list of witnesses to good character is ordinarily not enough for this purpose, even if they establish that the attorney has outwardly become a pillar of society. In addition, there should be credible and convincing evidence of (a) a full realisation by the miscreant attorney of the enormity of his fraudulent conduct, particularly because it was in breach of the attorney’s code of conduct; (b) the effect of his actions upon the legal profession as a whole; and (c) a recognition of the defects in his character which caused his transgression. The last mentioned point will involve genuine soul-searching and self-analysis, from which can be inferred a fundamental reformation which ensures that the defects of character of the past have been eliminated.”

[37] In the present matter there is no such evidence. The only appropriate order is one removing the name of the respondent from the roll of attorneys. The respondent should pay the costs of the application on the attorney and client scale, in view of the fact that the applicant brought the application in pursuance of a public duty and as a result of the respondent’s dishonest conduct. (See Mtshabe at para [14].)

ORDER

[38] The following order will issue:

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, 11 and 12 of the notice of motion dated 30 March 2012.

____________

J M ROBERSON

JUDGE OF THE HIGH COURT

PLASKET J:-

I agree

C M PLASKET

Appearances:

For the Applicant: Adv M L Beard, instructed by Neville Borman & Botha, Grahamstown

For the Respondent: Mr B Harker, instructed by Yokwana Attorneys, Grahamstown