Pretoria Society of Advocates and Another v Geach and Others - saflii

75 Pages·2011·3.61 MB·English

IN THE NORTH GAUTENG HIGH COURT
(REPUBLIC OF SOUTH AFRICA)
In the matters of:
THE PRETORIA SOCIETY OF ADVOCATES First Applicant
THE GENERAL COUNCIL OF THE BAR
OF SOUTH AFRICA Second Applicant
and the 13 Respondents hereunder mentioned
INDEX
MAIN JUDGMENT pi
BRENTON PATR1CK„GEACH case no 57161/2010 p21
JOHANNES STEPHANUS MARITZ GULDENPFENNIG case no 57154/2010 p24
-THILLAY PILLAY * case no 57138/2010 p27
MARK UPTON case no 57131/2010 p31
JOHN O'DONOVAN WILLIAMS case no 57156/2010 p35
- MATTHEUS JOHANNES BOTHA case no 57136/2010 p38
EPHRAIM SEIMA case no 57162/2010 p44
- MARTHINUS CHRISTOFFELCORNELIUS DE KLERK case no 57163/2010 p47
CAS GREYLING JORDAAN case no 57172/2010 p54
COLIN ROY VAN ONSELEN case no 57173/2010 p56
-PERCY MAKGOTSHE LEOPENG case no 57153/2010 p60
~ DANIEL POLI MOGAGABE case no 57159/2010 p63
-LEONARD FRANCOIS BEZUiDENHOUT case no 72290/2010 p66
P74
ADDITIONAL INFORMATION
Reportable
Dates of hearing: 29 to 31 August; 2 and 3 September 2011
Date judgment delivered: 29 September 2011
IN THE NORTH GAUTENG HIGH COURT
(REPUBLIC OF SOUTH AFRICA)
In the matters of:
THE PRETORIA SOCIETY OF ADVOCATES First Applicant
THE GENERAL COUNCIL OF THE BAR
OF SOUTH AFRICA Second Applicant
and the following Respondents
BRENTON PATRICK GEACH case no 57161/2010
JOHANNES STEPHANUS MARITZ GULDENPFENNIG case no 57154/2010
THILLAY PILLAY case no 57138/2010
MARK UPTON case no 57131/2010
JOHN O'DONOVAN WILLIAMS case no 57156/2010
MATTHEUS JOHANNES BOTHA case no 57136/2010
EPHRAIM SEIMA case no 57162/2010
MARTHINUS CHRISTOFFELCORNELiUS DE KLERK case no 57163/2010
CAS GREYLING JORDAAN case no 57172/2010
COLIN ROY VAN ONSELEN case no 57173/2010
PERCY MAKGOTSHE LEOPENG case no 57153/2010
DANIEL POL! MOGAGABE case no 57159/2010
LEONARD FRANCOIS BEZUIDENHOUT case no 72290/2010
coram K van Dijkhorst, PC Combrinck and IWB de Villiers AJJ.
MAIN JUDGMENT
THE FULL COURT:
When counsel mount the steed of greed and attempt to clear the hurdle of their
professional rules their fall inevitably dents the reputation of the profession. In this
case the proud reputation of the Pretoria Bar.1 We write this judgment in sorrow
and lament the loss of integrity, in the past the hallmark of the profession of
advocates. We sit in judgment on 13 senior members of the Bar, among them
two silks, who by their action have brought the good name of their profession
into disrepute. They are not novices. They are experts in their particular field of
litigation, which is claims against the Road Accident Fund (RAF) for damages
arising from persona! injuries. They have been at the Bar for decades, some as
long as 32 years. They were regarded as men of good standing.
2. In disciplinary proceedings of the Bar 12 of the 13 advocates pleaded guilty to
charges of double briefing and overreaching in contravention of rules 2.6 and
7.1.1 of the Code of Conduct respectively. The period covered by the charges
was February to November 2009. They were each sentenced to a fine and a
! The Pretoria Society of Advocates
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period of suspension from practice. The fines and periods of suspension varied
commensurate with the gravity of the offences. The highest fine was R230 000
and the lowest R16 000. The longest period of suspension was 6 months and the
shortest 4 weeks. The highest number of double briefing offences was 416 (with
their 416 corrolaries of overreaching) and the lowest 16.
3. At first sight the fines may seem high, but they pale into insignificance when
regard is had to the financial gain of the culprits. In the list which follows the
gains and other details of the offending advocates are set out. Under the
heading "doubles" the number of double briefings is set out. In each instance
there is an equal number of overreachings which is not mentioned. Under the
heading "further" additional problems which came to our attention at the
hearing are referred to.
4. The disciplinary hearing of Bezuidenhout, whose name is last on the list, was not
completed. The Pretoria Bar applied for the removal of his name from the roll of
advocates, without further ado. It will be noticed that his transgressions (651 x 2)
and his financial gain (an estimated R 5 992 400) far outstrip the others. At the
hearing Bezuidenhout pleaded guilty to the charges.
NAME DOUBLES FURTHER GAIN SUSPENSION FINE
Geach SC 82 VAT 984,000 3 m 144000
Guidenpfennig 90 864,000 2m 90000
Piilay 28 complaint 268.800 5 weeks 28000
DJP;hours
Upton 16 166,400 4 weeks 16000
Williams SC 60 contingency 864,000 6 m 120000
Botha 170 hours 1,768,000 5 m 170000
November
Seima 33 141,900 5 weeks 33000
De Klerk 74 310,800 3 m 74000
November
Jordaan 20 94,000 4 weeks 20000
Van Onselen 133 967,800 3 m 133000
Leopeng 315 November 1,323,000 6m 157500
Mogagabe 461 hours 1,916,800 6m 230000
Bezuidenhout 651 November 5,992,400
total 15,661,900
5. The Bar was split. Some thought the sentences too harsh and others regarded them
as far too lenient. Some thought the matter should now come to rest and others
that the transgressions should be referred to the Court. The latter prevailed, but the
Bar Council did not wish to ask for suspension or striking off in terms of section 7 of
the Admission of Advocates Act 74 of 1964 in these 12 matters, but instead sought
2
that the disciplinary sanctions imposed "be noted" and alternatively abided the
decision of the Court.
6. The General Council of the Bar of South Africa (GCB), the umbrella body of its
constituent bars, with leave intervened in the 12 matters and contended that all
the respondents should be struck off. The GCB and its team of advocates, ably led
by Mr Epstein SC, are commended for their assistance.
7. A procedural question arose in passing. Mr Epstein argued that it was incompetent
for the Bar to approach the Court in this way. it should have sought either
suspension or striking off, but not merely confirmation of its own order or leave the
matter to the Court. In our view this argument is not valid. It is the duty of the Bar to
put all relevant facts before the Court and present elucidation thereof and
argument thereon. The decision is that of the Court. The Act does not require it and
to limit the Bar's right to approach the Court to those instances where it seeks
suspension or striking off, may in a case like the present lead to inertia and keep
serious cases like these from the scrutiny of the Court.
8. When a person decides to practise as an advocate, he subjects himself to scrutiny
of his professional conduct. The standard expected has been formulated as follows
by the Supreme Court of Appeal:2 "The preservation of a high standard of
professional ethics having thus been left almost entirely in the hands of individual
practitioners, it stands to reason, firstly, that absolute personal integrity and
scrupulous honesty are demanded of each of them and, secondly, that a
practitioner who lacks these qualities cannot be expected to play his part.'!
9. Considering an application for the removal of an advocate's name from the roll of
advocates involves a three-stage inquiry;3First, the court must decide whether the
alleged offending conduct has been established on a preponderance of
probabilities, which is a factual inquiry. Second, it must consider whether the
person concerned 'in the discretion of the court' is not a fit and proper person to
continue to practise. This involves a weighing up the conduct complained of
against the conduct expected of an advocate and, to this extent, is a value
judgment. And third, the court must inquire whether in all the circumstances the
person in question is to be removed from the roll of advocates or whether an order
of suspension from practise would suffice.
10. Whether the respondent is a fit and proper person must be decided upon a
preponderance of probabilities.4 In order to come to this decision, all relevant facts
should be taken into account.5 The court will keep in mind that in "order to stem
2 Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA) at 656 A.
3 Jasat v Natal Law Society 2000 (3) SA 44 (SCA) at 51, para 10; Malan & Another v Law Society,
Northern Provinces 2009 (1) SA 216 (SCA) at 219, para 4; Kekana supra at 654 C - F; Nyembezi v Law
Society, Natal 1981 (2) SA 752 (A) at 756 H - 758 C.
4 Olivier v Die Kaapse Baiieraad 1972 (3) SA 485 (A) at 496 F.
5 Society of Advocates of South Africa (WD)v Cigler 1976 (4) SA 350 T at 358 E - F.
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an erosion of professional ethical values a 'conservative approach' is more
appropriate."6
11 .The facts on which the court exercises its value judgment as to whether a person is
fit and proper have to be firmly established.7 As a result of the nature of the
proceedings a respondent is expected to cooperate and to elucidate matters in
order to allow the full facts to be placed before the court so that a correct and just
adjudication may be made.8
12.The exercise of a discretion is not bound by rules and precedents. They merely
indicate how courts have exercised their discretion in particular cases.9 An analysis
of the decided cases shows that the following factors have been taken into
account when deciding whether a person is fit and proper:
1. The seriousness of the transgressions.10 Where a court finds
dishonesty, removal from the roll can be avoided only in exceptional
circumstances.11
2. The systematic breaking of the uniform rules to which an advocate
subscribes upon becoming a member of the Bar, may indicate a lack
of that sense of responsibility and integrity which is characteristic of an
advocate.12
3. The persistent violation of the Bar Rules and a contemptuous attitude
thereto are factors to be taken into account as aggravating
circumstances in determining whether an advocate should be
disbarred.13
4. It is considered unbecoming and disgraceful for those who profess to
have knowledge of the law to be ignorant of the laws of the land.14
6 Malan supra at 221 G - H.
7 Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T)at 853 H.
8 Kleynhans supra at 853 F - H.
9 Malan supra at 220 I - J.
'o Cigler supra at 358 F-G.
11 Malan supra at 221 B - E.
^ Olivier supra at 497 A - 498 D.
13 Cigler supra at 354 A and at 359 A.
14 The Law of South Africa, Second Edition vol 14(2) para 132; Van Leeuwen, Rooms-Hollands Recht 4 33
1 11.
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5. Where the affected clients are especially vulnerable to abuse, this
would aggravate the respondent's position.15-
6. The period over which the transgressions occurred. In Cigler's matter,
the Court did not look kindly upon conduct that took place over a
period of almost two years.16
7. The explanations tendered by the respondent for his conduct, to his
society or the Court.17
8. Whether clients have been prejudiced.18
9. The respondent's approach to the proceedings.19
13. The Court will also take mitigating factors info account, such as: Where the court is
of the view that a period of suspension will be sufficiently corrective to avoid a
recurrence.20 Where a respondent has shown remorse.21 Where his private life has
been affected.22 Where he has repaid amounts overcharged. However, our courts
have on more than one occasion pointed out that having made amends is in itself
seldom a sufficient reason not to strike an attorney (or advocate) from the roll.
Because the court is concerned with disciplinary measures, the repayment of
amounts must be given its correct place and not be over-emphasised. 23 it is
inappropriate to consider transgressions in isolation; rather, the cumulative effect of
the conduct under consideration should be considered.24
15 Cigler supra at 359 A - B.
16 Cigler supra at 359 A - B.
17 GCB v Matthys 2002 (5) SA 1 (ECD) at para 34; Kekana supra ai 655 D - G and 656 B.
58 Malan supra at 225 H.
,9 Malan supra at 226 G-H.
20 Van dec Berg v GCB 2007 2 Ail SA 499 (SCA) at para 50.
21 Cigler supra at 358 G.
22 Cigler supra at 358 G.
23 Cigler supra at 358 H - I; Incorporated Law Society, Transvaal v K and Another 1963 (4) SA 631 jT) at
633/4.
24 Kleynhans supra at 854 B.
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14. The court will of course not lose sight of the purpose of these proceedings, namely
the upholding of the rules regulating the profession, rather than to punish the
transgressor.25
15. The first stage of the inquiry does not offer any hurdles as the respondents
pleaded guilty to the charges. The sole question which remains at this stage is
whether they acted honestly. The question of honesty is always an important part
of a disciplinary inquiry into the conduct of counsel. On this issue the Bar was split.
The disciplinary committee,chaired by De Vos SC, which conducted the hearings
of 10 of the 12, held that those counsel had acted honestly, admirably and in the
interest of the public and the furtherance of the administration of justice in
helping to clear the congested trial roil. Their breaches of the rules were not to be
condoned but were not dishonest. The Bar Council accepted this report and
imposed the proposed sanctions which are found in the schedule above.
16.The disciplinary committee which later sat on the matters of Botha and De Klerk
and was chaired by LI Vorsier SC, held a diametrically opposite view on the same
facts. It held that the double briefing and overreaching were inherently dishonest
and recommended that the Bar apply to Court for an order that the two members
be struck off the roll. Not surprisingly, in view of its previous decision, the Bar Council
refused to accept this recommendation and imposed a sanction similar to those
already imposed on the others.
17. Mr Epstein relied on the definition of "overreaching" for his argument that
dishonesty is an element of the concept and in view of the pleas of guilty, cadit
quaesth. He correctly argued that the word 'overreach' is defined, insofar as it is
relevant to matters of this nature, as 'circumvent, outwit, cheat in dealing'26;'to
outwit or get the better of'27;'taking unfair commercial advantage of another,
especially by fraudulent means'28;'cheat, deceive, defraud, dupe, exceed,
outsmart, outwit, mislead, trick'29.
The very concept of overreaching implies a level of dishonesty, as a practitioner is
obtaining a greater reward than that which he is entitled to by means which
mislead those responsible for the payment of that fee.
25 Ciglersupraat357 G - H.
26 The Oxford English Dictionary 1961 (7) at 318; Law Society of the Cape of Good Hope v Tobias §<
Another 1991 (1) SA 430 (C) at435 B-C.
27 Chambers Twentieth Century Dictionary; Tobias supra,
28 Black's Law Dictionary Eighth Edition at 1136.
29 Legal Thesaurus Second Edition at 369.
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18. This argument is countered by the contention on behalf of the respondents that
the pleas were of guilty of transgressions of the specific rules set out in the charge
sheet as interpreted in a General Circular of the Bar Council dated 1 November
2006 (the circular) and that if was never the intention to plead guilty to dishonesty.
This is borne out by the proceedings at the disciplinary hearing of the De Vos
committee where no mention was made of dishonesty and by the express finding
that the members were not dishonest. This finding could not have been made had
they pleaded guilty to dishonest conduct. It seems that the respondents intended
to plead guilty to overcharging, which does not necessarily amount to dishonest
conduct. Giving the respondents the benefit of the doubt, in our view the plea
should be read as guilty to overcharging as opposed to overreaching.
19. It is time to turn to the rules and the circular. The rules applicable are the Uniform
Rules of the GCB. Although individual Bars may alter those rules, this was not done
by the Pretoria Bar in this instance. Two fundamental rules of practice as an
advocate are at stake in this application: the rule against double briefing and the
rule against overreaching. The roots of these rules strech back to the common
law.30 These rules are formulated as follows in the Uniform Rules of Ethics of the GCB:
Regarding the acceptance of briefs:
"2.1 Duty to Accept Briefs
Counsel is under an obligation to accept a brief in the Courts in which he
professes to practise, at a proper professional fee, ...
2.2. Precedence of Briefs
Subject to 2.3, an earlier brief, once accepted, takes precedence over a later
brief, should any conflict arise in regard to the performance of such briefs. A
member wishing to surrender an earlier brief in favour of a later brief shall do so only
with the consent of both instructing attorneys.
2.4 Handing on Brief improper
Counsel shall give his personal attention to all briefs. It is improper to hand on a
brief received by him to anyone else, except on the instructions of the instructing
attorney.
2.6 Improper acceptance
It is improper for counsel:
(i) to accept a brief unconditionally; or
30 See on double briefing Lawsa 2nd ed vol 14(2) para 138; Merufa: Manier van Procederen 4 17 5
and on overreaching Lawsa para 140
31 Pta Bar, annexure PE4, pp 72-88.
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(ii) to retain a brief previously accepted by him;
if the circumstances are such that he should reasonably foresee:
(i) that he will not be able to attend to the brief within a reasonable time; or
(ii) that he would have to surrender the brief for whatever reason; and
(iii)fhat the surrender of such brief could cause inconvenience and/or
embarrassment and/or prejudice to:
(a) his client; and/or
(b) a colleague who is to succeed him in the brief; and/or
(c)(his) instructing attorney.
2.8 Brief to settle
If is not improper for counsel to accept a brief to settle a matter, as opposed to
a brief on trial."
Regarding the charging of fees:
"7.1. Fees must be reasonable
7.1.1 Counsel is entitled to a reasonable fee for all services. In fixing fees,
counsel should avoid charges which over-estimate the value of their advice
and services, as well as those which undervalue them. A client's ability to pay
cannot justify a charge in excess of the value of the service, though his lack of
means may require a lower charge, or even none at all.
In determining the amount of the fee, it is proper to consider:
(a) the time and labour required, the novelty and difficulty of the questions
involved and the skill requisite properly to conduct the cause;
(b) the customary charges by counsel of comparable standing for similar
services; and
(c) the amount involved in the controversy and its importance to the client.
No one of the above considerations in itself is controlling. They are mere
guides in ascertaining the real value of the service.
In fixing fees it should never be forgotten that the profession is a branch of the
administration of justice and not a mere money-getting trade.
7.1.2.6 No agreement between counsel and attorney shall justify an excessive
fee.
7.1.5 Full fees or no fees at all irrespective of results must be charged.
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7.2 Marking of Briefs
7.2.4 A brief may not be marked 'at such a fee as may be allowed on
taxation.' "
20. With regard to double briefing, it should be kept in mind, as was pointed out in RAF
v Le Roux32 that: "The [advocate] gets his brief on trial and until otherwise advised
must assume that the trial will proceed and is therefore compelled to turn away all
other work offered to him for the reserved date and possibly dates thereafter,
depending on the anticipated length of the trial." Double briefing is not a recent
phenomenon. Like the plague it has been with us for centuries. The Court of
Holland took steps to combat this misconduct by interdicting transgressors from
taking further cases.33
21. On 1 November 2006 the Pretoria Bar Council issued the following circular:
"If has come to the attention of the Bar Council that some members appear at the
roll call of civil trials in several matters set down for the same day. This
phemomenon is prevalent especially in third party matters.
What is further most alarming is that such counsel probably charge full fees in
respect of preparation and appearance (a day fee) in each of such matters. Such
conduct is viewed in a serious light as it undoubtedly amounts to double briefing,
and in many instances even to multiple briefing, and overreaching."
Members were reminded of rules 2.6, 2.8 and 7.1.1 of the Code of Conduct. The
rules were quoted. The Bar Council extracted certain guidelines from the rules
read together:
"1 Counsel may not retain more than one brief for the same day and
charge a day fee in respect of more than one brief.
2 It is permissible to retain more than one brief for the same day strictly
provided that:
2.1 A full day fee may only be charged in respect of one brief, if
counsel has been briefed for trial thereon...
2.2 in the other matters in which the same counsel appears, it will be
assumed that counsel was briefed only to settle the matter in accordance with
paragraph 2.8 of the Code of Conduct. Counsel will be entitled to charge for
the time spent and the reasonable fee for the taking of the order or the
postponement of the matter on an unopposed basis.
2.3 Retention of a brief under paragraph 2.2 above is only
permissible if counsel's specific mandate is to settle, if there is any possibility of
the matter proceeding to trial, or becoming an opposed postponement, or a
costs argument, counsel shall not be entitled to fake or retain the brief together
with a brief falling under paragraph 2.1 above.
32 2002 (1) SA 751 (W)ot 757 D.
33 Merula: Manier van Procecieren 4 17 5; Lawsa 2nd ed 14 (2) # 138
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