J U D G M E N T
________________________________________________________________
PONNAN JA:
[1]
In his book Confessions of an Uncommon Attorney, Reginald L Hine observes somewhat wryly:
‘The law, precisely because it is not an exact science, is a most exacting profession, and you will find its practitioners driven to
do other things - preferably illegal - to preserve their health of mind.’
One instinctively recoils, I am sure, at the breadth and harshness of that indictment and yet, albeit infrequently, one encounters
conduct, as here, that is wholly incongruous with the calling of an honourable profession – conduct that may well serve to
support that charge.
[2]
The appellant, Mr Isaac Swartzberg, applied to the Pretoria High Court for his readmission and enrolment
as an attorney. The application was opposed by the respondent, the Law Society of the Northern Provinces (‘the Law Society’).
Bosielo J (Pretorius J concurring) dismissed the application with costs, but granted leave to the appellant to appeal to this Court.
The appellant, who is presently 77 years old, was originally admitted as an attorney on 18 October 1955 and practised as such in
Pretoria for some 44 years. On 13 August 1999 and on the application of the Law Society, the appellant’s name was struck from
the roll of attorneys by Mynardt J.
[3]
In brief, the gist of the complaints against the appellant were that he had failed to keep proper
books of account both in general and as to trust monies over a protracted period resulting in deficiencies in his trust account of
approximately R249 000. Moreover, he had devised a stratagem to conceal those shortages which remained undetected from at least 1996
until August 1998. He thus successfully hoodwinked his auditor into certifying that his books of accounts were being properly maintained
and on the strength of that secured a fidelity certificate from the Law Society.
[4]
For a fuller appreciation of the appellant’s wrongdoing, however, it is nonetheless necessary
to refer in greater detail to the allegations levelled by the Law Society against him in its application for his striking-off. First,
the appellant had been instructed to prosecute a third party claim on behalf of a certain Mr Uys. The claim was settled during 1994
and after payment of disbursements and deductions for fees a balance fell due for payment to his widow, Mr Uys since having died.
By the time that payment was ultimately effected by means of a trust cheque to Ms Uys there were no longer any funds standing to
her credit in the appellant’s trust account. It followed therefore that the appellant had utilised trust monies standing to
the credit of one of his other clients to effect the payment in question to Ms Uys.
[5]
Second, one of the appellant’s clients, a Mr Jacobs, alleged that he had been overcharged
by the appellant, who had allegedly also not properly accounted to him. A disciplinary enquiry was held by the Law Society, before
which the appellant declined to testify. The disciplinary committee concluded that the appellant had accepted money from a client
for professional work for which he did not properly account and in the light of the fact that he had charged a seemingly exorbitant
fee, he was guilty of overreaching.
[6]
Third, one of the appellant’s clients, Ms van der Linde, had lent and advanced the sum of
R100 000 to the appellant. The appellant failed to effect repayment in accordance with his loan agreement with Ms van der Linde.
Ultimately summons had to be issued on her behalf by new attorneys who had been instructed by her to recover the moneys. Before doing
so however, her new attorneys encountered considerable difficulty in persuading the appellant to release her file to them.
[7]
Fourth, Mr Bambise was employed for a period in excess of 20 years as a messenger by the appellant.
During 1995 Mr Bambise’s wife died and he was appointed the executor of her deceased estate. He turned to the appellant for
assistance. On 31 January 1996 an amount of R198 356.35 was paid into the appellant’s trust account in favour of that estate.
It was withdrawn that very day by the appellant and a fee for the full amount was debited to that account. Mr Bambise was forced
to consult another firm of attorneys to recover those moneys. The appellant eventually acknowledged his indebtedness to Mr Bambise
by signing an acknowledgment of debt in his favour. He did not however comply with his obligations under the acknowledgement and
in due course summons had to be issued against him. Although the appellant denied all of the essential allegations in his plea and
sought to delay finalisation of the matter by seeking a postponement, ostensibly on the basis that the matter was the subject of
a disciplinary enquiry, he eventually settled the matter on the day of the trial. Notwithstanding the written settlement agreement
and a consent to judgment, subsequent payment of the agreed instalments in reduction of his indebtedness to Mr Bambise was neither
timeous nor in full. As at 13 August 1999 the total repaid by the appellant to Mr Bambise was a paltry R21 000. It thus fell to the
fidelity fund of the Law Society to thereafter make good the shortfall.
[8]
Although the appellant initially sought to oppose the application for his striking-off, he did not
persist with his opposition. Nor did he file an answering affidavit in response to the allegations levelled against him by the Law
Society.
[9]
Flowing from those allegations the appellant was arraigned in the Pretoria Regional Court during
2000 on a charge of theft of R220 000 from his trust account. He was convicted on his plea of guilty and sentenced to a fine of R100
000 or three years’ imprisonment. He elected to pay the fine. A further term of two years’ imprisonment was conditionally
suspended for a period of four years. One such condition was that he repay the amount of R220 000 to the Fidelity Fund of the Law
Society within seven days of sentence. That condition, he duly complied with.
[10]
During August 2002 the appellant brought an application – which was subsequently withdrawn –
for his readmission. Of that application the appellant states in his present founding affidavit:
‘Prior to the launching of the application I appeared before a committee of the Law Society in an attempt to persuade the Law Society
that I qualified for readmission. Despite the fact that the Law Society was not so satisfied I brought the application. However,
in due course I was advised by those representing me that the application would probably not succeed, and I proceeded to withdraw
the application.’
[11]
Eighteen months later, as the appellant puts it, he renewed the application for his readmission as an
attorney. That application was dismissed with costs on the attorney-and-client scale by Daniels J (Makhafola AJ concurring) on 29
November 2004. In dismissing the application, Daniels J stated:
‘[w]hen one reads the applicant’s version of events it is difficult to understand why and on what basis he was ever charged.
His explanation is exculpatory and he displays … a disregard of the facts. The applicant clearly does not understand the gravity
of his errant ways. If he does not understand he cannot be heard to say he has remorse.’
[12]
On 19 December 2005 the appellant deposed to his founding affidavit in support of the application which
is the subject of this appeal. He there states:
‘I have studied all the papers in the two aforesaid applications, as well as the judgment of His Lordship Mr Justice Daniels. I am
ashamed by the realisation that I never actually came to terms with the fact that my acts of dishonesty demonstrated a material defect
of character. On re-reading my own papers, it became clear to me that I continued to consider myself as an honest man who had succumbed
to an isolated act of dishonesty, as to which I offered various excuses.’
[13]
On 6 February 2006, the appellant appeared before the council of the Law Society. He thereafter filed
a supplementary affidavit. The purpose, so he contends, was two-fold: first, he had been informed by the council of the Law Society
that he ‘... had not made sufficient disclosure of the reasons for his demise as an attorney ...’; and, second, he had
been requested to deal ‘... specifically with those persons who had been reimbursed by the attorneys’ fidelity fund’.
In his supplementary affidavit, the appellant describes his conduct thus:
‘To hide what I was doing I used a mechanism of reversing fees’ debits from time to time to balance the books. This is subterfuge
because the reversal of debits was not accompanied with any payment. In this way the actual trust deficit continued to grow.’
He further states:
‘I recognise that my conduct was reprehensible and unbecoming and I have overcome the trait of dishonesty displayed by me completely.’
[14]
Where a person who has previously been struck off the roll of attorneys on the ground that he was not
a fit and proper person to continue to practise as an attorney applies for his readmission,
‘[t]he onus is on him to convince the Court on a balance of probabilities that there has been a genuine, complete and permanent reformation on
his part; that the defect of character or attitude which led to his being adjudged not fit and proper no longer exists; and that,
if he is re-admitted he will in future conduct himself as an honourable member of the profession and will be someone who can be trusted
to carry out the duties of an attorney in a satisfactory way as far as members of the public are concerned.’
(Per Corbett JA in Law Society, Transvaal v Behrman 1981 (4) SA 538 (A) at 557B-C.)
[15]
In considering whether the onus has been discharged the court must:
‘...have regard to the nature and degree of the conduct which occasioned applicant’s removal from the roll, to the explanation,
if any, afforded by him for such conduct which might, inter alia, mitigate or perhaps even aggravate the heinousness of his offence, to his actions in regard to an enquiry into his conduct and proceedings
consequent thereon to secure his removal, to the lapse of time between his removal and his application for reinstatement, to his
activities subsequent to removal, to the expression of contrition by him and its genuineness, and to his efforts at repairing the
harm which his conduct may have occasioned to others.’
(Kudo v The Cape Law Society 1972 (4) SA 342 (C) at 345H-346, as quoted with approval in Behrman at 557E.)
[16]
Section 15(3) of the Attorney’s Act 53 of 1979, which makes express provision for the readmission
and the re-enrolment of a person as an attorney, provides:
‘A court may, on application made in accordance with this Act, readmit and re-enrol any person who was previously admitted and enrolled
as an attorney and has been removed from or struck off the roll, as an attorney, if -
(a)
such person, in the discretion of the court, is a fit and proper person to be so readmitted and re-enrolled;
. . .’
Section 15(3)(b) is not relevant for present purposes.
[17]
Section 15, according to Ackermann J, unquestionably confers
‘… a discretion on the Court in deciding whether an applicant, whether for admission or re-admission as an attorney, is a “fit
and proper person”. Section 15(1), dealing with an admission, expressly provides that the Court has a discretion to decide
whether the person applying “is a fit and proper person to be so re-admitted and re-enrolled”. Section 15(3) deals specifically
with re-admissions. A discretion in deciding whether an applicant is a ”fit and proper person to be so re-admitted and re-enrolled”
is now expressly conferred on the Court. It is also significant that, whereas s 15(1) provides that a Court “shall” admit
and enrol a person as an attorney if the preconditions of ss (a) and (b) are fulfilled, ss (3) provides that a Court “may” “re-admit and re-enrol any person who was previously admitted
and enrolled as an attorney and has been removed from or struck off the roll, as an attorney” if the preconditions of ss (a) and (b) are fulfilled. The fact that the word “may” is used in s 15(3), whereas “shall” is used in ss (1) is, …significant.
It shows … that the Legislature wanted to differentiate between the Court’s functions under ss 15(1) and 15(3), and
wished to confer a further discretion on the Court in regard to re-admissions under s 15(3). It seems that, even where the Court
is satisfied that s 15(3)(b) has been complied with and that the person applying is, in terms of s 15(3)(a), “in the discretion of the Court” a “fit and proper person” the Court still has a residual discretion to
refuse re-admission.’
(Ex parte Aarons (Law Society Transvaal, Intervening) 1985 (3) SA 286 (T) at 290C-G.)
[18]
A factor of importance in any such application is the attitude adopted by the Law Society concerned.
Any person who applies for readmission and enrolment as an attorney is required in terms of s 16 of the Act to satisfy the Law Society
of the province where he or she applies that he or she is a fit and proper person to be readmitted and enrolled. Although it is not
a condition precedent to readmitting a person to practice that the Law Society should first be satisfied as to his or her fitness,
considerable weight must be given to the attitude adopted by the Law Society (Behrman at 557H).
[19]
It was contended on behalf of the Law Society that the appellant did not make a sufficiently full disclosure
of the details of the various activities engaged in by him since his striking-off. The appellant does state that he is ‘unable
to present a work record in proof of his complete rehabilitation’. The Law Society had granted the appellant permission to
obtain employment with the firm Van der Walt and Hugo. His employment with that firm, as is to be expected, was subject to conditions
imposed by the Law Society. For reasons that remain unexplained, however, he did not take up that employment. On this aspect the
appellant states:
‘In the past four years I have been approached on numerous occasions to assist people in legal matters. After consultations and the
preparation of their brief, matters which require legal action are referred to the firm of attorneys Bloch, Gross and Partners. I
then become a client of the firm. The firm debits me with its disbursements and fees, which I recover from the consultant, and I
also receive a small remuneration from the consultant. In each case I specifically inform the consultant that I am not a practising
attorney, as I have been struck from the roll of attorneys. In each case I explain the procedure to the consultant, and I obtain
the consultant’s consent to Bloch, Gross and Partners being briefed in the matter. In each case Bloch, Gross and Partners opens
a file in my name with reference to the particular consultant.’
[20]
Of the appellant’s arrangement with Bloch, Gross and Partners Inc, Mr Ernst William Serfontein,
a senior director of that firm, states:
‘After the applicant was struck off the roll of practising attorneys he approached me and requested me if I would accept referrals
from him of clients who are in need of legal assistance. I accepted his proposal and since then several clients have been referred
to me by him. The clients paid our firm directly and Mr Swarztberg had no involvement in the financial aspects relating to these
clients. In many instances, however, he would assist us in the matter and we made use of his expertise without remuneration to him.
In many matters he would brief Counsel and drew up documents and once we had drawn our bill he would see to it that our legal fees
and disbursements were promptly settled by the client upon presentation of the bill.’
[21]
That there are material discrepancies in the two versions is patent. Moreover, that arrangement in either
guise had not been disclosed in the earlier application that came before Daniels J during 2005. That much is clear when one has regard
to the following excerpt of the judgment of Daniels J:
‘As to the applicant’s activities subsequent to his striking off very little if anything that he did was related to the practise
of the law. He was employed as a legal advisor, (according to the applicant at “a totally inadequate salary”), by Sure
Benefit. For how long we do not know. We were not informed what his employment involved. He obviously did not have access to or control
over finances of the organization.
Upon perusing the present application one finds a single reference to attorney’s work. I prefer to quote fully:
“2.1(2)
With the permission of the director of the Law Society of the Northern Provinces I have briefed attorneys and shepherded
my clients’ interests when I was given permission by the Society to work for Van der Walt & Hugo. I was admonished not
to let or allow any person to get the impression that I was an admitted lawyer. I was not to accompany clients to court nor consult
at the chambers of counsel.”
The impression is created that this occurred whilst he was employed by Van der Walt & Hugo with the consent of the society. It
is, however, common cause that the applicant did not take up employment with the firm mentioned, or any other firm.’
There is thus much to be said for the argument not only that the founding affidavit is misleading in its brevity but also that the
appellant failed to make full and frank disclosure of the true position either in the current application or in the previous one
that came before Daniels J. This from an applicant who ought to have been fully aware of the need to disclose all the facts.
[22]
The fundamental question to be answered in an application of this kind is whether there has been a genuine,
complete and permanent reformation on the appellant’s part. This involves an enquiry as to whether the defect of character
or attitude which led to him being adjudged not fit and proper no longer exists. (Aarons at 294H.) Allied to that is an assessment of the appellant’s character reformation and the chances of his successful conformation in
the future to the exacting demands of the profession that he seeks to re-enter. It is thus crucial for a court confronted with an
application of this kind to determine what the particular defect of character or attitude was. More importantly, it is for the appellant
himself to first properly and correctly identify the defect of character or attitude involved and thereafter to act in accordance
with that appreciation. For, until and unless there is such a cognitive appreciation on the part of the appellant, it is difficult
to see how the defect can be cured or corrected. It seems to me that any true and lasting reformation of necessity depends upon such
appreciation.
[23]
Amongst the matters to which a court must have regard are the nature and gravity of the conduct which
occasioned the appellant’s removal from the roll and the explanation given by him for such conduct (Behrman at 558G). The moral reprehensibility involved in the appellant’s conduct is self-evident. The nature of the appellant’s
conduct involves very serious dishonesty and deception. He did not succumb to a sudden temptation and his fall from grace was not
in consequence of an isolated act. His was deliberate and persistent dishonesty for personal financial gain over a protracted period.
[24]
In his supplementary founding affidavit, the appellant explains why he persisted in keeping his practice
open when the writing was clearly on the wall. He states:
‘I found it difficult to meet office expenses… and I fell into the trap of forward debiting fees against trust funds. Most of
my staff had been with me in excess of 20 years and I honestly did not want to injure them in any way. I regarded it as my duty to
retain their employment. I realise that I should have pruned my expenditures severely at the time, but I did not wish to injure my
employees, and my vanity prevented me from accepting the fact that I had to scale down.’
That suggests that he was motivated by a misguided sense of paternalism towards his staff. Not only does that assertion reflect a
serious lack of insight into a defect of his character and attitude, but it is far too glib and rings hollow when, objectively viewed,
the most morally reprehensible act perpetrated by the appellant in a series of rather serious transgressions stretching over a period
in excess of two years was the theft from his long-standing employee, Mr Bambise. Given the relationship that existed between them
it is hard to imagine a more scandalous breach of trust. That abuse of confidence was exacerbated by his dilatoriness in repaying
what had been stolen from Mr Bambise. Furthermore, after cynically stringing Mr Bambise along for more than three years with false
promises of repayment, the appellant was able when his personal liberty was threatened, not only to pay a fine of R100 000 but also
to effect payment of R220 000 within seven days of being ordered to do so by the regional court, to escape incarceration.
[25]
To his credit the appellant has expressed contrition and repentance. And whilst those expressions appear
to be genuine and are usually a sound indicator of reformation or rehabilitation, they do not without more prove or establish such
reformation or rehabilitation in this case. It is indeed so that the appellant’s name was struck from the roll on 13 August
1999 and from his perspective eight long years have since passed. That ordinarily would have weighed heavily with a court confronted
by an application of this kind. In this case, however, on the appellant’s own version it was only after the judgment of Daniels
J that he realised that his acts of dishonesty demonstrated a material defect of character. It thus took almost six years for the
appellant to come to terms with the fact that he had behaved in a scandalous and dishonest fashion. Even then it was only after scathing
criticism by a judge who refused his application for readmission that the scales finally fell from his eyes. And yet, only some 13
months were to pass before he deposed to the founding affidavit in this matter. Given the seriousness of his misdeeds and his obduracy
in coming to terms with them, this can hardly be regarded as sufficient time for the kind of critical introspection and reflection
that must obviously precede an application of this kind.
[26]
In the light of the extent of the moral reprehensibility involved, the absence of introspective evaluation
and the haste with which the application was launched, I entertain substantial reservations as to whether the appellant has, even
as yet, properly and correctly identified the defects of character and attitude involved in his misdeeds.
[27]
The question that now confronts a court is not whether the appellant has been sufficiently punished for
his misdeeds. I have little doubt that, if that were the issue, a court may well have been satisfied that he has suffered enough.
The issue is rather whether the appellant is a person who can safely be trusted to faithfully discharge all of the duties and obligations
relating to the profession of an attorney. After all, because of the trust and confidence reposed by the public and the courts in
practitioners, a court must be astute to ensure that the re-admission of a particular individual will not harm the prestige and dignity
of the profession. For, by granting an application for re-admission, a court pronounces to the world at large that the individual
concerned is a fit and proper person.
[28]
The appellant had a heavy onus to discharge. He had to prove to the satisfaction of the court that, by
reason of his complete and permanent reformation, he is in no way likely to fail in the future to discharge all of the obligations
appertaining to his profession. In the case of a serious defect of character, reformation is known to be difficult and, therefore,
to establish reformation as sufficiently probable, might require more cogent evidence than in respect of a less serious fault. (Kudo v Cape Law Society 1977 (4) SA at 659 (A) at 676D-E). Little, if anything, is put forward by the appellant that might mitigate the heinousness of his
conduct. Moreover, it must count against the appellant that his misdeeds were committed when he was no longer a young man. For, even
at that mature age, the appellant was lacking in the most basic standards of his profession. He displayed a contempt for the law,
the courts and for honest dealings with his clients, at least one of whom occupied a position of particular vulnerability in relation
to him. Simply put, the appellant was everything that an attorney ought not to be.
[29]
To the extent that the appellant suggests that he has atoned for his wrongdoing, the atonement, in my
view, was neither spontaneous nor voluntary, but rather contrived and induced by a desire for self-preservation. Thus, for example,
the appellant has never, in the many years that have since passed, contacted either Mr Bambise or any of the other victims of his
misdeeds to ascertain whether the fidelity fund of the Law Society has made good the financial loss suffered at his hands.
[30]
Where the professional misconduct consists, as here, of theft, one would imagine that it would be relatively
easy to establish that the person has undergone complete and permanent reformation. That could be done by placing evidence before
a court that the individual concerned has for some length of time handled money without supervision and has proved his honesty. Obviously
in the light of his somewhat chequered work history since the striking-off, no such evidence could have been adduced.
[31]
It would be no exaggeration to say that, on such evidence as there is, the appellant has demonstrated
a propensity toward inherent dishonesty. It may, in those circumstances, perhaps be postulated that the nature of the appellant's
original lapse speaks of a defect of character incapable of reformation. But, to go so far as accepting such immutability of character
may well be unnecessary. For in a case such as this, where proof of complete and permanent reformation is difficult because of the
moral turpitude of the misdeeds committed by the appellant, the evidence tendered by the appellant falls far short of that proof.
[32]
Where a person is struck-off the roll for the kind of conduct encountered here, he must realise that
his prospects of being re-admitted to what after all is an honourable profession, will be very slim indeed. Only in the most exceptional
of circumstances, where he has worked to expiate the results of his conduct and to satisfy the court that he has changed completely,
will a court consider readmission at all (Visser v Cape Law Society 1930 CPD 159 at 160).
[33]
It follows, on the view that I take of the matter, that the appellant failed to discharge the onus of
convincing the court that he is a fit and proper person to be readmitted as an attorney.
[34]
In the result the appeal is dismissed with costs.
_________________
V M PONNAN
JUDGE OF APPEAL
CONCUR:
MPATI DP
MTHIYANE JA
NUGENT JA
CLOETE JA:</
