Imposing penalty rejected: Protection of public

Removal of name from roll of advocates – serious misconduct – theft of monies of colleagues – perjury in answering affidavit – forging and uttering of bank statements attached to answering affidavit – interference on appeal warranted in respect of sanction imposed by high court – struck from roll of advocates.

Note: Footnotes omitted and emphasis added

[1] This appeal concerns the appropriateness of the sanction imposed upon an advocate who, in her answering affidavit, admitted that she committed theft, perjury and the forgery and uttering of bank statements, in an attempt to mislead a court in an application to have her name removed from the roll of advocates. On the application of the appellant, the Pretoria Society of Advocates, the Gauteng Division, Pretoria (Tlhapi and Maumela JJ, sitting as court of first instance) (the high court), ordered that the respondent, Ms Margaret van Zyl, be suspended from practising as an advocate for a period of 18 months from the date of its order and to pay costs. The high court refused leave to appeal and the appeal by the appellant against that order is before us with the leave of this court.

. . . . .

[17] The high court found the respondent’s conduct ‘reprehensible’, but declined to strike her name from the roll. The primary reasons for imposing an 18 month suspension, appear to be the fact that the respondent had shown remorse, had repaid the money and was a first offender.

[18] It is well established that in these types of matters, a three-stage inquiry is envisaged.

• First, the court must determine whether the alleged offending conduct has been established on a balance of probabilities – this is a factual inquiry.
• Second, a determination must be made whether the person in question is a fit and proper person to continue practising. This entails, to some extent, a value judgment, but it is essentially an objective finding of fact.
• And third, the court must decide whether in all the circumstances the particular person is to be removed from the roll or whether a suspension is adequate. In respect of the third question, the court exercises a discretion.

Appellate interference with that discretion is limited to instances of

• a failure to bring an unbiased judgment to bear on the issue;
• failure to act for substantial reasons; or
• where the discretion has been exercised capriciously or upon a wrong principle or as a result of a material misdirection.

[19] The high court did not set out in its judgment the offending conduct it found to have been established as a fact. It is necessary to recap the respondent’s offending conduct.

• First, the respondent stole money from the floor fund – the shortfall of R4 739.79 and the unaccounted amount of R6 405 in respect of the contributions for the kitchen equipment. Both these amounts were repaid afterwards by the respondent.
• Second, she misled her colleagues, in particular Messrs du Preez, Bosman, Engelbrecht and Raath, on whether the money had in fact been paid into her Blue Bean account.
• Third, she perjured herself in her answering affidavit in a number of respects.
• And fourth, she committed forgery and uttering by altering the entries on her Blue Bean account bank statement, annexed to her answering affidavit.

The reference in her papers to her having ‘manipulated’ the entries on the credit card statement, is a misnomer. This is a stark instance of forgery and uttering, no less.

[20] These are self-evidently instances of serious misconduct and include three criminal offences, theft, forgery and uttering and perjury. They involve acts of calculated dishonesty and are in my view indicative of a serious character defect, rather than a mere moral lapse. There are further aggravating features – the respondent made the damning admissions only when she was compelled to disclose the complete, unaltered Blue Bean account statement in order to explain the discrepancy between her ipse dixit in her answering affidavit and the annexures thereto (the bank statements).

Further she made payments from her practice bank account in the amount of R7 000 into her Blue Bean account only after the application was launched in the high court. This must be viewed against the respondent’s repeated assurances to Mr du Preez and other colleagues that the contributions had been paid into the Blue Bean account. This lie was perpetuated in her answering affidavit under the guise that she was unable to access these funds due to her account having been blocked. And her initial protestations of innocence that there had been no dishonesty on her part or a misappropriation of funds, implied that her colleagues were liars.

[21] There are several material misdirections in the judgment of the high court. They relate not only to its factual findings, but also to its erroneous application of the law to the facts.

• First, the high court found that the respondent’s conduct ‘could amount to perjury’. This is a clear case of the crime of perjury and it was established, not only through the objective fact of the bank statements, but also through the respondent’s own admissions.
• Second, the finding that the respondent did not persist with her deception until the end, is unsustainable on the facts. When the respondent found herself compelled to disclose the complete bank statements, after the hearing of 14 March 2014, she must have known that the game was up. But for this demand from the appellant’s attorneys, she might well have succeeded with her deception and concealment.

[22] Third, it is difficult to understand how the respondent’s repayment of the money could qualify as remorse, as the high court found. Even if we accept the respondent’s version that she had bought and returned the kitchen equipment to the various stores, she knew that the money had to be paid into the floor fund account. This repayment was only made after she had deposed to her answering affidavit in April 2013. At more or less the same time she had altered the bank statements to conceal the fact the money had never been paid into her Blue Bean account, as she had maintained all along. This conduct is not indicative of true remorse as was described in Matyityi, ‘a gnawing pain of conscience for the plight of another . . . [t]hus genuine contrition can only come from an appreciation and acknowledgment of one’s error’.

[23] Fourth, the high court did not make a finding as to whether or not the respondent is a fit and proper person to continue practising as an advocate. Although the high court made mention of the three-stage inquiry, it failed to deal with this second, important question. It merely found the conduct to be ‘reprehensible’ before embarking upon a consideration of the appropriate sanction.

Section 7(1)(d) of the Admission of Advocates Act 74 of 1964 provides that a court may either suspend a person from practice as an advocate or order the striking off of his or her name from the roll of advocates ‘if the court is satisfied that he [or she] is not a fit and proper person to continue to practise as an advocate’. In Malan this court said:

‘. . . logic dictates that if a court finds that someone is not a fit and proper person to continue to practise as an attorney, that person must be removed from the roll. However, the Act contemplates a suspension. This means that removal does not follow as a matter of course. If the court has grounds to assume that after the period of suspension the person will be fit to practise as an attorney in the ordinary course of events it would not remove him from the roll but order an appropriate suspension.’

These remarks apply equally to an advocate.

[24] And, lastly, the outcome itself is a misdirection. In arriving at the conclusion that suspension instead of striking off was the appropriate sanction, the high court made a decision that in my view no reasonable court could make on the proved facts. The inference is compelling that the high court misdirected the inquiry or acted upon wrong principles.

[25] In view of these misdirections interference on appeal is warranted. Considering the serious acts of dishonesty on the part of the respondent, I am of the view that she is not a fit and proper person to continue practising as an advocate. As stated, this inquiry entails a value judgment based on the established facts.

The respondent’s conduct must be assessed against the conduct expected of an advocate. The proper administration of justice relies heavily on the ipse dixit of advocates and attorneys. While a legal practitioner owes a duty to represent his or her client fearlessly and vigorously, there is a concomitant, equally important, duty as an officer of the court to serve the interests of justice by acting honestly at all times.

[26] The respondent’s perjury in the answering affidavit must count heavily against her. An advocate who lies under oath in striking off proceedings must know that such dishonesty can be held against him or her in deciding whether he or she is a fit and proper person to continue to practise as an advocate. The appellant has strict rules to ensure that its members do not deceive a court. The theft of monies of colleagues and the forging and uttering of the bank statements are just as serious.

As I have said, this conduct is indicative of a serious character defect rather than a mere moral lapse. This was not the impulsive telling of a lie, but protracted chicanery. The respondent’s deceit, concealment and dishonesty continued over a long time. And it was carefully planned to hoodwink her senior colleagues and the court. In the premises, the respondent is not a fit and proper person to continue practising as an advocate.

[27] What remains is the question of an appropriate sanction. The starting point must be that a court is not imposing a penalty – the prime consideration is the protection of the public. A close reading of the judgment of the high court leaves one with the impression that it failed to draw this important distinction. The high court appeared to have been swayed by the respondent’s ‘remorse’, the fact that she was a first offender and that she had repaid the money. This is reminiscent of mitigating circumstances for sentencing purposes in a criminal trial. Nowhere did the high court mention and consider the interests of justice, the public and the advocates’ profession.

[28] The factors to be considered are

• the nature of the offending conduct,
• the extent to which it reflects upon the person’s character or shows him or her to be unworthy of remaining in the ranks of the profession,
• the likelihood or otherwise of the repetition of such conduct and
• the need to protect the public.

As stated, the respondent’s grave acts of dishonesty are indicative of a serious character defect. In order to avoid striking off, the respondent had to satisfy the high court that she would not in future steal, commit perjury or the forging and uttering of documents. There is nothing in the record to persuade me that this is the case.

The extent and premeditation of the respondent’s dishonesty, deceit and concealment drive me to the inescapable conclusion that striking off is inevitable.

As this court said in Malan,

‘[i]t is seldom, if ever, that a mere suspension from practice for a given period in itself will transform a person who is unfit to practise into one who is fit to practise’.

Any order of suspension must bear the condition that the cause of unfitness is removed during that period.

[29] In conclusion: the present set of facts represents an extremely serious case of misconduct. We would be remiss in letting the respondent loose on the unsuspecting public. Her professional integrity has been completely destroyed and she should not be permitted to continue in her practice. Removing her name from the roll of advocates would ensure that, upon seeking readmission, she would have to convince a court that she has overcome the serious character defect of dishonesty.

[30] As far as the costs are concerned, it was conceded on behalf of the respondent that costs, both in this court and in the high court, should be on the scale as between attorney and client. That concession was well made – it is settled that this is the usual order to be made.

[31] One last disconcerting aspect requires mention. There was a delay of more than two years in delivering the main judgment. Sixteen months later the judgment refusing the application for leave to appeal followed. An application to have the name of a practitioner removed from the roll involves the question of whether the practitioner should continue practising and implicates the public interest.

For these reasons both the practitioner concerned and the public can rightly expect courts to deal with such a matter expeditiously. Regrettably, in the present instance the high court failed to do so. The facts were uncomplicated and became largely common cause and the legal principles are well established. It does not serve the interests of justice to permit delays of this length in these types of cases.

[32] The following order issues:

1 The appeal is upheld with costs, on the scale as between attorney and client.
2 The order of the high court is set aside and replaced with the following order:
‘(a) The respondent’s name is removed from the roll of advocates.
(b) The respondent is ordered to pay the costs of the application on the scale as
between attorney and client.’