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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: NO

(2)    OF INTEREST TO OTHER JUDGES: NO

(3)     REVISED

CASE No: 29697/2017

9/10/2019

 

In the matter between:

 

Law Society of the Northern Provinces                                                                   Applicant

 

and

 
Gert Venter                                                                                                                 Respondent

 
JUDGMENT

MKHAWANE, AJ:

Introduction

[1]          On the 25^th April 2017, the applicant, the Law Society of the Northern Provinces, launched an urgent application in terms of section 22 of the Attorney's Act No 53 of 1979 for the removal of the respondent, Gert Venter, from the roll of attorneys and granting other ancillary relief. The application was in two parts.

[2]          The relief sought in Part A was to the effect that, amongst other relief:

a)         The Respondent be declared not to be fit and proper person to continue to practice as an attorney, which will justify an order that this Court in ordering that he be struck from the roll of attorneys on an urgent basis alternatively that he be suspended from practising as an attorney on an urgent basis pending the finalization of the application for the striking of his name from the roll of attorneys;

b)         The respondent be prohibited from handling or operating on his trust accounts;

c)        Johan van Staden be appointed as curator bonis the administer and control the trust accounts of the respondent, with extensive powers in respect of the administration and control of those trust accounts.

d)         That the respondent immediately delivers his accounting records, records, files and documents.

e)         On 30 May 2 01 7 a draft order by agreement between the parties was made an order of court. In terms of this order the respondent voluntarily agreed to his temporary suspension pending the finalisation of Part B of the application. The order recorded that the respondent had retired; had ceased to practice as an attorney and had subsequently closed all of his trust accounts; that he had no control of any trust account; and that he has no access to any trust funds whatsoever.

f)          We are now seized with Part 8 of the application. In part B, the applicant is seeking an order striking the respondent from the roll of attorneys, plus costs on an attorney and client scale.

g)         The respondent, now 62 years old, was admitted as an attorney on 28 June 1983 and his name still appears on the roll of attorneys.

h)         Until his retirement, he practised as a single practitioner for his own account under the name and style of Gert Venter Attorneys at 16 Cunningham Road, Glenvista Extension 3, Johannesburg, Gauteng. According to the respondent he has not practised as an attorney since September 2016 and has no intention to return to practice, having sold his practice to his daughter H Venter.

i)          The respondent notified the Applicant on 16 August 2016 of his retirement from practice as an attorney and that he had no intention to return to practise at any time in future. The remaining (then) current files of his practice were transferred to the practice of his daughter, H Venter. The respondent finalised all of his previous instructions as an attorney and has subsequently closed his trust accounts. His auditors reported that the trust account was maintained in all material respects, in accordance with the Act and the Rules. The auditors also reported that no client or trust creditor has since the closure of the practice complained to the applicant that the respondent has not paid what was due to, or on behalf of the client or trust creditor, and no client or trust creditor has ever instituted any litigation against the respondent in this regard.

j)         The facts and circumstances which prompted the Law Society to institute these proceedings appear from the founding affidavit deposed to by its President, Mr Lutendo Benedict Sigogo. He outlined a complaint received by the Law Society, on the 28^th June 2016 against the respondent relating to, inter alia, his irregular handling of trust funds, his failure to account to clients on finalization of a transfer; the firm does not settle levies and property rate in accordance with instructions received and his failure to keep proper account records.

k)        The Law Society instructed a chartered accountant and auditor from its Monitoring Unit, Mr Ashwin Reddy to visit the firm, and to conduct an inspection of the respondent's accounting records and practice affairs.

 

[10]     Mr Reddy's inspection was directed at the following:

10.1      An overview of the accounting and supporting records, systems and procedures with a view to establish the general state thereof and the identification of and commentary on any aspects considered irregular and/or

10.2      The determination of the trust position of the firm at specific and/or selected dates and reporting on any trust deficiencies or other similar irregularities.

10.3      The identification of any other circumstances or irregularities which manifested themselves during the course of the inspection which in his view required comment.

10.4      The identification of and reporting on any contravention of Attorneys Act, the Rules of the Law Society of the Northern Provinces (The Rules), the National Rules for the Attorneys Profession the Uniform Rules with effect from 1 March 2016 with specific reference to the accounting records and administration of trust monies

 

[11]       Mr Reddy, however, did not perform any substantive audit procedures on the documentation and accounting records presented to him.

[12]       Mr Reddy executed his mandate and produced a report on the 13 March 2017. Mr Reddy uncovered inter alia, the following:

“9.1   there is a trust deficit in an amount of R11101 732.56 in the respondents bookkeeping;

9.2       the respondent failed to account in respect of trust funds;

9.3       the respondent manipulated this accounting records;

9.4       the respondent concealed trust deficits in his bookkeeping by way of fictitious entries and irregular journals;

9.5       the respondent rolled trust funds;

9.6       The respondent effected irregular transfers between trust creditor accounts;

9.7       the respondent debited fictitious fees;

9.8       the administration of trust funds in the respondent's practice was in a chaotic state;

9.9       several of the respondent's trust creditors reflected debit balances;

9.10     the respondent failed to keep proper accounting records in respect of his practice;

9.11     the respondent contravened several provisions of the Attorneys' Act. the Law Society Rules and the New Rules relating to bookkeeping by Attorneys;

9.12     the respondent deliberately delayed an investigation by the Law Society into his accounting records and practice affairs;

9.13     The respondent failed to cooperate with the Law Society and to furnish the Law Society with his trust accounting records on demand;

9.14     in property transactions the respondent made payments to sellers and estate agents prior to the registration of the transfers;

9.15     the respondent failed to settle levies and property rates in property transactions, as instructed; and

9.16     the respondent placed the Attorneys Fidelity Fund and his trust creditors at risk”.

 

[13]       Mr Reddy, in summary, found that the respondent contravened, at least, the following provisions of the Attorneys' Act, the Law Society Rules and the new rules:

1)         "Rule 47 .2 of the New Rules (Rule 89.25 of the Law Society's Rules) due to the fact thar the respondent failed to produce information and accounting records to a representative of the Council for purposes of an inspection thereof;

2)         Rule 35.9 of the New Rules due to the fact that the respondent failed to updated his accounting records up until the last day of the following month;

3)         Rule 68.56 of the Law Society's Rules due to the fact that the respondent failed to update and balance his accounting records timeously and promptly;

4)         Rule 68.1 of the Law Society's Rules (Rule 35.5 of the New Rules) read with Section 78(4) of the Attorneys' Act due to the fact that the respondent failed to maintain accounting records as are necessary to represent fully and accurately in accordance with generally acceptable accounting practice the state of affairs and business of the firm and to explain transaction and the financial position of the firm.

5)         Rule 69.3.2 of the Law Society's Rules (Rule 35.13.9 of the New Rules) due to the fact that the respondent failed to ensure that no account of any trust creditor was in debit;

6)         Rule 35.13.8 of the New Rules (Rule 69.3.1 of the Law Society's Rules)due to the fact that the respondent failed to ensure that the total amount of monies available in his trust banking account, trust investment account and trust cash was not less than the total amount of the firm's trust creditors' balances;

 

[14]       In conclusion Mr Sigogo states that:

1)      "The respondent sought to delay and frustrate Reddy's inspection.

2)       The respondent failed to maintain proper accounting records and only initiated the updating of his records after he had learned of Reddy's proposed inspection.

3)       There is a substantial trust deficit in the respondent's bookkeeping.

4)       The respondent attempted to conceal the trust deficits in his bookkeeping by passing fictitious fees and transferring monies by way of journal entries between unrelated trust creditor accounts.

5)        As the respondent’s accounting records have been manipulated, they cannot be relied upon.

6)        The respondent created a trust creditor account in his own name and utilised it to clear debit balances on other trust creditor accounts.

7)       The respondent's personal trust creditor account reflected that the firm had ninety four trust creditors with debit balances as at 31 August 2016.

8)       The total of the abovementioned debit balances was R11107 32.56 and there is therefore a trust deficit in the last mentioned amount in the respondent's bookkeeping.

9)       The manner and time of the sale of the practice by the respondent to his daughter is suspicious.

10)     The respondent’s Rule 70 auditor's reports for the period ending 28 February 2015 and 29 February 2016 were unqualified, but should have been qualified due to the irregularities in the respondent’s bookkeeping.

11)     Stols is registered with the South African Institute of Professional Accountants. He was involved in the preparation of the firm's accounting records and accordingly also in the manipulation thereof.

12)     The firm's trust creditors and the Attorneys Fidelity Fund is at risk."

 

[15]       Mr Sigogo stated, that Council had carefully and diligently considered all the facts available to it concerning the respondent as set out in this affidavit. It has concluded that whether each complaint is considered alone or all the complaints are considered cumulatively, the respondent has made himself guilty of unprofessional or dishonourable or unworthy conduct and is no longer a fit and proper person to continue to practise as an attorney or an officer of the Honourable Court. The respondent's conduct and reputation which is required of an attorney and of an officer of the Honourable Court. By virtue of his conduct and behaviour the respondent has damaged and affected the good standing and reputation of the profession as a whole. Consequently, his name should not be allowed to remain on the roll of attorneys.

 

Legal principles

[16]      Section 22(1)(d) of the Attorneys' Act provides that any person who has been admitted and enrolled as an attorney may be struck off from the roll of attorneys or suspended from practice on the application of a law society that has jurisdiction if in the discretion of the court that person is not a fit and proper person to continue to practice as an attorney.

[17]       It is trite that the exercise of the court's discretion entails a three-stage inquiry:

 

Firstly, the Court must decide whether the alleged offending conduct has been established on a preponderance of probabilities, which is a factual inquiry.

 

Secondly, it must consider whether the person concerned in the discretion of the court is not a fit and proper person to continue to practice. This involves a weigh up of the conduct complained of against the con expected of an attorney and, to this extent, is a valid judgment.

 

And thirdly, the court must enquire whether in all the circumstances the person in question is to be removed from the roll of attorneys or whether another order would suffice. (Jassat v Natal Law Society 200(3) SA 44 SCA, Malan and another v Law Society, Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216 SCA.

[18]       In Malan's case, the court stated that as far as the second leg is concerned, it is well to remember that the Act contemplates that when an attorney is guilty of unprofessional or dishonourable or unworthy conduct different consequences may follow.

[19]       The court remarked that the nature of the conduct may be such that it establishes that a person is not a fit and proper person to continue to practice but in other instances it may not be that serious, and a law society may in such circumstances exercise its disciplinary powers. But, that, said the court, does not mean that a court is powerless if it finds the attorney guilty of unprofessional conduct where such conduct does not make him unfit to continue to practice as an attorney.

[20]       In such event, the court may discipline the attorney by suspending him from practice with or without conditions or by reprimanding him: Law Society of the Cape of Good Hope v C 1986(1) SA 616 A at 6381-639 E; Law Society Cape of Good Hope v Berrange 2005(5) SA 160(C).

[21]       It is trite that the proceedings are statutory and sui generis, and are no more than a request to the court as custos morum of the profession to use its disciplinary powers over an officer who has misconducted himself and impose an appropriate sanction within the court's discretion, ranging from striking off, if the court finds that the individual is no longer a fit and proper person to remain on the roll of attorneys, or suspend him from the profession for a particular duration: Solomon v Law Society of the Cape of Good Hope 1934 AD 401 at 407.

[22]       The Law Society merely informs the Court what the attorney has done and it asks the court to exercise it disciplinary power over him or her. The Law Society protects the interests of the public in its dealings with the attorneys. If therefore merely submits to the Court facts which it contends constitutes unprofessional conduct and leave the court to exercise its discretion premised on those facts. The court must make a finding of fact that the attorney is or is not a fit and proper person.

[23]       It has been noted in Malan's case (paragraph 9) that the court, in exercising its discretion is not bound by rules, and precedents consequently have a limited value. All they do is to indicate how other courts have exercised their discretion in the circumstances of a particular case. The court also remarked that if it were to be bound to follow a precedent in the exercise of its discretion it would mean that the court has no real discretion. (Naylor and Another v Jansen 2007(1) SA 16 SCA at paragraph 21).

 

The offending conduct as alleged by the Applicant.

Concealing trust debit balances

[24]       Mr Reddy, in his report, identified a number of trust creditor accounts that held debit balances from time to time. He concludes that the accounting records were manipulated using journal entries between unrelated trust creditors to conceal trust shortages. He referred to 5 (five) examples:

[25]       A transfer of an amount of R933 313.42 from IM and AM Ackerman to Sunset Point Props 121 CC. The respondent ascribed the transfer to an error that was reversed on 24/12/2015 and that his manual accounting system balanced. The respondent has not explained the error giving rise to the correction but provided a manual reconciliation which did not balance.

[26]       A transfer of an amount of R2,555,259.50 from BC & C Axcell to Sunset Point Props 121 CC. The respondent merely alleged that the transfer was for a correction of a mistake without detailing the mistake.

[27]       A transfer of an amount of R2,042,862.66 from Sunset Point Props 121 CC to S G Botha. The respondent relied on a general defence relating to Sunset Point Properties transactions entailing the pooling of funds from various trust creditors. It was contented on behalf of the applicant that there was no cause for this transfer other than to conceal a deficit in S G Botha.

[28]       A transfer of an amount of R843,175.62 from C & AG Erasmus to B & P Chetty. The respondent offered no explanation of the transfer of funds from Erasmus. Erasmus transaction relates to a property transfer from Erasmus to RX Trust for R7,000,000. This. the applicant argues that the transfer was for the purpose of concealing a deficit in B & P Chetty.

[29]       A transfer of two amounts, R250 000 and R125 000 from Sunset Point Properties 121 CC to Eye of Africa CC. The applicant argues that the respondent's journal entries reflects that the accounting records were manipulated to conceal the true trust position. The respondent. so the argument goes, failed to keep proper accounting records in contravention of Rule 68.1 (old Rules) read with section 78(4) of the Act.

 

Trust Creditor accounts with debit balances

[30]       On review of the trust ledger for the period 1 March 2014 to 28 February 2015, Mr Reddy noted numerous instances of trust creditor accounts reflecting debit balances. He only referred to 5 examples in his repor.t

[31]       The account of JP & G Geldman, had a deficit in an amount of R120 844. The respondent in response thereto stated that these was no deficit as the relevant credit was journal 2 (two) weeks later on the 30 June 2014. The deficit was corrected through a transfer of R170 269.46 from two unrelated creditors.

[32]       In another account, and Slaton Court, Reddy found that there was a deficit of R739 970.47 on the 28/05/2014. The respondent responded by stating that there was no deficit as the relevant credit is reflected on 31 May 2014. The deficit was however connected by way of two transfers from unrelated trust creditors.

[33]      In Sunset Point Properties, a deficit of R1,591,019.97 the respondent attributed the flow of funds to Sunset Point Properties pooling of funds and the deficit to non­ chronological ordering of the account.

[34]      On the 14th April 2014 Sunset Point Properties had a deficit of R4,865,037.13 which was corrected through a transfer from an account another account, a file of which was not provided to the curator. The account according to the applicant also held a nil balance on 30 November 2014 that required a transfer of R1,000,000from the respondent's business bank account to the client's trust account.

[35]      It appears from the papers that the respondent has not countered the applicant’s case that these were trust creditors accounts that held debit balances. The applicant argues that the respondent failed to ensure that no trust creditors account reflects a debit balance in contravention of Rule 69.3.2 (old rules) and failed to keep proper accounting records.

 

Concealing trust debit balances

[36]       Mr Reddy, after reviewing the trust ledger, noted a substantial payment made on behalf of a trust creditor H J & T P Radebe that did not hold sufficient funds for such a transfer. A payment of R610 000 was made on 3 July 2016 when no funds were available to this trust creditor resulting in a trust deficit. The deficit was concealed by using journal entries to transfer funds from unrelated trust creditors.

 

Fictitious fees raised to conceal trust debit balances

[37]       Reddy identified a number of journals passed on the 31^st August 2015 to record fictitious fees, in the amount of R2,094,645.84. This, the applicant argues, was done to facilitate the transfer of funds to Dormadeals CC, an entity that the respondent's wife is the sole member. An amount of R1,854,525.55 was transferred to various entities. The funds were on the same day transferred to the respondent's business account.

[38]       The respondent ascribed the recording of fees as an error made by his temporary bookkeeper and that it sought to have been normal journals. It was not explained why a normal journal would have been necessary not why the transfer to Dormadeals account.

[39]      Mr Reddy also found 94 journal entries dated 31 August 2016 totalling R11,101,732.56 wherein funds were transferred to various unrelated creditors. He found that the funds were used to correct debit balances in client's trust creditor accounts.

[40]       The respondent admits to having used his personal funds to correct debit balances found his client's trust accounts. However, he maintained that there was no trust deficit.

 

Failure to keep proper accounting records

[41]       Reddy also found that the respondent's accounting records were not up to date. It was not contested by the respondent that Winlaw, the bookkeeping system used in his practice was not up to date. His explanation is that he kept manual records on his client files and asserts that he is not aware of a specific requirement that obliges him to keep his accounting records on a specific system.

 

Facts not in dispute or conceded.

[42]       The respondent, in his heads of argument, now conceded (although previously denied) that the administration of trust funds in his former practice was not of an acceptable standard due to an unfortunate series of events as summarized in the background provided herein below, which constituted a contravention of Rule 61.8 of the Law Society's Rules (rule 35.5 of the New Rules) read with Section 78(4) of the Attorneys, Act.

[43]       Although previously denied, in his answering affidavit the Respondent now conceded the contravention of the provisions of Rule 68.5 of the Law Society's Rules (Rule 35.9 of the New Rules) in that he failed to regularly and promptly update his trust accounting records on the dual entry electronic Winlaw system, while he maintained a daily manual system pending the capture thereof on the electronic system. While manual records were kept on a daily basis on each file, postings on the electronic system were at some stage about two to three months in arrears. At the beginning of January 2017 , all of the manual accounting records were captured on the electronic Winlaw system and the Winlaw system was up to date to the end of

December 2016 (some three months after the Respondent's retirement from practice). The Respondent however concedes that he failed to maintain his trust cash book on the electronic Winlaw System on a monthly basis.

[44]       Some of the trust creditors might have had false debit balances as a result of the time lapse between the manual ledger on each file and the posting thereof on the electronic Winlaw system, or administrative errors which were corrected with journals, which may at the time have constituted a contravention of Rule 69.3.2 of the Law Society's Rules (Rules 35.13.9 of the New Rules). The Respondent submitted that once those debit balances were corrected there was no actual trust deficit. The Respondent, however, had to concede that he failed to timeously update and balance his trust ledger on the electronic Winlaw system.

[45]       The Respondent concedes that the passing of certain journal entries for purposes of correcting debit balances created a short-term false trust deficit, which may have constituted a contravention of Rule 35 .13 .8 of the New Rules (Rule 69.3.1 of the Law Society's Rules). The Respondent, however, submitted that any trust deficit created by the passing of journals or otherwise, was subsequently corrected to reflect the correct position, namely that there was a matter of fact. no trust deficit. The Respondent submitted that he ensured that the total amount of money in his trust banking account, trust investment account and trust cash at any date was never less than the total amount of the credit balances of the trust creditors.

[46]       The Applicant confirmed that according to the firm's electronic accounting system (Winlaw) there were small trust surpluses in the firm's bookkeeping on 28 February 2015, 29 February 2016 and 31 December 2016 respectively.

[47]       The Respondent conceded that he advanced monies to sellers and estate agents prior to registration of the property transfers. but he submitted that such advances were made on the specific instructions of the relevant purchaser.

[48]       It was not in dispute that the Applicant's Mr Reddy never performed any substantive audit procedures on the documentation and accounting records of the Respondent's former practice, while two independent firms of auditors in fact performed a full and proper audit of the books and records of the former practice, both of which found nothing untoward and they submitted unqualified audit reports to the Applicant.

[49]       The Respondent now in hindsight must concede that the manual single-entry accounting system he employed pending the capturing thereof on the dual entry electronic Winlaw system, was easy to manipulate as it did not provide a trust trial balance, a cash book and bank reconciliation.

[50) Taking into account all the above as well as the concessions by the respondent, I am satisfied that the offending conduct has been established on a preponderance of probabilities.

[51]       The respondent filed a supplementary affidavit in which he states how he suffered a series of unfortunate events and circumstances. Firstly, that his bookkeeper fell ill and was eventually retrenched due to ill health. This led to his bookkeeping falling behind. Secondly, that he appointed Ms Kriedeman and Vos, who on a venture of their own succeeded to bypass and manipulate his control measures, to defraud him and to steal vast amounts of money from the firm. The respondent opened a criminal case against the two employees. The amounts involved only account to just over R2,000,000 out of the R11m trust deficit.

 

Whether he is a fit and proper person.

[52]       As stated above, section 22(1)(d) contemplates that where an attorney is guilty of unprofessional or dishonourable or unworthy conduct different consequences may follow. The enquiry entails making a value judgment based on a comparison of standards expected of an attorney and the conduct complained of.

[53]       It was contended on behalf of the applicant that the respondent's delay in allowing the inspection of his accounting records and Reddy's finding that he sought to frustrate and delay the process must be placed within the context of the various transactions referred to above.

[54]       The requested records were only provided gradually and after his efforts to conceal the various debit balances and his receipt of the necessary funds to facilitate the various transactions.

[55]       The respondent also failed to provide all of his files to the curator in terms of the Court order.

[56]       The respondent consistently denied that the administration of trust funds in his former practice was not of an acceptable standard due to an unforeseen series of events which constituted a contravention of Rule 61.8 only to concede in his heads of argument.

[57]       He also consistently denied that he failed to regularly update his accounting records and his trust cash book on a monthly basis. He only conceded this in his heads of argument.

[58]       What is concerning is that, in his answering affidavit, he resorted to various attacks on the Law Society and in particular, Mr Reddy and his capabilities. He further accused Mr Reddy of bias, prejudice and misleading the court, that Reddy's conclusions are far-fetched and ridiculous, and described the application as frivolous. Such criticism by the respondent of Mr Reddy is misplaced and very unfortunate.

[59]       In Law Society of the Northern Provinces v Mogami and Others (supra) at 195- 196 par 26, the Supreme Court of Appeal expressed itself on the conduct required of practitioners in proceedings of this nature stating that; a respondent is expected to cooperate with the Court and with the Law Society and to make a full and frank disclosure; a respondent should not approach the proceedings as if it were criminal proceedings and, a respondent should not. instead of dealing with the issues. launch an attack on the Law Society. accuse the accuser and seek to breakdown the controlling body.

[60]      In the circumstances, I find that the conduct of the respondent falls short of what is expected of an attorney and therefore not fit and proper to be on the roll of attorneys.

 

Sanction

[61]       The determination of a sanction in instances where a person is found to be not fit and proper is also a matter of the discretion of the court. Whether a court will adopt the one course or the other depends upon such factors as the nature of the conduct complained of, the extent to which it reflects upon the person's character or shows him to be unworthy to remain in the ranks of an honourable profession, the likelihood or otherwise of a repetition of such conduct and the need to protect the public (Malan and Another v Law Society, Northern Provinces supra at par 6.)

[62]       It was contended on behalf of the respondent that this court ought to consider that the respondent is a retired attorney with no control over any trust funds, and no intention to return to practice as an attorney, has fulfilled all of his obligations to his trust creditors, after which his trust accounts were closed by the 10^th May 2017; that in almost 3 years since he has closed his practice and retired as an attorney, no claim was lodged by any trust creditor or person against him and that he does not pose any risk to any trust creditor or to the fidelity fund.

It was further argued on behalf of the respondent that should the court find that he should be punished for the transgressions complained of, the strictest censure (of striking,) should not be levelled against him.

 

[63]       I am mindful of the fact that implications of an order removing an attorney from the roll for misconduct are serious and far reaching and that such an order envisages that the attorney will not be re-admitted to practice unless the court can be satisfied that the applicant has genuinely reformed.

[64]       The primary objectives of the courts have been described as twofold: first to discipline and punish errant attorneys and secondly, to protect the public, particularly where trust funds are involved. Law Society of the Cape of Good Hope v Budricks 2003(2) SA11 SCA.

[65]       Before imposing a severe penalty the court has to be satisfied that a lesser stricture of suspension from practice will not achieve the objectives of the supervisory powers of the court as stated above.

[66]      Various case authorities seem to support the argument that transgressions involving dishonesty are usually visited with striking off whereas those not involving dishonesty are visited with a lesser penalty.

[67]       As Harms JA said in Malan -

 

" Obviously, if a court finds dishonesty, the, circumstances must be exceptional before a court will order a suspension instead of a removal ... Where dishonesty has not been established the position is ... that a court has to exercise a discretion within the parameters of the facts of the case without any preordained limitations". Par 4.

 

It was also said that even in cases not involving dishonesty, a conservative approach should be followed in order to stem an erosion of professional ethnical values.

[68]       In casu, it has not been shown that the transgressions complained of involved dishonesty. It was also not shown that he kept trust monies for himself.

[69]       I therefore come to the conclusion that the respondent is not a candidate for striking off. He has already been suspended for more than 3 (three) years and further suspension will serve no purpose. More so that he has retired and is no

longer practicing.

 

Costs

[70]       The applicant as a custos morum has a statutory duty to approach the court and it does so not as an ordinary litigant. It does so under a statutory duty in circumstances where the respondent has failed to comply with his law obligations. In the circumstances it should be fully indemnified for its costs.

[71]       Moreover the general rule is that it is entitled to its costs, even if unsuccessful and usually on an attorney and client scale.

 

I have not found any reason to deviate from this general rule.

 

Accordingly I make the following order:

(a)       The respondent is suspended from practice as an attorney for a period of 3 years commencing on 31 August 2016.

(b)       The respondent is to pay the costs on an attorney and client scale.

 

 

 

H E Mkwawane

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

 

 

I agree, and it is so ordered.

 

 

 

H Fabricius

JUDGE OF THE HIGH COURT

GAUTENG L DIVISION, PRETORIA

 

 

Attorney for the applicant:                   L Groome

Instructed by:                                         Rooth and Wessels

Counsel for the respondent:                  J Rust

Instructed by:                                         Van Der Merwe Inc. Attorneys

Date of hearing:                                     27 August 2019

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