Society of Advocates of South Africa (Witwatersrand Local Division) v Van Den Heever (5077/05) [2006] ZAGPHC 73 (2 August 2006)

IN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)Date: 2006-08-02Case No: 5077/05In the matter between:THE SOCIETY OF ADVOCATES OFSOUTH AFRICA(WITWATERSRANDLOCAL DIVISION)ApplicantandVAN DEN HEEVER, MARIKARespondent______________________________________________________________JUDGMENT______________________________________________________________SOUTHWOOD J[1] The applicant, The Society of Advocates of South Africa (Witwatersrand Local Division), applies for an order that the name of the respondent, Marika van den Heever, be removed from the roll of advocates in terms of section 7 of the Admission of Advocates Act 74 of 1964 (‘the Act’) and for an order that the respondent pay the costs of this application. The respondent was admitted as an advocate on 20 September 1994, was employed as a legal advisor by Barlows SA from 1994 until 2001 and then commenced practising for her own account. The respondent is a member of the Independent Association of Advocates of South Africa (IAASA) and therefore not subject to the internal disciplinary procedures of the applicant. At all material times the respondent conducted her practice at75 Von Brandis Street, Krugersdorp (now known as Plot 59, Rietvallei, Krugersdorp).[2] In its founding affidavit the applicant contends that the respondent is not a fit and proper person to be on the roll of advocates and that she hasmisconducted herself and is guilty of unprofessional and unethical conduct and should be removed from the roll of advocates. Theapplicant allegesthat the respondent –(1) represented herself to be an attorney;(2) performed the work of an attorney;(3) took instructions directly from the public without the intervention of an attorney;(4) took instructions and performed the work of an advocate without being instructed and briefed by an attorney;(5) advertised her services without disclosing that she is an advocate;(6) advertised to do the work of an attorney;(7) took fees directly from the public;(8) sent letters of demand on behalf of clients;(9) charged for work not carried out;(10) charged excessive fees;(11) was untruthful to the High Court and/or the applicant’s representatives and/or IAASA’s representatives and/or her clients;(12) was guilty of conduct unbecoming of an advocate.[3] In her answering affidavit the respondent denies that there are grounds for her removal from the roll of advocates and asks that the application be dismissed with costs. On the crucial issue of whether she took instructions directly from the public without the intervention of an attorney she alleges that in each case relied upon by the applicant she was instructed by an attorney pursuant to a written or oral instruction.[4] The respondent also raises a number of objections to the application:she contendsthat the applicant has nolocus standiin terms of section 7 of the Act to seek her removal from the roll of advocates; that the applicant has failed to show that it has jurisdiction in respect of the area where the respondent practises; that the founding affidavit was not lawfully deposed to and that the deponent to the founding affidavit, Michael Robert Hellens SC(‘Hellens’), was not properly authorised to depose to the founding affidavit. At the hearing the respondent’s counseldid not persist with these contentions.[5] In argument the applicant’s counsel concentrated on theissueofwhether the respondent took instructions directly from the public without the intervention of an attorney. They argued that the respondent’s allegations thatin each caseshe had been instructed by an attorney should be rejectedon the papers. They contendedthat the respondent’s allegations did not create abona fidedispute of fact and that the respondent’s evidence was improbable and in some respects bizarre and that she had contradicted herself on oath. They contendedthat if the respondent’s version is rejected on the papers that would be an additional reason to remove her name form the roll of advocates. The respondent’s counsel contendedthat the respondent’s evidence should not be rejectedon the papers and that she establishedin each casethatshe received an instruction from an attorney. While both parties contendedthat the matter can be decided on the papers, both conceded that if the court could not decide the matter on the papers the matter should be referred to evidence.[6] InSouth Africathere is a divided legal profession. Legal practitioners are either advocates or attorneys – seeIn re Rome1991 (3) SA 291(A)at 305I-306E;De Freitas and Another v Society of Advocates of Natal2001 (3) SA 750(SCA)para 1;Commissioner,Competition Commission v General Council of the Bar of South Africa2002 (6) SA 606(SCA)at 620C-D;Rsemann v General Council of the Bar of South Africa2004 (1) SA 568(SCA)paras 28 and 47. Each branch of the profession has its professional bodies which determine the rules by which their members must conduct their practices, take action to ensure that members adhere to the rules, scrutinise and where appropriate, take action in regard to applications for membership of the profession and generally see to the interests of members of the profession - seeIn re Rome supra306A-B.[7]InIn re Rome suprawhenoutlining the points of distinction between the twobranches of the profession as they were in 1991(and had been for many years)Corbett CJ referred to the long-standing general legislative intent to keep the two branches of the profession and their membership distinct from one another (at 306F-G). He said –‘The advocate is, broadly speaking, the specialist in forensic skills and in giving expertadvice on legal matters, whereas the attorney has more general skills and is often,in addition, qualified in conveyancing and notarial practice. The attorney has direct links (often of a permanent and long-standing nature) with the lay client seeking legal assistance or advice and, where necessary or expedient, the attorney briefs an advocate on behalf of his client. The advocate has no direct links or long-standing relationship with the lay client:he only acts for the client onbrief in a particular matter and is normally precluded by bar rules from accepting professional work direct from the client. The attorney is responsible to the advocate for the payment of professional fees due to the latter by the client and for the recovery ofthese and his own fees and disbursements from the client: the advocate has no direct financial dealings with the client.’[8] The effect of bar rules prohibiting members from receiving work direct from the clientwithout the intervention of an attorney is that the advocates profession is,with certain limited exceptions, not presently relevant,a referral profession. However,with the enactment of the Right of Appearance in Courts Act 62 of 1995, giving attorneys the right of audiencein the higher courts, and the advent of associations of advocates who wish to practise independently of the established Bars the referral rule has been challenged. InSociety of Advocates of Natal v De Freitas and Another1997 (4) SA 1134(N)the Society of Advocates sought an order striking off the name of the respondent, De Freitas, because he accepted instructions directlyfrom members of the public and represented clients in litigation, without having been instructed by an attorney. In opposing the application, De Freitas, was joined by IAASA which brought a counter application for a declaratory order thatan‘advocate has, alternatively, advocates who are members of IAASA have, the right to accept instructions from any person with or without the intervention of an attorney’. This counter application was based on thecontention that there is no rule of law or practice to prevent an advocate from accepting instructions or briefs directfrom members of the publicwithout the intervention of an attorney. After an exhaustiveexamination of the legal position, Thirion J, on behalf of the Full Court, concluded that it is a rule of practice applicable to all practising advocates that they do not accept instructions except from attorneys and accordingly that disobedience of the rules is calculated to lead to irregularities and abuses and consequently, in the interests of the profession and the public, such disobedience should be treated as unprofessional conduct which justifies the exercise by the court of its disciplinary powers (at 117G-H). On appeal to the Supreme Court of Appeal, the finding and the conclusion of the full court were upheld – seeDe Freitas and Another v Society of Advocates of Natal and Another2001 (3) SA 750(SCA)paras 17 and 18-although the concurring judgment of Cameron JA referred to the necessity for change and supported the main judgment on the narrow basis that the referral rule should be enforced because advocates are not required or permitted to keep trust accounts and general disregard of the rule would lead to abuses in the future (paras 12, 13 and 14).[9] Thecorollaryofthis approach is that it is unprofessional for an advocate to negotiate and receive fees from a client without the intervention of an attorney. InDe Freitas, Cameron JA considered that there was a real and substantial danger to the public if advocates were permitted to handle public money, whether by dealing with their clients money or even by taking deposits on fees in advance (para 13) and that soliciting such a payment would be unprofessional and improper conduct which could lead to sanction by the court (para 14). The result is that South African law recognises a divided profession with a referral system – seeCommissioner,Competition Commission v General Council of the Bar of South Africasuprapara 19 – and it is part of that system that the attorney initiates the contact between an advocate and his client and negotiates and receives fees from the client on his own behalf and that of the advocate andthe advocatedoes not handle the money or cheques of his client – seeRsemann v General Council of the Bar of South Africasuprapara 28.[10] In the present case the respondent admits that she negotiated fees with her clients and received payments of these fees from her clients without the intervention of an attorney. She didthis, she says, on the advice ofanother advocate, Matthew Klein, a former chairman of IAASA. According to the respondent, Klein told her that there was no obstacle to taking fees direct from a client so long as it is not trust money. Klein confirms this in an affidavit. Consequently the respondent claims that there is no legal prohibition against her sending accounts to her clients and receiving payment from her clients.The respondent says that full argument on this issue would be presented at the hearing. The respondent strenuously denies that she received instructions direct from her clients without the intervention of an attorney.The applicant’s counsel arguesthat this is a clear case for thecourt to reject the respondent’s evidence on this issue on the papers without recourse to oral evidence.[11]The general rule where final relief issought on notice of motion andthere are disputes of fact on the affidavits, is that final relief can be granted only where the facts averred by the applicant and admitted by the respondent together with the facts alleged by the respondent justify thegrant of such relief – seePlascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 620(A)at 634E-I. But the power of the court to grant final relief is not confined to that situation. As pointed out by the court(at 634I-635C), where the denial of a fact by the respondent does not raise a real, genuine orbona fidedispute of fact and the respondent has not applied for the deponents concerned to be called for cross-examination under Rule 6(5)(g) and the court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof and may include this fact among those upon which it determines whether the applicant is entitled to the final relief sought. The court also referred (at 635C)to a further exception to the general rule, i.e. where a respondent’s allegations or denialsare so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers. The applicant’s counsel also relied onSoffiantini v Mould1956 (4) SA 150(E)at 154Fwhere the court emphasised the importance of taking a robust, commonsense approach to a dispute on motion as otherwise the effective functioningof the court could be hamstrungand circumvented by the most simple and blatant stratagem of a mere denial in general terms.[12] As pointed out inTrust Bank van Afrika Beperk v Western Bank Beperk en Andere NNO1978 (4) SA 281(A)at 293H-295Ait is generallyundesirable to settle disputes of fact solely on probabilities disclosed on contradictory affidavits in disregard of the advantages ofviva voceevidence. In every case the court must be satisfied that the probabilities will not be disturbed byviva voceexamination and cross-examination and that the alleged dispute is not real or genuine. Clearly caution is required in disciplinary proceedings where the consequences for the respondent are potentially serious. Nevertheless it is equally clear that form should not be preferred to substance.[13] In assessing the respondent’s version it will be borne in mind what is required of a legal practitioner in disciplinary proceedings. InProkureursorde van Tranvaal v Kleynhans1995 (1) SA 839(T)Van Dijkhorst J pointed out that it is wrong for the practitioner (in that case an attorney) to approach the matter like a criminal case: to simply deny factual averments without furtherelucidation andto put the applicant to the proof thereof. The court is concerned with a disciplinary enquiry and the proceedings aresui generis.A practitioner is expected to cooperate to furnish the necessary elucidation so that the full facts are before the court to ensure that a correct and fair adjudication of the case takes place. General denials, evasions and obstructionism have no place in disciplinary proceedings. The approach with regard to advocates must be the same.[14] Against that background the principal dispute of fact relating to whether the respondent took work direct from the public without the intervention of an attorney will be considered. The applicant contends that if the respondent did,she is not a fit and proper person to continue to practise as an advocate.[15] It is significant that five different complainants, independently of one another, complained of the same conduct. Although the facts of each case differ they are remarkably similar with regard to themodus operandiemployed by the respondent. All complainants submitted detailed complaints in writing about the respondent and these were amplified in the applicant’s founding affidavits. In each case the respondent took an instruction direct from the client, without the intervention of an attorney;she took a deposit which she negotiated without the intervention of an attorney;she charged further fees without the intervention of an attorney and she performed all legal services pursuant to the instructions she received, also without the assistance of an attorney, including work reserved for attorneys. In each case the complainant paidarelatively large sum of money to the respondent and each complainant alleges that there was no satisfactory progress. The respondent disputes that she received instructions direct from the complainants without the intervention of an attorney.She alleges that in each case she received an instruction from an attorney.The applicant contends that these disputes are notbona fide:that there are material contradictions between some of the explanationsfurnished by the respondent before commencement of the proceedings and the explanation furnished on affidavit and that where evidence to prove that the respondent was instructed by an attorney should have been forthcoming, there is none. The applicant also argues that the respondent has been economical with the truthboth in dealing with the applicantand the court. It is common cause that if the respondent has been untruthful in her affidavit,that will be an additional ground for finding that she is not a fit and proper person to be permitted to continue to practise as an advocate.[16] It is a matter for comment that the respondent has not dealt with the substance of each complaint by dealing point by point with each allegation against her. She has chosen to deal with each complaint, which is set out in a number of paragraphs supported by the relevant documents, in a single paragraph broken up into subparagraphs. The result is that much of the complaint is not dealt with. There is no suggestion that the respondent is not aware that she was required to set out which of the applicant’s allegations she admits and which she denies and to set out her version of the relevant facts.[17] The facts relating to each complainant will be considered in turn.AndrWendling[18] The following facts are admitted or not disputed:In March 2003 Wendling addressed a letter to the Law Society of theNorthern Provincesto complain about the respondent. According to Wendling, he responded to a newspaper advertisementwhich appearedin the Star newspaper on 17 September 2001. The advertisement asked whether the reader needed a lawyer or any legal assistance. It listed the legal services provided – which included work done by attorneys – and furnisheda cellphone number, 082476 6345. Wendling called this number and left his name and telephone number on the message service. A few days later the respondent replied to Wendling’s message. The respondentand Wendlingarranged to meet at the Eastgate shopping complex. At the meeting Wendling explained his legal problems to the respondent. At the time Wendling did not know the distinction between an advocate and an attorney and he did not know that the advocates’profession is a referral profession. The respondentand Wendlingarranged to meet again at the Cresta Shopping Centre. At this meeting Wendling handed documents to the respondent so that she could take the necessary action and they discussed the merits ofWendling’s claims. They agreed to meet again at the Duneden Hotel in Edenvale on 16 January 2002. At this meeting the respondent agreed to act on Wendling’s behalf as she considered that the merits in each case strongly favoured Wendling. The respondent requested a deposit of R3 000 which Wendling paid by means of a cheque for R3 000 drawn by his wife.The respondent banked the chequeon the same day.[19] On 21 January 2002 Wendling telephoned the respondent to tell her he wasgoing to fax her a memorandumsetting out his views on the claims. Wendling then faxedthe memorandum to the respondent. The memorandum states that the respondent should send letters of demand to the people Wendling intended claiming from. At no time before that date did the respondent inform Wendling that she was not entitled to send letters of demand on behalf of clients and that he should appoint an attorney to send letters of demand. The respondent undertook to send the letters of demand.[20] On about 2 April 2002 Wendling received a call from the respondent’s secretary demanding payment of further funds. Wendling requested a detailed statement of work done, of payments received by the respondent and copies of the letters of demand sent by the respondent. In answer Wendling received an undated invoice from the respondent setting out the work done and the fees charged therefor. This invoiceis on the respondent’s advocates letterhead and reflectsthe cellphone number 082476 6345,fees and travelling expenses totalling R9 130 and the payment received of R3 000. The fees include R1 000 in respect of ‘drafting toE Thuynsma’. The invoice also reflects the respondent’s bank details. On 4 April 2002 Wendling paid R2 500 into the respondent’s bank account and faxed to the respondent a lettercontaining his suggestion of paying the respondent’s fees in instalments. The respondent did not reply to this letter. All that Wendling received was a copy of letter of demand toE Thuynsma. Thisis on the respondent’s advocates letterhead, is addressed to Mr Eddie Thuynsma and Mr WS Honeywill and demands payment of an amount of R48 950 which was to be paid to Mr and Mrs Wendling within 7 days of date thereof (i.e. 1 February 2002). Although the letter of demand was signed by the respondent there was no proof that it had been sent. In accordance with his suggestion Wendling paid the respondent a further R1 000 in May 2002. In June 2002 the respondent’s secretary telephoned Wendlingand demandedpayment of the outstanding balance. Wendling replied that he would not make furtherpayments until the respondent furnished him with proof that she had carried out work on his behalf. The next day the respondent’s secretary again telephoned Wendling and advised him that the respondent was not prepared to work for him if he did not pay the outstanding balance and that he should find another lawyer.[21] On 14 November 2003, after the Law Society of the Northern Provinces had told Wendling to communicate his complaint to the applicant, Hellens on behalf of the applicant, addressed a letter to the respondent, enclosing a copy of Wendling’s complaint,and requesteda response to the allegation that she had taken an instruction directly from a client without the intervention of an attorney and the allegation that she had sent a letter of demand on her client’s behalf. On 14 November 2003 the respondent replied stating that the complaint had been answered sufficiently and that the matter (together with others) had been handed over to the Bar Council of IAASA and that Hellens should contact the Bar Council if he wished to take the matter further. Hellens did so . He communicated withQuim de Freitas as suggested by the respondent. De Freitas told Hellens that he was not dealing with any complaints against the respondent and that she had not handed any matters to him. On 9 February 2004 Hellens communicated this in a letter to the respondent. According to Hellens the respondent at no stage informed him or furnished him with any information which would indicate that she was instructed by an attorney to act on behalf of Wendling.Respondent’s answer[22] The respondent denies that cellphone number 082 476 6345 was hers but says that some of the attorneys who instructed her used that number. (She does not identify the attorneys and she does not furnish a reason for themto usethe number.)She speculates that one of Gert Scheeper’s secretaries typed the invoice for her and inserted the number by mistake.(She does not attach a supporting affidavit to confirm that this is in fact what happened.)The respondent denies that she published the advertisementbut says that the attorneys who instructedher and who practised in association placed advertisementsfrom time to time in accordance with their professional rules.(She does not identify the attorneys and she does not explain why the attorneys would place an advert to which the respondent would respond if a message was left.)[23] The respondent states that during September 2001 she received an oral instruction from Mr Gert Scheepers’ office to telephone Wendling and make an appointment and consult. She confirms that after she received this oral instruction from Scheepers’ office she telephoned Wendling and arranged a consultation at Eastgate and that she consulted with Wendling who had a number of cases – one against Thuynsma. The respondent alleges thatduring the consultation at Eastgate she pertinently informed Wendling that she was an advocate. She also claims that she told Wendling that Scheepers was already acting as attorney. The respondent states that Wendling possibly reacted to one of the advertisements placed by the attorneys but she does not know how Wendling and Scheepers met. Scheepers, the alleged instructing attorney, confirms the correctness of this statement.(Scheepers does not explain how Wendling became his client.)[24] The respondent states that after this first consultation with Wendling, Scheepers was not available to deal with certain aspects of Wendling’s case and some of them were transferred to another attorney called Colette du Toit who was to advise Scheepersinter aliawhether some of his claimshadprescribed and was to send a letter of demand to Thuynsma. At a later stage, says the respondent, Wendling telephoned her and indicated that he was unhappy with Du Toit’s advice that his claims had prescribed. The respondent says that she telephoned Du Toit to ascertain what the problem was and Du Toit then instructed her on 12 January 2002 to see whether she, the respondent, agreed that the claims had prescribed. The respondent attaches a note to her affidavit in support of this evidence. It reads –’12 Jan 2002Colette du Toit gives me a verbal instruction to continue with Wendling’s matter. Wendling is happy with this.’(This note is written in manuscript on a piece of scrap paper.)[25] The respondent states that she researched the position and concluded that Du Toit’s advice was correct. Nevertheless she suggested that a letter of demand be sent to Thuynsma demanding payment of R48 950. The respondent says she drafted a letter of demand on her letterhead.(The copy she annexes to her affidavit is identical to the copy of the letter of demandWendling received from the respondent.)[26] The respondent then states that on 24 February – she does not say 2002, but the clear implication is that it is – she addressed an urgent fax to her instructing attorney, Colette du Toit, asking her to telephone the respondent because Wendling was pestering the respondent about the steps taken. The copy of the fax is dated 22 February 2005 and the transmission report is dated 24 February 2005. The fax reads –‘AANDAG: COLETTE DU TOITFAKS NO: (011) 953 2527Kanu my dringend skakel mbt die saak van AndrWendling waarin u opdraggewende prokureur is.Met dank.Marika van den Heever’(The respondent does not explain why she did not simply telephone her instructing attorney to discuss the matter or why it was necessary to tell her instructing attorney that she was the instructing attorney.)[27] Thereafter, according to the respondent,Colette du Toit advised the respondent that she was satisfied in principle with the letter of demand but that she had made certain changes. She replaced the respondent’s letterhead with her own (because she had to send the letter of demand); she deleted the references to the annexures and she signed the letter of demand. The respondent alleges that after making these changes Du Toit sent the letter of demand to Thuynsma under her own letterhead.(No supporting affidavit by Du Toit is annexed. The respondent does not explain how she knew Du Toit sent the letter of demand on her own letterhead.)The respondentstates that she did not senda letter of demand to Thuynsma under her name.[28] The respondent then explains how much work she did to justify fees of R9 130. This includes a fee of R1 000 for a singlefolio letter of demand. The respondent contends that there is no legal prohibition against rendering a statement of account to Wendling or receiving payment direct from him. She says full legal argument will be presented on that issue (none was forthcoming). The respondent also alleges that Adv Klein of IAASA informed her that there was no prohibition against this as long as it was not trust money.(She makes no attempt to explain why the money she received from Wendling was not trust money.)[29] The respondent admits the exchange of letters between the applicant and herself on 14 November 2003 but denies receiving Hellens’ letter of 9 February 2004 in whichhe advises her that De Freitas denies having received correspondence from her or that hewas dealing with any complaintagainsther. The respondent says that she does not deal with the correspondence fully because she has already done so. (This is patently incorrect because the respondent avoided dealing with Wendling’s complaints sent to her by Hellens on 14 November 2003 by saying that it had been referred to IAASA and she does not deal with the nub of the complaint set out in Hellens’ letter of 9 February 2004). The respondent says the fact that De Freitas indicated that he was not dealing with any complaint against her is confirmation that he had not received any complaints. (This issome three months after sheallegedly handed them to IAASA.)[30] The respondent concludes her answer to this complaint with a general denial that she is guilty of the misconduct alleged by the applicant.Applicant’s reply[31] Wendling denies that he gave instructions to Scheepers or to Du Toit. Neither rendered an account to him for services rendered.Louis Motsamai[32] The following facts are admitted or disputed:On 24 April 2003 the applicant received a written complaint about the respondent from Louis Motsamai. During about December 2002 Motsamai saw an advertisement in the Daily Sun about a labour lawyer with a cellphone number 083 9525474. Motsamai telephoned the number and left his name and cellphone number with the voicemail service. A few days later a woman phoned Motsamai and told him she had obtained his cellphone number and asked whether he still needed assistance for his labour problem. Motsamai answered in the affirmative and the woman told him that she was an advocate and they arranged to meet for a consultation at her Krugersdorp office. Motsamai attended this consultation on 8 January 2003. Motsamai explained his labour problem to the respondent. It involved his unlawful dismissal, his ‘retirement’ and the failure of his former employer to pay to SARS the PAYE deducted from his salary. The respondent assured him that she could assist. She also handed him her business card. It states in bold printMARIKA VAN DEN HEEVER, ADVOCATE. Motsamai paid the respondent R150 for the consultation and asked the respondent what her fees would be. The respondent replied that there was no fixed legal fee but that she required a deposit of R2 000.[33] Motsamai and the respondent arranged a second consultation for 10 February 2003. At that consultationMotsamai paid the respondent R2 000 in cash for which he received a receipt. During this consultation the respondent communicated with Motsamai’s former employers and discussed the matter with them. After that Peter Dixon arrived andjoined in the consultation. The respondent told Motsamai thatDixonwas a labour consultant who would be assisting with the matter. Motsamai states that at no time was an attorney present, that he never instructed an attorney and that he did not receive an invoice or statement of account from an attorney.[34] On 24 February 2003 the respondent telephoned Motsamai and requested more money because the deposit had been used up. The respondent told Motsamai that she had been making telephone calls and sending faxes on his behalf. She would give him an invoice to show him how the money had been used. On 5 March 2003 Motsamai went to the respondent and paid a further R2 000 to the respondent’s secretary. The respondent was not present. After that Motsamai was not able to communicate with the respondent. Every time he went to her office she was either engaged or at court. She did not return his calls or messages. On 11 April 2003 Motsamai consulted withDixonwho told him that he, Motsamai, did not have good prospects of success. He needed to apply for condonation but did not have good reasonsforthe delay.[35] In April 2003 Motsamai concluded that he had paid R4 150 to the respondent for nothing. He then went to the public library and read about the South African legal system. He discoveredthat there is a differencebetween an attorney and an advocate and that an advocate requiresthe instruction of an attorney. On 21 April 2003 Motsamai addressed a letter to the respondent complaining about the fact that he had paid her R4 150 and that there had been no progress in his case and that she had acted unlawfully by taking work from him without the intervention of an attorney. Motsamai demanded that the respondent change her attitude and informed her that he had laid a complaint against her with the Bar Council. On 22 April 2003 the respondent contacted Motsamai and told himsomebody had to do Dixon’s work,which Motsamai understood tomean that the respondent felt thatshe hadto do Dixon’s work for him, and on 23 April 2003 the respondent contacted Motsamai again and told him to contact Dixon who had news for him. When he did soDixonagain told Motsamai that he did not have a case.[36]Dixonhas furnished an affidavit dated 17 July 2003 in which he states that early in 2003 the respondent approached him to assist her with a client who had certain labour issues, queries and complaints against his former employer, Harmony Goldmine Mining Company. He confirms that he met Motsamai and told him that he would not succeed as he had no reason why his review application was late. He also confirms that fees were discussed between himself, Motsamai and the respondent.Dixoninvoiced Motsamai R684 for the review application. On 24 April 2003 Motsamai wrote his letter to the respondent.[37] On 24 June 2003 Motsamai went to the respondent’s office and asked thatthe money paid to herbe refunded to him. Hisviewwasthat no work had been done. The respondent was not present but her secretary told Motsamai that the respondent had indicated that he was entitled to a refund of only R800. Motsamai said that he was not happy about this and left. On 25 June 2003Inspector Phosa of the Krugersdorp SAPS telephoned Motsamai and told him that the respondent had laid a complaint of harassment against him. Motsamai was not to attend upon her offices or call her again.[38] In March or April 2003 during a visit to the respondent’s office the respondent handed Motsamai an invoice reflecting the fees charged by her and the payment of R2 000. The invoice did not reflect the second payment of R2 000 and therefore only R800 was refundable.[39] On 29 May 2003 Hellens on behalf of the applicant addressed a letter to the respondent enclosing a copy of Motsamai’s complaint. In this letter Hellens asked the respondent whether, as an advocate,she had been taking work from a member of the publicand requested her to respondto Motsamai’s complaint. On 4 June 2003 the respondent replied to this letter. She denied taking work directly from the publicand requested Hellens tofax the copy of Motsamai’s letteragainas it was partially illegible. On 6 June 2003 the respondentsent Hellensan addendum to her letter of 4 June 2003. In this addendum the respondent stated that Motsamai knew exactly what the functions of attorney and advocate are; that he knew that advocates do not write letters to opposing parties; that it was explained to Motsamai in the presence of the attorney that the attorney must attend to the correspondence and that the attorney was always present during consultations; that Motsamai had conveyed that he would consult with the attorney for paperwork purposes and that the respondent would attend court and consultations. On 9 June 2003 Hellens acknowledged receipt of the respondent’s letter of 4 June 2003 and undertook to fax to the respondent Motsamai’s complaint. On 3 July 2003 Hellens addressed a further letter to the respondentasking for the name and contact details of the attorney who had instructed her to act on behalf of Motsamai.[40] On 18 July 2003 the respondent faxed a letterto Davida Wessels oftheIAASA disciplinarycommittee. In herletter the respondent stated that she was having problems with the Johannesburg Bar Council about a complaint against her by Motsamai, a former client. She also said that on 8 January 2003 she received a verbal instruction from attorney Gert Scheepers (the attorney of record) who told her he does not specialise in labour matters and that to save costsDixonhelped her on anongoing basis.[41] On 7 October 2003 Hellens faxed a further letterto the respondent pointing out that he had not received an answer to his letter of 1 July 2003 and again asking for the details of the instructing attorney and a copy of the brief cover marked by the respondent and copies of statements of account rendered by her to the attorney. He also pointed out that the respondent’s failure to respond to his letters would lead to the conclusion that she had received work without the intervention of an attorney. Hellens then received a letterdated 4 July 2003 in answer to his letter dated 1 July 2003 in which the respondent stated that Gert Scheepers was appointed attorney of record and that his address was75 Von Brandis Street, Krugersdorp(i.e. the respondent’s address). On11 November 2003 Hellensfaxed a letterto Scheepers with a copy ofMotsamai’s complaint. In his letter Hellens askedScheepers whether Motsamai was his client, whether Scheepers had instructed the respondent as advocate to act on behalf of Motsamai, what the respondent was instructed to do, what work the respondent did, what fees she charged and whether Scheepers attended consultations between Motsamai and the respondent. Scheepers did not reply to thisfax or to theapplicant’s attorney’s requests forthe same information. Scheepers has also not provideda document to show that Motsamai was his client or that Scheepers instructed the respondent.[42] Hellens then received the letter from the respondent requesting him to communicate with De Freitas of IAASA and there was the exchange of correspondence already referred to.[43] On 10 February 2004 Hellens received a letter dated 9 February 2004 from Wessels of IAASA stating that IAASA’s disciplinary committee had investigated a complaint that the respondent had done work without a brief;that this had been investigated; that it wasdecided that the respondent had been properly briefed;that there was no reason to hold a disciplinary hearing as the disciplinary committee hadnot received a formal complaint from amember of the public. Wessels also said that because of the applicant’s intention to apply to have the respondent’s name struck off the roll the committee would reinvestigate the matter and inform the applicant of the outcome. Hellens has not received any further communication from IAASA’s disciplinary committee.Respondent’s answer[44]The respondent denies that she placed an advertisement in the Daily Sun and that she everused cellphone number 083 952 5474. She alleges that she received a written instruction from Scheepers and annexes a copy of the brief cover. It is dated 8 January 2003 and is headed Re Motsamai’s labour matter. The instruction reads –‘Please consult, advise and peruse in this matter’. The respondent alleges that she consulted with Motsamai on the 8thof January 2003 on instruction from Scheepers. The respondent states that she explained to Motsamai the difference between an attorney and an advocate and that Motsamai must have known that Scheepers was his attorney because he consulted with the respondent by way of a written instruction from Scheepers.[45] The respondent confirms that she insisted on payment in advance as she was entitled to do and that Motsamaipaid her R4 150 in advance. She also confirms that she gave Motsamai the statement of account annexed to the applicant’s papers (MH25) and she attaches to her affidavit an amended statement of account which also reflects that she had to repay R800 to Motsamai.[46] The respondent states that a second opinion was necessaryandthatshe recommended that they consultDixon. She confirms thatDixonagreedwith her opinion. She states that after this consultation with Dixon Motsamai wantedDixonto handlehis cases and she handed all the documents toDixonandfurnished Motsamai with the statementofaccount. The respondent says she telephonedMotsamai and offered to repay himR800 but Motsamai never went back to her. She says that during their last telephone conversation Motsamai threatened her with physical harm if she did not repay all the money. As a result ofthis threatshe laid a charge against him.Applicant’s reply[47] Motsamai denies that he had any communicationwith Scheepers or any personfrom his office. This is not pertinently alleged by either the respondent or Scheepers.Gerald Dirksen[48] The following facts are admitted ornotdisputed:During about November 1992 Dirksen, who was serving a prison sentence, received a letter from a fellow-prisoner called Abri whotold him the respondenthad visited and consulted with prisoners at the Krugersdorp prison. Abri suggested that the respondent could assist Dirksen. Dirksen was interested because he had served part of his sentence. Dirksen then received a visit from the respondent at about the same time. He had not asked her to visit him and assumed that Abri had asked her to visit him. Dirksen told the respondent what he wanted her to do but the respondent suggested that he rather appeal or apply to have the rest of his sentence converted to correctional supervision. Dirksen pointed out that neither wasfeasible. His petition for leave to appeal had been refused by the Supreme Court of Appeal andhe had been convicted of a crime involving violence (murder and attempted murder), had been sentenced to more than 10 years imprisonment and still hadto serve5 years imprisonment.However, the respondentinsisted that both options were available. She had successfully represented other prisoners in the same circumstances.[49] The respondent told Dirksen she would charge him R10 000 for an appeal or R6 000 for an application to the High Court to convert the remainder of his sentence to correctional supervision. Sheasked fora deposit of R4 000.She wrote her bank details onthe reverse side of a business card (bearing her name, profession and contact details) and requested that the deposit be paid into the account. Dirksen’s wife then deposited R1 000 into the respondent’s bank account and later Dirksen’s sister-in-law deposited the balance of R3 000. This wasa loan to Dirksen. Thereafter,Dirksen’s wife met the respondent at herKrugersdorp office and handed the respondent the deposit slip and confirmed that the deposit of R4 000 had been paid. Dirksen’s wife enquired about the prospects of success. At a later stage the respondent handed Dirksen documents relating to another matter in which she had been successful in having a sentence converted to correctional supervision. This case was different from Dirksen’s in that the applicant in that matter had not been convicted of a crime of violence and had been sentenced to less than 5 years imprisonment.[50] In early February 2003 Dirksen’s wife approached Dirksen’s previous employer, GrahamDick, with a view to raising the balance of the respondent’s fees. Dick wanted to be sure that he would not be throwing money away and telephoned the respondent to gether view on the prospects of success. The respondent told Dick that she could not do anything to assist Dirksen. Shortly afterwards, on about 14 February 2003, Dirksen’s wife telephoned the respondent to enquire about the R4 000 deposit and why the respondent no longer believed that she could assist her husband. The respondent told her that she did not believe that they would succeed with an appeal or a conversion of Dirksen’s sentence. Dirksen’ wife also askedfor a statement of account. The respondent has not furnished Dirksen with a statement of account. At nostage did an attorney attend aconsultation with Dirksen and Dirksen did not receivea statement of account or an invoice from an attorney.[51] On 17 March 2003 Dirksen addressed a complaint to the PretoriaSociety of Advocates which referredit to the applicant. On 6 June 2003 Hellens sent a copy of the complaint to the respondent and requested an explanation from her. The respondent furnished an explanation onabout 27 June 2003. Her letterclearly suggests that she was instructed by an attorney and that she and the attorney were requested to advise Dirksen on the merits of a possible appeal.On 7 July 2003 Hellens faxeda further letter to the respondent requesting details of the respondent’s instructing attorney as well as a copy of the brief cover marked by her and copies ofthestatements of accountwhich she furnishedto the instructing attorney.The respondent denies that she receivedthis letter. On 9 October 2003 Hellens faxed a further letter to the respondent pointing out that he had not received a response to his letter of 7 July 2003 and requestedan answer. He warned her that if she failed to respond an application to strike her off the roll might be launched. The respondent did not reply to this letter.On 13 November 2003 Hellens faxedanother letter to the respondent calling upon her to answer his previous letters of 7 July 2003 and 7 October 2003. The respondent alleges that she did not receive this letter. It was,according to the respondent,sent to the wrong fax number.[52] Up to the time that Hellens deposed to the applicant’s founding affidavit the respondent did not answer Hellens’ questions about her instructing attorney and did not furnish him with copies of marked brief covers or herstatements of account to her attorney and the attorney’s statements of account to his client.The respondent’s answer[53] The respondent states that during or about the end of November 2002 she received an instruction from attorneyGert Scheepersto consult with Dirksen, give him advice and research his case. She attaches to her affidavit a copy of the written instruction. The instruction bears the name of Scheepers and says in respect of GERALD DIRKSEN MATTER ‘Please consult, advise and peruse in this matter’.Scheepers merely confirms the respondent’s averment that he gave her a written instruction.The applicant’s reply[54] Dirksen and his wife deny that they communicated or consulted with or appointed Scheepers.Jan Harm Conradie[55] The followingfacts are admitted or not disputed:During April 2003Conradie visited his son, RudolphJohannes Conradie (Conradie Jr), who was a prisoner in the Baviaanspoort prison. Conradie Jr told his father that an advocate called Marika van den Heever had been to see a number of prisoners and that he had spoken to her and told her about his case. She had assured him that although his appeal in the Witwatersrand Local Division had been dismissed she would be successful with anappeal to the Supreme Court ofAppeal. The advocate had arrivedunannounced and no attorney was present during the consultation. Theadvocatehanded ConradieJr her business card which reflectedher address as75 Von Brandis Street, Krugersdorp.[56] Conradie contacted the respondent and arranged a consultation at her office at75 Von Brandis Street, Krugersdorp, early in April 2003. At this consultation Conradie and his fianc, Maria Catherina Oosthuizen,pointed out to the respondent that attorney Nardus Grovhad been dealing with the matter and was in possession of all the documents. The respondent then telephoned Grov, told him she was taking over the matter and requested the files and documents pertaining to the matter. The respondent told Conradie that she would charge R25 000 for the entire matter and that she required an amount of R10 000 before she could obtain a date for the appeal in the Supreme Court of Appeal. Conradie told the respondent that he could not find R10 000 immediately but that he would pay her R5 000 so that she could begin working on the matter. The respondent provided Conradie withher bank details andaform entitled ‘Application for Appointment of Legal Representative’ which she told him was a ‘pro formapayment schedule form’. The formhas spaces forinformation to be inserted aboutthe client and the accountholder. The respondent informed Conradie that in respect of the balance of R15 000 she would complete a monthly payment schedule for him. Conradieand Oosthuizenthen went to Grov’s office and collected the files and documents relating to his son’s case and delivered them to the respondent. On 28 June 2003 Conradie paid R5 000(which he had borrowed)into the respondent’s bank account and on 2 February 2004another R5 000. In the intervening monthsConradiehad a number of telephone conversations withthe respondent. The respondent assured him that she had done a lot of workon the matter, that the matter was progressing but that she required payment of the second R5 000 before she could obtain a date for the hearing of the appeal.[57] On 18 February 2004 Conradie met the respondent again to discuss progress in the matter. The respondent told Conradie that Mr Rex of Honey &Partners inBloemfonteinwas handling the matter inBloemfonteinand that Mr Gert Scheepers was Conradie’s attorney of record. Conradie had never met Rex or Scheepers and had not instructed either of them to act in the matter. Conradie telephoned Rex to enquire about his son’s case. Rex told Conradie that although the respondent had communicated with him, he, Rex, had not received any documents. Conradie then telephoned the respondent to tell her what Rex had said. The respondent stated that she had sent the documents to Rex together with R2 000 but that she would follow up the matter. Later Conradie telephoned Rex again and Rex confirmed that he had received the box of files/documents but no money and that he was going to send the documents back to the respondent. Rex said that he did not know what was going on in the matter.[58]At that stage Conradiebecame suspicious. It appeared to him that he had paid the respondent R10 000 but there had been littleprogress in the matter. The respondent had not even managed to get a date for the hearing of the appeal. Conradie telephoned Scheepers to enquire about the matter as the respondent had told Conradie that Scheepers was the attorney of record. Conradie spoke to Scheepers on 27 February 2004 to arrange a consultation. However Scheepers told Conradie that he had no files relating to the matter. He also told Conradie that the respondent had mentioned the matter to him in 2003 but he had heard nothing since. This confirmed Conradie’s suspicions. He telephoned the respondent and told herhe was unhappy about the waywhich she was dealing with the matter – it appeared as if nothing had beendone. The respondent shouted at Conradie, told him he did not know what he was talking about, that she was no longer prepared to proceed with the matter and that Conradie should collect his files and account.[59] Conradie collected the files and statement of account. The statement reflects that the respondent conducted 7 consultations, 3 with Conradie, 1 with Grov, 1 with her instructing attorneyand 2 with Honey & Partners. The charges totalled R8 700 and there was an amount of R1 300 owing to Conradie. Conradie disputes that he consulted with the respondent on three of the dates.[60] Conradie has never met Scheepers or Rex and he did not instruct Scheepers to act as attorney or authorise Scheepers to appoint a correspondent inBloemfontein.Neither Scheepers nor Rexsent Conradie a statement of account.[61] Conradie telephoned the respondent to arrange for payment of the R1300. The respondent told Conradie to come and collect it from her office. When Conradie attended at the respondent’s office he was told that the respondent had gone to court and had not left any money for him. Thereafter Conradie and Oosthuizen telephoned the respondent on numerous occasions to ask for payment. Despite promises by the respondent she did not pay the R1 300. Nor did she repaythe deposit of R10 000despite her failure to arrange for a date for the hearing of the appeal. The respondent told Oosthuizen that if Conradie and Oosthuizen did not stop telephoning her she, the respondent, would apply for an interdict to prevent them harassing her. She was also extremely rude to them.[62] On 23 March 2004 Conradieaddressed a letter to theGeneral Council of the Bar(GCB) to complain about the respondent’s conduct. The GCB referred the letter to the applicant.Conradie’s letter states clearly that therewas noattorney in the case. On 25 May 2004 Conradie addressed a further letter to theGCB to complainthat the respondent had not repaid the balance of R1 300 despite numerous promises to do so. TheGCBreferred this letter to the applicantalso.Respondent’s answer[63]The respondent states that on 7 May 2003 she received a written instruction from Martin Venter of C.J. le Roux Attorneys to represent Rudolph Johannes Conradie in an appeal in the Supreme Court of Appeal. She attaches to her affidavit a brief cover dated 7 May 2003 bearing a signature, M. Venter, and reflecting the attorney C.J. leRoux Inc. The instruction was‘attending to appeal’. The respondent states that pursuant to the instruction she went to see Conradie Jr and told him she would do her best for him in the appeal.(The respondent does not attach anaffidavit by Venter confirming that he acted on behalf of Conradie Jr or Conradieand that heinstructed the respondent to act in the appeal.)[64] Regarding theform entitled ‘Application for Appointment as Legal Representative’ the respondent states that it is a form used in her office when she receives an instruction from an attorney and requires payment in advance. She alleges that she is entitled to ask for payment in advance.The applicant’s reply[65] Conradie and his son deny that they instructed Martin Venter of CJ le Roux Attorneys. The respondent does not allege that Conradie Jr instructed Venter.Geffert Pretorius[66] The following facts areadmitted or not disputed:On about 23 February 2002 attorney Jurgens Bekker submittedto the applicant an affidavit byGeffert Pretoriuscomplaining about the respondent. According to Pretorius, in about February 2001 he approached the respondent for legal advice and she undertook to act on his behalf. The respondent took instructions direct from Pretorius (without the intervention of an attorney) and consulted with him. In January 2002 Pretorius terminated his mandate to the respondent as he was not satisfied with progress in the matter. Pretorius states that the respondent issued a summons on his behalf against ABSA Bank Limited and Comcar Motors (Pty) Ltd. The summons and the particulars of claim make no provision foran attorney’ssignature and there is a signature on the last page of the particulars of claim over the words ‘M. van den Heever, plaintiff’s counsel, Mike Smuts Attorneys,75 Von Brandis Street, Krugersdorp’. Only the respondent’s address and telephone numbers appear on the summons.Respondent’s answer[67] The respondent alleges that during or about October 2001 she received an instruction from Gert Scheepers Attorneys to draw up a summons for Geffert Pretorius who wished to sue ABSA Bank and Comcar Motors for damages for breach of contract. She states that she prepared the particulars of claim and the summons was issued byattorney Mike Smutswho practised in association with Gert Scheepers. She says she has no knowledge of any further steps taken in the litigation.(The respondent does not annex an affidavit by Mike Smuts to support her allegations.)[68] In a supplementary affidavit filed by the applicant,Michael John Smuts,an attorneywho practises at268 Voortrekker Road, Krugersdorp, states with regard to the respondent’s answer that he does not know Geffert Pretorius; that he has never met Geffert Pretorius; that he knows nothing about the case and that he did not issue the summons. He also denies that he has ever been in association with Gert Scheepers and that he has ever briefed the respondent in this or any other matter. He also states that he never gave permission to the respondent to use his name on the summons.[69] The respondent filed a supplementary answering affidavit but does not dealwith Smuts’ affidavit.[70] The question is whether the applicant has established its primary contention that the respondent took work directly from clients without the intervention of an attorney. In each case the respondent alleges that she received a written or oral instruction from an attorney. The issue to be decided is whether this must be accepted, and if so, whether this will show that the respondent is not guilty of unprofessional conduct.[71] The following has been established in the affidavits –(1)fivedifferent complainants, completely independently of each other, testified that the respondent took instructionsfrom them, directly without the intervention of an attorney. (It is significant that not one of the letters of complaint refers to an attorney and the role played by the attorney);(2)each complainant instructed the respondent at a different time and it is not suggested in the respondent’s answering affidavit or in argument that there is a conspiracy against the respondent;(3)in four of the cases the respondent agreed on the fees to be paid by the complainant, without the intervention of an attorney, and received payment of these fees from the complainant, without the intervention of an attorney;(4)in four of these cases the complainant paid the respondent in advance before the respondent had done any work pursuant to the instruction, and the respondent received these fees in her own bank account;(5)in two cases (Motsamai and Conradie) the respondent acknowledged that she wasobliged to repayfees;(6) in one case (Motsamai) the respondent appointed a labour consultant (Dixon) to assist her without the intervention of an attorney and in one case (Conradie) the respondent appointed an attorney to act on behalf of the client in Bloemfontein (Rex) without the intervention of an attorney;(7) in respect of one client (Conradie) there is a material contradiction between the explanation furnished to the applicant’s representative, Hellens, and the explanation furnished in the respondent’s answering affidavit. In a letter to Hellens the respondent alleges that she received an oral instruction and in her answering affidavit the respondent alleges that she received a written instruction. When she wrote to Hellens the respondent clearly must have knownabout the written instruction. There is no explanation for this contradiction;(8) in respect of another client (Motsamai) the respondent attempts to create the impression that she had a communication with an instructing attorney called Colette du Toit in February 2002 when, in fact,she purported to communicate with her in February 2005, after the applicant had instituted these proceedings against herand that it was important for her to establish that she had received instructions from an attorney in each case;(9) the respondent alleges that in respect of four clients (Wendling, Motsamai, Dirksen and Pretorius) she received instructions from an attorney, Gert Scheepers, who makes an affidavit confirming the respondent’s allegations. In respect of Wendling Scheepers confirms the respondent’s statement that she does not know how Wendling and Scheepers met and does not furnish an explanation of how they metor how Wendling came to instruct him.Thereis a complete lack of detailin Scheepers’ affidavit about his relationship with each client, why he instructed the respondent and what his instructions were. Scheepers does not say when each client instructed him, what the instruction was and what financial arrangements were made with his client. Scheepers also does not attach a copy of each client’s file or any other piece of paper to show that he received instructions and executed work pursuant to those instructions. Scheepers also does not explain why it was necessary to instruct the respondent or why he did not negotiate the respondent’s feeswith the respondent and obtaincover from his client for those fees. Scheepers does not annex copies of his statements of account to his client or his final account.(The lack of detail is extremely significant. Without it the written instructions allegedlyreceived fromScheepers are meaninglessand the documents must be regarded as a sham);(10) the respondent alleges that Martin Venter of C.J. le Roux Attorneys instructed her to represent Conradie’s son. The respondent does not attach an affidavit by Venter. If Venter was appointed by Conradie Jr he would have a note of his instruction and/or a file. Venter would also have made financial arrangements with his client both for himself and the respondent and receivedpayment ofthefees. Venter would have arranged for the date of the hearing and appointeda correspondent to deal with the matter inBloemfontein. An appeal would require specific instructions regarding heads of argument and the appearance of counsel.(Once again the absence ofthis detail is significant. Without it the instructions to counsel are meaningless and the brief cover must be regarded as a sham);(11) the respondent alleges that Scheepers instructed her to act on behalf of Pretorius but that the summons was issued by attorney Mike Smuts who practised in association with Scheepers. The respondent does not attach an affidavit by Smuts. She also does not explain why the summons does not refer to Scheepers or Smuts or even make provision for an attorney’s signature. The applicant filed an affidavit by Smuts denying the respondent’s allegations and the respondent did not deal with Smuts’ affidavit;(12) Hellens, on behalf of the applicant, addressed letters to the respondent pertinently askingwhether she had taken instructions from each client without the intervention of an attorney.The respondent either avoided the question or failed to answer it. In the circumstances her failure to explain justifies an inference that the respondent did not receive instructions from an attorney –McWilliams v First Consolidated Holdings (Pty) Ltd1982 (2) SA 1(A)at 10E-G.(13) despite receiving letters pertinently questioning whether she had taken work directly from clients without the intervention of an attorney the respondent did not furnish the applicant with any documentary proof that she received instructions from her alleged instructing attorney, with whom she shared offices, before the applicant launched the application;(14)after the applicant launched this application the respondent has produced virtually no evidence to support her allegation that she was instructed by an attorney in each case – she has simply made vague and unsubstantiated statements;(15)despite receiving letters from the applicant pertinently asking whether he had instructed the respondent, Scheepers failed to reply to these letters;(16) the affidavit filed by Scheepers is singularly lacking in any detail showing that he received instructions from the client and instructed the respondent to act on behalf of the client;(17) there is no explanation by Scheepers or the respondent for this;(18) the respondent handed to Conradie a form entitled ‘Application for Appointment as Legal Representative’. On the face of it that is precisely what the form is.(19) some of the respondent’s statements are bizarre – she states that she told Wendling that she was an advocate and Scheepers was the attorney in the matter and without explanation she says that aspects of his case were ‘transferred’ to another attorney.[72] In the light of these facts the respondent’s allegation that she received instructions from attorneys is nothing more than a bald allegation and cannot be accepted.It is also inconsistent with the manner in which the respondent carried out her instructions. She appears to have performed all the services of an advocate and attorney.It is accordingly found that in each case the respondent took instructions from the client without the intervention of an attorney and that her allegation that she received instructions from an attorney is not true.[73]The respondent commenced practice for her own account after the judgments in theDe Freitas case.As a member of IAASA she must have been aware of these judgments. She does not contend otherwise. She practised in flagrant disregard of the law. The respondent also took fees in advance to the potential prejudice of her clients. The respondent was untruthful in her dealings with the applicant and in her affidavit with regard to the central issue of whether she received instructions from an attorney.[74] In view of these findings the respondent is not a fit and proper person to be permitted to continue to practise as an advocate and should be removed from the roll of advocates. Regarding costs the applicant should not be out of pocket for carrying out the onerous duty of placing the relevant facts before this court. The respondent will be ordered to pay the costs of the application, including the costs of two counsel.The matter is of importance to the administration of justice and is not uncomplicated. It was not contended that costs of two counsel should not be allowed.[75] The following order is made:(1) The name of the respondent is removed from the roll of advocates;(2) The respondent is ordered to pay the costs of the application including the costs consequent upon the employment of two counsel._____________________B.R. SOUTHWOODJUDGE OF THE HIGH COURTPOSWA J[76] I have had the benefit of reading the judgment of my brother, Southwood J. I agree with the order removing the respondent from the roll of advocates and ordering her to pay the costs of this application, including the costs consequent upon the employment of two counsel. In so agreeing, I do, however, wish to make certain observations that I consider it necessary to make.[77] Firstly, I understand the respondent to be contending that, regardless of whether it is unprofessional or otherwise for an advocate to receive instructions directly from a client, without the intervention of an attorney, she did not,as a matter of fact, receive instructions directly from a client.[78] Secondly, the respondent spent a lot of time trying to support her contention that she, at all times, received instructions directly from an attorney without the intervention of an attorney.[79] Thirdly, with due regard to the contention relating to the undesirability to settle disputes of fact solely on probabilities basedon contradicting evidence of the parties on affidavits (Trust Bank Beperk en Andere NNO1978 (4) SA 281(A)at 293H-295A) Southwood J correctly found that ‘probabilities will not (in this case) be disturbed byviva voceexamination and cross-examination and that the alleged dispute is not real or genuine’ and that this is a case where ‘form should not be preferred to substance’.[80] In respect of each of the five independent complaints, the applicant established that the respondent was, as Southwood J puts it, ‘economical with the truth’ in her accountwith regard to each of the complaintsin respect of each of the complaints against her.Moreover, in respect ofeach of the complainants, evidence clearly shows that the respondent short-changed the complainant.[81] To the extent that the respondent has been untruthful, I agree with Southwood J that that “constitutes anadditional ground for finding that she is not a fit and proper person to be permitted to continue to practise as an advocate”(Kekana v Society of Advocates of South Africa[1998] ZASCA 54;1998 (4) SA 649(SCA)at 655F/G-G/H and 655I-656B).[82] To the extent that the respondent, a member of the IAASA, was, not only reported to the applicant butalso,reported toIAASA, I find myself constrainedto comment and raise my concerns.[83] In view of the history of the regulation of the professional conduct of advocates in this country – which culminated in the emergence and establishment of autonomous associations other than the “constituent Bars”(as referred to by Hefer ACJ inDe Freitas v Society of Advocates of Natal2001 (3) SA 750(SCA),in para [2], at 755B-C) or “traditional Bars”(as described by Cameron JA inDe Freitas suprain para [2], at 761G).It seems to methat there should be reciprocal respectfor each other’s turf between “traditional Bars” and the “rebel Bars” (as described byCameron JA, inDe Freitas(supra), in para [2] at 761G). Such respect should be displayed by leaving it to the respective Bars to regulate the professional conduct of their respective members. It seems to me that, when Hefer ACJ referred to each of the constituent Bars having had “its own rules regulating the professional conduct of its members”, he excluded the “rebel Bars”(which I shall refer to as the “non-traditional Bars”) because he was dealing with the history of the traditional Bars (an expression I prefer to ‘constituent Bars’), whichhe said “have been in existence for the last century or more at the seats of the various Divisions of the High Court”(De Freitas supra,para [2], at 755C). There can be no doubt that, to the extent that the autonomy of the non-traditional Bars is not in dispute, they too should have their “own rules regulating the professional conduct of (their) members”. Their “own rules”, like those of the traditional Bars, should not be in conflict with generally accepted “professional rules”which the Courts have “power to enforce”(De Freitas supra,para [8] at 763B-C).[84] On the above hypothesis, each of the Bars should be accorded its turf and be implicitlyrelied upon to respect the current “referral practice that we know in this country”,in terms whereof‘advocates may not’, receive instructions directly from clients outside the existing “various exceptions (that) are allowed”(per Hefer ACJ, inDe Freitas supra, para [8] at 756H-I).[85] Cameron JA makes it very clear that “the referral rule”as he describes it in paras [6]-[12], is not a holy cow.(a).Asthe learned judge ofAppealpoints out, in these paragraphs, there is nofundamental principle of the advocatesprofession as practised in South Africa (and in all Commonwealth jurisdictions,where the division of the legal profession into advocates and attorneys has been maintained) that the advocates’ profession is a referral profession and that advocates do not accept briefs directly form members of the public”, as had been the basis on which the striking off of Mr De Freitas,prior to theapplicant’scounsel disavowing it,was premised(para [6]);(b) The mere fact that non-traditional Bars may be or are uncomfortable about the referral rule should notin my view,make them suspectwhen it comes to their general ability to regulate the professional conduct of their members. After all, even the English Bar, on which the traditional Barmoulds itself, has shifted to the left of the traditional Bar. Inthat regard Cameron JA said,in para [7], at 762G-I/J:“[7] The information supplied to us from theUnited KingdomandAustralasiaindicates that in most areas where the division within the legal profession is maintained, the referral rule has been substantially adapted, so that, subject to strict safeguards, specialist litigation-practitioners are indeed now entitled to take work directly from the public or sections of it. In this the Bar in our country appears to be behind its peers even in the United Kingdom where, at the English Bar, detailed rules providing for direct access in strictly circumscribed cases now exist. That those jurisdictions have so adjusted the rule in the interest of both the public and the profession that serves it seems to me to be beyond question; and it is for these reasons that I conclude that a claim by a branch of the legal profession that a professional rule or practice exists in the public interest and should for that reason be enforced by the Courts must be scrutinised to ensure that it is not loosely or over-broadly made.”[86]Although Cameron JA does not pertinently deal with the concern I am raising here, i.e. mutual respect of each other’s turf by the respective Bars (traditional and non-traditional), to the extent that he refers to ‘a vigorous andindependent Bar (then referring toone Bar)’, in para [10] at 763G-I), there is no doubt in my mind that the concern I am raising is not inconsistent with his dicta in this regard. I do not think it is inappropriate to substitute ‘Bars’ for ‘Bar’ in the phrase ‘vigorous and independent Bar’. The contents of the entire paras[10] and [11] are salutary in my view. The two paragraphs reads:“[10] I agree with Hefer ACJ thatitis in the public interest that there should be a vigorous and independent Bar serving the public, which, subject to judicial supervision, is self-regulated, whose members are in principle available to all, and who in general do not perform administrative and preparatory work in litigation but concentrate their skills on the craft of forensic practice. It is not, however, clear to me that thisdesideratumis incompatible with some relaxation of the referral rule and I do not understand the judgment of Hefer ACJ to suggest that it is. I do, however, consider that the Bar should be encouraged to investigate with urgent speed whether accommodations of the referral rule along the lines already practised in comparable jurisdictions should not be introduced here as a means of possibly enhancing public access to legal services and reducing the cost of at least some of those services.[11] There is, in short, in my view,nothing intrinsically improper in a specialist corps of litigation-practitioners operating without the referral rule in its widest sense;nor, as experience in comparable jurisdictionsamply shows, would sensible adjustments to the rule be inimical to the continued flourishing of such a corps. From a public policy point of view, the enactment of the1995 statute[the Right of Appearance in Courts Act 62 of 1995]indeed shows that the Legislature considered that at least one branch of the profession – attorneys – should be permitted to offer all litigation services without the necessity for being briefed by anotherpractitioner.That does not show, as IAASA insupportably contended, that advocates should by reciprocal relaxation be permitted to engage in all forms of attorneys’ work. But it does show that the Courts – before whom litigation specialists who are attorneys are entitled to appear without the intermediation of another attorney – should be meticulous in their scrutiny of the same rule when its enforcement is sought against all advocates.’[87]Until the law, in this country, with regard to trust laws,has been so adjusted thatitcan afford protection tothegeneral public where, say, an advocate keeps public funds in his or her private trust, it remains necessary to deny advocates direct access to prospective clients as that will automatically entail access to their funds without, as yet, any adequate protection for the public;[88] Just as Hefer ACJ saysin De Freitas (supra),in para [5],that ‘the Courts have inherent disciplinary powers over practitioners in cases of misconduct or unprofessional conduct’, Cameron JArefers to ‘the Court’s power to enforce professional rules’,in para [8],at 763B.The learned judges of appeal are, therefore, in agreement that the courts are the ultimate arbiters where enforcement of existing professional rules is concerned.[89] It follows, in my view, that,even where, as in this case, an advocate’s conduct is brought beforethe Court for examinationby an association other than that ofwhich the advocate is a member,the Court will not refuse to deal with it. This situation is not, however, ideal in my view. It seems to me that,where a complaint about alleged improper conduct of a non-member is reported to the wrong body, the latter should refercomplaint tothe relevant association,even ifthe former body is to be kept abreastdevelopments in the appropriate association’s enquiry. In that way, apart from fostering a healthy atmosphere between the respective Bars – which would facilitate discussion of the future of the legal profession – this approach would ensure that the relevant association does not suppress the complaint about its member’s conduct.[90] In the present case, the respondent’s counsel did not persist with an objection raised by the respondent, in the answering affidavit, that the applicant has nolocus standiin terms of section 7 of the Admission of Advocates Act 74 of 1964(“the Act”). Consequently, the application was dealt with purely on the merits, in respect whereof I have already expressed my agreement with my brother Southwood J’s judgment. However, it seems to me that it is appropriate to deal with the problem in the way I have done because it exists and calls for attention.[91] Moreover,in the present case,the respondent avers that she was advised by Advocate Matthew Klein, a former chairperson of IAASA, that there is no legal prohibition against an advocate receiving direct payment from a client, provided that such payment does not constitute trust money (in other words,wherepayment is for services already rendered).I have already expressed my view, based onDe Freitas(supra),with regard to direct access to clients, by advocates. What is relevant for now is the fact thatI am of the view thatit may be unjust, in circumstances where there is no dishonesty on the part of anadvocate who is a member of anon-traditional Bar,for the courtto disregard advice he or she legitimately received from his or her association on the interpretation of laws (including courts’ decisions) on what the appropriate professionalconduct is, where such interpretation is in conflict with that of the traditional Bars. After all, asindicated inDe Freitas(supra),inpara [5],at 762B-D,there is disparity even amongst the various regionaltraditionalBars,in certain respects.[92] It may well be that,where an advocate’s conduct is brought before the court by an association of which he or she is not a member, the advocate’s association should be joined in the application.There is no doubt in my mind that mutual and reciprocal respect amongst all legal practitioners’ autonomous associations can avoid tension and possibly reduce the number ofunnecessary applications for the striking off of practitioners for conduct that is not “intrinsicallyand necessarily unprofessional” but “unprofessional and undesirable only because of the contingent conditions of legal practicewithin which it occurs”(Cameron JA,inDe Freitas(supra),para [8], at 763C-D).[93] In conclusion, I repeat my agreement with my brother Southwood J’s judgment as to the outcome of this application.______________________J.N.M. POSWAJUDGE OF THE HIGH COURTCASE NO: 5077/05HEARD ON: 27 March 2006FOR THE APPLICANT: ADV. C. WATT-PRINGLE SCADV. G. KAIRINOSINSTRUCTED BY: Routledge Modise Moss MorrisFOR THE RESPONDENT: ADV. J. GREYLINGINSTRUCTED BY:Mitchell & Kruger AttorneysDATE OF JUDGMENT:2 August 2006

IN THE HIGH COURT OF

SOUTH AFRICA

(

TRANSVAAL

PROVINCIAL DIVISION)

Date: 2006-08-02

Case No: 5077/05

In the matter between:

THE SOCIETY OF ADVOCATES OFSOUTH AFRICA

THE SOCIETY OF ADVOCATES OF

(WITWATERSRANDLOCAL DIVISION)ApplicantandVAN DEN HEEVER, MARIKARespondent______________________________________________________________

WITWATERSRAND

LOCAL DIVISION)

Applicantand

VAN DEN HEEVER, MARIKA

Respondent

______________________________________________________________

JUDGMENT

SOUTHWOOD J

[1] The applicant, The Society of Advocates of South Africa (Witwatersrand Local Division), applies for an order that the name of the respondent, Marika van den Heever, be removed from the roll of advocates in terms of section 7 of the Admission of Advocates Act 74 of 1964 (‘the Act’) and for an order that the respondent pay the costs of this application. The respondent was admitted as an advocate on 20 September 1994, was employed as a legal advisor by Barlows SA from 1994 until 2001 and then commenced practising for her own account. The respondent is a member of the Independent Association of Advocates of South Africa (IAASA) and therefore not subject to the internal disciplinary procedures of the applicant. At all material times the respondent conducted her practice at75 Von Brandis Street, Krugersdorp (now known as Plot 59, Rietvallei, Krugersdorp).[2] In its founding affidavit the applicant contends that the respondent is not a fit and proper person to be on the roll of advocates and that she hasmisconducted herself and is guilty of unprofessional and unethical conduct and should be removed from the roll of advocates. Theapplicant allegesthat the respondent –(1) represented herself to be an attorney;(2) performed the work of an attorney;

[1

] The applicant, The Society of Advocates of South Africa (Witwatersrand Local Division)

, applies for an order that the name of the respondent, Marika van den Heever, be removed from the roll of advocates in terms of section 7 of the Admission of Advocates Act 74 of 1964 (‘the Act’) and for an order that the respondent pay the costs of this application. The respondent was admitted as an advocate on 20 September 1994, was employed as a legal advisor by Barlows SA from 1994 until 2001 and then commenced practising for her own account. The respondent is a member of the Independent Association of Advocates of South Africa (IAASA) and therefore not subject to the internal disciplinary procedures of the applicant. At all material times the respondent conducted her practice at

75 Von Brandis Street

, Krugersdorp (now known as Plot 59, Rietvallei, Krugersdorp).

[2

] In its founding affidavit the applicant contends that the respondent is not a fit and proper person to be on the rol

l of advocates and that she has

misconducted her

self and is guilty of unprofessional and unethical conduct and should be removed from the roll of advocates. The

applicant alleges

that the respondent –

(1) represented herself to be an attorney;

(2) performed the work of an attorney;

(3) took instructions directly from the public without the intervention of an attorney;

(4) took instructions and performed the work of an advocate without being instructed and briefed by an attorney;

(5) advertised her services without disclosing that she is an advocate;

(6) advertised to do the work of an attorney;

(7) took fees directly from the public;

(8) sent letters of demand on behalf of clients;

(9) charged for work not carried out;

(10) charged excessive fees;

(11) was untruthful to the High Court and/or the applicant’s representatives and/or IAASA’s representatives and/or her clients;

(12) was guilty of conduct unbecoming of an advocate.

[3] In her answering affidavit the respondent denies that there are grounds for her removal from the roll of advocates and asks that the application be dismissed with costs. On the crucial issue of whether she took instructions directly from the public without the intervention of an attorney she alleges that in each case relied upon by the applicant she was instructed by an attorney pursuant to a written or oral instruction.[4] The respondent also raises a number of objections to the application:she contendsthat the applicant has nolocus standiin terms of section 7 of the Act to seek her removal from the roll of advocates; that the applicant has failed to show that it has jurisdiction in respect of the area where the respondent practises; that the founding affidavit was not lawfully deposed to and that the deponent to the founding affidavit, Michael Robert Hellens SC(‘Hellens’), was not properly authorised to depose to the founding affidavit. At the hearing the respondent’s counseldid not persist with these contentions.[5] In argument the applicant’s counsel concentrated on theissueofwhether the respondent took instructions directly from the public without the intervention of an attorney. They argued that the respondent’s allegations thatin each caseshe had been instructed by an attorney should be rejectedon the papers. They contendedthat the respondent’s allegations did not create abona fidedispute of fact and that the respondent’s evidence was improbable and in some respects bizarre and that she had contradicted herself on oath. They contendedthat if the respondent’s version is rejected on the papers that would be an additional reason to remove her name form the roll of advocates. The respondent’s counsel contendedthat the respondent’s evidence should not be rejectedon the papers and that she establishedin each casethatshe received an instruction from an attorney. While both parties contendedthat the matter can be decided on the papers, both conceded that if the court could not decide the matter on the papers the matter should be referred to evidence.[6] InSouth Africathere is a divided legal profession. Legal practitioners are either advocates or attorneys – seeIn re Rome1991 (3) SA 291(A)at 305I-306E;De Freitas and Another v Society of Advocates of Natal2001 (3) SA 750(SCA)para 1;Commissioner,Competition Commission v General Council of the Bar of South Africa2002 (6) SA 606(SCA)at 620C-D;Rsemann v General Council of the Bar of South Africa2004 (1) SA 568(SCA)paras 28 and 47. Each branch of the profession has its professional bodies which determine the rules by which their members must conduct their practices, take action to ensure that members adhere to the rules, scrutinise and where appropriate, take action in regard to applications for membership of the profession and generally see to the interests of members of the profession - seeIn re Rome supra306A-B.[7]InIn re Rome suprawhenoutlining the points of distinction between the twobranches of the profession as they were in 1991(and had been for many years)Corbett CJ referred to the long-standing general legislative intent to keep the two branches of the profession and their membership distinct from one another (at 306F-G). He said –

[3

] In her answering affidavit the respondent denies that there are grounds for her removal from the roll of advocates and asks that the application be dismissed with costs. On the crucial issue of whether she took instructions directly from the public without the intervention of an attorney she alleges that in each case relied upon by the applicant she was instructed by an attorney pursuant to a written or oral instruction.

[4

] The respondent also raises a number of objections to the application:

she contends

that the applicant has no

locus standi

in terms of section 7 of the Act to seek her removal from the roll of advocates; that the applicant has failed to show that it has jurisdiction in respect of the area where the respondent practises; that the founding affidavit was not lawfully deposed to and that the deponent to the founding affid

avit, Michael Robert Hellens SC

(‘Hellens’)

, was not properly authorised to depose to the founding affidavit. At the hearing t

he respondent’s counsel

di

d not persist with these contentions

.

[5

] In argument the applicant’s coun

sel concentrated on the

issue

of

whether the respondent took instructions directly from the public without the intervention of an attorney. They argued that the respondent’s allegations that

in each case

she had been instructed by an attorney should be rejected

on the papers. They contended

that the respondent’s allegations did not create a

bona fide

dispute of fact and that the respondent’s evidence was improbable and in some respects bizarre and that she had contradicted herself on oath. They contend

ed

that if the respondent’s version is rejected on the papers that would be an additional reason to remove her name form the roll of advocates. T

he respondent’s counsel contended

that the respondent’s evidence should not be rejected

on the papers and that she established

that

she received an instruction from an attorney. While both parties contend

that the matter can be decided on the papers, both conceded that if the court could not decide the matter on the pape

rs the matter should be referred to evidence.

[6

] In

South Africa

there is a divided legal profession. Legal practitioners are either advocates or attorneys – see

In re Rome

1991 (3) SA 291(A)

1991 (3) SA 291

at 305I-306E;

De Freitas and Another v Society of Advocates of Natal

2001 (3) SA 750(SCA)

2001 (3) SA 750

para 1

;

Commiss

ioner,

Competition Commission v General Council of the Bar of South Africa

2002 (6) SA 606(SCA)

2002 (6) SA 606

at 620C-D;

Rsemann v General Council of the Bar of South Africa

2004 (1) SA 568(SCA)

2004 (1) SA 568

paras 28 and 47. Each branch of the profession has its professional bodies which determine the rules by which their members must conduct their practices, take action to ensure that members adhere to the rules, scrutinise and where appropriate, take action in regard to applications for membership of the profession and generally see to the interests of members of the profession - see

In re Rome supra

306A-B.

[7]

In

when

outlining the points of distinction between the tw

o

branches of the profession as they were in 1991

and had been for many years

)

Corbett CJ referred to the long-standing general legislative intent to keep the two branches of the profession and their membership distinct from one another (at 306F-G). He said –

‘The advocate is, broadly speaking, the specialist in forensic skills and in giving expertadvice on legal matters, whereas the attorney has more general skills and is often,in addition, qualified in conveyancing and notarial practice. The attorney has direct links (often of a permanent and long-standing nature) with the lay client seeking legal assistance or advice and, where necessary or expedient, the attorney briefs an advocate on behalf of his client. The advocate has no direct links or long-standing relationship with the lay client:he only acts for the client onbrief in a particular matter and is normally precluded by bar rules from accepting professional work direct from the client. The attorney is responsible to the advocate for the payment of professional fees due to the latter by the client and for the recovery ofthese and his own fees and disbursements from the client: the advocate has no direct financial dealings with the client.’

‘The advocate is, broadly speaking, the specialist in forensic skills and in giving expert

advice on legal matters, where

as the attorney has m

ore general skills and is often,

in addition, qualified in conveyancing and notarial practice. The attorney has direct links (often of a permanent and long-standing nature) with the lay client seeking legal assistance or advice and, where necessary or expedient, the attorney briefs an advocate on behalf of his client. The advocate has no direct links or long-standing relationship with the lay client:

he only acts for the client on

brief in a particular matter and is normally precluded by bar rules from accepting professional work direct from the client. The attorney is responsible to the advocate for the payment of professional fees due to the latter by the client and for the recovery of

t

hese and his own fees and disbur

sements from the client: the advocate has no direct financial dealings with the client.’

[8] The effect of bar rules prohibiting members from receiving work direct from the clientwithout the intervention of an attorney is that the advocates profession is,with certain limited exceptions, not presently relevant,a referral profession. However,with the enactment of the Right of Appearance in Courts Act 62 of 1995, giving attorneys the right of audiencein the higher courts, and the advent of associations of advocates who wish to practise independently of the established Bars the referral rule has been challenged. InSociety of Advocates of Natal v De Freitas and Another1997 (4) SA 1134(N)the Society of Advocates sought an order striking off the name of the respondent, De Freitas, because he accepted instructions directlyfrom members of the public and represented clients in litigation, without having been instructed by an attorney. In opposing the application, De Freitas, was joined by IAASA which brought a counter application for a declaratory order thatan‘advocate has, alternatively, advocates who are members of IAASA have, the right to accept instructions from any person with or without the intervention of an attorney’. This counter application was based on thecontention that there is no rule of law or practice to prevent an advocate from accepting instructions or briefs directfrom members of the publicwithout the intervention of an attorney. After an exhaustiveexamination of the legal position, Thirion J, on behalf of the Full Court, concluded that it is a rule of practice applicable to all practising advocates that they do not accept instructions except from attorneys and accordingly that disobedience of the rules is calculated to lead to irregularities and abuses and consequently, in the interests of the profession and the public, such disobedience should be treated as unprofessional conduct which justifies the exercise by the court of its disciplinary powers (at 117G-H). On appeal to the Supreme Court of Appeal, the finding and the conclusion of the full court were upheld – seeDe Freitas and Another v Society of Advocates of Natal and Another2001 (3) SA 750(SCA)paras 17 and 18-although the concurring judgment of Cameron JA referred to the necessity for change and supported the main judgment on the narrow basis that the referral rule should be enforced because advocates are not required or permitted to keep trust accounts and general disregard of the rule would lead to abuses in the future (paras 12, 13 and 14).[9] Thecorollaryofthis approach is that it is unprofessional for an advocate to negotiate and receive fees from a client without the intervention of an attorney. InDe Freitas, Cameron JA considered that there was a real and substantial danger to the public if advocates were permitted to handle public money, whether by dealing with their clients money or even by taking deposits on fees in advance (para 13) and that soliciting such a payment would be unprofessional and improper conduct which could lead to sanction by the court (para 14). The result is that South African law recognises a divided profession with a referral system – seeCommissioner,Competition Commission v General Council of the Bar of South Africasuprapara 19 – and it is part of that system that the attorney initiates the contact between an advocate and his client and negotiates and receives fees from the client on his own behalf and that of the advocate andthe advocatedoes not handle the money or cheques of his client – seeRsemann v General Council of the Bar of South Africasuprapara 28.

[8

] The effect of bar rules prohibiting members from receivi

ng work direct from the client

without the intervention of a

n attorney is that the advocates profession is,

with certain limited exceptions, not presently relevant,

a referral profession. However,

with the enactment of the Right of Appearance in Courts Act 62 of 1995, g

iving attorneys the right of audience

in the higher courts, and the advent of associations of advocates who wish to practise independently of the established Bars the referral rule has been challenged. In

Society of Advocates of Natal v De Freitas and Another

1997 (4) SA 1134(N)

1997 (4) SA 1134

the Society of Advocates sought an order striking off the name of the respondent, De Freitas, because he accepted instructions direct

ly

from members of the public and represented clients in litigation, without having been instructed by an attorney. In opposing the application, De Freitas, was joined by IAASA which brought a counter application for a declaratory order that

an

‘advocate has, alternatively, advocates who are members of IAASA have, the right to accept instructions from any person with or without the intervention of an attorney’. This co

unter application was based on the

contention that there is no rule of law or practice to prevent an advocate from accepting instructions or briefs direct

from members of the public

without the intervention of an attorney. A

fter an exhaustive

examination of the legal position, Th

irion J, on behalf of the Full Court, concluded that it is a rule of practice applicable to all practising advocates that they do not accept instructions except from attorneys and accordingly that disobedience of the rules is calculated to lead to irregularities and abuses and consequently, in the interests of the profession and the public, such disobedience should be treated as unprofessional conduct which justifies the exercise by the court of its disciplinary powers (at 117G-H). On appeal to the Supreme Court of Appeal, the finding and the conclusion of the full court were upheld – see

De Freitas and Another v Society of Advocates of Natal and Another

paras 17 and 18

-

although the concurring judgment of Cameron JA referred to the necessity for change and supported the main judgment on the narrow basis that the referral rule should be enforced because advocates are not required or permitted to keep trust accounts and general disregard of the rule would lead to abuses in the future (paras 12, 13 and 14).

[9

] The

corollary

f

this approach is that it is unprofessional for an advocate to negotiate and receive fees from a client without the intervention of an attorney. In

De Freitas

, Cameron JA considered that there was a real and substantial danger to the public if advocates were permitted to handle public money, whether by dealing with their clients money or even by taking deposits on fees in advance (para 13) and that soliciting such a payment would be unprofessional and improper conduct which could lead to sanction by the court (para 14). The result is that South African law recognises a divided profession with a referral system – see

Commissioner,

supra

para 19 – and it is part of that system that the attorney initiates the contact between an advocate and his client and negotiates and receives fees from the client on his own behalf and that of the advocate and

the advocate

does not handle the money or cheques of his client – see

para 28.

[10] In the present case the respondent admits that she negotiated fees with her clients and received payments of these fees from her clients without the intervention of an attorney. She didthis, she says, on the advice ofanother advocate, Matthew Klein, a former chairman of IAASA. According to the respondent, Klein told her that there was no obstacle to taking fees direct from a client so long as it is not trust money. Klein confirms this in an affidavit. Consequently the respondent claims that there is no legal prohibition against her sending accounts to her clients and receiving payment from her clients.The respondent says that full argument on this issue would be presented at the hearing. The respondent strenuously denies that she received instructions direct from her clients without the intervention of an attorney.The applicant’s counsel arguesthat this is a clear case for thecourt to reject the respondent’s evidence on this issue on the papers without recourse to oral evidence.[11]The general rule where final relief issought on notice of motion andthere are disputes of fact on the affidavits, is that final relief can be granted only where the facts averred by the applicant and admitted by the respondent together with the facts alleged by the respondent justify thegrant of such relief – seePlascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 620(A)at 634E-I. But the power of the court to grant final relief is not confined to that situation. As pointed out by the court(at 634I-635C), where the denial of a fact by the respondent does not raise a real, genuine orbona fidedispute of fact and the respondent has not applied for the deponents concerned to be called for cross-examination under Rule 6(5)(g) and the court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof and may include this fact among those upon which it determines whether the applicant is entitled to the final relief sought. The court also referred (at 635C)to a further exception to the general rule, i.e. where a respondent’s allegations or denialsare so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers. The applicant’s counsel also relied onSoffiantini v Mould1956 (4) SA 150(E)at 154Fwhere the court emphasised the importance of taking a robust, commonsense approach to a dispute on motion as otherwise the effective functioningof the court could be hamstrungand circumvented by the most simple and blatant stratagem of a mere denial in general terms.

[10

] In the present case the respondent admits that she negotiated fees with her clients and received payments of these fees from her clients without the intervention of an attorney. She did

this, she says, on the advice of

another advocate, Matthew Klein, a former chairman of IAASA. According to the respondent, Klein told her that there was no obstacle to taking fees direct from a client so long as it is not trust money. Klein confirms this in an affidavit. Consequently the respondent claims that there is no legal prohibition against her sending accounts to her clients and receiving payment from her clients.

The respondent says that f

ull argument on this issue would be presented at the hearing. The respondent strenuously denies that she received instructions direct from her clients without th

e intervention of an attorney.

The applicant’s counsel argue

s

that this is a clear case for the

court to reject the respondent’s evidence on this issue on the papers without recourse to oral evidence.

[11]

The general rule where final relief is

sought on notice of motion and

there are disputes of fact on the affidavits, is that final relief can be granted only where the facts averred by the applicant and admitted by the respondent together with the facts allege

d by the respondent justify the

grant of such relief – see

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd

1984 (3) SA 620(A)

1984 (3) SA 620

at 634E-I. B

ut the power of the court to grant final relief is not confined to that situation. As pointed out by the court

at 634I-635C

, where the denial of a fact by the respondent does not raise a real, genuine or

dispute of fact and the respondent has not applied for the deponents concerned to be called for cross-examination under Rule 6(5)(g) and the court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of th

e correctness thereof and may i

nclude this fact among those upon which it determin

es whether the applicant is entitled to the final relief sought. Th

e court also referred (at 635C)

to a further exception to the general rule, i.e. where a respondent’s allegations or denial

are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers. The applicant’s counsel also relied on

Soffiantini v Mould

1956 (4) SA 150(E)

1956 (4) SA 150

at 154F

where the court emphasised the importance of taking a robust, commonsense approach to a dispute on motion as otherwise the effective function

ing

f the court could be hamstrung

and circumvented by the most simple and blatant stratagem of a mere denial in general terms.

[12] As pointed out inTrust Bank van Afrika Beperk v Western Bank Beperk en Andere NNO1978 (4) SA 281(A)at 293H-295Ait is generallyundesirable to settle disputes of fact solely on probabilities disclosed on contradictory affidavits in disregard of the advantages ofviva voceevidence. In every case the court must be satisfied that the probabilities will not be disturbed byviva voceexamination and cross-examination and that the alleged dispute is not real or genuine. Clearly caution is required in disciplinary proceedings where the consequences for the respondent are potentially serious. Nevertheless it is equally clear that form should not be preferred to substance.[13] In assessing the respondent’s version it will be borne in mind what is required of a legal practitioner in disciplinary proceedings. InProkureursorde van Tranvaal v Kleynhans1995 (1) SA 839(T)Van Dijkhorst J pointed out that it is wrong for the practitioner (in that case an attorney) to approach the matter like a criminal case: to simply deny factual averments without furtherelucidation andto put the applicant to the proof thereof. The court is concerned with a disciplinary enquiry and the proceedings aresui generis.A practitioner is expected to cooperate to furnish the necessary elucidation so that the full facts are before the court to ensure that a correct and fair adjudication of the case takes place. General denials, evasions and obstructionism have no place in disciplinary proceedings. The approach with regard to advocates must be the same.[14] Against that background the principal dispute of fact relating to whether the respondent took work direct from the public without the intervention of an attorney will be considered. The applicant contends that if the respondent did,she is not a fit and proper person to continue to practise as an advocate.

[12

] As pointed out in

Trust Bank van Afrika Beperk v Western Bank Beperk en Andere NNO

1978 (4) SA 281(A)

1978 (4) SA 281

at 293H-295A

it is generally

undesirable to settle disputes of fact solely on probabilities disclosed on contradictory affidavits in disregard of the advantages of

viva voce

evidence. In every case the court must be satisfied that the probabilities will not be disturbed by

examination and cross-examination and that the alleged dispute is not real or genuine. Clearly caution is required in disciplinary proceedings where the consequences for the respondent are potentially serious. Nevertheless it is equally clear that form should not be preferred to substance.

[13

] In assessing the respondent’s version it will be borne in mind what is required of a legal practitioner in disciplinary proceedings. In

Prokureursorde van Tranvaal v Kleynhans

1995 (1) SA 839(T)

1995 (1) SA 839

Van Dijkhorst J pointed out that it is wrong for the practitioner (in that case an attorney) to approach the matter like a criminal case: to simply deny factual averments without further

el

ucidation and

to put the applicant to the proof thereof. The court is concerned with a disciplinary enquiry and the proceedings are

sui generis.

A practitioner is expected to cooperate to furnish the necessary elucidation so that the full facts are before the court to ensure that a correct and fair adjudication of the case takes place. General denials, evasions and obstructionism have no place in disciplinary proceedings

. T

he approach with regard to advocates must be the same.

[14

] Against that background the principal dispute of fact relating to whether the respondent took work direct from the public without the intervention of an attorney will be considered. The applicant contend

s that if the respondent did,

she is not a fit and proper person to continue to practise as an advocate.

[15] It is significant that five different complainants, independently of one another, complained of the same conduct. Although the facts of each case differ they are remarkably similar with regard to themodus operandiemployed by the respondent. All complainants submitted detailed complaints in writing about the respondent and these were amplified in the applicant’s founding affidavits. In each case the respondent took an instruction direct from the client, without the intervention of an attorney;she took a deposit which she negotiated without the intervention of an attorney;she charged further fees without the intervention of an attorney and she performed all legal services pursuant to the instructions she received, also without the assistance of an attorney, including work reserved for attorneys. In each case the complainant paidarelatively large sum of money to the respondent and each complainant alleges that there was no satisfactory progress. The respondent disputes that she received instructions direct from the complainants without the intervention of an attorney.She alleges that in each case she received an instruction from an attorney.The applicant contends that these disputes are notbona fide:that there are material contradictions between some of the explanationsfurnished by the respondent before commencement of the proceedings and the explanation furnished on affidavit and that where evidence to prove that the respondent was instructed by an attorney should have been forthcoming, there is none. The applicant also argues that the respondent has been economical with the truthboth in dealing with the applicantand the court. It is common cause that if the respondent has been untruthful in her affidavit,that will be an additional ground for finding that she is not a fit and proper person to be permitted to continue to practise as an advocate.[16] It is a matter for comment that the respondent has not dealt with the substance of each complaint by dealing point by point with each allegation against her. She has chosen to deal with each complaint, which is set out in a number of paragraphs supported by the relevant documents, in a single paragraph broken up into subparagraphs. The result is that much of the complaint is not dealt with. There is no suggestion that the respondent is not aware that she was required to set out which of the applicant’s allegations she admits and which she denies and to set out her version of the relevant facts.[17] The facts relating to each complainant will be considered in turn.

[15

] It is significant that five different complainants, independently of one another, complained of the same conduct. Although the facts of each case differ they are remarkably similar with regard to the

modus operandi

employed by the respondent. All complainants submitted detailed complaints in writing about the respondent and these were amplified in the applicant’s founding affidavit

. In each case the respondent took an instruction direct from the client, without t

he intervention of an attorney;

she took a deposit which she negotiated without the int

ervention of an attorney;

she charged further fees without the intervention of an attorney and she performed all legal services pursuant to the instructions she received, also without the assistance of an attorney, including work reserved for attorneys. In each case the complainant paid

a

relatively large sum of money to the respondent and each complainant alleges that there was no satisfactory progress. The respondent disputes that she received instructions direct from the complainants without the intervention of an attorney.

She alleges that in each case she received an instruction from an attorney.

The applicant contends that these disputes are not

bona fide:

that there are material contradictions between some of the explanations

furnished by the respondent before commencement of the proceedings and the explanation furnished on affidavit and that where evidence to prove that the respondent was instructed by an attorney should have been forthcoming, there is none. The applicant also argues that the respondent has been economical with the truth

both in dealing with the applicant

and the court. It is common cause that if the respondent has been untruthful in her affidavit

,

that will be an additional ground for finding that she is not a fit and proper person to be permitted to continue to practise as an advocate.

[16

] It is a matter for comment that the respondent has not dealt with the substance of each complaint by dealing point by point with each allegation against her. She has chosen to deal with each complaint, which is set out in a number of paragraphs supported by the relevant documents, in a single paragraph broken up into subparagraphs. The result is that much of the complaint is not dealt with. There is no suggestion that the respondent is not aware that she was required to set out which of the applicant’s allegations she admits and which she denies and to set out her version of the relevant facts.

[17

] The facts relating to each complainant will be considered in turn.

AndrWendling

[18] The following facts are admitted or not disputed:In March 2003 Wendling addressed a letter to the Law Society of theNorthern Provincesto complain about the respondent. According to Wendling, he responded to a newspaper advertisementwhich appearedin the Star newspaper on 17 September 2001. The advertisement asked whether the reader needed a lawyer or any legal assistance. It listed the legal services provided – which included work done by attorneys – and furnisheda cellphone number, 082476 6345. Wendling called this number and left his name and telephone number on the message service. A few days later the respondent replied to Wendling’s message. The respondentand Wendlingarranged to meet at the Eastgate shopping complex. At the meeting Wendling explained his legal problems to the respondent. At the time Wendling did not know the distinction between an advocate and an attorney and he did not know that the advocates’profession is a referral profession. The respondentand Wendlingarranged to meet again at the Cresta Shopping Centre. At this meeting Wendling handed documents to the respondent so that she could take the necessary action and they discussed the merits ofWendling’s claims. They agreed to meet again at the Duneden Hotel in Edenvale on 16 January 2002. At this meeting the respondent agreed to act on Wendling’s behalf as she considered that the merits in each case strongly favoured Wendling. The respondent requested a deposit of R3 000 which Wendling paid by means of a cheque for R3 000 drawn by his wife.The respondent banked the chequeon the same day.[19] On 21 January 2002 Wendling telephoned the respondent to tell her he wasgoing to fax her a memorandumsetting out his views on the claims. Wendling then faxedthe memorandum to the respondent. The memorandum states that the respondent should send letters of demand to the people Wendling intended claiming from. At no time before that date did the respondent inform Wendling that she was not entitled to send letters of demand on behalf of clients and that he should appoint an attorney to send letters of demand. The respondent undertook to send the letters of demand.[20] On about 2 April 2002 Wendling received a call from the respondent’s secretary demanding payment of further funds. Wendling requested a detailed statement of work done, of payments received by the respondent and copies of the letters of demand sent by the respondent. In answer Wendling received an undated invoice from the respondent setting out the work done and the fees charged therefor. This invoiceis on the respondent’s advocates letterhead and reflectsthe cellphone number 082476 6345,fees and travelling expenses totalling R9 130 and the payment received of R3 000. The fees include R1 000 in respect of ‘drafting toE Thuynsma’. The invoice also reflects the respondent’s bank details. On 4 April 2002 Wendling paid R2 500 into the respondent’s bank account and faxed to the respondent a lettercontaining his suggestion of paying the respondent’s fees in instalments. The respondent did not reply to this letter. All that Wendling received was a copy of letter of demand toE Thuynsma. Thisis on the respondent’s advocates letterhead, is addressed to Mr Eddie Thuynsma and Mr WS Honeywill and demands payment of an amount of R48 950 which was to be paid to Mr and Mrs Wendling within 7 days of date thereof (i.e. 1 February 2002). Although the letter of demand was signed by the respondent there was no proof that it had been sent. In accordance with his suggestion Wendling paid the respondent a further R1 000 in May 2002. In June 2002 the respondent’s secretary telephoned Wendlingand demandedpayment of the outstanding balance. Wendling replied that he would not make furtherpayments until the respondent furnished him with proof that she had carried out work on his behalf. The next day the respondent’s secretary again telephoned Wendling and advised him that the respondent was not prepared to work for him if he did not pay the outstanding balance and that he should find another lawyer.[21] On 14 November 2003, after the Law Society of the Northern Provinces had told Wendling to communicate his complaint to the applicant, Hellens on behalf of the applicant, addressed a letter to the respondent, enclosing a copy of Wendling’s complaint,and requesteda response to the allegation that she had taken an instruction directly from a client without the intervention of an attorney and the allegation that she had sent a letter of demand on her client’s behalf. On 14 November 2003 the respondent replied stating that the complaint had been answered sufficiently and that the matter (together with others) had been handed over to the Bar Council of IAASA and that Hellens should contact the Bar Council if he wished to take the matter further. Hellens did so . He communicated withQuim de Freitas as suggested by the respondent. De Freitas told Hellens that he was not dealing with any complaints against the respondent and that she had not handed any matters to him. On 9 February 2004 Hellens communicated this in a letter to the respondent. According to Hellens the respondent at no stage informed him or furnished him with any information which would indicate that she was instructed by an attorney to act on behalf of Wendling.

[18

] The following fact

s are admitted or not disputed

:In March 2003 Wendling addressed a letter to the Law Society of the

Northern Provinces

to complain about the respondent. According to Wendling, he responded to a newspaper advertisement

which appeared

in the Star newspaper on 17 September 2001. The advertisement asked whether the reader needed a lawyer or any legal assistance. It listed the legal services provided – which included work done by attorneys – and furnished

a cellphone number, 082

476 6345. Wendling called this number and left his name and telephone number on the message service. A few days lat

er the respondent replied to Wendling’s message. T

he respondent

and Wendling

arranged to meet at the Eastgate shopping complex. At the meeting Wendling explained his legal problems to the respondent. At the time Wendling did not know the distinction between an advocate and an attorney and he did not know that the advo

cates’

profession is a referral professi

on. T

arranged to meet again at the Cresta Shopping Centre. At this meeting Wendling handed documents to the respondent so that she could take the necessary action and they discussed the me

rits of

Wendling’s claims

. They agreed to meet again at the Duneden Hotel in Edenvale on 16 January 2002. At this meeting the respondent agreed to act on Wendling’s behalf as she considered that the merits in each case strongly favoured Wendling. The respondent requested a deposit of R3 000 which Wendling paid by means of a cheque for R3 000 drawn by his wife.

The respondent banked the cheque

on the same day.

[19

] On 21 January 2002 Wendling telephoned the respondent to tell her he was

going to fax her a memorandum

setting out his views on the claims. Wendling then faxed

the memorandum to the respondent. The memorandum states that the respondent should send letters of demand to the people Wendling intended claiming from. At no time before that date did the respondent inform Wendling that she was not entitled to send letters of demand on behalf of clients and that he should appoint an attorney to send letters of demand. The respondent undertook to send the letters of demand.

[20

] On about 2 April 2002 Wendling received a call from the respondent’s secretary demanding payment of further funds. Wendling requested a detailed statement of work done, of payments received by the respondent and copies of the letters of demand sent by the respondent. In answer Wendling received an undated invoice from the respondent setting out the work done and t

he fees charged therefor. This invoice

is on the respondent’s advocate

s letterhead and reflects

the cellphone number 082

476 6345,

fees and travelling expenses totalling R9 130 and the payment received of R3 000. The fees include R1 000 in respect of ‘drafting to

E Thuynsma

’. The invoice also reflects the respondent’s bank details. On 4 April 2002 Wendling paid R2 500 into the re

spondent’s bank account and faxed to the respondent a letter

containing his suggestio

n of paying the respondent’s fees in instalments

. The respondent did not reply to this letter. All that Wendling received was a copy of letter of demand to

. This

s letterhead, is addressed to Mr Eddie Thuynsma and Mr WS Honeywill and demands payment of an amount of R48 950 which was to be paid to Mr and Mrs Wendling within 7 days of date thereof (i.e. 1 February 2002). Although the letter of demand was signed by the respondent there was no proof that it had been sent. In accordance with his suggestion Wendling paid the respondent a further R1 000 in May 2002. In June 2002 the respondent’s secretary telephoned Wendling

and demanded

payment of the outstanding balance. Wendling rep

lied that he would not make further

payment

s until the respondent furnished him with proof that she had carried out work on his behalf. The next day the respondent’s secretary again telephoned Wendling and advised him that the respondent was not prepared to work for him if he did not pay the outstanding balance and that he should find another lawyer.

[21

] On 14 November 2003, after the Law Society of the Northern Provinces had told Wendling to communicate his complaint to the applicant, Hellens on behalf of the applicant, addressed a letter to the respondent, enclosing a copy of Wendling’s complaint,

and requested

a response to the allegation that she had taken an instruction directly from a client without the intervention of an attorney and the allegation that she had sent a letter of demand on her client’s behalf. On 14 November 2003 the respondent replied stating that the complaint had been answered sufficiently and that the matter (together with others) had been handed over to the Bar Council of IAASA and that Hellens should contact the Bar Council if he wished to take the matter further. Hellens did so . He communicated with

Quim de Freitas as suggested by the respondent. De Freitas told Hellens that he was not dealing with any complaints against the respondent and that she had not handed any matters to him. On 9 February 2004 Hellens communicated this in a letter to the respondent. According to Hellens the respondent at no stage informed him or furnished him with any information which would indicate that she was instructed by an attorney to act on behalf of Wendling.

Respondent’s answer

[22] The respondent denies that cellphone number 082 476 6345 was hers but says that some of the attorneys who instructed her used that number. (She does not identify the attorneys and she does not furnish a reason for themto usethe number.)She speculates that one of Gert Scheeper’s secretaries typed the invoice for her and inserted the number by mistake.(She does not attach a supporting affidavit to confirm that this is in fact what happened.)The respondent denies that she published the advertisementbut says that the attorneys who instructedher and who practised in association placed advertisementsfrom time to time in accordance with their professional rules.(She does not identify the attorneys and she does not explain why the attorneys would place an advert to which the respondent would respond if a message was left.)[23] The respondent states that during September 2001 she received an oral instruction from Mr Gert Scheepers’ office to telephone Wendling and make an appointment and consult. She confirms that after she received this oral instruction from Scheepers’ office she telephoned Wendling and arranged a consultation at Eastgate and that she consulted with Wendling who had a number of cases – one against Thuynsma. The respondent alleges thatduring the consultation at Eastgate she pertinently informed Wendling that she was an advocate. She also claims that she told Wendling that Scheepers was already acting as attorney. The respondent states that Wendling possibly reacted to one of the advertisements placed by the attorneys but she does not know how Wendling and Scheepers met. Scheepers, the alleged instructing attorney, confirms the correctness of this statement.(Scheepers does not explain how Wendling became his client.)[24] The respondent states that after this first consultation with Wendling, Scheepers was not available to deal with certain aspects of Wendling’s case and some of them were transferred to another attorney called Colette du Toit who was to advise Scheepersinter aliawhether some of his claimshadprescribed and was to send a letter of demand to Thuynsma. At a later stage, says the respondent, Wendling telephoned her and indicated that he was unhappy with Du Toit’s advice that his claims had prescribed. The respondent says that she telephoned Du Toit to ascertain what the problem was and Du Toit then instructed her on 12 January 2002 to see whether she, the respondent, agreed that the claims had prescribed. The respondent attaches a note to her affidavit in support of this evidence. It reads –

[22

] The respondent denies that cellphone number 082 476 6345 was hers but says that some of the attorneys who in

structed her used that number. (

She does not identify the attorneys and she does not furnish a reason for them

to use

the number.)

She speculates that one of Gert Scheeper’s secretaries typed the invoice for her and inserted the number by mistake.

She does not attach a supporting affidavit to confirm that this is in fact what happened.

The respondent denies that she published the advertisement

but says that the attorneys who inst

ructed

her and who practised in association placed advert

i

ements

from time to time in accordance with their professional rules.

She does not identify the attorneys and she does not explain why the attorneys would place an advert to which the respondent would respond if a message was left.

[23] The respondent stat

es that during September 2001 she received an oral instruction from Mr Gert Scheepers’ office to telephone Wendling and make an appointment and consult. She confirms that after she received this oral instruction from Scheepers’ office she telephoned Wendling and arranged a consultation at Eastgate and that she consulted with Wendling who had a number of cases – one against Thuynsma. The respondent alleges that

during the consultation at Eastgate she pertinently informed Wendling that she was an advocate. She also claims that she told Wendling that Scheepers was already acting as attorney. The respondent states that Wendling possibly reacted to one of the advertisements placed by the attorneys but she does not know how Wendling and Scheepers met. Scheepers, the alleged instructing attorney, confirms the correctness of this statement.

(Scheepers does not explain how Wendling became his client.)

[24] The respondent stat

es that after this first consultation with Wendling, Scheepers was not available to deal with certain aspects of Wendling’s case and some of them were transferred to another attorney called Colette du Toit who was to advise Scheepers

inter alia

whether some of his claims

had

prescribed and was to send a letter of demand to Thuynsma. At a later stage, says the respondent, Wendling telephoned her and indicated that he was unhappy with Du Toit’s advice that his claims had prescribed. The respondent says that she telephoned Du Toit to ascertain what the problem was and Du Toit then instructed her on 12 January 2002 to see whether she, the respondent, agreed that the claims had prescribed. The respondent attaches a note to her affidavit in support of this evidence. It reads –

’12 Jan 2002

Colette du Toit gives me a verbal instruction to continue with Wendling’s matter. Wendling is happy with this.’

(This note is written in manuscript on a piece of scrap paper.)[25] The respondent states that she researched the position and concluded that Du Toit’s advice was correct. Nevertheless she suggested that a letter of demand be sent to Thuynsma demanding payment of R48 950. The respondent says she drafted a letter of demand on her letterhead.(The copy she annexes to her affidavit is identical to the copy of the letter of demandWendling received from the respondent.)[26] The respondent then states that on 24 February – she does not say 2002, but the clear implication is that it is – she addressed an urgent fax to her instructing attorney, Colette du Toit, asking her to telephone the respondent because Wendling was pestering the respondent about the steps taken. The copy of the fax is dated 22 February 2005 and the transmission report is dated 24 February 2005. The fax reads –

This note is written in manuscript on a piece of scrap paper.

[25] The respondent stat

es that she researched the position and concluded that Du Toit’s advice was correct. Nevertheless she suggested that a letter of demand be sent to Thuynsma demanding payment of R48 950. The respondent says she drafted a letter of demand on her letterhead.

The copy she annexes to her affidavit is identical to the copy of the letter of demand

Wendling received from the respondent.

[26] The respondent then stat

es that on 24 February – she does not say 2002, but the clear implication is that it is – she addressed an urgent fax to her instructing attorney, Colette du Toit, asking her to telephone the respondent because Wendling was pestering the respondent about the steps taken. The copy of the fax is dated 22 February 2005 and the transmission report is dated 24 February 2005. The fax reads –

‘AANDAG: COLETTE DU TOITFAKS NO: (011) 953 2527

Kanu my dringend skakel mbt die saak van AndrWendling waarin u opdraggewende prokureur is.

Kan

u my dringend skakel mbt die saak van Andr

Wendling waarin u opdraggewende prokureur is.

Met dank.

Marika van den Heever’

(The respondent does not explain why she did not simply telephone her instructing attorney to discuss the matter or why it was necessary to tell her instructing attorney that she was the instructing attorney.)[27] Thereafter, according to the respondent,Colette du Toit advised the respondent that she was satisfied in principle with the letter of demand but that she had made certain changes. She replaced the respondent’s letterhead with her own (because she had to send the letter of demand); she deleted the references to the annexures and she signed the letter of demand. The respondent alleges that after making these changes Du Toit sent the letter of demand to Thuynsma under her own letterhead.(No supporting affidavit by Du Toit is annexed. The respondent does not explain how she knew Du Toit sent the letter of demand on her own letterhead.)The respondentstates that she did not senda letter of demand to Thuynsma under her name.[28] The respondent then explains how much work she did to justify fees of R9 130. This includes a fee of R1 000 for a singlefolio letter of demand. The respondent contends that there is no legal prohibition against rendering a statement of account to Wendling or receiving payment direct from him. She says full legal argument will be presented on that issue (none was forthcoming). The respondent also alleges that Adv Klein of IAASA informed her that there was no prohibition against this as long as it was not trust money.(She makes no attempt to explain why the money she received from Wendling was not trust money.)[29] The respondent admits the exchange of letters between the applicant and herself on 14 November 2003 but denies receiving Hellens’ letter of 9 February 2004 in whichhe advises her that De Freitas denies having received correspondence from her or that hewas dealing with any complaintagainsther. The respondent says that she does not deal with the correspondence fully because she has already done so. (This is patently incorrect because the respondent avoided dealing with Wendling’s complaints sent to her by Hellens on 14 November 2003 by saying that it had been referred to IAASA and she does not deal with the nub of the complaint set out in Hellens’ letter of 9 February 2004). The respondent says the fact that De Freitas indicated that he was not dealing with any complaint against her is confirmation that he had not received any complaints. (This issome three months after sheallegedly handed them to IAASA.)[30] The respondent concludes her answer to this complaint with a general denial that she is guilty of the misconduct alleged by the applicant.

The respondent does not explain why she did not simply telephone her instructing attorney to discuss the matter or why it was necessary to tell her instructing attorney that she was the instructing attorney.

[27

] Thereafter, according to the respondent,

Colette du Toit advised the respondent that she was satisfied in principle with the letter of demand but that she had made certain changes. She replaced the respondent’s letterhead with her own (because she had to send the letter of demand); she deleted the references to the annexures and she signed the letter of demand. The respondent alleges that after making these changes Du Toit sent the letter of demand to Thuynsma under her own letterhead.

No supporting affidavit by Du Toit is annexed. The respondent does not explain how she knew Du Toit sent the letter of demand on her own letterhead.

T

states that she did not send

a letter of demand to Thuynsma under her name.

[28

] The respondent then explains how much work she did to justify fees of R9 130. This in

cludes a fee of R1 000 for a single

folio letter of demand. The respondent contends that there is no legal prohibition against rendering a statement of account to Wendling or receiving payment direct from him. She says full legal argument will be presented on that issue (none was forthcoming). The respondent also alleges that Adv Klein of IAASA informed her that there was no prohibition against this as long as it was not trust money.

She makes no attempt to explain why the money she received from Wendling was not trust money.

[29

] The respondent admits the exchange of letters between the applicant and herself on 14 November 2003 but denies receiving Hellens’ lett

er of 9 February 2004 in which

he advises her that De Freitas denies having received correspondence from her or that he

was dealing with any complaint

against

her. The respondent says that she does not deal with the correspondence fully because she has a

lready done so. (This is pat

ently incorrect because the respondent avoided dealing with Wendling’s complaints sent to her by Hellens on 14 November 2003 by saying that it had been referred to IAASA and she does not deal with the nub of the complaint set out in Hellens’ letter of 9 February 2004). The respondent says the fact that De Freitas indicated that he was not dealing with any complaint against her is confirmation that he h

ad not received any complaints. (This is

some three months after she

allegedly handed them to IAASA.)

[30

] The respondent concludes her answer to this complaint with a general denial that she is guilty of the misconduct alleged by the applicant.

Applicant’s reply

[31] Wendling denies that he gave instructions to Scheepers or to Du Toit. Neither rendered an account to him for services rendered.

[31

] Wendling denies that he gave instructions to Scheepers or to Du Toit. Neither rendered an account to him for services rendered.

Louis Motsamai

[32] The following facts are admitted or disputed:On 24 April 2003 the applicant received a written complaint about the respondent from Louis Motsamai. During about December 2002 Motsamai saw an advertisement in the Daily Sun about a labour lawyer with a cellphone number 083 9525474. Motsamai telephoned the number and left his name and cellphone number with the voicemail service. A few days later a woman phoned Motsamai and told him she had obtained his cellphone number and asked whether he still needed assistance for his labour problem. Motsamai answered in the affirmative and the woman told him that she was an advocate and they arranged to meet for a consultation at her Krugersdorp office. Motsamai attended this consultation on 8 January 2003. Motsamai explained his labour problem to the respondent. It involved his unlawful dismissal, his ‘retirement’ and the failure of his former employer to pay to SARS the PAYE deducted from his salary. The respondent assured him that she could assist. She also handed him her business card. It states in bold printMARIKA VAN DEN HEEVER, ADVOCATE. Motsamai paid the respondent R150 for the consultation and asked the respondent what her fees would be. The respondent replied that there was no fixed legal fee but that she required a deposit of R2 000.[33] Motsamai and the respondent arranged a second consultation for 10 February 2003. At that consultationMotsamai paid the respondent R2 000 in cash for which he received a receipt. During this consultation the respondent communicated with Motsamai’s former employers and discussed the matter with them. After that Peter Dixon arrived andjoined in the consultation. The respondent told Motsamai thatDixonwas a labour consultant who would be assisting with the matter. Motsamai states that at no time was an attorney present, that he never instructed an attorney and that he did not receive an invoice or statement of account from an attorney.

[32

] The foll

owing fact

s are admitted or disputed

:On 24 April 2003 the applicant received a written complaint about the respondent from Louis Motsamai. During about December 2002 Motsamai saw an advertisement in the Daily Sun about a labour lawyer with a cellphone number 083 952

5474. Motsamai telephoned the number and left his name and cellphone number with the voicemail service. A few days later a woman phoned Motsamai and told him she had obtained his cellphone number and asked whether he still needed assistance for his labour problem. Motsamai answered in the affirmative and the woman told him that she was an advocate and they arranged to meet for a consultation at her Krugersdorp office. Motsamai attended this consultation on 8 January 2003. Motsamai explained his labour problem to the respondent. It involved his unlawful dismissal, his ‘retirement’ and the failure of his former employer to pay to SARS the PAYE deducted from his salary. The respondent assured him that she could assist. She also handed him her business card. It states in bold print

MARIKA VAN DEN HEEVER, ADVOCATE

. Motsamai paid the respondent R150 for the consultation and asked the respondent what her fees would be. The respondent replied that there was no fixed legal fee but that she required a deposit of R2 000.

[33

] Motsamai and the respondent arranged a second consultation for 10 February 2003. At that consultation

Motsamai paid the respondent R2 000 in cash for which he received a receipt. During this consultation the respondent communicated with Motsamai’s former employers and discussed the matter with them. After that Peter Dix

on arrived and

joined in the consultation. The respondent told Motsamai that

Dixon

was a labour consultant who would be assisting with the matter. Motsamai states that at no time was an attorney present, that he never instructed an attorney and that he did not receive an invoice or statement of account from an attorney.

[34] On 24 February 2003 the respondent telephoned Motsamai and requested more money because the deposit had been used up. The respondent told Motsamai that she had been making telephone calls and sending faxes on his behalf. She would give him an invoice to show him how the money had been used. On 5 March 2003 Motsamai went to the respondent and paid a further R2 000 to the respondent’s secretary. The respondent was not present. After that Motsamai was not able to communicate with the respondent. Every time he went to her office she was either engaged or at court. She did not return his calls or messages. On 11 April 2003 Motsamai consulted withDixonwho told him that he, Motsamai, did not have good prospects of success. He needed to apply for condonation but did not have good reasonsforthe delay.

[34

] On 24 February 2003 the respondent telephoned Motsamai and requested more money because the deposit had been used up. The respondent told Motsamai that she had been making telephone calls and sending faxes on his behalf. She would give him an invoice to show him how the money had been used. On 5 March 2003 Motsamai went to the respondent and paid a further R2 000 to the respondent’s secretary. The respondent was not present. After that Motsamai was not able to communicate with the respondent. Every time he went to her office she was either engaged or at court. She did not return his calls or messages

. On 11 April 2003 Motsamai consulted with

who told him that he, Motsamai, did not have good prospects of success. He needed to apply for condonation but did not have good reasons

for

the delay.

[35] In April 2003 Motsamai concluded that he had paid R4 150 to the respondent for nothing. He then went to the public library and read about the South African legal system. He discoveredthat there is a differencebetween an attorney and an advocate and that an advocate requiresthe instruction of an attorney. On 21 April 2003 Motsamai addressed a letter to the respondent complaining about the fact that he had paid her R4 150 and that there had been no progress in his case and that she had acted unlawfully by taking work from him without the intervention of an attorney. Motsamai demanded that the respondent change her attitude and informed her that he had laid a complaint against her with the Bar Council. On 22 April 2003 the respondent contacted Motsamai and told himsomebody had to do Dixon’s work,which Motsamai understood tomean that the respondent felt thatshe hadto do Dixon’s work for him, and on 23 April 2003 the respondent contacted Motsamai again and told him to contact Dixon who had news for him. When he did soDixonagain told Motsamai that he did not have a case.[36]Dixonhas furnished an affidavit dated 17 July 2003 in which he states that early in 2003 the respondent approached him to assist her with a client who had certain labour issues, queries and complaints against his former employer, Harmony Goldmine Mining Company. He confirms that he met Motsamai and told him that he would not succeed as he had no reason why his review application was late. He also confirms that fees were discussed between himself, Motsamai and the respondent.Dixoninvoiced Motsamai R684 for the review application. On 24 April 2003 Motsamai wrote his letter to the respondent.[37] On 24 June 2003 Motsamai went to the respondent’s office and asked thatthe money paid to herbe refunded to him. Hisviewwasthat no work had been done. The respondent was not present but her secretary told Motsamai that the respondent had indicated that he was entitled to a refund of only R800. Motsamai said that he was not happy about this and left. On 25 June 2003Inspector Phosa of the Krugersdorp SAPS telephoned Motsamai and told him that the respondent had laid a complaint of harassment against him. Motsamai was not to attend upon her offices or call her again.[38] In March or April 2003 during a visit to the respondent’s office the respondent handed Motsamai an invoice reflecting the fees charged by her and the payment of R2 000. The invoice did not reflect the second payment of R2 000 and therefore only R800 was refundable.

[

35

] In April 2003 Motsamai conclud

ed that he had paid R4 150 to the respondent for nothing. He then went to the public library and read about the South African legal system. He discovered

that there is a difference

between an attorney and an advoca

te and that an advocate requires

the instruction of an attorney. On 21 April 2003 Motsamai addressed a letter to the respondent complaining about the fact that he had paid her R4 150 and that there had been no progress in his case and that she had acted unlawfully by taking work from him without the intervention of an attorney. Motsamai demanded that the respondent change her attitude and informed her that he had laid a complaint against her with the Bar Council. On 22 April 2003 the respondent conta

cted Motsamai and told him

somebody had to do Dixon

’s work,

which Motsamai understood to

mean that the respondent felt that

she had

to do Dixon’s work for him, and on 23 April 2003 the respondent contacted Motsamai again and told him to contact Dixon who had news for him. When he did so

again told Motsamai that he did not have a case.

[36

]

has furnished an affidavit dated 17 July 2003 in which he states that early in 2003 the respondent approached him to assist her with a client who had certain labour issues, queries and complaints against his former employer, Harmony Goldmine Mining Company. He confirms that he met Motsamai and told him that he would not succeed as he had no reason why his review application was late. He also confirms that fees were discussed between himself, Motsamai and the respondent.

invoiced Motsamai R684 for the review application. On 24 April 2003 Motsamai wrote his letter to the respondent.

[37

] On 24 June 2003 Motsamai went to the respondent’s o

ffice and asked that

the money paid to her

be refunded to him. His

view

was

that no work had been done. The respondent was not present but her secretary told M

otsamai that the respondent had indicated that he was entitled to a refund of only R800. Motsamai said that he was not happy about thi

s and left. On 25 June 2003

Inspector Phosa of the Krugersdorp SAPS telephoned Motsamai and told him that the respondent had laid a complaint of harassment against him. Motsamai was not to attend upon her offices or call her again.

[38

] In March or April 2003 during a visit to the respondent’s office the respondent handed Motsamai an invoice reflecting the fees charged by her and the payment of R2 000. The invoice did not reflect the second payment of R2 000 and therefore only R800 was refundable.

[39] On 29 May 2003 Hellens on behalf of the applicant addressed a letter to the respondent enclosing a copy of Motsamai’s complaint. In this letter Hellens asked the respondent whether, as an advocate,she had been taking work from a member of the publicand requested her to respondto Motsamai’s complaint. On 4 June 2003 the respondent replied to this letter. She denied taking work directly from the publicand requested Hellens tofax the copy of Motsamai’s letteragainas it was partially illegible. On 6 June 2003 the respondentsent Hellensan addendum to her letter of 4 June 2003. In this addendum the respondent stated that Motsamai knew exactly what the functions of attorney and advocate are; that he knew that advocates do not write letters to opposing parties; that it was explained to Motsamai in the presence of the attorney that the attorney must attend to the correspondence and that the attorney was always present during consultations; that Motsamai had conveyed that he would consult with the attorney for paperwork purposes and that the respondent would attend court and consultations. On 9 June 2003 Hellens acknowledged receipt of the respondent’s letter of 4 June 2003 and undertook to fax to the respondent Motsamai’s complaint. On 3 July 2003 Hellens addressed a further letter to the respondentasking for the name and contact details of the attorney who had instructed her to act on behalf of Motsamai.[40] On 18 July 2003 the respondent faxed a letterto Davida Wessels oftheIAASA disciplinarycommittee. In herletter the respondent stated that she was having problems with the Johannesburg Bar Council about a complaint against her by Motsamai, a former client. She also said that on 8 January 2003 she received a verbal instruction from attorney Gert Scheepers (the attorney of record) who told her he does not specialise in labour matters and that to save costsDixonhelped her on anongoing basis.[41] On 7 October 2003 Hellens faxed a further letterto the respondent pointing out that he had not received an answer to his letter of 1 July 2003 and again asking for the details of the instructing attorney and a copy of the brief cover marked by the respondent and copies of statements of account rendered by her to the attorney. He also pointed out that the respondent’s failure to respond to his letters would lead to the conclusion that she had received work without the intervention of an attorney. Hellens then received a letterdated 4 July 2003 in answer to his letter dated 1 July 2003 in which the respondent stated that Gert Scheepers was appointed attorney of record and that his address was75 Von Brandis Street, Krugersdorp(i.e. the respondent’s address). On11 November 2003 Hellensfaxed a letterto Scheepers with a copy ofMotsamai’s complaint. In his letter Hellens askedScheepers whether Motsamai was his client, whether Scheepers had instructed the respondent as advocate to act on behalf of Motsamai, what the respondent was instructed to do, what work the respondent did, what fees she charged and whether Scheepers attended consultations between Motsamai and the respondent. Scheepers did not reply to thisfax or to theapplicant’s attorney’s requests forthe same information. Scheepers has also not provideda document to show that Motsamai was his client or that Scheepers instructed the respondent.[42] Hellens then received the letter from the respondent requesting him to communicate with De Freitas of IAASA and there was the exchange of correspondence already referred to.[43] On 10 February 2004 Hellens received a letter dated 9 February 2004 from Wessels of IAASA stating that IAASA’s disciplinary committee had investigated a complaint that the respondent had done work without a brief;that this had been investigated; that it wasdecided that the respondent had been properly briefed;that there was no reason to hold a disciplinary hearing as the disciplinary committee hadnot received a formal complaint from amember of the public. Wessels also said that because of the applicant’s intention to apply to have the respondent’s name struck off the roll the committee would reinvestigate the matter and inform the applicant of the outcome. Hellens has not received any further communication from IAASA’s disciplinary committee.

39

] On 29 May 2003 Hellens on behalf of the applicant addressed a letter to the respondent enclosing a copy of Motsamai’s complaint. In this letter Helle

ns asked the respondent whether, as an advocate,

she had been taking work from a mem

ber of the public

and requested her to respond

to Motsamai’s complaint. On 4 June 2003 the respondent replied to this letter. She denied taking work directly from the public

and requested Hellens to

fax the copy of Motsamai’s letter

again

as it was partially illegible. On 6 June 2003 the respondent

sent Hellens

an addendum to her letter of 4 June 2003. In this addendum the respondent stated that Motsamai knew exactly what the functions of attorney and advocate are; that he knew that advocates do not write letters to opposing parties; that it was explained to Motsamai in the presence of the attorney that the attorney must attend to the correspondence and that the attorney was always present during consultations; that Motsamai had conveyed that he would consult with the attorney for paperwork purposes and that the respondent would attend court and consultations. On 9 June 2003 Hellens acknowledged receipt of the respondent’s letter of 4 June 2003 and undertook to fax to the respondent Motsamai’s complaint. On 3 July 2003 Hellens addressed a further letter to the respondent

asking for the name and contact details of the attorney who had instructed her to act on behalf of Motsamai.

[40

] On 18 July 200

3 the respondent faxed a letter

to Davida Wessels of

the

IAASA disciplinary

committee. In her

letter the respondent stated that she was having problems with the Johannesburg Bar Council about a complaint against her by Motsamai, a former client. She also said that on 8 January 2003 she received a verbal instruction from attorney Gert Scheepers (the attorney of record) who told her he does n

ot specialise in labour matters and that to save costs

helped her on a

n

ongoing basis.

[41

] On 7 October 2003 Hellens faxed a further letter

to the respondent pointing out that he had not received an answer to his letter of 1 July 2003 and again asking for the details of the instructing attorney and a copy of the brief cover marked by the respondent and copies of statements of account rendered by her to the attorney. He also pointed out that the respondent’s failure to respond to his letters would lead to the conclusion that she had received work without the intervention of an attorn

ey. Hellens then received a letter

dated 4 July 2003 in answer to his letter dated 1 July 2003 in which the respondent stated that Gert Scheepers was appointed attorney of record and that his address was

, Krugersdorp

(i.e. the respondent’s address)

. On

11 November 2003 Hellens

fax

ed a letter

to Scheepers with a copy of

M

otsamai’s complaint. In his letter Hellens asked

Scheepers whether Motsamai was his client, whether Scheepers had instructed the respondent as advocate to act on behalf of Motsamai, what the respondent was instructed to do, what work the respondent did, what fees she charged and whether Scheepers attended consultations between Motsamai and the respondent. Scheepers did not reply to this

fax or to the

applicant’s attorney

’s requests for

the same information. Scheepers has also not provided

a document to show that Motsamai was his client or that Scheepers instructed the respondent.

[42

] Hellens then received the letter from the respondent requesting him to communicate with De Freitas of IAASA and there was the exchange of correspondence already referred to.

[43

] On 10 February 2004 Hellens received a letter dated 9 February 2004 from Wessels of IAASA stating that IAASA’s disciplinary committee had investigated a complaint that the respondent ha

d done work without a brief;

th

at this had been investigated; that it was

decided that the respondent had been properly b

riefed;

that there was no reason to hold a disciplinary hearing as the disciplinary committee had

not received a formal complaint from a

member of the public. Wessels also said that because of the applicant’s intention to apply to have the respondent’s name struck off the roll the committee would reinvestigate the matter and inform the applicant of the outcome. Hellens has not received any further communication from IAASA’s disciplinary committee.

[44]The respondent denies that she placed an advertisement in the Daily Sun and that she everused cellphone number 083 952 5474. She alleges that she received a written instruction from Scheepers and annexes a copy of the brief cover. It is dated 8 January 2003 and is headed Re Motsamai’s labour matter. The instruction reads –‘Please consult, advise and peruse in this matter’. The respondent alleges that she consulted with Motsamai on the 8thof January 2003 on instruction from Scheepers. The respondent states that she explained to Motsamai the difference between an attorney and an advocate and that Motsamai must have known that Scheepers was his attorney because he consulted with the respondent by way of a written instruction from Scheepers.[45] The respondent confirms that she insisted on payment in advance as she was entitled to do and that Motsamaipaid her R4 150 in advance. She also confirms that she gave Motsamai the statement of account annexed to the applicant’s papers (MH25) and she attaches to her affidavit an amended statement of account which also reflects that she had to repay R800 to Motsamai.[46] The respondent states that a second opinion was necessaryandthatshe recommended that they consultDixon. She confirms thatDixonagreedwith her opinion. She states that after this consultation with Dixon Motsamai wantedDixonto handlehis cases and she handed all the documents toDixonandfurnished Motsamai with the statementofaccount. The respondent says she telephonedMotsamai and offered to repay himR800 but Motsamai never went back to her. She says that during their last telephone conversation Motsamai threatened her with physical harm if she did not repay all the money. As a result ofthis threatshe laid a charge against him.

[44

The respondent denies that she placed an advertisement in the Daily Sun and that she ever

used cellphone number 083 952 5

474. She alleges that she received a written instruction from Scheepers and annexes a copy of the brief cover. It is dated 8 January 2003 and is headed Re Motsamai’s labour matter. The instruction reads –

‘Please consult, advise and peruse in this matter’. The respondent alleges that she consulted with Motsamai on the 8

of January 2003 on instruction from Scheepers. The respondent states that she explained to Motsamai the difference between an attorney and an advocate and that Motsamai must have known that Scheepers was his attorney because he consulted with the respondent by way of a written instruction from Scheepers.

[45

] The respondent confirms that she insisted on payment in advance as she was entitled to do and that Motsamai

paid her R4 150 in advance. She also confirms that she gave Motsamai the statement of account annexed to the applicant’s papers (MH25) and she attaches to her affidavit an amended statement of account which also reflects that she had to repay R800 to Motsamai.

[46

] The respondent states that a s

econd opinion was necessary

and

she rec

ommended that they consult

. She confirms that

agreed

with her opinion. She stat

es that after this consu

ltation with Dixon Motsamai wanted

to handle

his cases and she h

anded all the documents to

furnished Motsamai with the statement

account. The respondent says she telephoned

otsamai and offered to repay him

R800 but Motsamai nev

er went back to her. She say

s that during their last telephone conversation Motsamai threatened her with physical harm if s

he did not repay all the money. A

s a result of

this threat

she laid a charge against him.

[47] Motsamai denies that he had any communicationwith Scheepers or any personfrom his office. This is not pertinently alleged by either the respondent or Scheepers.

[47] Motsamai denies that he had any communication

with Scheepers or any person

from his office. This is not pertinently alleged by either the respondent or Scheepers.

Gerald Dirksen

[48] The following facts are admitted ornotdisputed:

[48

] The following facts are admit

ted or

not

disputed

:

During about November 1992 Dirksen, who was serving a prison sentence, received a letter from a fellow-prisoner called Abri whotold him the respondenthad visited and consulted with prisoners at the Krugersdorp prison. Abri suggested that the respondent could assist Dirksen. Dirksen was interested because he had served part of his sentence. Dirksen then received a visit from the respondent at about the same time. He had not asked her to visit him and assumed that Abri had asked her to visit him. Dirksen told the respondent what he wanted her to do but the respondent suggested that he rather appeal or apply to have the rest of his sentence converted to correctional supervision. Dirksen pointed out that neither wasfeasible. His petition for leave to appeal had been refused by the Supreme Court of Appeal andhe had been convicted of a crime involving violence (murder and attempted murder), had been sentenced to more than 10 years imprisonment and still hadto serve5 years imprisonment.However, the respondentinsisted that both options were available. She had successfully represented other prisoners in the same circumstances.

D

uring about November 1992 Dirksen, who was serving a prison sentence, received a letter from a fellow-prisoner called Abri who

told him the respondent

had visited and consulted with prisoners at the Krugersdorp prison. Abri suggested that the respondent could assist Dirksen. Dirksen was interested because he had served part of his sentence. Dirksen then received a visit from the respondent at about the same time. He had not asked her to visit him and assumed that Abri had asked her to visit him. Dirksen told the respondent what he wanted her to do but the respondent suggested that he rather appeal or apply to have the rest of his sentence converted to correctional supervision. Dir

ksen pointed out that neither was

feasible

. H

is petition for leave to appeal had been refused by the Supreme Cour

t of Appeal and

he had been convicted of a crime involving violence (murder and attempted murder), had been sentenced to more than 10 years imprisonment and still had

to serve

5 years imprisonment.

However, the respondent

insisted that both options were available. She had successfully r

epresented other prisoners in the same circumstances.

[49] The respondent told Dirksen she would charge him R10 000 for an appeal or R6 000 for an application to the High Court to convert the remainder of his sentence to correctional supervision. Sheasked fora deposit of R4 000.She wrote her bank details onthe reverse side of a business card (bearing her name, profession and contact details) and requested that the deposit be paid into the account. Dirksen’s wife then deposited R1 000 into the respondent’s bank account and later Dirksen’s sister-in-law deposited the balance of R3 000. This wasa loan to Dirksen. Thereafter,Dirksen’s wife met the respondent at herKrugersdorp office and handed the respondent the deposit slip and confirmed that the deposit of R4 000 had been paid. Dirksen’s wife enquired about the prospects of success. At a later stage the respondent handed Dirksen documents relating to another matter in which she had been successful in having a sentence converted to correctional supervision. This case was different from Dirksen’s in that the applicant in that matter had not been convicted of a crime of violence and had been sentenced to less than 5 years imprisonment.

[49

] The respondent told Dirksen she would charge him R10 000 for an appeal or R6 000 for an application to the High Court to convert the remainder of his sentence to correctional supervision. She

asked for

a deposit of R4 000.

She wrote her bank details on

the reverse side of a business card (bearing her name, profession and contact details) and requested that the deposit be paid into the account. Dirksen’s wife then deposited R1 000 into the respondent’s bank account and later Dirksen’s sister-in-law deposited the balance of R3 000. This was

a loan to Dirksen. Thereafter,

Dirksen’s wife met th

e respondent at her

Krugersdorp office and handed the respondent the deposit slip and confirmed that the deposit of R4 000 ha

d been paid. Dirksen’s wife enquir

ed about the prospects of success. At a later stage the respondent handed Dirksen documents relating to another matter in which she had been successful in having a sentence converted to correctional supervision. This case was different from Dirksen’s in that the applicant in that matter had not been convicted of a crime of violence and had been sentenced to less than 5 years imprisonment.

[50] In early February 2003 Dirksen’s wife approached Dirksen’s previous employer, GrahamDick, with a view to raising the balance of the respondent’s fees. Dick wanted to be sure that he would not be throwing money away and telephoned the respondent to gether view on the prospects of success. The respondent told Dick that she could not do anything to assist Dirksen. Shortly afterwards, on about 14 February 2003, Dirksen’s wife telephoned the respondent to enquire about the R4 000 deposit and why the respondent no longer believed that she could assist her husband. The respondent told her that she did not believe that they would succeed with an appeal or a conversion of Dirksen’s sentence. Dirksen’ wife also askedfor a statement of account. The respondent has not furnished Dirksen with a statement of account. At nostage did an attorney attend aconsultation with Dirksen and Dirksen did not receivea statement of account or an invoice from an attorney.[51] On 17 March 2003 Dirksen addressed a complaint to the PretoriaSociety of Advocates which referredit to the applicant. On 6 June 2003 Hellens sent a copy of the complaint to the respondent and requested an explanation from her. The respondent furnished an explanation onabout 27 June 2003. Her letterclearly suggests that she was instructed by an attorney and that she and the attorney were requested to advise Dirksen on the merits of a possible appeal.On 7 July 2003 Hellens faxeda further letter to the respondent requesting details of the respondent’s instructing attorney as well as a copy of the brief cover marked by her and copies ofthestatements of accountwhich she furnishedto the instructing attorney.The respondent denies that she receivedthis letter. On 9 October 2003 Hellens faxed a further letter to the respondent pointing out that he had not received a response to his letter of 7 July 2003 and requestedan answer. He warned her that if she failed to respond an application to strike her off the roll might be launched. The respondent did not reply to this letter.On 13 November 2003 Hellens faxedanother letter to the respondent calling upon her to answer his previous letters of 7 July 2003 and 7 October 2003. The respondent alleges that she did not receive this letter. It was,according to the respondent,sent to the wrong fax number.[52] Up to the time that Hellens deposed to the applicant’s founding affidavit the respondent did not answer Hellens’ questions about her instructing attorney and did not furnish him with copies of marked brief covers or herstatements of account to her attorney and the attorney’s statements of account to his client.

[50

] In early February 2003 Dirksen’

s wife approached Dir

ksen’s previous employer, Graham

Dick, with a view to raising the balance of the respondent’s fees. Dick wanted to be sure that he would not be throwing money away and tel

ephoned the respondent to get

her view on the prospects of success. The respondent told Dick that she could not do anything to assist Dirksen. Shortly afterwards, on about 14 February 2003, Dirksen’s wife telephoned the respondent to enquire about the R4 000 deposit and why the respondent no longer believed that she could assist her husband. The respondent told her that she did not believe that they would succeed with an appeal or a conversion of Dir

ksen’s sentence. Dirksen’ wife also asked

for a statement of account. The respondent has not furnished Dirksen with a statement of account. At no

stage did an attorney attend a

consultation with Di

rksen and Dirksen did not receive

a statement of account or an invoice from an attorney.

[51

] On 17 March 2003 Dirksen addressed a complaint to the Pretoria

Society of Advocates which referred

it to the applicant. On 6 June 2003 Hellens sent a copy of the complaint to the respondent and requested an explanation from her. The respondent furnished an explanation on

about 27 June 2003. Her letter

clearly suggests that she was instructed by an attorney and that she and the attorney were requested to advise Dirksen on the merits of a possible appeal.

On 7 July 2003 Hellens faxed

a further letter to the respondent requesting details of the respondent’s instructing attorney as well as a copy of the brief cover marked by her and copies of

statements of account

which she furnished

to the instructing attorney.

The respondent denies that she received

this letter. O

n 9 October 2003 Hellens fax

ed a further letter to the respondent pointing out that he had not received a response to his letter of 7 July 20

03 and requested

an answer. He warned her that if she failed to respond an application to strike her off the roll might be launched. The respondent did not reply to this letter.

On 13 November 2003 Hellens faxed

another letter to the respondent calling upon her to answer his previous letters of 7 July 2003 and 7 October 2003. The respondent alleges that she did not receive this letter. It was

according t

o the respondent,

sent to the wrong fax number.

[52

] Up to the time that Hellens deposed to the applicant’s founding affidavit the respondent did not answer Hellens’ questions about her instructing attorney and did not furnish him with copies of marked brie

f covers or her

statements of account to her attorney and the attorney’s statements of account to his client.

The respondent’s answer

[53] The respondent states that during or about the end of November 2002 she received an instruction from attorneyGert Scheepersto consult with Dirksen, give him advice and research his case. She attaches to her affidavit a copy of the written instruction. The instruction bears the name of Scheepers and says in respect of GERALD DIRKSEN MATTER ‘Please consult, advise and peruse in this matter’.Scheepers merely confirms the respondent’s averment that he gave her a written instruction.

[53

] The respondent stat

es that during or about the end of November 2002 s

he received an instruction from attorney

Gert Scheepers

to consult with Dirksen, give him advice and research his case. She attaches to her affidavit a copy of the written instruction. The instruction bears the name of Scheepers and says in respect of GERALD DIRKSEN MATTER ‘Please consult, advise and peruse in this matter’.

Scheepers merely confirms the respondent’s averment that he gave her a written instruction.

The applicant’s reply

[54] Dirksen and his wife deny that they communicated or consulted with or appointed Scheepers.

[54

] Dirksen and his wife deny that they communicated or consulted with or appointed Scheepers.

Jan Harm Conradie

[55] The followingfacts are admitted or not disputed:

[55

] The following

fact

During April 2003Conradie visited his son, RudolphJohannes Conradie (Conradie Jr), who was a prisoner in the Baviaanspoort prison. Conradie Jr told his father that an advocate called Marika van den Heever had been to see a number of prisoners and that he had spoken to her and told her about his case. She had assured him that although his appeal in the Witwatersrand Local Division had been dismissed she would be successful with anappeal to the Supreme Court ofAppeal. The advocate had arrivedunannounced and no attorney was present during the consultation. Theadvocatehanded ConradieJr her business card which reflectedher address as75 Von Brandis Street, Krugersdorp.

uring April 2003

Conradie visited his son, Rudolph

Johannes Conradie (Conradie Jr), who was a prisoner in the Baviaanspoort prison. Conradie Jr told his father that an advocate called Marika van den Heever had been to see a number of prisoners and that he had spoken to her and told her about his case. She had assured him that although his appeal in the Witwatersrand Local Division had been dismissed she would be successful with an

appeal to the Supreme Court of

Appeal. The advocate had arrived

un

announced and no attorney was present during the consultation. The

advocate

handed Conradie

Jr her business card which reflected

her address as

, Krugersdorp.

[56] Conradie contacted the respondent and arranged a consultation at her office at75 Von Brandis Street, Krugersdorp, early in April 2003. At this consultation Conradie and his fianc, Maria Catherina Oosthuizen,pointed out to the respondent that attorney Nardus Grovhad been dealing with the matter and was in possession of all the documents. The respondent then telephoned Grov, told him she was taking over the matter and requested the files and documents pertaining to the matter. The respondent told Conradie that she would charge R25 000 for the entire matter and that she required an amount of R10 000 before she could obtain a date for the appeal in the Supreme Court of Appeal. Conradie told the respondent that he could not find R10 000 immediately but that he would pay her R5 000 so that she could begin working on the matter. The respondent provided Conradie withher bank details andaform entitled ‘Application for Appointment of Legal Representative’ which she told him was a ‘pro formapayment schedule form’. The formhas spaces forinformation to be inserted aboutthe client and the accountholder. The respondent informed Conradie that in respect of the balance of R15 000 she would complete a monthly payment schedule for him. Conradieand Oosthuizenthen went to Grov’s office and collected the files and documents relating to his son’s case and delivered them to the respondent. On 28 June 2003 Conradie paid R5 000(which he had borrowed)into the respondent’s bank account and on 2 February 2004another R5 000. In the intervening monthsConradiehad a number of telephone conversations withthe respondent. The respondent assured him that she had done a lot of workon the matter, that the matter was progressing but that she required payment of the second R5 000 before she could obtain a date for the hearing of the appeal.

[56

] Conradie contacted the respondent and arranged a consultation at her office at

, Krugersdorp, early in April 2003. At this consu

ltation Conradie and his fianc, Maria Catherina Oosthuizen,

pointed out to the respondent that attorney Nardus Grov

had been dealing with the matter and was in possession of all the documents. The respondent then telephoned Grov, told him she was taking over the matter and requested the files and documents pertaining to the matter. The respondent told Conradie that she would charge R25 000 for the entire matter and that she required an amount of R10 000 before she could obtain a date for the appeal in the Supreme Court of Appeal. Conradie told the respondent that he could not find R10 000 immediately but that he would pay her R5 000 so that she could begin working on the matter. The respondent provided Conradie with

her bank details and

form entitled ‘Application for A

p

pointment of Legal R

epres

entative’ which she told him w

as a ‘

pro forma

payment schedule form’. The form

has spaces for

information to be inserted about

the client and the account

holder. The respondent informed Conradie that in respect of the balance of R15 000 she would complete a monthly payment schedule for him. Conradie

and Oosthuizen

then went to Grov’s office and collected the files and documents relating to his son’s case and delivered them to the respondent. On 28 June 2003 Conradie paid R5 000

(which he had borrowed)

into the respondent’s bank account and on 2 February 2004

another R5 000. In the intervening months

Conradie

had a number of telephone conversations with

the respondent. The respondent assured him that she had done a lot of work

on the matter

, that the matter was progressing but that she required payment of the second R5 000 before she could obtain a date for the hearing of the appeal.

[57] On 18 February 2004 Conradie met the respondent again to discuss progress in the matter. The respondent told Conradie that Mr Rex of Honey &Partners inBloemfonteinwas handling the matter inBloemfonteinand that Mr Gert Scheepers was Conradie’s attorney of record. Conradie had never met Rex or Scheepers and had not instructed either of them to act in the matter. Conradie telephoned Rex to enquire about his son’s case. Rex told Conradie that although the respondent had communicated with him, he, Rex, had not received any documents. Conradie then telephoned the respondent to tell her what Rex had said. The respondent stated that she had sent the documents to Rex together with R2 000 but that she would follow up the matter. Later Conradie telephoned Rex again and Rex confirmed that he had received the box of files/documents but no money and that he was going to send the documents back to the respondent. Rex said that he did not know what was going on in the matter.[58]At that stage Conradiebecame suspicious. It appeared to him that he had paid the respondent R10 000 but there had been littleprogress in the matter. The respondent had not even managed to get a date for the hearing of the appeal. Conradie telephoned Scheepers to enquire about the matter as the respondent had told Conradie that Scheepers was the attorney of record. Conradie spoke to Scheepers on 27 February 2004 to arrange a consultation. However Scheepers told Conradie that he had no files relating to the matter. He also told Conradie that the respondent had mentioned the matter to him in 2003 but he had heard nothing since. This confirmed Conradie’s suspicions. He telephoned the respondent and told herhe was unhappy about the waywhich she was dealing with the matter – it appeared as if nothing had beendone. The respondent shouted at Conradie, told him he did not know what he was talking about, that she was no longer prepared to proceed with the matter and that Conradie should collect his files and account.[59] Conradie collected the files and statement of account. The statement reflects that the respondent conducted 7 consultations, 3 with Conradie, 1 with Grov, 1 with her instructing attorneyand 2 with Honey & Partners. The charges totalled R8 700 and there was an amount of R1 300 owing to Conradie. Conradie disputes that he consulted with the respondent on three of the dates.[60] Conradie has never met Scheepers or Rex and he did not instruct Scheepers to act as attorney or authorise Scheepers to appoint a correspondent inBloemfontein.Neither Scheepers nor Rexsent Conradie a statement of account.

[57

] On 18 February 2004 Conradie met the respondent again to discuss progress in the matter. The respondent told C

onradie that Mr Rex of Honey &

Partners in

Bloemfontein

was handling the matter in

and that Mr Gert Scheepers was Conradie’s attorney of record. Conradie had never met Rex or Scheepers and had not instructed either of them to act in the matter. Conradie telephoned Rex to enquire about his son’s case. Rex told Conradie that although the respondent had communicated with him, he, Rex, had not received any documents. Conradie then telephoned the respondent to tell her what Rex had said. The respondent stated that she had sent the documents to Rex together with R2 000 but that she would follow up the matter. Later Conradie telephoned Rex again and Rex confirmed that he ha

d received the box of files/

documents but no money and that he was going to send the documents back to the respondent. Rex said that he did not know what was going on in the matter.

[58

At that stage Conradie

became suspicious. It appeared to him that he had paid the responde

nt R10 000 but there had been little

progress in the matter. The respondent had not even managed to get a date for the hearing of the appeal. Conradie telephoned Scheepers to enquire about the matter as the respondent had told Conradie that Scheepers was the attorney of record. Conradie spoke to Scheepers on 27 February 2004 to arrange a consultation. However Scheepers told Conradie that he had no files relating to the matter. He also told Conradie that the respondent had mentioned the matter to him in 2003 but he had heard nothing since. This confirmed Conradie’s suspicions. He telephoned the respondent and told her

he was unhappy about the way

which she was dealing with the matter – it a

ppeared as if nothing had been

done. The respondent shouted at Conradie, told him he did not know what he was talking about, that she was no longer prepared to proceed with the matter and that Conradie should collect his files and account.

[59

] Conradie collected the files and statement of account. The statement reflects that the respondent conducted 7 consultations, 3 with Conradie, 1 with Grov

, 1 with her instructing attorney

and 2 with Honey & Partners. The charges totalled R8 700 and there was an amount of R1 300 owing to Conradie. Conradie disputes that he consulted with the respondent on three of the dates.

[60

] Conradie has never met Scheepers or Rex and he did not instruct Scheepers to act as attorney or authorise Scheepers to appoint a correspondent in

Neither Scheepers nor Rex

sent Conradie a statement of account.

[61] Conradie telephoned the respondent to arrange for payment of the R1300. The respondent told Conradie to come and collect it from her office. When Conradie attended at the respondent’s office he was told that the respondent had gone to court and had not left any money for him. Thereafter Conradie and Oosthuizen telephoned the respondent on numerous occasions to ask for payment. Despite promises by the respondent she did not pay the R1 300. Nor did she repaythe deposit of R10 000despite her failure to arrange for a date for the hearing of the appeal. The respondent told Oosthuizen that if Conradie and Oosthuizen did not stop telephoning her she, the respondent, would apply for an interdict to prevent them harassing her. She was also extremely rude to them.

[61

] Conradie telephoned the respondent t

o arrange for payment of the R1

300. The respondent told Conradie to come and collect it from her office. When Conradie attended at the respondent’s office he was told that the respondent had gone to court and had not left any money for him. Thereafter Conradie and Oosthuizen telephoned the respondent on numerous occasions to ask for payment. Despite promises by the responden

t she did not pay the R1 300. Nor did she repay

the deposit of R10 000

despite her failure to arrange for a date for the hearing of the appeal

. The respondent told Oosthuizen that if Conradie and Oosthuizen did not stop telephoning her she, the respondent, would apply for an interdict to prevent them harassing her. She was also extremely rude to them.

[62] On 23 March 2004 Conradieaddressed a letter to theGeneral Council of the Bar(GCB) to complain about the respondent’s conduct. The GCB referred the letter to the applicant.Conradie’s letter states clearly that therewas noattorney in the case. On 25 May 2004 Conradie addressed a further letter to theGCB to complainthat the respondent had not repaid the balance of R1 300 despite numerous promises to do so. TheGCBreferred this letter to the applicantalso.

[62

] On 23 March 2004 Conradie

addressed a letter to the

General Council of the Bar

(GCB) to complain about the respondent’s conduct. The GCB referred the letter to the applicant.

Conradie’s letter states clearly that there

was no

attorney in the case. On 25 May 2004 Conradie addressed a further letter to the

GCB to complain

that the respondent had not repaid the balance of R1 300 despite numerous promises to do so. The

GCB

referred this letter to the applicant

also

[63]The respondent states that on 7 May 2003 she received a written instruction from Martin Venter of C.J. le Roux Attorneys to represent Rudolph Johannes Conradie in an appeal in the Supreme Court of Appeal. She attaches to her affidavit a brief cover dated 7 May 2003 bearing a signature, M. Venter, and reflecting the attorney C.J. leRoux Inc. The instruction was‘attending to appeal’. The respondent states that pursuant to the instruction she went to see Conradie Jr and told him she would do her best for him in the appeal.(The respondent does not attach anaffidavit by Venter confirming that he acted on behalf of Conradie Jr or Conradieand that heinstructed the respondent to act in the appeal.)[64] Regarding theform entitled ‘Application for Appointment as Legal Representative’ the respondent states that it is a form used in her office when she receives an instruction from an attorney and requires payment in advance. She alleges that she is entitled to ask for payment in advance.

[63

The respondent stat

es that on 7 May 2003 she received a written instruction from Martin Venter of C.J. le Roux Attorneys to represent Rudolph Johannes Conradie in an appeal in the Supreme Court of Appeal. She attaches to her affidavit a brief cover dated 7 May 2003 bearing a signature, M. Venter, and reflecting the attorney C.J. le

Roux Inc. The instruction was

‘attending to appeal’. The respondent states that pursuant to the instruction she went to see Conradie Jr and told him she would do her best for him in the appeal.

The respondent does not attach an

affidavit by Venter confirming that he acted on behalf of Conradie Jr or Conradie

and that he

instructed the respondent to act in the app

eal

[64

] Regarding the

form entitled ‘Application for Appointment as Legal R

epresentative’ the respondent states that it is a form used in her office when she receives an instructi

on from an attorney and requires payment in advance. She alleges that she is entitled to ask for payment in advance.

[65] Conradie and his son deny that they instructed Martin Venter of CJ le Roux Attorneys. The respondent does not allege that Conradie Jr instructed Venter.

[65

] Conradie and his son deny that they instructed Martin Venter of CJ le Roux Attorneys. The respondent does not allege that Conradie Jr instructed Venter.

Geffert Pretorius

[66] The following facts areadmitted or not disputed:

[66

] The following facts are

admitted or not disputed

On about 23 February 2002 attorney Jurgens Bekker submittedto the applicant an affidavit byGeffert Pretoriuscomplaining about the respondent. According to Pretorius, in about February 2001 he approached the respondent for legal advice and she undertook to act on his behalf. The respondent took instructions direct from Pretorius (without the intervention of an attorney) and consulted with him. In January 2002 Pretorius terminated his mandate to the respondent as he was not satisfied with progress in the matter. Pretorius states that the respondent issued a summons on his behalf against ABSA Bank Limited and Comcar Motors (Pty) Ltd. The summons and the particulars of claim make no provision foran attorney’ssignature and there is a signature on the last page of the particulars of claim over the words ‘M. van den Heever, plaintiff’s counsel, Mike Smuts Attorneys,75 Von Brandis Street, Krugersdorp’. Only the respondent’s address and telephone numbers appear on the summons.

O

n about 23 February 2002 attorney Jurgens Bekker submitted

to the applicant an affidavit by

complaining about the respondent

. A

ccording to Pretorius

, in about February 2001 he approached the respondent for legal advice and she undertook to act on his behalf. The respondent took instructions direct from Pretorius (without the intervention of an attorney) and consulted with him. In January 2002 Pretorius terminated his mandate to the respondent as he was not satisfied with progress in the matter. Pretorius states that the respondent issued a summons on his behalf against ABSA Bank Limited and Comcar Motors (Pty) Ltd. The summons and the particulars of claim make no provision for

an attorney’s

signature and there is a signature on the last page of the particulars of claim over the words ‘M. van den Heever, plaintiff’s counsel, Mike Sm

uts Attorneys,

, Krugersdorp’. Only the respondent’s address and telephone numbers appear on the summons.

[67] The respondent alleges that during or about October 2001 she received an instruction from Gert Scheepers Attorneys to draw up a summons for Geffert Pretorius who wished to sue ABSA Bank and Comcar Motors for damages for breach of contract. She states that she prepared the particulars of claim and the summons was issued byattorney Mike Smutswho practised in association with Gert Scheepers. She says she has no knowledge of any further steps taken in the litigation.(The respondent does not annex an affidavit by Mike Smuts to support her allegations.)[68] In a supplementary affidavit filed by the applicant,Michael John Smuts,an attorneywho practises at268 Voortrekker Road, Krugersdorp, states with regard to the respondent’s answer that he does not know Geffert Pretorius; that he has never met Geffert Pretorius; that he knows nothing about the case and that he did not issue the summons. He also denies that he has ever been in association with Gert Scheepers and that he has ever briefed the respondent in this or any other matter. He also states that he never gave permission to the respondent to use his name on the summons.[69] The respondent filed a supplementary answering affidavit but does not dealwith Smuts’ affidavit.

[67

] The respondent alleges that during or about October 2001 she received an instruc

tion from Gert Scheepers Attorn

e

y

s to draw up a summons for Geffert Pretorius who wished to sue ABSA Bank and Comcar Motors for damages for breach of contract. She states that she prepared the particulars of claim and the summons was issued by

attorney Mike Smuts

who pra

ctis

ed in association with Gert Scheepers. She says she has no knowledge of any further steps taken in the litigation.

The respondent does not annex an affidavit by Mike Smuts to support her allegations.

[68

] In a supplementary affidavit filed by the a

pplicant,

Michael John Smuts

an attorney

who practises at

268 Voortrekker Road, Krugersdorp, states with regard to the respondent’s answer that he does not know Geffert Pretorius; that he has never met Geffert Pretorius; that he knows nothing about the case and that he did not issue the summons. He also denies that he has ever been in association with Gert Scheepers and that he has ever briefed the respondent in this or any other matter. He also states that he never gave permission to the respondent to use his name on the summons.

[69

] The respondent filed a supplementary answering affidavit but does not deal

with Smuts’ affidavit.

[70] The question is whether the applicant has established its primary contention that the respondent took work directly from clients without the intervention of an attorney. In each case the respondent alleges that she received a written or oral instruction from an attorney. The issue to be decided is whether this must be accepted, and if so, whether this will show that the respondent is not guilty of unprofessional conduct.[71] The following has been established in the affidavits –

[70

] The question is whether the applicant has established its primary contention that the respondent took work directly from clients without the intervention of an attorney. In each case the respondent alleges that she received a written or oral instruction from an attorney. The issue to be decided is whether this must be accepted, and if so, whether this will show that the respondent is not guilty of unprofessional conduct.

[71

] The following has been established in the affidavits –

(1)fivedifferent complainants, completely independently of each other, testified that the respondent took instructionsfrom them, directly without the intervention of an attorney. (It is significant that not one of the letters of complaint refers to an attorney and the role played by the attorney);

(1)

ive

different complainants, completely independently of each other, testifi

ed that the respondent took instructions

from them, directly without the intervention of an attorney

. (It is significant that not one of the letters of complaint refers to an attorney and the role played by the attorney)

(2)each complainant instructed the respondent at a different time and it is not suggested in the respondent’s answering affidavit or in argument that there is a conspiracy against the respondent;

(2)

ach complainant instructed the respondent at a different time and it is not suggested in the respondent’s answering affidavit or in argument that there is a conspiracy against the respondent;

(3)in four of the cases the respondent agreed on the fees to be paid by the complainant, without the intervention of an attorney, and received payment of these fees from the complainant, without the intervention of an attorney;

(3)

n four of the cases the respondent agreed on the fees to be paid by the complainant, without the intervention of an attorney, and received payment of these fees from the complainant, without the intervention of an attorney;

(4)in four of these cases the complainant paid the respondent in advance before the respondent had done any work pursuant to the instruction, and the respondent received these fees in her own bank account;

(4)

n four of these cases the complainant paid the respondent in advance before the respondent had done any work pursuant to the instruction, and the respondent received these fees in her own bank account;

(5)in two cases (Motsamai and Conradie) the respondent acknowledged that she wasobliged to repayfees;

(5)

n two cases (Motsamai and Conradie) the respondent acknowledged that she was

obliged to repay

fees

(6) in one case (Motsamai) the respondent appointed a labour consultant (Dixon) to assist her without the intervention of an attorney and in one case (Conradie) the respondent appointed an attorney to act on behalf of the client in Bloemfontein (Rex) without the intervention of an attorney;

(6) i

n one case (Motsamai) the respondent appointed a labour consultant (Dixon) to assist her without the intervention of an attorney and in one case (Conradie) the respondent appointed an attorney to act on behalf of the client in Bloemfontein (Rex) without the intervention of an attorney;

(7) in respect of one client (Conradie) there is a material contradiction between the explanation furnished to the applicant’s representative, Hellens, and the explanation furnished in the respondent’s answering affidavit. In a letter to Hellens the respondent alleges that she received an oral instruction and in her answering affidavit the respondent alleges that she received a written instruction. When she wrote to Hellens the respondent clearly must have knownabout the written instruction. There is no explanation for this contradiction;

(7) i

n respect of one client (Conradie) there is a material contradiction between the explanation furnished to the applicant’s representative, Hellens, and t

he explanation furnished in the respondent’s answering affidavit. In a letter to Hellens the respondent alleges that she received an oral instruction and in her answering affidavit the respondent alleges that she received a written instruction. When she wrote to Hel

lens the respondent clearly must have known

about the writ

ten instruction

. There is no explanation for this contradiction;

(8) in respect of another client (Motsamai) the respondent attempts to create the impression that she had a communication with an instructing attorney called Colette du Toit in February 2002 when, in fact,she purported to communicate with her in February 2005, after the applicant had instituted these proceedings against herand that it was important for her to establish that she had received instructions from an attorney in each case;

(8) in respect of another client (Motsamai) the respondent attempts to create the impression that she had a communication with an instructing attorney called Colett

e du Toit in February 2002 when, in fact,

she purported to communicate with h

er in February 2005, after the applicant had instituted these proceedings against her

and that it was important for her to establish that she had received instructions from an attorney in each case;

(9) the respondent alleges that in respect of four clients (Wendling, Motsamai, Dirksen and Pretorius) she received instructions from an attorney, Gert Scheepers, who makes an affidavit confirming the respondent’s allegations. In respect of Wendling Scheepers confirms the respondent’s statement that she does not know how Wendling and Scheepers met and does not furnish an explanation of how they metor how Wendling came to instruct him.Thereis a complete lack of detailin Scheepers’ affidavit about his relationship with each client, why he instructed the respondent and what his instructions were. Scheepers does not say when each client instructed him, what the instruction was and what financial arrangements were made with his client. Scheepers also does not attach a copy of each client’s file or any other piece of paper to show that he received instructions and executed work pursuant to those instructions. Scheepers also does not explain why it was necessary to instruct the respondent or why he did not negotiate the respondent’s feeswith the respondent and obtaincover from his client for those fees. Scheepers does not annex copies of his statements of account to his client or his final account.(The lack of detail is extremely significant. Without it the written instructions allegedlyreceived fromScheepers are meaninglessand the documents must be regarded as a sham);

(9) the respondent alleges that in respect of four clients (Wendling, Motsam

ai, Dirksen and Pretorius

) she received instructions from an attorney, Gert Scheepers, who makes an affidavit confirming the respondent’s allegations. In respect of Wendling Scheepers confirms the respondent’s statement that she does not know how Wendling and Scheepers met and does not furnish an explanation of how they met

or how Wendling came to instruct him

he

re

is a complete lack of detail

in Scheepers’ affidavit about his relationship with each client, why he instructed the respondent and what his instructions were. Scheepers does not say when each client instructed him, what the instruction was and what financial arrangements were made with his client. Scheepers also does not attach a copy of each client’s file or any other piece of paper to show that he received instructions and executed work pursuant to those instructions. Scheepers also does not explain why it was necessary to instruct the respondent or why he did not negotiate the respondent’s fees

with the respondent and obtain

cover from his client for those fees. Scheepers does not annex copies of his statements of account to his client or his final account.

(The lack of detail is extremely significant. Without it the written instructions allegedly

received from

Scheepers are meaningless

and the documents must be rega

rded as a sham)

(10) the respondent alleges that Martin Venter of C.J. le Roux Attorneys instructed her to represent Conradie’s son. The respondent does not attach an affidavit by Venter. If Venter was appointed by Conradie Jr he would have a note of his instruction and/or a file. Venter would also have made financial arrangements with his client both for himself and the respondent and receivedpayment ofthefees. Venter would have arranged for the date of the hearing and appointeda correspondent to deal with the matter inBloemfontein. An appeal would require specific instructions regarding heads of argument and the appearance of counsel.(Once again the absence ofthis detail is significant. Without it the instructions to counsel are meaningless and the brief cover must be regarded as a sham);

(10) the respondent alleges that Martin Venter of C.J. le Roux Attorneys instructed her to represent Conradie’s son. The respondent does not attach an affidavit by Venter. If Venter was appointed by Conradie Jr he would have a note of his instruction and/or a file. Venter would also have made financial arrangements with his client both for himself and the respondent and receive

d

payment of

fees. Venter would have arranged for the date of the hearing and appoint

a correspondent to deal with the matter in

. An appeal would require specific instructions regarding heads of argument and the appearance of counsel.

(Once again the absence of

this detail is significant

. Without it the instructions to counsel are meaningless and the brief cover must be regarded as a sham)

(11) the respondent alleges that Scheepers instructed her to act on behalf of Pretorius but that the summons was issued by attorney Mike Smuts who practised in association with Scheepers. The respondent does not attach an affidavit by Smuts. She also does not explain why the summons does not refer to Scheepers or Smuts or even make provision for an attorney’s signature. The applicant filed an affidavit by Smuts denying the respondent’s allegations and the respondent did not deal with Smuts’ affidavit;

(11) t

he respondent alleges that Scheepers instructed her to act on behalf of Pretorius but that the summons was issued by attorney Mike Smuts who practised in association with Scheepers. The respondent does not attach an affidavit by Smuts. She also does not explain why the summons does not refer to Scheepers or Smuts or even make provision for an attorney’s signature. The applicant filed an affidavit by Smuts denying the respondent’s allegations and the respondent did not deal with Smuts’ affidavit;

(12) Hellens, on behalf of the applicant, addressed letters to the respondent pertinently askingwhether she had taken instructions from each client without the intervention of an attorney.The respondent either avoided the question or failed to answer it. In the circumstances her failure to explain justifies an inference that the respondent did not receive instructions from an attorney –McWilliams v First Consolidated Holdings (Pty) Ltd1982 (2) SA 1(A)at 10E-G.

(12) Hellens, on behalf of the applicant, addressed letters to the respondent pertinently asking

whether she had taken instructions from each client without the intervention of an attorney.

The respondent either avoided the question or failed to answer it. In the circumstances her failure to explain justifies an inference that the respondent did not receive instructions from an attorney –

McWilliams v First Consolidated Holdings (Pty) Ltd

1982 (2) SA 1(A)

1982 (2) SA 1

at 10E-G.

(13) despite receiving letters pertinently questioning whether she had taken work directly from clients without the intervention of an attorney the respondent did not furnish the applicant with any documentary proof that she received instructions from her alleged instructing attorney, with whom she shared offices, before the applicant launched the application;

(13) d

espite receiving letters pertinently questioning whether she had taken work directly from clients without the intervention of an attorney the respondent did not furnish the applicant with any documentary proof that she received instructions from her alleged instructing attorney, with whom she shared offices, before the applicant launched the application;

(14)after the applicant launched this application the respondent has produced virtually no evidence to support her allegation that she was instructed by an attorney in each case – she has simply made vague and unsubstantiated statements;(15)despite receiving letters from the applicant pertinently asking whether he had instructed the respondent, Scheepers failed to reply to these letters;

(14)

after the applicant launched this application the respondent has produced virtually no evidence to support her allegation that she was instructed by an attorney in each case – she has simply made vague and unsubstantiated statements;(15)

espite receiving letters from the applicant pertinently asking whether he had instructed the respondent, Scheepers failed to reply to these letters;

(16) the affidavit filed by Scheepers is singularly lacking in any detail showing that he received instructions from the client and instructed the respondent to act on behalf of the client;

(16

) the affidavit filed by Scheepers is singularly lacking in any detail showing that he received instructions from the client and instructed the respondent to act on behalf of the client;

(17) there is no explanation by Scheepers or the respondent for this;

(17

) there is no explanation by Scheepers or the respondent for this;

(18) the respondent handed to Conradie a form entitled ‘Application for Appointment as Legal Representative’. On the face of it that is precisely what the form is.

(18

) the respondent handed to Conradie a form entitled ‘Application for Appointment as Legal Representative’. On the face of it that is precisely what the form is.

(19) some of the respondent’s statements are bizarre – she states that she told Wendling that she was an advocate and Scheepers was the attorney in the matter and without explanation she says that aspects of his case were ‘transferred’ to another attorney.

[72] In the light of these facts the respondent’s allegation that she received instructions from attorneys is nothing more than a bald allegation and cannot be accepted.It is also inconsistent with the manner in which the respondent carried out her instructions. She appears to have performed all the services of an advocate and attorney.It is accordingly found that in each case the respondent took instructions from the client without the intervention of an attorney and that her allegation that she received instructions from an attorney is not true.[73]The respondent commenced practice for her own account after the judgments in theDe Freitas case.As a member of IAASA she must have been aware of these judgments. She does not contend otherwise. She practised in flagrant disregard of the law. The respondent also took fees in advance to the potential prejudice of her clients. The respondent was untruthful in her dealings with the applicant and in her affidavit with regard to the central issue of whether she received instructions from an attorney.[74] In view of these findings the respondent is not a fit and proper person to be permitted to continue to practise as an advocate and should be removed from the roll of advocates. Regarding costs the applicant should not be out of pocket for carrying out the onerous duty of placing the relevant facts before this court. The respondent will be ordered to pay the costs of the application, including the costs of two counsel.The matter is of importance to the administration of justice and is not uncomplicated. It was not contended that costs of two counsel should not be allowed.[75] The following order is made:

[72

] In the light of these facts the respondent’s allegation that she received instructions from attorneys is nothing more than a bald allegation and cannot be accepted.

It is also inconsistent with the manner in which the respondent carried out her instructions. She appears to have performed all the services of an advocate and attorney.

It is accordingly found that in each case the respondent took instructions from the client without the intervention of an attorney and that her allegation that she received instructions from an attorney is not true.

[73

The respondent commenced practic

e for her own account after the judgments in the

De Freitas case.

As a member of IAASA she must have been aware of these judgments. She does not contend otherwise. She practised in flagrant disregard of the law. The respondent also took fees in advance to the potential prejudice of her clients. The respondent was untruthful in her dealings with the applicant and in her affidavit with regard to the central issue of whether she received instructions from an attorney.

[74

] In view of these findings the respondent is not a fit and proper person to be permitted to continue to practise as an advocate and should be removed from the roll of advocates. Regarding costs the applicant should not be out of pocket for carrying out the onerous duty of placing the relevant facts before this court. The respondent will be ordered to pay the costs of the application, including the costs of two counsel.

The matter is of importance to the administration of justice and is not uncomplicated. It was not contended that costs of two counsel should not be allowed.

[75

] The following order is made:

(1) The name of the respondent is removed from the roll of advocates;

(2) The respondent is ordered to pay the costs of the application including the costs consequent upon the employment of two counsel.

_____________________

B.R. SOUTHWOODJUDGE OF THE HIGH COURT

POSWA J

[76] I have had the benefit of reading the judgment of my brother, Southwood J. I agree with the order removing the respondent from the roll of advocates and ordering her to pay the costs of this application, including the costs consequent upon the employment of two counsel. In so agreeing, I do, however, wish to make certain observations that I consider it necessary to make.

[77] Firstly, I understand the respondent to be contending that, regardless of whether it is unprofessional or otherwise for an advocate to receive instructions directly from a client, without the intervention of an attorney, she did not,as a matter of fact, receive instructions directly from a client.

[77] Firstly, I understand the respondent to be contending that, regardless of whether it is unprofessional or otherwise for an advocate to receive instructions directly from a client, without the intervention of an attorney, she did not

as a matter of fact, receive instructions directly from a client.

[78] Secondly, the respondent spent a lot of time trying to support her contention that she, at all times, received instructions directly from an attorney without the intervention of an attorney.

[79] Thirdly, with due regard to the contention relating to the undesirability to settle disputes of fact solely on probabilities basedon contradicting evidence of the parties on affidavits (Trust Bank Beperk en Andere NNO1978 (4) SA 281(A)at 293H-295A) Southwood J correctly found that ‘probabilities will not (in this case) be disturbed byviva voceexamination and cross-examination and that the alleged dispute is not real or genuine’ and that this is a case where ‘form should not be preferred to substance’.

[79] Thirdly, with due regard to the contention relating to the undesirability to settle disputes of fact solely on probabilities base

on contradicting evidence of the parties on affidavits (

Trust Bank Beperk en Andere NNO

at 293H-295A) Southwood J correctly found that ‘probabilities will not (in this case) be disturbed by

examination and cross-examination and that the alleged dispute is not real or genuine’ and that this is a case where ‘form should not be preferred to substance’.

[80] In respect of each of the five independent complaints, the applicant established that the respondent was, as Southwood J puts it, ‘economical with the truth’ in her accountwith regard to each of the complaintsin respect of each of the complaints against her.Moreover, in respect ofeach of the complainants, evidence clearly shows that the respondent short-changed the complainant.

[80] In respect of each of the five independent complaints, the applicant established that the respondent was, as Southwood J puts it, ‘economical with the truth’ in her account

with regard to each of the complaints

in respect of each of the complaints against her.

Moreover, in respect of

each of the complainants, evidence clearly shows that the respondent short-changed the complainant.

[81] To the extent that the respondent has been untruthful, I agree with Southwood J that that “constitutes anadditional ground for finding that she is not a fit and proper person to be permitted to continue to practise as an advocate”(Kekana v Society of Advocates of South Africa[1998] ZASCA 54;1998 (4) SA 649(SCA)at 655F/G-G/H and 655I-656B).

[81

] To the extent that the respondent has been untruthful, I agree with Sou

thwood J that that “

constitutes an

additional ground for finding that she is not a fit and proper person to be permitted to continue to practise as an adv

ocate”

Kekana v Society of Advocates of South Africa

[1998] ZASCA 54;1998 (4) SA 649(SCA)

[1998] ZASCA 54

1998 (4) SA 649

at 655F/G-G/H and 655I-656B

[82] To the extent that the respondent, a member of the IAASA, was, not only reported to the applicant butalso,reported toIAASA, I find myself constrainedto comment and raise my concerns.

[82

] To the extent that the respondent, a member of the IAASA, was, not only rep

orted to the applicant but

also,

reported to

IAASA, I find myself constrained

to comment and raise my concerns.

[83] In view of the history of the regulation of the professional conduct of advocates in this country – which culminated in the emergence and establishment of autonomous associations other than the “constituent Bars”(as referred to by Hefer ACJ inDe Freitas v Society of Advocates of Natal2001 (3) SA 750(SCA),in para [2], at 755B-C) or “traditional Bars”(as described by Cameron JA inDe Freitas suprain para [2], at 761G).It seems to methat there should be reciprocal respectfor each other’s turf between “traditional Bars” and the “rebel Bars” (as described byCameron JA, inDe Freitas(supra), in para [2] at 761G). Such respect should be displayed by leaving it to the respective Bars to regulate the professional conduct of their respective members. It seems to me that, when Hefer ACJ referred to each of the constituent Bars having had “its own rules regulating the professional conduct of its members”, he excluded the “rebel Bars”(which I shall refer to as the “non-traditional Bars”) because he was dealing with the history of the traditional Bars (an expression I prefer to ‘constituent Bars’), whichhe said “have been in existence for the last century or more at the seats of the various Divisions of the High Court”(De Freitas supra,para [2], at 755C). There can be no doubt that, to the extent that the autonomy of the non-traditional Bars is not in dispute, they too should have their “own rules regulating the professional conduct of (their) members”. Their “own rules”, like those of the traditional Bars, should not be in conflict with generally accepted “professional rules”which the Courts have “power to enforce”(De Freitas supra,para [8] at 763B-C).

[83

] In view of the history of the regulation of the professional conduct of advocates in this country – which culminated in the emergence and establishment of autonomo

us associations other than the “

constitue

nt Bars”

(as referred to by Hef

er ACJ in

De Freitas v Society of Advocates of Natal

2001 (3) SA 750(SCA),

in para [2], at 75

5B-C) or “traditional Bars”

(as described by Cameron JA in

De Freitas supra

in para [2], at 761G

).

I

t seems to me

that there should be reciprocal respect

for each other’s turf between “

traditional Bars

” and the “rebel Bars” (as described by

Cameron JA, in

), in para [2] at 761G). Such respect should be displayed by leaving it to the respective Bars to regulate the professional conduct of their respective members. It seems to me that, when Hefer ACJ referred to each of the constituent Ba

rs having had “

its own rules regulating the prof

essional conduct of its members”, he excluded the “rebel Bars”

(which I shall refer to as the “non-traditional Bars”

) because he was dealing with the history of the traditional Bars (an expression I prefer to ‘constituent Bars’), which

he said “

have been in existence for the last century or more at the seats of the vari

ous Divisions of the High Court”

De Freitas supra,

para [2], at 755C). There can be no doubt that, to the extent that the autonomy of the non-traditional Bars is not in dispu

te, they too should have their “

own rules regulating the professi

onal conduct of (their) members”

. Their “own rules”

, like those of the traditional Bars, should not be in conf

lict with generally accepted “professional rules”

whi

ch the Courts have “power to enforce”

para [8] at 763B-C).

[84] On the above hypothesis, each of the Bars should be accorded its turf and be implicitlyrelied upon to respect the current “referral practice that we know in this country”,in terms whereof‘advocates may not’, receive instructions directly from clients outside the existing “various exceptions (that) are allowed”(per Hefer ACJ, inDe Freitas supra, para [8] at 756H-I).

[84

] O

n the above hypothesis, each of the Bars should be ac

corded its turf and be implicitly

reli

ed upon to respect the current “

referral practi

ce that we know in this country”,

in terms whereof

‘advocates may not’, receive instructions directly from clients outside the existing “

variou

s exceptions (that) are allowed”

(per Hefer ACJ, in

, para [8] at 756H-I

[85] Cameron JA makes it very clear that “the referral rule”as he describes it in paras [6]-[12], is not a holy cow.

[85

] Camer

on JA makes it very clear that “the referral rule”

as he describes it in paras [6]

-[12], is not a holy cow.

(a).Asthe learned judge ofAppealpoints out, in these paragraphs, there is nofundamental principle of the advocatesprofession as practised in South Africa (and in all Commonwealth jurisdictions,where the division of the legal profession into advocates and attorneys has been maintained) that the advocates’ profession is a referral profession and that advocates do not accept briefs directly form members of the public”, as had been the basis on which the striking off of Mr De Freitas,prior to theapplicant’scounsel disavowing it,was premised(para [6]);

(a).

A

the learned judge of

Appeal

points out, in these paragraphs, there is no

fundame

ntal principle of the advocates

profession as practised in South Africa (and in all Commonwealth jurisdictions

where the division of the legal profession into advocates and attorneys has been maintained) that the advocates’ profession is a referral profession and that advocates do not accept briefs dire

ctly form members of the public”

, as had been the basis on which the striking off of Mr De Freitas

prior to the

applicant’s

counsel disavowing it

was premised

(para [6]);

(b) The mere fact that non-traditional Bars may be or are uncomfortable about the referral rule should notin my view,make them suspectwhen it comes to their general ability to regulate the professional conduct of their members. After all, even the English Bar, on which the traditional Barmoulds itself, has shifted to the left of the traditional Bar. Inthat regard Cameron JA said,in para [7], at 762G-I/J:

(b) The mere fact that non-traditional Bars may be or are uncomfortable about the referral ru

le should not

in my view,

make them suspect

when it comes to their general ability to regulate the professional conduct of their members. After all, even the English Ba

r, on which the traditional Bar

moulds itself, has shifted to the left of the traditional Bar. In

that regard Cameron JA said

in para [7], at 762G-I/J:

“[7] The information supplied to us from theUnited KingdomandAustralasiaindicates that in most areas where the division within the legal profession is maintained, the referral rule has been substantially adapted, so that, subject to strict safeguards, specialist litigation-practitioners are indeed now entitled to take work directly from the public or sections of it. In this the Bar in our country appears to be behind its peers even in the United Kingdom where, at the English Bar, detailed rules providing for direct access in strictly circumscribed cases now exist. That those jurisdictions have so adjusted the rule in the interest of both the public and the profession that serves it seems to me to be beyond question; and it is for these reasons that I conclude that a claim by a branch of the legal profession that a professional rule or practice exists in the public interest and should for that reason be enforced by the Courts must be scrutinised to ensure that it is not loosely or over-broadly made.”

“

[7] The information supplied to us from the

United Kingdom

Australasia

indicates that in most areas where the division within the legal profession is maintained, the referral rule has been substantially adapted, so that, subject to strict safeguards, specialist litigation-practitioners are indeed now entitled to take work directly from the public or sections of it. In this the Bar in our country appears to be behind its peers even in the United Kingdom where, at the English Bar, detailed rules providing for direct access in strictly circumscribed cases now exist. That those jurisdictions have so adjusted the rule in the interest of both the public and the profession that serves it seems to me to be beyond question; and it is for these reasons that I conclude that a claim by a branch of the legal profession that a professional rule or practice exists in the public interest and should for that reason be enforced by the Courts must be scrutinised to ensure that it is no

t loosely or over-broadly made.”

[86]Although Cameron JA does not pertinently deal with the concern I am raising here, i.e. mutual respect of each other’s turf by the respective Bars (traditional and non-traditional), to the extent that he refers to ‘a vigorous andindependent Bar (then referring toone Bar)’, in para [10] at 763G-I), there is no doubt in my mind that the concern I am raising is not inconsistent with his dicta in this regard. I do not think it is inappropriate to substitute ‘Bars’ for ‘Bar’ in the phrase ‘vigorous and independent Bar’. The contents of the entire paras[10] and [11] are salutary in my view. The two paragraphs reads:

[86

Although Cameron JA does not pertinently deal with the concern I am raising here, i.e. mutual respect of each other’s turf by the respective Bars (traditional and non-traditional), to the extent that he refers to ‘a vigorous and

independent Bar (then referring to

one Bar)’, in para [10] at 763G-I), there is no doubt in my mind that the concern I am raising is not inconsistent with his dicta in this regard. I do not think it is inappropriate to substitute ‘Bars’ for ‘Bar’ in the phrase ‘vigorous and independent Bar’. The contents of the entire para

[10] and [11] are salutary in my view. The two paragraphs reads:

“[10] I agree with Hefer ACJ thatitis in the public interest that there should be a vigorous and independent Bar serving the public, which, subject to judicial supervision, is self-regulated, whose members are in principle available to all, and who in general do not perform administrative and preparatory work in litigation but concentrate their skills on the craft of forensic practice. It is not, however, clear to me that thisdesideratumis incompatible with some relaxation of the referral rule and I do not understand the judgment of Hefer ACJ to suggest that it is. I do, however, consider that the Bar should be encouraged to investigate with urgent speed whether accommodations of the referral rule along the lines already practised in comparable jurisdictions should not be introduced here as a means of possibly enhancing public access to legal services and reducing the cost of at least some of those services.

[10] I agree with Hefer ACJ that

it

is in the public interest that there should be a vigorous and independent Bar serving the public, which, subject to judicial supervision, is self-regulated, whose members are in principle available to all, and who in general do not perform administrative and preparatory work in litigation but concentrate their skills on the craft of forensic practice. It is not, however, clear to me that this

desideratum

is incompatible with some relaxation of the referral rule and I do not understand the judgment of Hefer ACJ to suggest that it is. I do, however, consider that the Bar should be encouraged to investigate with urgent speed whether accommodations of the referral rule along the lines already practised in comparable jurisdictions should not be introduced here as a means of possibly enhancing public access to legal services and reducing the cost of at least some of those services.

[11] There is, in short, in my view,nothing intrinsically improper in a specialist corps of litigation-practitioners operating without the referral rule in its widest sense;nor, as experience in comparable jurisdictionsamply shows, would sensible adjustments to the rule be inimical to the continued flourishing of such a corps. From a public policy point of view, the enactment of the1995 statute[the Right of Appearance in Courts Act 62 of 1995]indeed shows that the Legislature considered that at least one branch of the profession – attorneys – should be permitted to offer all litigation services without the necessity for being briefed by anotherpractitioner.That does not show, as IAASA insupportably contended, that advocates should by reciprocal relaxation be permitted to engage in all forms of attorneys’ work. But it does show that the Courts – before whom litigation specialists who are attorneys are entitled to appear without the intermediation of another attorney – should be meticulous in their scrutiny of the same rule when its enforcement is sought against all advocates.’

[11] There is, in short, in my view

nothing intrinsically improper in a specialist corps of litigation-practitioners operating without the ref

erral rule in its widest sense;

nor, as experie

nce in comparable jurisdictions

amply shows, would sensible adjustments to the rule be inimical to the continued flourishing of such a corps. From a public policy point of view, the enactment of the1995 statute

[the Right of Appearance in Courts Act 62 of 1995]

indeed shows that the Legislature considered that at least one branch of the profession – attorneys – should be permitted to offer all litigation services without the necessity for being briefed by another

practitioner.

That does not show, as IAASA insupportably contended, that advocates should by reciprocal relaxation be permitted to engage in all forms of attorneys’ work. But it does show that the Courts – before whom litigation specialists who are attorneys are entitled to appear without the intermediation of another attorney – should be meticulous in their scrutiny of the same rule when its enforcement is sought against all advocates.’

[87]Until the law, in this country, with regard to trust laws,has been so adjusted thatitcan afford protection tothegeneral public where, say, an advocate keeps public funds in his or her private trust, it remains necessary to deny advocates direct access to prospective clients as that will automatically entail access to their funds without, as yet, any adequate protection for the public;

[87

Until the law, in this country, with regard to trust laws

has been so adjusted that

can afford protection to

general public where, say, an advocate keeps public funds in his or her private trust, it remains necessary to deny advocates direct access to prospective clients as that will automatically entail access to their funds without, as yet, any adequate protection for the public;

[88] Just as Hefer ACJ saysin De Freitas (supra),in para [5],that ‘the Courts have inherent disciplinary powers over practitioners in cases of misconduct or unprofessional conduct’, Cameron JArefers to ‘the Court’s power to enforce professional rules’,in para [8],at 763B.The learned judges of appeal are, therefore, in agreement that the courts are the ultimate arbiters where enforcement of existing professional rules is concerned.

[88

] Just as Hefer ACJ says

in De Freitas (supra),

in para [5],

that ‘the Courts have inherent disciplinary powers over practitioners in cases of misconduct or unprofes

sional conduct’, Cameron JA

refers to ‘the Court’s power to enforce professional rules’

in para [8],

at 763B.

The learned judges of appeal are, therefore, in agreement that the courts are the ultimate arbiters where enforcement of existing professional rules is concerned.

[89] It follows, in my view, that,even where, as in this case, an advocate’s conduct is brought beforethe Court for examinationby an association other than that ofwhich the advocate is a member,the Court will not refuse to deal with it. This situation is not, however, ideal in my view. It seems to me that,where a complaint about alleged improper conduct of a non-member is reported to the wrong body, the latter should refercomplaint tothe relevant association,even ifthe former body is to be kept abreastdevelopments in the appropriate association’s enquiry. In that way, apart from fostering a healthy atmosphere between the respective Bars – which would facilitate discussion of the future of the legal profession – this approach would ensure that the relevant association does not suppress the complaint about its member’s conduct.

[89

] It follows, in my view, that

even where, as in this case, an advocate’s conduct is brought before

the Court for examination

by an association other than that of

which the advocate is a member

the Court will not refuse to deal with it. This situation is not, however, ideal in my view. It seems to me that

where a complaint about alleged improper conduct of a non-member is reported to the wrong body, the latter should refer

complaint to

the relevant association

even if

the former body is to be kept abreast

developments in the ap

propriate association’s enquiry. I

n that way, apart from fostering a healthy atmosphere between the respective Bars – which would facilitate discussion of the future of the legal profession – this approach would ensure that the relevant association does not suppress the complaint about its member’s conduct.

[90] In the present case, the respondent’s counsel did not persist with an objection raised by the respondent, in the answering affidavit, that the applicant has nolocus standiin terms of section 7 of the Admission of Advocates Act 74 of 1964(“the Act”). Consequently, the application was dealt with purely on the merits, in respect whereof I have already expressed my agreement with my brother Southwood J’s judgment. However, it seems to me that it is appropriate to deal with the problem in the way I have done because it exists and calls for attention.

[90

] In the present case, the respondent’s counsel did not persist with an objection raised by the respondent, in the answering affidavit, that the applicant has no

in terms of section 7 of the Admissio

n of Advocates Act 74 of 1964

(“the Act”

). Consequently, the application was dealt with purely on the merits, in respect whereof I have already expressed my agreement with my brother Southwood J’s judgment. However, it seems to me that it is appropriate to deal with the problem in the way I hav

e done because it exists and calls for attention.

[91] Moreover,in the present case,the respondent avers that she was advised by Advocate Matthew Klein, a former chairperson of IAASA, that there is no legal prohibition against an advocate receiving direct payment from a client, provided that such payment does not constitute trust money (in other words,wherepayment is for services already rendered).I have already expressed my view, based onDe Freitas(supra),with regard to direct access to clients, by advocates. What is relevant for now is the fact thatI am of the view thatit may be unjust, in circumstances where there is no dishonesty on the part of anadvocate who is a member of anon-traditional Bar,for the courtto disregard advice he or she legitimately received from his or her association on the interpretation of laws (including courts’ decisions) on what the appropriate professionalconduct is, where such interpretation is in conflict with that of the traditional Bars. After all, asindicated inDe Freitas(supra),inpara [5],at 762B-D,there is disparity even amongst the various regionaltraditionalBars,in certain respects.

[91

] Moreover,

in the present case,

the respondent avers that she was advised by Advocate Matthew Klein, a former chairperson of IAASA, that there is no legal prohibition against an advocate receiving direct payment from a client, provided that such payment does not constit

ute trust money (in other words,

where

payment is for services already rendered).

I have already expressed my view, based on

),

with regard to direct access to clients, by advocates. What is re

levant for now is the fact that

I am of the view that

it may be unjust, in circumstances where there is no dishonesty on the part of an

advocate who is a member of a

non-traditional Bar,

for the court

to disregard advice he or she legitimately received from his or her association on the interpretation of laws (including courts’ decisions) on what the appropriate profession

al

conduct is, where such interpretation is in conflict with that of the traditional Bars. After all, as

indicated in

in

para [5],

at 762B-D,

there is disparity even amongst the various regional

traditional

Bars

in certain respects.

[92] It may well be that,where an advocate’s conduct is brought before the court by an association of which he or she is not a member, the advocate’s association should be joined in the application.There is no doubt in my mind that mutual and reciprocal respect amongst all legal practitioners’ autonomous associations can avoid tension and possibly reduce the number ofunnecessary applications for the striking off of practitioners for conduct that is not “intrinsicallyand necessarily unprofessional” but “unprofessional and undesirable only because of the contingent conditions of legal practicewithin which it occurs”(Cameron JA,inDe Freitas(supra),para [8], at 763C-D).

[92

] It may well be that,

where an advocate’s conduct is brought before the court by an association of which he or she is not a member, the advocate’s association should be joined in the application.

There is no doubt in my mind that mutual and reciprocal respect amongst all legal practitioners’ autonomous associations c

an avoid tension and possibly reduce the number of

unnecessary applications for the striking off of practit

ioners for conduct that is not “

intrinsically

and necessarily unprofessional” but “

unprofessional and undesirable only because of the contingent conditions of legal practice

within which it occurs”

(Cameron JA,

(supra),

para [8], at 763C-D).

[93] In conclusion, I repeat my agreement with my brother Southwood J’s judgment as to the outcome of this application.

[93

] In conclusion, I repeat my agreement with my brother Southwood J’s judgment as to the outcome of this application.

______________________

J.N.M. POSWAJUDGE OF THE HIGH COURT

CASE NO: 5077/05

HEARD ON: 27 March 2006

FOR THE APPLICANT: ADV. C. WATT-PRINGLE SCADV. G. KAIRINOS

INSTRUCTED BY: Routledge Modise Moss Morris

FOR THE RESPONDENT: ADV. J. GREYLING

INSTRUCTED BY:

Mitchell & Kruger Attorneys

DATE OF JUDGMENT:

2 August 2006