Law Society of the Northern Provinces v Zwiegers (12993/2017) [2020] ZAGPPHC 785 (22 December 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO:- 12993/2017

In the matter between:

THE LAW SOCIETY OF THE NORTHERN PROVINCES APPLICANT

And

WILLEM BARNARD JOHANNES ZWIEGERS RESPONDENT

JUDGMENT

CORAM: BAQWA J AND LUKHAIMANE AJ:

[1] The relief sought by the applicant is the removal of the respondent from the roll of attorneys. The respondent is already on suspension pending the finalization of this matter. The application is opposed.

[2] The application was previously postponed on a few occasions, 22 March 2017, 8 March 2018, 29 November 2018 , 13 August 2019 and 14 May 2020 some at the request of the respondent for various reasons.

[3] The respondent filed an answering affidavit on Friday 13 November 2020 ahead of the hearing following his appointment of new legal representatives. This answering affidavit was supposedly filed as a response to the applicant's supplementary affidavit filed on dated 29 September 2020. There was no condonation application for the late filing nor did the respondent's Counsel seek to request such condonation when addressing the court. The fact Js that where the rules of court have not been complied with, condonation should be properly sought, it is not just there for the taking. Therefore, the respondent's answering affidavit was not admitted as it was not properly before court.

[4] Before dealing with the merits of the matter, the respondent also raised the fact that the proper process that applicant should have followed in respect of any complaints against the respondent is to discipline him in terms of its rules and processes. Only after completing such a disciplinary process, may the applicant approach the court for the respondent's striking off or suspension, if that is the finding of the disciplinary process. In that respect, applicant correctly pointed out that the proceedings before court are in terms of section 22(d) of the Attorneys Act 53 of 1979 (Attorneys Act) and the court has an inherent jurisdiction to determine whether a legal practitioner is a fit and proper person to continue practising based on complaints lodged against them

Section 22(1)(d)

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 practise by the court within the jurisdiction of which he practises -

(d) if the court is satisfied that he is not a fit and proper person to continue to practise as an attorney

[5] In addition, the respondent failed to advance any authority for its contention that a disciplinary hearing must first be concluded before the court is approached in such proceedings. Therefore, the matter proceeded.

[6] As stated earlier, this is an application in terms of section 22(1)(d) of the Attorneys Act and constitutes an enquiry by the court into whether or not the respondent is fit and proper to remain on the roll of attorneys. The complaints levelled against the respondent are those of statutory and professional transgressions. The applicant received several complaints against the respondent and has established another transgression.

[7] The statutory transgression is that of failing to keep proper accounting records. It is a duty of every practising attorney to ensure that proper books are kept and that there are sufficient funds at all times to meet the trust account claims of his trusting

clients. Such proper accounting records are necessary for oversight of the administration of the trust funds. Further, such funds should be available to the client when demanded.

[8] The first complaint is one of a client Carl Ludwig Beck (Beck) relating to the respondent's irregular handling of trust funds.

Applicant's attempts to investigate the complaint, the identification of trust deficits flowing from these investigations were resisted by the respondent. The respondent failed to comply with the directions of applicant.

[9]A complaint was also received from another client (TM Anvary), received from BOP attorneys in respect of the respondent's failure to abide by a court order, failure to retain trust funds and his admitted inability to account and pay over these funds. The respondent has not attended to this complaint at all, in terms of filing responses even when ordered to do so by this court.

[10] The applicant also assails the respondent's behaviour during these proceedings as obstructive, contemptuous of court orders and dishonest, and requests that such behaviour be taken into account when determining whether or not the respondent should remain amongst the ranks of legal practitioners.

[11] As regards the statutory duty of an attorney to account to clients. the law is also clear. The law obliges an attorney to maintain a separate trust account and to deposit therein money held or received in trust by him on account of any person (Section 76 of the Attorneys Act). The law criminalises contravention of the provisions relating to these trust accounts held in terms of section 78(1). The law also provides that a practitioner who contravenes the provisions of the section would be guilty of unprofessional conduct and liable to be struck off the roll or suspended from practice - section 83(13).

[12] Failure to keep proper books of account is a serious contravention and renders an attorney liable to be struck off the roll of practitioners or liable to suspension; and the courts have repeatedly warned practitioners of the seriousness of such contravention"

(Law Society of Transvaal v Matthews 1989 {4) SA 389 (TPD) at 395E) . It can, therefore, be appreciated that the duty of an attorney to account is not just important. In essence it is fundamental to the honour of being a lawyer ( Law Society of the Northern Provinces v Moima 2013 ZAGPPHC 213).

[13] Any person who has been admitted and ,enrolled as an attorney may, on application by the law society , be struck off the roll or suspended from practice by the court in whose jurisdiction he practices if, in the discretion of the court, he is no longer a fit and proper person to continue to practise as an attorney in terms of section 22(1)(d). Section 22(1)(d) contemplates a three-stage inquiry:

"First, the court must first decide whether the alleged offending conduct has been established on a preponderance of probabilities . .. .

The second enquiry is whether, with reference to this conduct. the attorney is a fit and proper person to continue to practice as an attorney. This is expressed as being a discretion but in reality involves a weighing up of the conduct complained of against the conduct expected of an attorney. this being a value judgment.

The third enquiry is whether in all the circumstances the person should be removed from the roll or whether an order suspending him from practice for a specified period will suffice.

This is also a discretionary matter in which relevant factors include the nature of the offending conduct, 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 the

offending conduct, and the need to protect the public. Ultimately it is a question

of degree." (Jasat v Natal Law Society 2000 (3) SA 44 (SCA) at (10] per Scott JA).

[14] It is the applicant 's submiss ion that after receipt of the Beck's complaint, Vincent Faris (Faris), a chartered accountant and auditor, was appointed to conduct an investigation into the respondent's accounting and practice affairs. It is submitted that the respondent frustrated Faris' inspection and failed to provide him with the necessary accounting records. Despite the little information at his disposal, Faris was able to identify a significant trust deficit in the respondent's trust account as at 29 February 2016 for two trust creditors, being Beck and the applicant (interest). Following a court order granted on 22 March 2017, the respondent provided limited access to Faris for respondent's trust and business accounts of Beck and his associated entitfes despite the court order being framed in wide terms. The limited information that was provided was found to be inaccurate and unreliable by Faris. The respondent's accountant, Dr WAA Gouws (Gouws), admits that the accounting records are inaccurate.

[15] The respondent held an amount of R17 737 396.80 on trust on behalf of Beck. These funds were to be used to settle outstanding debts, loans plus fees and disbursements as per Beck's written instructions. When respondent provided Beck with the reconciliation of the accounts, there was an amount of R2 161 676 .69 in dispute. The respondent and Beck engaged on the basis of agreed fees, therefore such can only be withdrawn upon agreement by Beck thereto.

[16] The withdrawal of funds from trust and transfers from trust to business accounts, was at the time governed by the Rules of the Law Society of the Northern Provinces, in particular Rule 69.5 and 69.6, which were in place until 29 February 2016. It is not necessary for the court to repeat them in detail safe to say that the conduct of the respondent breached these rules in that as at 22 November 2016 , Gouws indicated to Faris in writing that Beck must still sign off on the final fee rates and subsequent reconciliation as agreed - whereas the funds had already left the trust account. In this regard, the respondent was dishonest towards Beck.

[17] It is the respondent's contention that Beck withdrew his complaint indicating that it had all been a misunderstanding. However, as correctly stated by the applicant, the mere fact that a complainant withdraws their complaint, does not mean that the applicant may not investigate the alleged transgressions that led to the complaint in the first place. If that were the case, it would lead to an absurdity. As to the substance of the issue, respondent has to date not advanced any evidence to dispute the fact that there were moneys transferred out of Beck's trust fund as fees and disbursements without these having been agreed upon as required.

[18]The respondent had also unlawfully withdrawn interest that had accrued on the funds held in his trust bank account which was due to the applicant. This, the respondent submitted, was an error made by the bank. When requested to provide proof of this submission, the respondent failed to do so. In addition, the submission regarding the debit being a bank error was being made for the first time during the hearing and therefore falls to be dismissed.

[19] There were also complaints by Anvary, to which the respondent failed to respond and some corresponding attorneys that respondent failed to pay, which failure the respondent admits to but seeks to avoid responsibility by asserting that the clients in those matters had not paid him - a factor he knows does not excuse his liability . As at the date of the hearing of this matter, only two of the three accounts had been settled. As to Anvary's complaint, the respondent concedes that the funds totaling R 1 225 000.00 were due , however at the date of this hearing, only R200 000 had been paid. The respondent had on various occasions undertaken to Anvary’s attorneys that he would repay the funds, providing several reasons why he was unable to do so.

[20] The applicant alleged that upon receipt of each one of the complaints from the respondent's clients, each complaint was taken up with the respondent. He was furnished with each complaint and then called upon to answer. He failed to answer. The only complaint that he engaged with to some point was the one concerning Beck. On various occasions the matter was postponed at his request. Notwithstanding the postponements, he stilt did not engage with the complaints nor implement the court orders in respect of some of the issues.

[21] To the extent that the respondent failed to actively deal with the complaints levelled against him, the averments of the applicant must, therefore, be accepted as true and correct. In the circumstances, the court is satisfied that each transgression has been established on a balance of probabilities.

[22] The failure of an attorney to account to a client is, on its own, a very serious transgression of section 78(1) read with section 83(13). The misconducts committed by the respondent in respect of each of his clients cannot be reconciled with the noble objectives, norms and standards which the applicant strives to cultivate and uphold. ''An attorney who cannot properly account to his client poses a very serious threat to public interest. All trust money held by the respondent was at great risk. He closed down his practice while he was under a dark and heavy cloud of suspicion. The manner in which the respondent conducted himself suggested to me that he probably kept no trust accounting records or that there were some serious irregularities in respect of some or all his accounting records." Law Society of the Free State v Molapo, (2013) ZAFSHC, at [48].

[23] In light of the aforegoing, the court is also satisfied that the applicant has established each and every one of the misconducts as evidenced by the complaints lodged by the respondent's previous clients. Each of them has been established on a preponderance of probabilities. Therefore, the first question of the inquiry has to be determined in favour of the applicant See Jasat v Natal Law Society 2000 (3) SA 44 (SCA).

[24] As regards the second leg of the inquiry, the respondent has made himself guilty of several acts of professional misconduct involving dishonesty. Given the respondent's conduct, in all likelihood the respondent did not avail all he information to Faris nor respond to the Anvary complaint because he knew that should a proper audit of his books be carried out, more non- compliance would be revealed. This is evidenced by his attempts to get Beck to withdraw the complaint in that respect not only is respondent dishonest with his clients, he also breached his duty towards the applicant.

[25] The complaints taken together make out a strong case of dishonesty against the respondent. An attorney who breaches his statutory duties towards his transgression of section 78(1) read ·with section 83(13). The misconducts committed by the respondent in respect of each of his clients cannot be reconciled with the noble objectives, norms and standards which the applicant strives to cultivate and uphold. "An attorney who cannot properly account to his client poses a very serious threat to public interest. All trust money held by the respondent was at great risk. He closed down his practice while he was under a dark and heavy cloud of suspicion. The manner in which the respondent conducted himself suggested to me that he probably kept no trust accounting records or that there were some serious irregularities in respect of some or all his accounting records." Law Society of the Free State v Molapo, (2013) ZAFSHC, at [48].

[23] In light of the aforegoing, the court is also satisfied that the applicant has established each and every one of the misconducts as evidenced by the complaints lodged by the respondent's previous clients. Each of them has been established on a preponderance of probabilities. Therefore, the first question of the inquiry has to be determined in favour of the applicant. See Jasat v Natal Law Society 2000 (3) SA 44 (SCA).

[24] As regards the second leg of the inquiry, the respondent has made himself guilty of several acts of professional misconduct involving dishonesty. Given the respondent's conduct, in all likelihood the respondent did not avail all the information to Faris nor respond to the Anvary complaint because he knew that should a proper audit of his books be carried out, more non- compliance would be revealed . This is evidenced by his attempts to get Beck to withdraw the complaint In that respect, not only is respondent dishonest with his clients, he also breached his duty towards the applicant.

[25] The complaints taken together make out a strong case of dishonesty against the respondent. An attorney who breaches his statutory duties towards his clients and towards his regulatory body can, in no circumstances, be objectively considered to be still a fit and proper person to practise law as a member of this honourable profession. The respondent's dishonest conduct, particularly towards his clients, disqualifies him from laying any claim to the membership of the noble profession. The misconducts he committed show that, by reason of his character or otherwise. he is certainly no longer a fit and a proper person to practise as an attorney. See Nyembezi v Natal Law Society supra.

[26] Consequently the respondent fails the fitness and propriety test. Therefore, the second question of the inquiry is also in favour of the applicant. The respondent is comparatively wanting. In this instance, it seems that the acts of dishonesty vitiate any likelihood that the respondent's unfitness and impropriety can, now or in the immediate future, be effectively cured. He has, therefore, jeopardised his privilege to serve the community as an attorney. Therefore, the second question of the inquiry also has to be decided in favour of the applicant. Jasat v Natal Law Society supra.

[27] The final element of the enquiry, concerns the appropriate measure of punishment. The respondent is already on suspension pending the finalisation of this matter. His conduct during the proceedings does not stand him in good stead either as he neither sought to take the applicant nor this court into his confidence by appropriately engaging with the issues at hand. A material consideration with regard to punishment concerns the public interest. The respondent is no longer a fit and proper person to continue practising as an attorney. The complainants suffered financial prejudice on account of his dishonest conduct and the image of the applicant's honourable profession has been seriously tarnished by his conduct.

[28] On behalf of the respondent, it .is suggested that the parties engage further with their experts and provide a joint report. With respect, this matter has been dragging on for a considerably long time and the respondent has had multiple opportunities to engage with the matter and failed· to do so, sometimes in violation of orders of this court. The respondent is already on suspension. In light of the gravity of the acts of dishonesty he has committed, especially those pertaining to the trust account, it is the court's firm view, that suspending him from practice for a specific period of time will not be proportionate to the gravity of the transgressions he has committed.

[29] This conclusion leaves no other satisfactory alternative other than to have the respondent's name permanently removed from the roll.

[30] Having considered all the circumstances in this matter and the three stage enquiry, the court comes to the following conclusion :

30.1 That each complaint lodged against the respondent has indeed been established on the preponderance of probabilities;

30.2 That the respondent is indeed no longer a fit and proper person to continue practicing as an attorney;

30.3 That the removal of the respondent's name from the roll of practising attorneys is a fitting and appropriate punishment for him for all the five transgressions he has committed .

[31] Accordingly the following order is made:

1.That Willem Barend Johannes Zwiegers be struck from the roll of legal practitioners.

2.That paragraph 1.2 to 1.12.6 of the order dated 8 March 2018 will remain in effect.

M LUKHAIMANE

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

I AGREE.

S BAQWA

JUDGE OF THE HIGH COURT

IT IS SO ORDERED.

Representation for parties:

For applicant: Mr L Groome

Instructed by: Rooth & Wessels

For first respondent: Adv Van der Walt

Instructed by: TC Hitge Inc