Law Society of the Northern Provinces v van der Merwe (9644/12) [2013] ZAGPPHC 57 (15 February 2013)
The court found that the respondent had failed to account for significant sums in his trust account, did not cooperate with the Law Society, and did not provide any explanation for his conduct. Applying the threefold enquiry from Summerley v Law Society, the court determined that the respondent's conduct was...
Source-derived case information.
- Citation
- [2013] ZAGPPHC 57
- Parties
- Applicant: Law Society of the Northern Provinces; Respondent: Daniel Joachim Jacob van der Merwe
- Court
- North Gauteng High Court, Pretoria
- Jurisdiction
- South Africa
- Case Number
- 9644/12
- Procedural Posture
- Urgent Application / Unopposed Application for Striking Off Attorney
- Outcome
- Application granted; respondent's name struck from the Roll of Attorneys; curator appointed; all relief in paragraphs 1-12 of the notice of motion granted.
- Judges
- Wright, Magardie
- Legal Topics
- Striking Off Attorney, Trust Account Shortage, Fit and Proper Person, Curatorship of Practice
Source-derived case record
Summary, issues, holding and outcome
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Parties
Law Society of the Northern Provinces
Applicant
Daniel Joachim Jacob van der Merwe
Respondent
Procedural Posture
Urgent Application / Unopposed Application for Striking Off Attorney
Legal Issues
- 1 Whether the respondent's conduct warrants striking his name from the Roll of Attorneys.
- 2 Whether the respondent is a fit and proper person to continue practising as an attorney.
- 3 Whether the appointment of a curator to the respondent's practice is justified.
Ratio Decidendi
The court found that the respondent had failed to account for significant sums in his trust account, did not cooperate with the Law Society, and did not provide any explanation for his conduct. Applying the threefold enquiry from Summerley v Law Society, the court determined that the respondent's conduct was established on a balance of probabilities, that he was not a fit and proper person to continue practising as an attorney, and that striking his name from the Roll was warranted. The evidence justified the granting of all relief sought, including the appointment of a curator to the respondent's practice.
Court Disposition
Application granted; respondent's name struck from the Roll of Attorneys; curator appointed; all relief in paragraphs 1-12 of the notice of motion granted.
Orders
- The respondent's name is struck from the Roll of Attorneys.
- The respondent must surrender and deliver his certificate of enrolment to the Registrar of this Court.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE NORTH GAUTENG HIGH COURT,
PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE NO: 9644/12
DATE:15/02/2013
In the matter between:
THE LAW SOCIETY OF THE NORTHERN PROVINCES........................APPLICANT
AND
DANIEL JOACHIM JACOB VAN DER MERWE …...................................RESPONDENT
JUDGMENT
Wright, AJ
1. In this unopposed application the Law Society of the Northern Provinces seeks orders striking the name of the Respondent from the Roll of Attorneys, that he surrenders and delivers to the Registrar of this Court his certificate of enrolment, the appointment of a curator to the financial affairs of the Respondent’s practice and ancillary relief.
2. The evidence shows a shortage on the Respondent’s trust account and that a number of the Respondent's clients have laid complaints in regard thereto. The Respondent has not co-operated with the Law Society or attempted to explain his behaviour or the shortage on his trust account. In one case the Respondent failed to refund an amount of over R500 000 from his trust account. In another case the Respondent has failed to account for the sum of R260 000. In yet another case the Respondent has failed to account for the sum of over R95 000.
3.In Summerley v Law Society of the Northern Provinces 2006 (5) SA (SCA) 613 at para 2, Brandt JA held that it had become settled law that the application of Section 22(1 )(d) involves a threefold enquiry. The first enquiry is aimed at determining whether the Law Society has established the offending conduct upon which it relies, on a balance of probabilities. The second question is whether, in the light of the misconduct thus established, the attorney concerned is not a “'fit and proper person to continue to practise as an attorney”. The exercise of the discretion at the second stage “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 third enquiry again requires the Court to exercise a discretion. At this stage the Court must decide, in the exercise of its discretion, whether the person who has been found not to be a fit and proper person to practise as an attorney deserves the ultimate penalty of being struck from the Roll or whether an order of suspension from practise will suffice.
4. In my view the evidence warrants the striking of the Respondent’s name from the Roll of Attorneys and the other relief sought.
5. The order I propose is to grant the relief sought in paragraphs 1-12 of the notice of motion for the Applicant dated 16 January 2012.
GC WRIGHT AJ
MAGARDIE AJ
I agree and it is so ordered