Van der Berg v General Council of the Bar of South Africa (270/06) [2007] ZASCA 16; [2007] SCA 16 (RSA); [2007] 2 All SA 499 (SCA) (22 March 2007)

Van der Berg v General Council of the Bar of South Africa (270/06) [2007] ZASCA 16; [2007] SCA 16 (RSA); [2007] 2 All SA 499 (SCA) (22 March 2007)

The Supreme Court of Appeal held that the appellant breached his professional duties as an advocate in several respects. He failed to disclose material facts that were relevant to the truth of evidence placed before the court, thereby allowing misleading evidence to be presented. He received fees other than through an attorney, which was a consequence of acting without proper instructions. The appellant associated himself with a mandate that was detrimental to the reputation of the profession and made false statements in executing that mandate, lending his professional standing to a fraudulent scheme. The absence of fraudulent intent or knowledge of the fraud did not excuse these...

Citation
[2007] ZASCA 16
Parties
Appellant: Johan Van der Berg; Respondent: General Council of the Bar of South Africa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 March 2007
Case Number
270/06
Procedural Posture
Civil Appeal / Appeal From Order Striking Advocate From the Roll
Outcome
Appeal dismissed. The order striking the appellant's name from the roll of advocates is confirmed.
Judges
Harms, Streicher, Nugent, Lewis, Musi
Legal Topics
Professional Misconduct, Disciplinary Proceedings, Advocate Ethics, Fees and Remuneration, Misrepresentation, Conflict of Interest
Civil Procedure Commercial and Corporate Professional Misconduct Disciplinary Proceedings Advocate Ethics Fees and Remuneration Misrepresentation Conflict of Interest

Case Brief

Summary, issues, holding and outcome

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Parties

Johan Van der Berg

Appellant

General Council of the Bar of South Africa

Respondent

Procedural Posture

Civil Appeal / Appeal From Order Striking Advocate From the Roll

Legal Issues

  1. 1 Whether the appellant breached his professional duties as an advocate by failing to disclose material facts to the court.
  2. 2 Whether the appellant acted improperly in receiving fees other than through an attorney.
  3. 3 Whether the appellant's association with a fraudulent mandate was detrimental to the reputation of the Bar.

Ratio Decidendi

The Supreme Court of Appeal held that the appellant breached his professional duties as an advocate in several respects. He failed to disclose material facts that were relevant to the truth of evidence placed before the court, thereby allowing misleading evidence to be presented. He received fees other than through an attorney, which was a consequence of acting without proper instructions. The appellant associated himself with a mandate that was detrimental to the reputation of the profession and made false statements in executing that mandate, lending his professional standing to a fraudulent scheme. The absence of fraudulent intent or knowledge of the fraud did not excuse these...

Court Disposition

Appeal dismissed. The order striking the appellant's name from the roll of advocates is confirmed.

Orders

  • The appeal is dismissed with costs, including the costs of three counsel.
  • The order of the Cape High Court striking the appellant's name from the roll of advocates is confirmed.