in the north gauteng high court in the matters of: … · in the north gauteng high court ... ~...

IN THE NORTH GAUTENG HIGH COURT (REPUBLIC OF SOUTH AFRICA)

In the matters of:

THE PRETORIA SOCIETY OF ADVOCATES THE GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA

and the 13 Respondents hereunder mentioned

INDEX

MAIN JUDGMENT

BRENTON PATR1CK„GEACH

JOHANNES STEPHANUS MARITZ GULDENPFENNIG

- T H I L L A Y PILLAY *

MARK UPTON

JOHN O'DONOVAN WILLIAMS

- MATTHEUS JOHANNES BOTHA

EPHRAIM SEIMA

- MARTHINUS CHRISTOFFELCORNELIUS DE KLERK

CAS GREYLING JORDAAN

COLIN ROY VAN ONSELEN

- P E R C Y MAKGOTSHE LEOPENG

~ DANIEL POLI MOGAGABE

-LEONARD FRANCOIS BEZUiDENHOUT

A D D I T I O N A L I N F O R M A T I O N

First Applicant

Second Applicant

pi

case no 57161/2010 p21

case no 57154/2010 p24

case no 57138/2010 p27

case no 57131/2010 p31

case no 57156/2010 p35

case no 57136/2010 p38

case no 57162/2010 p44

case no 57163/2010 p47

case no 57172/2010 p54

case no 57173/2010 p56

case no 57153/2010 p60

case no 57159/2010 p63

case no 72290/2010 p66

P 7 4

Reportable Dates of hearing: 29 to 31 August; 2 and 3 September 2011 Date judgment delivered: 29 September 2011

In the matters of:

IN THE NORTH GAUTENG HIGH COURT (REPUBLIC OF SOUTH AFRICA)

THE PRETORIA SOCIETY OF ADVOCATES THE GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA

and the following Respondents

BRENTON PATRICK GEACH JOHANNES STEPHANUS MARITZ GULDENPFENNIG THILLAY PILLAY MARK UPTON JOHN O'DONOVAN WILLIAMS MATTHEUS JOHANNES BOTHA EPHRAIM SEIMA MARTHINUS CHRISTOFFELCORNELiUS DE KLERK CAS GREYLING JORDAAN COLIN ROY VAN ONSELEN PERCY MAKGOTSHE LEOPENG DANIEL POL! MOGAGABE LEONARD FRANCOIS BEZUIDENHOUT

First Applicant

Second Applicant

case no 57161/2010 case no 57154/2010 case no 57138/2010 case no 57131/2010 case no 57156/2010 case no 57136/2010 case no 57162/2010 case no 57163/2010 case no 57172/2010 case no 57173/2010 case no 57153/2010 case no 57159/2010 case no 72290/2010

coram K van Dijkhorst, PC Combrinck and IWB de Villiers AJJ .

MAIN JUDGMENT THE FULL COURT:

2.

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. 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

! T h e Pretor ia Society of Advocates 1

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.

N A M E D O U B L E S F U R T H E R GAIN SUSPENSION FINE

Geach SC 82 VAT 984,000 3 m 144000

Guidenpfennig 90 864,000 2 m 90000

Piilay 28 complaint 268.800 5 weeks 28000 DJP;hours

Upton 16 166,400 4 weeks 16000

Wi l l iams SC 60 cont ingency 864,000 6 m 120000

Botha 170 hours 1,768,000 5 m 170000 November

Se ima 33 141,900 5 weeks 33000

De Klerk 74 310,800 3 m 74000 November

Jordaan 20 94,000 4 weeks 20000

Van Onse len 133 967,800 3 m 133000

Leopeng 315 November 1,323,000 6 m 157500

M o g a g a b e 461 hours 1,916,800 6 m 230000

Bezu idenhout 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

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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 Sou th Africa 1998 (4) SA 649 (SCA) at 656 A.

3 Jasat v Natal Law Society 2000 (3) S A 44 (SCA) at 5 1 , para 10; Malan & Another v Law Society , Nor thern Provinces 2009 (1) SA 216 (SCA) at 219, para 4; Kekana supra at 654 C - F; Nyembezi v Law Socie ty , Natal 1981 (2) SA 752 (A) at 756 H - 758 C.

4 Ol iv ier v Die Kaapse Bai ieraad 1972 (3) SA 485 (A) at 496 F.

5 Soc ie ty of Advocates of Sou th Afr ica (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.1 0 Where a court finds dishonesty, removal from the roll can be avoided only in exceptional circumstances.1 1

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. 1 2

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.1 3

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. 1 4

6 Ma lan supra at 221 G - H.

7 Prokureursorde van Transvaal v K leynhans 1995 (1) SA 839 (T)at 853 H.

8 K leynhans supra at 853 F - H.

9 Ma lan supra at 220 I - J .

' o Cigler supra at 358 F - G .

1 1 Ma lan supra at 221 B - E .

^ Ol iv ier supra at 497 A - 498 D.

1 3 Cigler supra at 354 A and at 359 A.

1 4 The Law of South Africa, Second Edit ion vol 14(2) para 132; Van Leeuwen, Rooms-Hol lands Recht 4 33 1 1 1 .

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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. 1 6

7. The explanations tendered by the respondent for his conduct, to his society or the Court.1 7

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. 2 0 Where a respondent has shown remorse.2 1 Where his private life has been affected. 2 2 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. 2 3 it is inappropriate to consider transgressions in isolation; rather, the cumulative effect of the conduct under consideration should be considered.2 4

1 5 Cigler supra at 359 A - B.

1 6 Cigler supra at 359 A - B.

1 7 G C B v Mat thys 2002 (5) SA 1 (ECD) at para 34 ; Kekana supra ai 655 D - G and 656 B.

5 8 Ma lan supra at 225 H.

, 9 Ma lan supra at 226 G - H .

20 Van dec Berg v G C B 2007 2 Ail SA 499 (SCA) at para 50.

2 1 Cigler supra at 358 G.

22 Cigler supra at 358 G.

2 3 Cigler supra at 358 H - I; Incorporated Law Society, Transvaal v K and Another 1963 (4) SA 631 jT ) at 6 3 3 / 4 .

2 4 K leynhans 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.2 5

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 L I 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' 2 6;'to outwit or get the better of' 2 7;'taking unfair commercial advantage of another, especially by fraudulent means'2 8;'cheat, deceive, defraud, dupe, exceed, outsmart, outwit, mislead, trick' 2 9.

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 C i g l e r s u p r a a t 3 5 7 G - H .

2 6 The Oxford Engl ish Dict ionary 1961 (7) at 318; Law Society of the Cape of Good Hope v Tobias §< Another 1991 (1) SA 430 (C) a t 4 3 5 B - C .

2 7 Chambers Twent ie th Century Dict ionary; Tob ias supra,

2 8 B lack 's Law Dict ionary Eighth Edit ion at 1136.

2 9 Legal Thesaurus S e c o n d Edit ion 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. 3 0 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

3 0 See on doub le brief ing Lawsa 2 n d ed vol 14(2) para 138; Merufa: Manier van Procederen 4 17 5 and on overreach ing Lawsa para 140 3 1 Pta Bar, annexure PE4, pp 7 2 - 8 8 .

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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 Roux 3 2 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. 3 3

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.

3 2 2002 (1) SA 751 ( W ) o t 757 D.

3 3 Meru la : Manier van Procecieren 4 17 5; Lawsa 2 n d ed 14 (2) # 138 9

3 Members who take or retain a brief contrary to the guidelines in paragraph 2.3 above, act in contravention of paragraph 2.6 of the Code of Conduct and shall therefore be guilty of misconduct.

4 Charging a full trial day fee in respect of more than one trial shall be seen as overreaching and a contravention of paragraph 7.1.1 of the Code of Conduct.

5 In order to remove any misunderstanding, it shall be seen as misconduct if at roll call a matter is requested to stand down for settlement if counsel holds another brief in respect of which he has been briefed on trial.

6... 7 In a further attempt to stamp out such malpractices this circular will also

be brought to the attention of the Judge President and the Deputy Judge President and their co-operation be requested. It will likewise be sent to the Law Society of the Northern Provinces with a request that the contents be brought to the attention of its members.

8 The above scenarios are clearly to be distinguished from the case where counsel was briefed on trial and the matter is settled before the trial date and subsequent to settlement counsel is briefed on trial in another matter for the same day. in such case counsel is entitled to mark a normal reasonable reservation fee in respect of the matter which has become settled together with full fees in respect of the other matter."

22. A clearer exposition of the applicable rules and of the seriousness of the transgression thereof can hardly be imagined. No respondent (except De Klerk) alleged that he was unaware thereof. It was the main topic of conversation. It is inconceivable that any third party practitioner would be unaware thereof.

23. But as an exposition of the rules the circular was really unnecassary. They were clear enough, if multiple briefs (for the same day) ore real trial briefs, potential conflict of duties is inevitable. The brief may have to be surrendered at a late stage, with resulting inconvenience, embarrasment and/or prejudice to somebody. This is misconduct in terms of rule 2.6. if the multiple briefs are not real trial briefs, to mark them as real trial briefs is in conflict with rule 7.1.1 which requires a reasonable fee for work actually done. A fee cannot be reasonable if it is marked on a false basis.

24. With audacious ingenuity some respondents sought to detract from the gravity of their offences by arguing that whereas it was a contravention in Pretoria their conduct was safely within the rules as applied by the Johannesburg Bar 3 4. Therefore their conduct was possibly technically wrong in Pretoria but could never be morally reprehensible. If frowned upon at ail, at best it could elicit but a slight wrinkle.

25. We listened to this argument in amazement. It would be a shocking state of affairs if conduct which is morally wrong north of the Jukskei, is quite acceptable south of that renowned stream. The matter was laid to rest, however, by an affidavit by the vice-chairman of the Johannesburg Bar Council3 5 who was at the relevant time the chairman of the Professional Sub-Committee.

' M Society ot Advoca tes of South Afr ica (Witwatersrand Division) 35 D o c u m e n t 22

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26.The maiaise of double briefing in RAF matters was not limited to Pretoria. The chairman of the Johannesburg Bar Council on 9 March 2007 sent an "important Notice" to ail members, which stated that the Bar Council had received a number of complaints and queries from judges and attorneys about the problem of double briefing. The Bar Council resolved formally to set out a policy on double briefing.

"1 It is generally unprofessional to hold at the same time two (or more) briefs to appear on the same day, save:

1.1 in the motion court... 1.2 where all but one brief require only an appearance at roll-call (for example for purposes of an agreed postponement, settlement or withdrawai); 1.3 where the attorney and client relating to the second brief are aware of and have consented to the risk of non-availability, provided that the arangement is not objectively prejudicial to the client's interest and not inherently likely to inconvenience the court; } .4 (deals with more than one counsel on the same side).

27. Paragraph 1.3 on which counsel relied must be read with the ex post facto conduct of the Johannesburg Professional Sub-committee which endorsed an opinion received from a silk on 16 August 2010. The opinion was written after receipt by the Johannesburg Bar Council of a memorandum by RAF practitioners setting out the problems with the congested roll in Johannesburg, their contention that there was a limited number of experienced counsel capable of running and settling RAF matters and that for practical purposes counsel should be permitted to accept multiple RAF briefs for a particular date, one for trial and the rest for settlement.

Relevant portions of the opinion read: "8 It is not possible for one counsel to act in the best interests of clients in two or more trials set down for the same date, even if only one action is set down for trial and counsel is briefed on settling the other matters. 8.1 Practical experience shows that settlement of a trial on theallocated date

(whether an RAF action or any other type of matter) can be as onerous and time consuming as the actual leading of evidence and running of the trial.

8.2 One counsel cannot both run a trial and settle additional matters on a particular date without sacrificing the interests of oneor more clients involved."

We agree with these statements.

28.The vice-chairman also attached the finding in a disciplinary matter against counsel who for 10 February 2009 had four trial briefs in cases which he was certain would settle and which were in fact settled. He marked a fee on trial in each. He was found guilty. The contention that had any of the three matters not been settled a colleague could have taken over the matter on short notice, was dismissed. The tribunal held that it was not prepared to accept that a colleague - if one could be found at such short notice - would have been properly prepared to appear on trial. The Bar Council endorsed the finding that he was guilty of double briefing and overreaching.

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29.To revert to the Important Notice on which some respondents reiied in our cases: Standing on its own paragraph 1.3 of the Important Notice can only relate to acceptance of a second brief and the discarding thereof some time before the hearing as no mention is made of the rights of the first client whose interests will be jeopardised on the trial date. This policy does not countenance double briefing. To summarise: The Johannesburg rules do not allow double briefing with trial briefs for settlement purposes. Those respondents who alleged this in mitigation were wrong, in fact, the Pretoria Bar's stance is more lenient than that of the Johannesburg Bar. Those respondents who in justification incorrectly relied on the Johannesburg practice, showed a lack of remorse.

30.The circular of the Pretoria Bar of 1 November 2006 was widely discussed at the Pretoria Bar. It is extremely unlikely that any respondent would have been unaware thereof, especially as it struck at the heart of their RAF practice.

31 .According to the affidavit of Ellis SC, deponent to the Bar's founding affidavit, the circular was effective and there was some abatement in the practice intended to be curbed. But by the time covered in the charges, namely the period February to November 2009, the insidious practice was rife. A smallish fire had been fanned into a towering blaze by the winds of change.

32. During the hearing the Court enquired why matters had been allowed to get out of hand. Ellis SC filed a supplementary affidavit in explanation. (Ellis who since February 2007 is no longer on the Bar Council is to be commended for his perseverance and his dedication to maintain ethical standards at the Bar). The facts as they appear from contemporaneous documentation are: On 7 August 2007 at a meeting of the Pretoria and Johannesburg Bars with the Law Society of the Northern Provinces the latter raised the issue of double briefing and expressed concern that nothing appeared to be done to enforce the Bar rules. The reaction was that the Bar polices the rules on a reactive basis i.e. it acts only on a complaint and none had been received after an invitation to the Bench and the attorneys to report transgressions to the Bar Council. Ellis stated in his report to the Bar Council: "It appears that our view was received as facile and I agree that it is. I believe that we should be acting, not reacfively but pro-actively in order to be taken seriously on this issue." He proposed that the Bar Council instruct members of the disciplinary committee to attend roll call to monitor the situation and report transgressions to the Bar Council.

33.This was met by a memorandum by the then convenor of the Professional and Ethics Committee, Sam Maritz SC, dated 10 September 2007 who stated that double briefing had "virtually disappeared" and that he "flatly refuse(d) to become a policeman." The Bar Council at its meeting on 11 September 2007 "noted Maritz SC's memorandum on Ellis SC's proposals for policing members who are double briefing on RAF matters." Present was council member T Pillay, a respondent in this case.

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34. Meanwhile on 14 August 2007 Ellis SC had sent a confidential memorandum to Sam Maritz SC after attending roll call on that date. He reported that MC de Klerk appeared in 5 cases; F Bezuidenhout in 5; T Pillay in 4; P Nel on behalf of BP Geach SC in 4. He gave particulars. He mentioned that there were various other colleagues that stood up in more than one case. He received no reply, but was told the memorandum had been discussed by the Professional and Ethics Committee. It appears that the complaint was not registered in the complaints register.

35.Subsequently Ellis SC learnt that he and others, including Geach SC, the present respondent, had been appointed to a committee to investigate the Law Society's complaint "that members blatantly make themselves guilty of double briefing and that no disciplinary steps were taken against them". Ellis SC battled for weeks to get the committee together and ultimately succeeded to convene it for 19 November 2007. The meeting ended inconclusively. He reported to the Bar Council on 30 November 2007 and expressed his personal views that the Law Society's perception should be addressed with a thorough factual investigation. The system is only activated by complaints, there is no policing mechanism in place and the members ignore the obligation to report misconduct. "This year 16 new disciplinary complaints were filed against members alone (mostly by members of the public). Only two have been referred to the disciplinary committee. None have been finalized by the disciplinary committee, whilst 2 disciplinary enquiries are still outstanding from previous years." On 22 January 2008 The Bar Council noted the memorandum and resolved that NGD Maritz SC's offer to attend roll call over a period of time in order to establish the extent of double briefing, be accepted.

36. On 5 February 2008 NGD Maritz SC reported that on Friday 1 February 2008 he had attended roll call and found that a junior member reported for 5 different RAF matters. NGD Maritz SC was requested to draft a letter to that member to submit details to the Bar Council on his double briefing. T Pillay was present as a member of the Council. On 19 February 2008 the Bar Council resolved that "a notice be sent to all members regarding the occurrence of double briefing in RAF matters." This is minuted under the heading: "Complaint by the Law Society regarding double briefing/RAF fee structure." T Pillay was present as a member of the Council. No notice was published.

37. It appears that there was no action fill 22 September 2009 when a senior member of the Bar laid a complaint and the Bar Council requested Ellis SC, then the convenor of the Professional and Ethics Committee to investigate with the mandate to request members to submit their fee books. The disciplinary hearings and these applications followed.

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38. Why was the Bar Council so supine? Why did it fiddle while Rome burnt? It is hardly surprising when some of the transgressors sat in the meetings of the Council and its committees. But there is a deeper reason. If is the widely held fallacy that without a specific complaint against a specific member there can be no action. This situation can be likened to a fire brigade which sees towering flames and billowing smoke but stays put because nobody has reported a fire. We sugggesf that the Bar Council gets its house in order. The rot is in the woodwork.

39. A memorandum by the GCB Committee on RAF Matters 3 6 of 30 November 2009 sets out the background: Court rolls in all the provincial divisions of the High Court had in the past years been congested with pending RAF matters of which 99% get settled on day 1, 2 or 3 without any evidence being led. An instruction was issued by the RAF that no matters were to be settled more than 20 days before the trial date, allegedly to assist their cash flow. This increased the congestion. In November 2008 the Deputy Judge President of this Court issued a Revised Practice Directive. It informed practitioners that from 29 July 2009 there would be two civil rolls. One of 70 RAF matters and divorces and the other of 30 commercial and other matters. "In anticipation of creating more space on our rolls, cases which have already been set down as from February 2010 up to June 2010 will be brought forward to the 27 t h July 2009." The result was that attorneys acting for the RAF or for plaintiffs who already had a full trial schedule for the year, were flooded with a substantial volume of further RAF matters which then had to be attended to on short notice. The increase is evident from a comparison of the trial rolls of 19 March 2009 and 22 October 2009. On 19 March 4 RAF matters stood down from the previous day. There were 52 cases on the roll of which 33 were RAF matters. On 22 October 14 cases stood down from previous days of which 12 were RAF matters. There were 104 cases on the roll of which 75 were RAF cases. There were no Courts available. The memorandum further states that in the majority of RAF matters the RAF only starts with its preparations a few days (at most a week) prior to the trial date. Attorneys acting for the RAF usually do not get instructions to brief counsel until a day or two (at most) before the trial date. In most cases only the day before the trial, and in some cases even on the morning of the trial. Pre-trial conferences do not serve the intended purpose (to limit issues and costs) as due to lack of preparation and instructions the RAF makes no concessions. Even where their attorneys are prepared to do so they cannot obtain instructions from the RAF. Consequently, even though approximately 90% of all RAF matters are settled out of Court, settSlements are not reached prior to the trial date and in many matters

3 6 The prob lems of the RAF are also deal t wi th in Daniels v RAF del ivered on 26 April 2 0 0 ! by the Western Cape High Court case no 8 8 5 3 / 2 0 1 0

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not even on the first day. This sometimes led to clashes with other cases already held and unintended double briefing. The increased number of RAF matters on the trial roll resulted in tremendous additional pressure on attorneys which resulted in counsel taking on more matters than would normally have been the case. Attorneys, to alleviate pressure on themselves, were desperate to obtain the services of counsel experienced in RAF matters. The failure of the RAF to give timeous instructions often had the result that the attorneys acting for the RAF had no choice other than to brief the same counsel on short notice to handle more than one matter as they wanted competent counsel knowledgeable in the field.

40.The contents of this memorandum is common cause. The evidence is that it sets out the facts correctly. It must be remembered, however, that the respondents were double briefing at least from February 2009 whereas the floodgates were only opened In July. Sanctimonious statements that they were double briefing to help the Court combat the congested trial roll, do not wash.

4 1 . Pressured by attorneys who wanted to continue to brief their regular counsel, who were experts, the respondents accepted trial briefs offered despite having been briefed in another matter for that particular day. In view of the congested roll, and the unpreparedness of the RAF and its attorneys and counsel, a settlement or a postponement was a virtual certainty. Instead of being offered briefs on postponement or on settlement, they accepted multiple briefs on trial. And when the matter was settled they marked a trial fee on the brief. Invariably in these cases the RAF was to pay the costs and paid these fees marked "on trial" despite the fact that it was not intended when the brief was received that the matter should go to trial and the matter did not go to trial. This could not have happened without the connivance of the briefing attorneys.

42. Accepting two or more trial briefs for the same day is double briefing. (We are not dealing in these matters with cases where the first trial brief had been terminated by completion of the task at hand and thereafter a further brief had been accepted. These instances were removed from the charges to which they pleaded guilty.) The fact that these respondents were experts in their field did not remove the risk that the clients might be detrimentally affected by their juggling between settlement negotiations and the imperative of settlement above continuation to trial. Not to mention the inconvenience caused to counsel who were not associates in this self furthering clique who probably accomodated each other. Or the Court which would have to waif should a Court become available.

43.The respondents are on the horns of a dilemma: Should they say that the additional matter would surely settle, the question is: Why then mark a trial fee? Should they say we were ready to proceed to trial, the question is: What then about the other matter(s)?

44.They have another serious problem: They all marked their briefs which were ostensibly "on trial" with a trial fee, well knowing that this was impermissible in terms of the bar rules. These briefs, when marked, are important documents. They notify all concerned of the work done, the hours worked are specified thereon and the fee which is claimed to be due. In ail these instances the brief conveyed that it had been given "on trial" and that the trial fee thereon had been earned and was owing. This representation was false. The answer given is that the attorneys knew. Of course they knew. But when this brief was presented to the Taxing Master, he was not informed of the misrepresentation. Nor were the internal taxing masters of the RAF. And if they knew, they were complicit in this deceit, as were the attorneys.

45.To find, as the De Vos committee did, and which recommendation was accepted by the Bar Council, that there was no dishonesty, is to close your eyes to the obvious. It appears that that conclusion was reached because the respondents had acted openly, to the knowledge of their attorneys, their colleagues, the Bar Council and the Bench. This is probably true of the double briefing, but there is no evidence that the Bar Council or the Bench knew what they were debiting. The fact that they acted openly does not exclude dishonesty. A daylight robber can hardly be called an honest person.

46. it was argued on behalf of some respondents that as the Pretoria Bar as applicant had not sought to make out a case of dishonesty against the respondents (their case being that counsel had acted honestly) and as the GCB relied on the facts presented by the former, the GCB could not argue a case it had only made out in its heads. There are two answers to this argument. First: Honesty was raised In the founding affidavit of the chairman of the GCB. He stated: "The GCB submits that the respondent has been shown to lack the integrity and scrupulous honesty which is demanded of him as an advocate." Second: The question of honesty was raised by the Court right at the outset. When the matters commenced written questions were submitted by the Bench to counsel and they were requested to deal therewith in due course. The relevant ones are:" 4 Was the plea of guilty an admission of dishonesty? 5 Is all overcharging dishonest? 7 Is the acceptance of a brief stated to be "on trial" where both counsel and attorney know it is not on trial but for settlement, and the marking of a trial fee thereon instead of a settlement fee not a way to obtain on taxation that which is not due by misleading the Taxing Master? Is this not dishonest? 10 What weight must this Court attach to the findings of the Bar in respect of the execution of the briefs / honesty? 12 Was Ellis SC correct in accepting the explanations re incorrect hours?" Honesty was therefore from the outset the centre of attention. The hearings lasted a week. This was a disciplinary procedure, sui generis. It was incumbent upon the respondents to advance all facts that would lead the Court to a correct

16

conclusion.3 7 There was ample opportunity to lead evidence orally or by affidavit on this score. They did not do so. We must therefore conclude that there is no further relevant evidence. We are entitled to draw our own conclusions from the facts. We are capable of doing so in the light of our long experience as advocates and on the Bench. The respondents should not attempt to hide behind a technical smokescreen.

48. We turn now to the sanctions imposed by the Bar Council. It strikes one as odd that the Bar Council did not require the respondents to make amends and return the ill-gotten gains. Nor did they offer to do so. One would have thought that this is basic where remorse is expressed to be present. Especially where the gains far outstrip the fines imposed. The game of breaking the rules may never be seen to be worth the candle of sanctions. The amounts of gains set out in the fable above were accepted by all the respondents except Bezuidenhout as correct. They only cover the period of the charge sheet.

49.In the case of suspension there can be no objection to make repayment a condition of the order and in this way ensure compliance. But in the case of striking off that remedy is not available. The Court will have to make a direct order of repayment. We heard argument on whether the Court has the power to do so in applications under section 7 of the Act. There seems to be no authority directly in point. It has to be part of the Court's inherent power derived from the common law.

50.The Admission of Advocates Act 3 8has as its object "to provide for the admission of persons to practice as advocates of the Supreme Court of South Africa and for matters incidental thereto." it does not regulate the profession, nor does it presume to restrict the general powers of the Court to do so and to act against those who do not conform. Section 7(1) of the Act deals with suspension from practice and removal from the roll only. It does not purport to limit the Court from making any other order in respect of an advocate.

51 .Such power has to be sought elsewhere, in the common law and the inherent powers of the Court. Ail advocates are answerable to the Court for ail matters concerning their profession and office.3 9 The Court exercises its inherent right to control and discipline its practitioners. This power is not dependent on any statutory provision. 4 0 The Court's powers are not limited to those set out In the Act. For example, it is empowered to prohibit conduct which is inconsistent with the proper

3 7 Lawsa 2 n d 14(2) sv Legal Practit ioners # i 23 and cases in notes 19 and 20 thereof 38 7 4 0 f i 9 6 4

3 ? Lawsa 2 n d 14(2) #123 Van Leeuwen RHR 5.11.4; Soc of Advocates (WD) v Edel ing 1998 2 S A 8 5 2 (W) 860; G C B v vd Spuy 1999 1 SA 577 T « Lawsa #123 fn 19; Edel ing supra at 8 6 1 ; vd Spuy supra; Law Society v Kleynhans 1995 ) SA 839 T 853 FG; De Vil l iers v Mc ln tyre NO 1921 AD 425 428 , 429 , 435; Soc of Advocates (WD) v Cigler 1976 4 SA 350 T 351 B-D; Soc of Advocates of Natal v Knox 1954 2 SA 246 N 247 G-H

conduct expected of a legal practitioner.41 if can make a costs order against an advocate.4 2 An attack upon the dignity of the Court can be met with a charge of contempt.4 3 In Roman times confiscation and perpetual exile and in Roman Dutch times deportation for 10 years could be punishments meted out.4 4 There is no reason why this Court will not be empowered to order an advocate who has overreached to return the ill-gotten spoils. To hold otherwise would be laughable in the eyes of the public. From the inherent right of this Court to control and discipline its practitioners necessarily flows as an ancillary power the power to order the practitioner to make amends. 4 5

52.Counsel for the respondents referred us to the dictum in Van der Bergh v GCB: 4 6 " The enquiry before a court that is called upon to exercise Its disciplinary powers is not what constitutes an appropriate punishment for a past transgression but rather what is required for the protection of the public in the future. Some cases will require nothing less than the removal of the advocate from the roil forthwith. In other cases, where a court is satisfied that a period of suspension will be sufficiently corrective to avoid a recurrence, an order of suspension might suffice." If this dictum of the Supreme Court of Appeal is to be read as limiting the Court's powers to only two options (suspension or striking off) it would mean that there is no room for corrective, punitive, restitutional or deterrent measures in the disciplinary process outside the two options. The sole criterion is then the public weal. Whether another disciplinary sanction will correct the culprit or benefit the good order and discipline of the profession will be irrelevant. The Court's disciplinary powers would be severely restricted. We do not think this was intended and if it was, the dictum was obiter. In Ma/an's case 4 7 the Court in dealing with the choice between suspension and striking off said: "First, in deciding on whichever course to follow the court is not first and foremost imposing a penalty .The main consideration is the protection of the public." The punitive element is thus not excluded but relegated to a lesser place. There is no reason not to also give a (possibly lesser) place to considerations of restitution and correction, if required.

53. It was argued on behalf of some respondents that these proceedings are akin to an appeal against sentence, the sentence being the sanctions imposed by the Bar

4 ) Lawsa #123 fn 6 & cases there ment ioned v Venter v Bophutha tswana Transpor t Holdings (Edms) Bpk 1997 3 SA 374(SCAJ « Lawsa #132 fn 34 4 4 Lawsa #128 fn 10 (on in ter lopers jand #132 fn 30 4 5 Johannesburg Consol idated Investment Co Ltd v Marshal l 's Townsh ip Syndicate Ltd 1917 AD 662, 666 ; Randfonte ln Estates G M Co Ltd v Randfonfe in T o w n Council 1943 AD 475, 497; Johannesburg Municipal i ty v Davies and Another 1925 AD 395 , 403; City of Cape Town v Cloremont Union Col lege 1934 AD 414, 4 2 0 , 4 2 1 ; Makoka v Germis ton City Counci l 1961 3 SA 573 , (A )581 ; Pres ident Insurance Co v Gumbi 1971 1 SA 744 (N) 747D-F ; S teyn ; Uit leg 5 t h 53 & 211 sv ex accessor io. Lawsa 2nd ed 25(1 )# 360 sv extensive interpretat ion. Though the authori t ies deal with statutory powers and their scope there is no reason why the same reason ing cannot be appl ied here. « 2007 2 All SA 449 (SCA) 513 #50 i 7 Ma lan v Law Society, Nor thern Provinces 2009 1 Sa 216 (SCA) 219

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Council. This is wholly incorrect. We do not sit in judgment on the Bar Council or its committees. We are not bound by its sanctions or its approach. The matters come before us de novo and we will impose the sanction which we deem appropriate. In fairness, however, the imposed sanctions cannot be ignored. They have had a serious effect on the life and practice of the respondents. These matters would have been far simpler had we been able to impose our sanction without being trammelled by that of the Bar Council.

54.There are exceptional circumstances In these matters. As pointed out, the sentences that were imposed have been served. During the period of the charges the Judges calling the roll shut their eyes to this insidious practice of double briefing. In fact some practitioners were commended for their help in combatting the congestion of the trial roll. (There is no suggestion, however, that they were aware of the fees charged). Many advocates, including members of the Bar Council, were aware of the practice of double briefing in RAF matters and did nothing about it, despite rule 1.6 which obliges a member of the Bar to report unprofessional conduct to the Bar Council. This created a climate in which this malpractice could flourish like khaki-bush. The Bar Council only acted late in 2009 after receiving a complaint from a silk on 22 September. The respondents have been practicing for a lengthy period after serving their sentences and their evidence stands uncontradicted that they have done so professionally.

55.There are aggravating circumstances. It is very serious that the conduct arose in the face of the circular of 1 November 2006. The respondents brazenly defied the rules. This occurred over a long time and in the case of most respondents on a vast scale. More serious still, some continued this unprofessional conduct even after the Bar Council had called for their books. Some fiddled with their hours. One lied to the Court when caught double briefing. They all have considerable years at the Bar, from 8 to 32 years. They were experts in their field. Instead of setting an example to the junior Bar, they defiled the reputation of the Bar in the eyes of the public. Mr Epstein argued that the fact that they did not own up to transgressions outside the 10 months period was an aggravating factor. In view of the limitation of the ambit of the inquiry to 10 months we will not hold this against them.

56. Mr Reiser SC who appeared for the Bar in Bezuidenhouf's matter referred us to two acts, the Prevention of Organised Crime Act 121 of 1998 and Prevention and Combatting of Corrupt Activities Act 12 of 2004. It was clear that he was acting under instructions, presumably as the GCB had an opinion which mentioned them. Nobody addressed us on their applicability. They were not pleaded. We were not

addressed thereon. We were not told what sections are applicable and on what facts. This is unsatisfactory and extremely unhelpful. We do not express any view on their applicability.

57. As the practice of double briefing and incorrect marking of briefs which are presented to the Taxing Master of the High Court or internal taxing masters of the RAF, cannot occur without connivance of the briefing attorneys, we direct that a copy of this judgment be sent to the Law Society of the Northern Provinces for their attention.

58. Mr Terblanche SC who appeared for four respondents, submitted that when the ill-gotten gains are computed a deduction of 33% should be made from the gross amounts payable by the respondents to provide for income tax paid which might not be refunded by the Receiver of Revenue. Our view is that any dispute about taxation is a matter between the Fiscus and the respondents. Accordingly we decline to entertain any questions of fax. In case elucidation is required by the Fiscus we state that the payments we order the Respondents to make to the Road Accident Fund are a refund of an overpayment ordered by the Court flowing from contraventions of Rule 2.6 and 7.1.1 of the Uniform Rules of Conduct.

59. In the orders which we make in individual matters we have followed certain general guidelines: The orders must include an order for restitution. We do not confirm the fines imposed by the Bar Council and were not asked to do so. However, as fines paid to the Bar cannot be deducted from ill-gotten gains which must be returned to the RAF, we increase the credit for time served correspondingly. We deduct the time already served under suspension from practice from the period which we would have imposed otherwise. In the case of contraventions after the notice of 26 October 2009, unexplained fiddling with hours, mendacious explanations to the Court and exorbitant numbers of transgressions the scale swung to striking off. In the case of suspension we distinguish between the lesser and greater transgressors and use as basis 6 months and 12 months respectively. In some cases conditions are attached to the orders. Opinions may differ on the appropriateness of these sentences, but in our view they will be regarded as fair by informed members of the public as well as members of the profession. We commend NGD Maritz SC for his unstinting efforts to bring the culprits to book.

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Respondent: Brenton Patrick Geach SC Case no 57161/2010

1. We shall in this part of the judgment and in what follows hereafter refer to what has been said so far in the 'main judgment'.

2. The Respondent (Geach) a member of the Pretoria Bar of some thirty-five years standing pleaded guilty before a disciplinary committee of the Pretoria Bar to the following charges: (i) eighty-two counts of contravening Rule 2.6 by accepting multiple briefs on

one day, i.e. double briefing; (ii) eighty-two counts of contravening Rule 7.1.1 by charging additional trial day

fees, i.e. overreaching; (iii) thirty-four counts of non-compliance with the rule against reduction of a fee

after it had been raised, alternatively non-compliance with the rule against charging a fee as may be allowed on taxation;

The Pretoria Bar imposed the following sanctions: (a) On all the counts he was fined a composite amount of R l 64 000; and (b) his membership of the Pretoria Bar was terminated which termination

was suspended for a period of two years on various conditions inter alio, that he would for a period of three months commencing 1 April 2010 not perform any services as an advocate, nor any services of a legal nature for gain, in addition he was for a period of eighteen months, by not later than the seventh day of each month to deliver to the convenor of the Professional and Ethics Committee of the Pretoria Society of Advocates a full and complete schedule reflecting certain specified particulars in regard to each and every Road Accident Fund matter attended to on brief during the preceding month. Furthermore he was to pay the fine by not later than 30 September 2010.

3. Geach as in the case of the other Respondents, did not give evidence before the Disciplinary Committee. The facts and circumstances surrounding the commission of the offences were outlined by counsel appearing for him before the Committee and expanded on in his answering affidavit to the application by the Pretoria Bar. We shall deal with these aspects later in the judgment.

4. As stated in the main judgment Section 7(1)(d) of the Act contemplates a three stage inquiry.

5. The Respondent pleaded guilty to the counts with which he was charged and accordingly the first leg of the inquiry stands . What must be addressed is the second and third stages that is whether Geach is a fit and proper person to continue to practice and whether in all the circumstances he should be struck from the roll or suspended from practice. As stated in the main judgment this is a value

21

judgment where the court having regard to ail the facts and circumstances must exercise its discretion in deciding which one of the sanctions should be applied.

6. We have already found that the Respondents (which includes Geach) acted dishonestly. (See main judgment). On the authorities quoted in that part of the judgment the circumstances must be exceptional before a court will order a suspension rather than a removal from the roll.

7. The investigation is therefore limited to determining whether there are exceptional circumstances present in the case of Geach which would warrant a suspension rather than a striking off. In the main judgment we have set out circumstances which we consider to be exceptional (see para 54). In the case of Geach the following can be added (although not all these facts are exceptional circumstances):

(i) he paid a hefty fine imposed by the Pretoria Bar. In addition he was unable to practice for three months which in itself must have brought about economic hardship;

(ii) he had been in practice at the time of the hearing of the disciplinary committee for a period of thirty-three years. During that period he had no charges of misconduct brought against him;

(iii) he appears not to have been actuated by greed. According to the pro-forma prosecutor at the inquiry, he was different to other Respondents. He would charge an extra day fee but then under count 3 he would write off most of the additional fees. However that explanation does not negate that his ill-gotten gains amount to some R984,000 as appears from the schedule above. This amount was common cause;

(iv) the chairman of the Disciplinary Committee on behalf of the committee who were aware of all the relevant facts and circumstances concluded that there were ''extensive extenuating circumstances present here" and "there are indeed, very very speciai circumstances as tar as you are concerned";

(v) Geach's personal circumstances. He is a man of fifty-eight years of age. He was admitted on 7 September 1976 and commenced practice at the Pretoria Bar on 1 March 1979. He took silk on the 18 t h January 2004. He is married with one minor child and supports his parents-in-law;

(vi) He claimed - and this was not disputed by the Pretoria Bar or the GCB - that no plaintiff that he appeared for in Road Accident matters was prejudiced by part of his award of damages being utilised to pay counsel. He said he

22

regarded it as unjust that an injured claimant had to pay out of his award a portion towards the advocates fees.

8. We have set out in the main judgment the aggravating factors which we consider should be taken into account. Certain of those factors do not apply to Geach. His offences were not on the scale of the majority of the other Respondents. He did not continue with the offending practice after his books were called for and he did not charge for work not done.

9. Geach is a man of mature years with years of practice behind him. We do not consider that there is any prospect of him again breaching the Rules of the Bar. In all the circumstances we consider that Geach should be suspended from practice for a period rather than struck off the roil. We have come to this conclusion after applying the general guidelines laid down in the main judgment.

We make the following order:

1. The Respondent is ordered to pay to the Road Accident Fund the amount of R984,0Q0.00 in twelve equal monthly instalments commencing on 1 October 2011.

2. The Respondent Brenton Patrick Geach is suspended from practice as an Advocate for a period of twelve months with effect from 10 October 2011;

3. Six months of the suspension referred to in 2 above is suspended for three years on condition:

(i) that the Respondent is not found guilty of contravention of Rules 2.6 or 7.1.1 of the Uniform Rules of Professional Ethics committed during the period of suspension; and

(ii) that the Respondent repay to the Road Accident Fund the amount of R984,000; and

(iii) that the Respondent furnish during the period of suspension to the Professional and Ethics Committee of the Pretoria Bar (or to the equivalent committee of any constituent Bar where the First Respondent may choose to practice in South Africa), or to any other person appointed by such party, on a quarterly basis, commencing on 11 April 2012, on or before 7 July, 7 October, 7 January and 7 April of every successive year of suspension, full details of all RAF matters he has attended to during such quarterly period, which detail must include:

(a) the date of trial; 2 3

(b) date of settlement (if applicable); whether the brief was held on trial or settlement; the fees marked on trial or settlement; the hourly rate for preparation; the number of hours of preparation and consultation indicating the dates thereof; and if applicable any contingency fee marked. (g)

4 The Respondent will accordingly serve six months of his suspension as from 10 October 2011 unt i l ! 0 April 2012.

5. The Respondent is to pay the costs of the First and Second Applicants on the scale as between attorney and own client.

Respondent Johannes Stephanus Maritz Guldenpfennig Case no 57154/2010


2. The Respondent (Guldenpfennig) a member of the Pretoria Bar of some twenty-eight years standing, pleaded guilty before a disciplinary committee of the Pretoria Bar to the following charges:

Ninety counts of contravening Rule 2.6 by accepting multiple briefs on one day, i.e. double briefing.

Ninety counts of contravening Rule 7.1.1 by charging additional trial day fees, i.e. overreaching.

in respect of contraventions of Rule 2.6 and Rule 7.1.1 he was fined an amount of R500 in respect of each count - in total R90 000; and

his membership of the Pretoria Bar was terminated which termination was suspended for a period of two years on various conditions inter alia, that he would for a period of two months commencing 1 May 2010 not perform any services as an advocate, nor any services of a legal nature for gain, in addition he was for a period of eighteen months, by not later than the seventh day of each month to deliver to the convenor of the Professional and Ethics Committee of the Pretoria Bar a full and complete schedule reflecting certain specified particulars in regard to

3. The Pretoria Bar imposed the following sanctions:

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each and every Road Accident Fund matter attended to on brief during the preceding month. Furthermore he was to pay the fine by not later than 31 July 2010.

The fine has been paid and the suspension from practice has been served.

4. Guldenpfennig, as in the case of the other Respondents, did not give evidence before the Disciplinary Committee but informally answered questions that were put to him during the proceedings by a member of the Committee. The facts and circumstances surrounding the commission of the offences were outlined by counsel appearing for him before the Committee and were expanded on by Guldenpfennig in his answering affidavits to the applications by the Pretoria Bar and the GCB. We shall deal with these aspects later in the judgment.

5. As stated in the main judgment section 7(1 )(d) of the Act contemplates a three stage inquiry.

6. Guldenpfennig pleaded guilty to the counts with which he was charged and accordingly the first leg of the inquiry stands. What must be addressed is the second and third stages, that is whether Guldenpfennig is a fit and proper person to continue to practice and whether in ail the circumstances he should be struck from the roil or suspended from practice. As stated in the main judgment this is a value judgment where the court having regard to all the facts and circumstances must exercise its discretion in deciding which one of the sanctions should be applied.

7. We have already found that the Respondents (which includes Guldenpfennig) acted dishonestly. (See main judgment). On the authorities quoted in that part of the judgment the circumstances must be exceptional before a court will order a suspension rather than a removal from the roll.

8. The investigation is therefore limited to determining whether there are exceptional circumstances present in the case of Guldenpfennig which would warrant a suspension rather than a striking off. in the main judgment we have set out circumstances which we consider to be exceptional. In the case of Guldenpfennig the following can be added (although not all can be called exceptional):

1. He had been in practice at the time of the hearing of the disciplinary committee for a period of twenty-six years. During that period he had no charges of misconduct brought against him.

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2. Guldenpfennig's personal circumstances: He was admitted on the 26 t h July 1981 and commenced practice at the Pretoria Bar on the 1 s t November 1983.

3. Guldenpfennig avers in paragraph 8.5 of his answering affidavit to the GCB's application that during the relevant period he declined numerous briefs on the basis that there could be potential prejudice for a client or an attorney if he accepted them. He states that if he was motivated by greed he would have accepted many more matters than he indeed did. These averments are not disputed.

4. In par 8.6 of the same affidavit Guldenpfennig states that, as they were dealing with social legislation, he at all times charged his fee and limited his hours on his account to what he knew would be taxed on a party and party basis. On numerous occasions he in fact worked longer hours than he charged for. In par 8.7 he avers that he further indicated to his attorneys that if his account should be faxed off, he would reduce his fees accordingly to ensure that the client was not burdened by an attorney and client component as far as his fees were concerned. These averments are also not disputed.

9. We have set out in the main judgment the aggravating factors which we consider should be taken into account. Certain of those factors do not apply to Guldenpfennig. His offences were not on the scale of the majority of the other Respondents. He did not continue to practice after his books were called for and he did not charge for work not done.

10. Guldenpfennig is a man of mature years with years of practice behind him. We do not consider that there is any prospect of Guldenpfennig again breaching the Rules of the Bar. In all the circumstances we consider that Guldenpfennig should be suspended from practice for a period rather than struck off the roil. We have come to this conclusion after applying the general guidelines laid down in the main judgment.

11. If is appropriate that an order be made for the return of his ill-gotten gains. It is common cause that a fair reflection of the amount thereof is R864 000. As he has paid the fine imposed by the Bar and served a suspension of two months, we fake that into account and suspend a portion of the suspension from practice.


1. The Respondent is ordered to pay to the Road Accident Fund the amount of R864,000.00 payable in twelve equal monthly instalments commencing on 1 October 2011;

2 6

With effect from 10 October 2011, the Respondent Johannes Stephanus Maritz Guldenpfennig, is suspended from practice as an Advocate for a period of twelve months;

Six months of the suspension referred to in 2 above is suspended for three years on condition:

that the Respondent is not found guilty of contravention of Rules 2.6 or 7.1.1 of the Uniform Rules of Professional Ethics committed during the period of suspension; and

that the Respondent pay to the Road Accident Fund the amount of R864,000.00; and

that the Respondent furnish during the period of suspension to the Professional and Ethics Committee of the Pretoria Bar (or to the equivalent committee of any constituent Bar where the Respondent may choose to practice in South Africa), or to any other person appointed by such party, on a quarterly basis, commencing on 11 April 2012, on or before 7 July, 7 October, 7 January and 7 April of every successive year of suspension, full details of all RAF matters he has attended to during such quarterly period, which detail must include:

(a) the date of trial; (b) date of settlement (if applicable); (c) whether the brief was held on trial or settlement; (d) the fees marked on trial or settlement; (e) the hourly rate for preparation; (f) the number of hours of preparation and consultation indicating

the dates thereof; and (g) if applicable any contingency fee marked.

The Respondent will accordingly serve six months of his suspension as from 10 October 2011 until 10 April 2012;

The Respondent is to pay the costs of the First and Second Applicants on the scale as between attorney and own client.

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Respondent Thilfay Pillay Case No. 57138/2010

1. The Respondent ("Pillay") was admitted as an advocate on 20 August 2002 and practiced at the Pretoria Bar from that date until he resigned on 30 June 2010. He now practices as a member of the Johannesburg Bar. He was charged with and pleaded guilty to:

twenty-eight counts of double briefing; and twenty-eight counts of overreaching.

2. He was fined an amount of R500.00 per count - in total R28,000.00. His membership of the Pretoria Bar was terminated but the termination was suspended for a period of two years on condition inter alia that for five weeks commencing on 23 March 2010 he did not practice as an advocate. A further condition was that he for eighteen months thereafter monthly render full particulars of every RAF matter in which he was involved to the convenor of the Ethics Committee of the Pretoria Bar.

3. in the proceedings before us Pillay through his counsel admitted to having made a gain of R268,800.00 out of the commission of these offences. The number of charges he faced and the amount which he gained is on the lower end of the scale compared to the other Respondents. Had it not been for two other matters we would in all probability have only suspended him from practice.

4. The first matter is the charging of fees for work which Pillay did not do. After Pillay filed his answering affidavits in the application by the Pretoria Bar, the convenor of the Professional and Ethics Committee of the Bar Council (the deponent to the founding affidavit) filed a supplementary affidavit. In this affidavit he explained that he had been requested by the Bar Council to examine Pillay's accounts in particular in regard to hours billed. In examining the accounts he found the following: On 7 May 2009 a fee on trial of Rl 5,000.00 was invoiced. On the same day in different matters, an hourly fee was charged for consultations from 8h00 to

10h30, from 11 hOO to 13h30, from 13h00 to 19h00, 14h30 to 17h00, from 19h30 to 24h00;

On 26 May 2009 a trial fee was charged and in addition consultation fees for the hours 7h30 to 14h30, 8h00 to 1 6h00, 17h00 to 17h30, 18h00 to 21 h30;

On 1 September 2009 fees for consultation were charged for the hours 7h00 to 9h30,07h00fo lOhOO, lOhOOfo 10h30, lOhOOto 13h30, UhOOfo 19h00, 14h00 to 17h30, 14h30 to 15h00, 21 hOO to 23h00.

Pillay chose to file an affidavit in reply. His explanation for what is recorded in Ellis' affidavit was the following:

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" I confirm that the errors in respect of the overlapping hours are clue to my inaccurate and deficient record-keeping".

We will return to this matter later.

5. The second matter concerns a complaint which the Deputy Judge President lodged with the Pretoria Bar Council concerning Piilay's conduct on 9 September 2008. in a letter addressed to the Pretoria Bar Council, Mojapelo DJP (South Gauteng High Court) recorded that on 9 September 2008 Pillay arrived at his court at 12 noon after his matter had stood down from 9h30. One of the other counsel advised the DJP that Pillay had been delayed on the Nl motorway on his way to court. The Judge on Piilay's appearance asked him pertinently whether he had appeared for roll call in the North Gauteng High Court Pretoria that morning. Pillay, he said, replied in the negative. He repeated the question and again Pillay denied that he had been in Pretoria that morning. The Judge was suspicious and later that day telephoned the Deputy Judge President (North Gauteng High Court) in Pretoria who confirmed that Pillay had indeed appeared before him for roll call on that morning.

In a letter addressed to the Bar Council dated 9 September 2009 Pillay purported to explain his conduct on the day in question. We gave Pillay an opportunity of giving oral evidence before us which he accepted. He repeated the explanation which he had given in his letter. The explanation was to the effect that he had a third party trial on the date in question in the South Gauteng High Court. On the previous evening he discussed the matter with counsel for the Fund and it was agreed that they would request that the matter stand down to 11 h30 to attempt to settle the claim. On the morning of the trial his daughter was ill and on the way to dropping her off at his mother-in-law's home, she vomited over herself and over him. He then returned home to change his clothing. If then occurred to him that he had a matter in the North Gauteng High Court in Pretoria on brief which had been settled previously on the basis that the claim would be withdrawn and the parties would each pay their own costs. He appeared for the third party in this matter. He then went on to say:

"I decided that in the light of the extremely strange morning I would attend roll call in Pretoria merely to confirm the costs order."

He then proceeded to Pretoria for this purpose before going to Johannesburg to appear in the other matter. When he appeared Judge Mojapelo asked him for an explanation for his actions. He then proceeded to say.

"During the conversation between Justice Mojapelo and myself I gained the impression that Justice Mojapelo had suggested that the reason that I was late was that Advocate Bezuidenhout and I may have had a case together in the

Transvaai Provincial Division I confirm that my answer to Mr Justice Mojapelo's questioning on my belatedness (sic) was on the understanding that the presumption that he was suggesting that Mr Bezuidenhout and I had a case against each other in the Transvaal Provincial Division and that, therefore we were both late for the calling of the roll in the WLD."

When giving evidence the court asked him the following:

"Did you deny when Mojapelo J asked you whether you had appeared in the Pretoria High Court that morning, did you deny that you had appeared there?"

His answer was:

"My Lord my recollection of the matter was that question followed the suggestion that Mr Bezuidenhout and I appeared together in the trial and I said no. 1 remember saying no and I should have said, with hindsight I should have said My Lord no I did not appear with Mr Buzuidenhout in the trial but if your Lordship is asking me whether I appeared on my own to confirm a costs order in a settled matter, I did appear at the calling of the roll. It is a grave error. I didn't pay proper attention and that is a grave error."

In reply to a further question by the court whether he admits or denies the facts stated by the Deputy Judge President in his letter he answered that he did not deny it.

6. Piilay's account of what he believed Mojapelo DJP had said and his version of what took place that morning is so bizarre and farfetched as to be not worthy of credence. He would have us believe that he had a trial in Johannesburg which he was going to attempt to settle yet he considered that "because of the strange morning he was experiencing" he would go to Pretoria to ensure that a consent order which had already been agreed upon and which two other counsel would be at court to record was more important than his Johannesburg trial. How he could have mistakenly believed that Mojapelo DJP asked whether he had a trial against Bezuidenhout in Pretoria is also beyond belief. He admitted the correctness of the facts recorded in Mojapelo DJP's letter-which included the fact that the Judge had asked him twice whether he had appeared in the Pretoria High Court that morning.

We have no hesitation in disbelieving Pillay and concluding that he deliberately lied to the Judge.

7. While giving evidence we also raised with Pillay the question of the hours which he was said to have consulted. After it was put to him that on the one day he

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consulted for eighteen hours, the other nineteen hours and a third twenty-one hours his explanation was the following:

"My Lord ! submit to you with respect that all the hours which I debited I worked. Those invoices are as a result of the fact that! tried to reconstruct these hours at a time much later that! worked. When I made those notes I didn't keep proper records of the time, the hours. I would write one hour or two hours for reading and then I would think okay I thought I read if on Sunday or Monday between this time and that time... that is improper and it is a mistake...".

It is overwhelmingly probable that Pillay did not work the hours which he recorded and that he falsely represented to the clients that he in fact did consult for the recorded number of hours. This is nothing less than fraud.

8. Apart from breaching the rules of the Pretoria Bar, Pillay lied to the court and in addition charged for work which he did not do. He is not a fit and proper person to practice as an advocate.


1 The Respondent is ordered to pay to the Road Accident Fund the amount of R268,800.00;

2 The name of Respondent Thillay Pillay is removed from the roll of advocates;

3 The Respondent is to pay the costs of the First and Second Applicants on the scale as between attorney and own client.

Respondent Mark Upton Case no 57131/2010

1. Upton, a member of the Pretoria Bar of some thirteen years standing, pleaded guilty before a disciplinary committee of the Pretoria Bar to the following charges: 1.1 Sixteen counts of contravening Rule 2.6 by accepting multiple briefs on one

day, i.e. double briefing; 1.2 Sixteen counts of contravening Rule 7.1.1 by charging additional trial day

fees, i.e. overreaching.

2. The Pretoria Bar imposed the following sanctions:

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(a) in respect of contraventions of Rule 2.6 and Rule 7.1.1 he was fined an amount of R500 in respect of each count - in total Rl 6 000; and

(b) his membership of the Pretoria Society of Advocates was terminated which termination was suspended for a period of two years on various conditions inter alia, that he would for a period of two months commencing 1 April 2010 not perform any services as an advocate, nor any services of a legal nature for gain. In addition he was for a period of eighteen months, by not later than the seventh day of each month to deliver to the convenor of the Professional and Ethics Committee of the Pretoria Society of Advocates a full and complete schedule reflecting certain specified particulars in regard to each and every Road Accident Fund matter attended to on brief during the preceding month. Furthermore he was to pay the fine by not later than 31 July 2010.

The fine has been paid and the suspension from practice has been served.

3. Upton, as in the case of the other Respondents, did not give evidence before the Disciplinary Committee. The facts and circumstances surrounding the commission of the offences were outlined by counsel appearing for him before the Committee and were expanded on by Upton in his answering affidavits to the applications by the Pretoria Bar and the GCB. We shall deal with these aspects later in the judgment.

4. As stated in the main judgment section 7(1)(d) of the Act contemplates a three stage inquiry.

5. Upton pleaded guilty to the counts with which he was charged and accordingly the first leg of the inquiry stands. What must be addressed is the second and third stages, that is whether Upton is a fit and proper person to continue to practise and whether in all the circumstances he should be struck from the roll or suspended from practice. As stated in the main judgment this is a value judgment where the court having regard to all the facts and circumstances must exercise its discretion in deciding which one of the sanctions should be applied.

6. We have already found that the Respondents (which includes Upton) acted dishonestly. (See main judgment). On the authorities quoted in that part of the judgment the circumstances must be exceptional before a court will order a suspension rather than a removal from the roll.

7. The investigation is therefore limited to determining whether there are exceptional circumstances present in the case of Upton which would warrant a suspension rather than a striking off. In the main judgment we have set out circumstances which we consider to be exceptional. In the case of Upton the following can be added (although not all are exceptional):

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7.1 He had been in practice at the time of the hearing of the disciplinary committee for a period of about twelve years. During that period he had no charges of misconduct brought against him.

7.2 Upton's personal circumstances: He was admitted on 25 t h October 1994 and commenced practice at the Pretoria Bar on the 9 February 1998.

7.3 Counsel who fulfilled the role of prosecutor before the Bar's investigating committee, stated that Upton "blew the whistle" on himself. He was not on the list of advocates who were at the time under investigation for double briefing and overreaching. He added: "I 'm sure he's also one of those, as far as my investigation revealed, who didn't go out looking for this but who got caught up in if".

Counsel also pointed out that the schedule annexed to the charge sheet showed that Upton's contraventions "are pretty much spread out far and wide" and that he "definitely didn't go looking for it. He just took the chance of extra matters being offered to him". The investigating committee found that there were "compelling mitigating circumstances" in Upton's case.

7.4 In his answering affidavit to the GCB's application Upton states that " I am relatively new to personal injury actions and it is only since 2008 that I was regularly briefed in such matters".

8. We have set out in the main judgment the aggravating factors which we consider should be taken into account. Certain of those factors do not appiy to Upton. His offences were certainly not on the scale of the majority of the other Respondents. He did not continue to practise after his books were called for.

9. Upton is a young man who is relatively inexperienced at the Bar. We do not consider that there is any prospect of Upton again breaching the Rules of the Bar. In all the circumstances we consider that Upton should! be suspended from practice for a period rather than struck off the roll. We have come to this conclusion applying the general guidelines laid down in the main judgment.

10. We fake into account that he has paid a fine of R16 000 to the Pretoria Bar and has served a suspension of 2 months. We deem if fair that his suspension from practice be suspended on the conditions set out hereunder. if was common cause that his ifl-gotten gains amounted to Rl 66 400.

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ke the following order:

1. It is ordered that Respondent pay to the Road Accident Fund the amount of Rl 66,400 payable in twelve equal monthly instalments commencing on 1 October 2011;

2. With effect from 17 October 2011, Respondent Mark Upton is suspended from practice as an Advocate for a period of six months;

3. The six months suspension referred to in 2 above is suspended for three years on condition:

(i) that Upton is not found guilty of contravention of Rules 2.6 or 7.1.1 of the Uniform Rules of Professional Ethics committed during the period of suspension; and (ii) that Upton repay to the Road Accident Fund the amount of Rl66,400; and (iii) that Upton furnish during the period of suspension to the Professional and Ethics Committee of the Pretoria Bar (or to the equivalent committee of any constituent Bar where the Respondent may choose to practice in South Africa), or to any other person appointed by such party, on a quarterly basis, commencing on 7 December 2011 and thereafter on or before 7 March, 7 June, 7 September and 7 December of every successive year of suspension, full details of all RAF matters he has attended to during such quarterly period, which detail must Include:

(a) the date of trial; (b) date of settlement (if applicable); (c) whether the brief was held on trial or settlement; (d) the fees marked on trial or settlement; (e) the hourly rate for preparation; (f) the number of hours of preparation and consultation indicating the dates thereof; and (g) if applicable any contingency fee marked.

4. Respondent Upton is to pay the costs of the First and Second Applicants on the scale as between attorney and own client.

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Respondent John O'Donovan Williams SC Case no 57156/2010

1. The Respondent (Williams) has been a member of the Pretoria Bar for twenty-two years. Before that he was a policeman, Judge's clerk and an attorney. He has been a silk for seven and a half years. He served on the Bar Council and was an active pupil trainer. He also acted as a Judge several times. He is married with four children.

2. He appeared before a disciplinary committee of the Pretoria Bar on 2 March 2010. He was charged with and pleaded guilty to sixty contraventions of Rule 2.6 (double briefing) and sixty contraventions of Rule 7.1.1 (overreaching). The contraventions took place during the period February to October 2009. He was further charged with and pleaded guilty to thirty-eight counts of contravening Rule 7.10 by failing to countersign (and register) contingency fee agreements. The following sanctions were imposed:

(i) A fine of Rl,000.00 per transgression for each of the double briefing counts and each of the concomitant overreaching counts; and

(ii) R2,000.00 per count where he failed to countersign and register a contingency fee agreement.

In total a fine of Rl96,000.00 was imposed. His membership of the Pretoria Society of Advocates was terminated which termination was suspended provided he served a six month suspension and furnished on a monthly basis details of all his RAF matters until 31 March 2012.

3. As in the other cases we need not undertake the first enquiry namely whether Williams is guilty of a breach of the rules, as he had admitted his transgressions. What must be determined is whether he is a fit and proper person to practise as an advocate and if not whether he should be struck from the roll or whether he should be suspended from practice. Having found that the conduct of the Respondents, including Williams, was dishonest the enquiry must firstly be to determine whether there are special circumstances warranting a suspension rather than a striking off.

4. Williams gave evidence before the disciplinary committee, albeit not on oath. He stated firstly that out of his own volition he had repaid the thirty-eight contingency fees to the instructing attorney for onward payment to the claimants, in all an amount of R868,825.00. He frankly admitted that what he had done was wrong and that he realised it at the time. He admitted that he was actuated by greed. As he put if the attitude of RAF practitioners was "As dit pap reen moet jy skep" (when it rains porridge you must help yourself). He handed in a number of character references from six senior counsel at the Pretoria Bar together with an

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affidavit by a senior attorney as testimony to his integrity and unblemished past, it was variously said by his colleagues:

"In all the cases it is necessary to dwell upon his unimpeachable honesty and respect for the ethical principles of our profession... he is an extremely tough but unscrupulously honest opponent... if will not be an overstatement to say that Williams SC has always been and will always be one of the Pretoria Bar's greatest assets." [Sfroh SC)

and:

"In my opinion having known Don since his admission as a practising advocate to the Pretoria Bar he is and remains a man of integrity and remains an asset to our association." (Smith SCj

The others were to the same affect.

5. He further at the inquiry and in answer to the GCB and Pretoria Bar founding affidavits expressed his deep regret and shame at what he had done. The members of the disciplinary committee expressed the view that "there are very very extensive extenuating circumstances... (present)."

6. There is another matter which needs to be referred to. Subsequent to the disciplinary hearing and the filing of the founding affidavit in the Pretoria Bar application the convenor of the Professional and Ethics Committee of the Pretoria Bar Council was instructed to examine Williams' invoices in respect of hours billed. He found on the face of it that there were overlapping hours for which a fee had been charged. He afforded him an opportunity of explaining the irregularities. He received a comprehensive explanation from Williams which satisfactorily explained the ostensible irregularities. Williams confirmed the explanations which he had given on oath and neither the Pretoria Bar nor the GCB has made an issue of it.

7. The aggravating features of course in the case of Williams are that he is a senior advocate and as such occupies a position of leadership within the profession. He knowingly breached the rules of the Society. We nevertheless feel that in the light of the special circumstances outlined in the main judgment (para 47) together with the circumstances personal to Williams, particularly the fact that he for more than twenty years practiced without transgressing, that it cannot be said that he is not a fit and proper person to continue practising. He has shown remorse and has furthermore undertaken to repay to the RAF the amount that he gained from his contravention of the rules (R864,000.00). In monetary terms his conduct has therefore cost him Rl ,732,825.00. To this must be added the loss of income he must have suffered during his six months suspension and the future loss he will suffer as a result of being suspended from practice.

3 6

The amount of iii-gotten gains is not disputed. It is R864,000.00.

8. We fake into account that he has paid a fine to the Pretoria Bar and has served a suspension of 6 months. We deem it fair that part of his suspension from practice be suspended on the conditions set out hereunder.


1. The Respondent is ordered to pay to the Road Accident Fund the amount of R864,000.00 payable in twelve equal monthly instalments commencing on 1 October 2011.

2. The Respondent John O'Donovan Williams is suspended from practising as an advocate for a period of 1 year with effect from 10 October 2011;

3. Seven months of the suspension referred to in (1) above is suspended for 3 years on condition:

(i) that the Respondent is not found guilty of a contravention of Rules 2.6, 7.1.1 or 7.10 of the Uniform Rules of Professional Ethics, committed during the period of suspension; and

(ii) that the Respondent pay to the Road Accident Fund the amount of R864,000.00; and

(iii) that the Respondent furnish during the period of suspension to the Professional and Ethics Committee of the Pretoria Bar (or to the equivalent committee of any constituent Bar where the Respondent may choose to pracfice in South Africa) or to any other person appointed by such body, on a quarterly basis commencing on 11 April 2012, on or before 7 July, 7 October, 7 January and 7 April of every succeeding year of suspension fuii details of all RAF matters that he had attended to during such quarterly period which details must include:

(aj the date of trial; (b) dafe of settlement (if applicable); (c) whether the brief was held on trial or settlement; (dj the fees marked on trial or settlement; (e) the hourly rate for preparation; (f) the number of hours of preparation and consultation,

indicating the dates and times thereof; and (g) if applicable any contingency fee marked.

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4. The Respondent will accordingly serve five months of his suspension from 10 October 2011 until 10 March 2012;

5. The Respondent is ordered to pay the costs of the First and Second Applicants on the scale as between attorney and own client.

Respondent Mattheus Johannes Botha Case no 57136/2010

1. The Respondent ("Botha") a member of the Pretoria Bar of some twenty-six years standing, pleaded guilty before a disciplinary committee of the Pretoria Bar to the following charges relating to the period February to November 2009:170 counts of contravening Rule 2.6 by accepting multiple briefs on one day, i.e. double briefing, and 170 counts of contravening Rule 7.1.1 by charging additional trial day fees, i.e. overreaching.

2. The disciplinary committee (the Vorsfer committee) found that there had been potential prejudice and went further finding that "Botha, on various occasions, accepted as many as between three and seven additional briefs per day and in our opinion it can never be argued that there was never any prejudice to a client under such circumstances." Having regard to the plea of guilty of overreaching the committee rejected the submission that the RAF was not prejudiced as Botha received more in respect of fees from the fund than he was entitled to in terms of the rules. The committee recommended that the Bar Council apply that Botha's name be struck off.

3 The Council rejected this recommendation and imposed the following sanctions:

3.1 in respect of contraventions of Rule 2.6 and Rule 7.1.1 he was fined an amount of R500 in respect of each count - in total Rl 70 000; and

3.2 his membership of the Pretoria Bar was terminated which termination was suspended for a period of two years on various conditions infer alia, that he would for a period of five months commencing 1 July 2010 not perform any services as an advocate, nor any services of a legal nature for gain. In addition he was for a period of eighteen months, by not later than the seventh day of each month to deliver to the convener of the Professional and Ethics Committee of the Pretoria Bar a full and complete schedule reflecting certain specified particulars in regard to each and every Road

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Accident Fund matter attended to on brief during the preceding month. Furthermore he was to pay the fine by not later than 30 December 2010.

4 The fine has been paid and the suspension from practice has been served.

5. Botha, as in the case of the other Respondents, did not give evidence before the Disciplinary Committee but informally answered questions that were put to him during the proceedings by members of the Committee. The facts and circumstances surrounding the commission of the offences were outlined by counsel appearing for him before the Committee and were expanded on by Botha in his answering affidavits to the applications by the Pretoria Bar and the GCB. We shall deal with these aspects later in the judgment.

6. As stated in the main judgment section 7(1)(d) of the Act contemplates a three stage inquiry: Botha pleaded guilty to the counts with which he was charged and accordingly the first leg of the inquiry stands. What must be addressed are the second and third stages that is whether Botha is a fit and proper person to continue to practice and whether in all the circumstances he should be struck from the roll or suspended from practice. As stated in the main judgment this is a value judgment where the court having regard to all the facts and circumstances must exercise its discretion in deciding which one of the sanctions should be applied.

7. We have already found that the Respondents (which includes Botha) acted dishonestly. (See main judgment). On the authorities quoted in that part of the judgment the circumstances must be exceptional before a court will order a suspension rather than a removal from the roll.

8. The investigation is therefore limited to determining whether there are exceptional circumstances present in the case of Botha which would warrant a suspension rather than a striking off. In the main judgment we have set out circumstances which we consider to be exceptional. In the case of Botha the following can be added (although not all are exceptional):

8.1 He paid a hefty fine imposed by the Pretoria Bar. In addition he was unable to practice for five months which in itself must have brought about economic hardship.

8.2 He had been in practice at the time of the hearing of the disciplinary committee for a period of twenty-five years. During that period he had no charges of misconduct brought against him.

8.3 Botha's personal circumstances: He was admitted on the 8 1 h March 1983 and commenced practice at the Pretoria Bar on the 2 1 s t January 1985.

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8.4 Botha lectured to pupils and has assisted as an advocacy trainer to train pupils and junior advocates.

9. In the main judgment we have set out the aggravating factors which we consider should be taken into account. These factors apply to Botha. To the aggravating factors the following should be added:

9.1 The scale on which he committed the contraventions of the Rules and the period of time over which the contraventions were committed. The schedule of his offences shows:

in February 2009 he was double briefed on 8 days and held 15 additional briefs, in March the figures were 12 and 19; in April 6 and 9; in May 12 and 23; in June 6 and 11; In July 3 and 10; in August 14 and 32; in September 11 and 36; in October 13 and 35; in November 5 and 12. A caveat must, however be added: these statistics are taken from the schedule which formed the basis of the charges. The additional trials amounted to 202. At the hearing of the disciplinary committee Botha pleaded guilty to 170 thereof without indicating which on the schedule were affected. The statistics may therefore be wrong to the extent of some 16%. It must also be noted that Botha supplied information only up to 6 November 2009. What happened thereafter remains undisclosed.

9.2 It is common cause that his ill-gotten gains amounted to Rl 768 000.

9.3 Botha has been dishonest as to the nature of his instructions. He concedes that "I am not overstating the matter when 1 say that these were not real trial briefs at all" (par 10.2.3 of his answering affidavit in the GCB application). and "In truth, these briefs were virtually purely on settlement" (par 10.2.4 of his said affidavit).

Counsel may, of course, accept briefs on settlement (Uniform Rule 2.8). However, the briefs in respect of which Botha admitted these breaches of the rules, were presented as briefs on trial. Botha points out "there were no doubts that the matters would not proceed to trial" (par 10.2.1 of the said affidavit).

9.4 Botha admitted that he breached the rules on double briefing and overreaching prior to the period of his disclosure. However, he remains silent on the details thereof. He merely contends that it was the disciplinary committee which limited the inquiry to that period. This attitude cannot be countenanced (see Kleynhans supra at 853H).

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9.5 Botha's reluctance to furnish the details of his earlier transgressions negates any suggestion that he is contrite, that he is fully cooperating in these proceedings or that he is rehabilitated. The contention that his cooperation with the Pretoria Bar's investigation shows integrity and honesty is misplaced. Only once caught, did he come clean, and only in respect of the period with which he was confronted. This does not show anything other than that he worked towards the most painless resolution to his dilemma possible.

9.6 Botha must have been aware that other advocates at the Pretoria Bar were similarly practising in breach of the rules. He must also have known that the violation of the rules was of such a serious nature that It could result in both him and others who were violating the rules being struck off the roll of advocates. Yet, instead of displaying the good faith and honour expected of him, he made no disclosure of his unprofessional conduct until sometime after he was found out.

9.7 Botha professes remorse and contrition (par 15.4 of his said affidavit). However, he still proffers excuses for his behaviour, by blaming his actions on how the RAF conducted litigation (paras 11.4 and 12.2 of his said affidavit).

9.8 He further contends that he was under pressure from the RAF, in particular the head office, to assist them with multiple briefs daily. There was on his part clearly a deliberate practice of breaching the rules, to the extent that the rules were treated with contempt. Botha, by not being able to withstand this type of pressure has shown himself to be a person who does not live up to the high standards required for an advocate. An advocate may not permit himself to become an attorney's lackey or factotum.48 This must be even more so in the case of counsel of Botha's seniority. He cannot expect the Court to find that he will not succumb to such pressures in future, in the light of the long history of doing so and the lack of any information to indicate the contrary.

10. Mr Ellis SC, the convenor of the Professional and Ethics Committee of the Pretoria Bar Council, states in a supplementary affidavit, that subsequent to Botha's hearing and the resolutions of the Bar Council to bring his conduct to the attention of the Court, he investigated Botha's accounting records submitted by him, to verify the correctness of the facts forming part of the complaints against htm. Ellis found the following:

A B Genera l Counc i l of the Bar of Sou th Africa vs. Rdsemann 2002{ 1 }SA 235(C) at 247J . This aspect was not dea l t w i th specif ical ly on appeal - Rosemann vs General Counci l of the Bar of South Africa 2004(1) SA568 (SCA) .

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10.1 On a number of occasions, Bofha debited for hours (as opposed to day fees on trial) in excess of 18 hours on certain days, sometimes in addition to one or more trial briefs.

10.2 The invoices submitted by Botha reflect that he debited as follows: His i nvo i ces ref lect that he a l w a y s w o r k e d full hours ("1 uur"; "3 ure"; "5 ure") never 30 or 15

m i n u t e s . He neve r sets ou t w h i c h hou rs o f the day he w o r k e d . T h e fo l low ing has been

e x t r a c t e d in respec t of the day m e n t i o n e d f rom a n u m b e r of i nvo ices to a n u m b e r of

a t t o rneys .

2 March 2009: 1 court appearance and 21 hours of preparation and consultations;

20 July 2009: An inspection in loco with client at Cape Town and 9 hours preparation;

11 August 2009: 4 court appearances, a settlement at RAF tariff and 17

pretrials; 1 September 2009: 6 court appearances and 18 hours preparation and

pretrial; 3 September 2009: 4 court appearances and 18 hours pretrials, consultation

and preparation; 7 September 2009: 3 court appearances and 16 hours pretrials and

preparation; 5 October 2009: 2 court appearances and 25 hours for drafting heads of

argument, pretrial and preparation; 12 October 2009: 1 court appearance and 19 hours pretrial and

preparation; 19 October 2009: 6 court appearances and 12 hours pretrials and

preparation; Bofha also debited R4 500,00 in respect of preparation, consultation, pretrial and trial; and

20 October 2009: 8 court appearances and 13 hours pretrial and preparation.

10.3 Botha was invited to deal with these facts in a further affidavit.

10.4 In reply Botha explained in a supplementary affidavit that accepting more than one brief per day inevitably imposed a heavy workload on him. He would generally start working at 04h00 in the morning and he worked throughout the week, including weekends. There were occasions when he worked through the night. He always noted times but unfortunately not the date of his work. However, he never marked hours of preparation or other

27 August 2009:

12 August 2009: 26 August 2009:

hours preparation; 2 trials and 27 hours preparation and pretrials; 3 court appearances, 33 hours inspection in loco, consultation and preparation; 4 court appearances and 19 hours preparation and

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work that he did not actually do. His secretary as a matter of rote inserted dates prior to the trial date, to enable her to complete the invoices. She has made a confirmatory affidavit. Botha says it has proven impossible to reconstruct exact records of the dates on which consultations and preparation took place. He says that he sincerely regrets his iaxness and lack of attention to detail.

10.5 Botha's explanation is unconvincing. It amounts to this: though each invoice sets out a specific date or dates when work was done, these do not reflect the truth. One cannot determine what the truth is. There is no attempt to rearrange the information to prove that when all is properly set out, there has been no overcharging. One would have expected such an attempt to be made in view of the seriousness of the prima facie facts. To merely say that if is all due to erroneous bookkeeping is not in these circumstances an acceptable answer. If indicates that knowingly over a long period he gave incorrect information to his attorneys. This detracts from his integrity. It is probable that Botha did not work the hours that he recorded and that he falsely represented to the attorneys that he did in fact consult or prepare for the recorded number of hours. This is nothing less than fraud.

11 At the outset of the hearing, the Court requested counsel to deal with certain questions. Question 8 read: "Is it relevant that after the receipt of the letter of Ellis SC on 26 October 2009 calling for their books certain counsel continued their double briefing in November?" Mr Mullins SC who appeared on behalf of both Botha and respondent Seima, conceded that they had continued their double briefing after receipt of Mr Ellis's letter. (Although the Court's list reflecting the respondents' ill-gotten gains did not indicate that Seima had done so, Mr Mullins, quite correctly, pointed out that his name should have been included). Mr Mullins stated that he could not explain why they had continued doing so, knowing that they had to hand over their books.

12 Roughly two days later, while argument was continuing in respect of other respondents, Mr Mullins obtained leave to hand in an affidavit by Seima stating that, although his schedule annexed to the charge sheet indicated that he had been double-briefed on 29 October 2009, he believed that the letter of Mr Ellis dated 26 October 2009 had only been handed to him on 29 October 2009 by Mr Gericke, the General Manager of the Pretoria Bar and that he was not double-briefed after that date.

13 However, no affidavit was handed in by Mr Mullins in respect of Botha's double-briefing during November 2009. Botha's conduct in doing so is therefore unexplained.

43

14 In the face of knowing that there was an investigation pending, Botha brazeniy continued with his contraventions. He displayed a persistent violation of the Bar rules and a contemptuous attitude thereto4 9.

15 In our view, this conduct of Botha's is seriously aggravating.

16 As appears from the main judgment, Botha acted dishonestly in accepting more than one trial brief per day and charging a day fee for each of such matters. As indicated above, he persisted in such dishonest conduct in numerous matters over a period of ten months which resulted in a huge amount of ill-gotten gains.

17 In the light of the aggravating circumstances set out above, the exceptional circumstances present in the case of Botha, in our view, do not warrant a suspension rather than a striking off. He is not a fit and proper person to practise as an advocate and should be removed from the roll.


1. The Respondent is ordered to pay the Road Accident Fund the amount of R1768 000,00;

2. The name of Respondent Maftheus Johannes Botha is removed from the roll of advocates;

3. The Respondent is ordered to pay the costs of the First and Second Applicants on the attorney and own client scale.

Respondent Ephraim Seima Case No. 57162/2010

1. Together with the Respondents Upton and Jordaan this Respondent ("Seima") was one of the minnows in the case. He pleaded guilty before the disciplinary committee of the Pretoria Bar to thirty-three counts of double briefing and thirty-three counts of overreaching. The sanction imposed was R500.00 on each count -total R33,000.00 and he was suspended from practice for a period of five weeks commencing on 1 April 2010. He has agreed that the gain he made from the commission of the offences was R141,900.00.

49 Clgler supra at 354A and 359A 44

2. As in the other matters the sole inquiry Is whether there are exceptional circumstances present which warrant a lesser sanction than striking from the roll. The circumstances set out in the main judgment (paragraph 54) are equally applicable to Seima. In addition there are the following circumstances (not all exceptional): (i) Seima was admitted on 22 April 1997 and commenced practising at the

Pretoria Bar on 7 July 1997 - a middle junior. The proforma prosecutor at the disciplinary hearing expressed his surprise at the fact that Seima was on the list of those that had double briefed and overreached. He commented:

"He was generally regarded as someone who got caught up In the web rather than (that) he went looking for it. I think it also reflected in the low number [of cases}".

(ii) When asked why he had transgressed, his reply was "/ went with the wind", i.e. he followed the trend set by other third party practitioners.

(iii) The disciplinary committee found that in the case of Seima there were compelling extenuating circumstances and that the minimum sentence be imposed.

(iv) In his answering affidavit to the GCB application Seima stated that what he had done he had done openly at the calling of a heavily burdened trial roll in the presence of attorneys, clients and the Judge calling the roll. We dealt with this "defence" in the main judgment . It is nevertheless a factor which can be placed in the scale in his favour.

(v) He was, he said, not actuated by greed - a statement which was not refuted by the GCB - no replying affidavit having been filed.

(vi) Seima's personal circumstances. He is a man of thirty-nine years of age, married with three minor children. He is a devout Christian and a member of the Presbyterian Church in Midrand. Like the others he has had these proceedings hanging over his head for a period of close on two years.

(vii) He has agreed to repay his gain of R141,900.00 to the RAF.

3. We are of the view that Seima's conduct does not render him unfit to continue to practice as an advocate. Although his transgressions as in the case of all the others were serious we regard his case as relatively minor compared to some of the others. We believe that he has learnt his lesson and there is little prospect that he will again fall foul of the ethical rules of the Bar. A period of suspension will be sufficient in his case.

4. We take into account that he has paid a fine to the Pretoria Bar and has served a term of suspension of five weeks. We deem it fair that his suspension from practice be suspended on the conditions set out hereunder.

4 5

The order we make is the following:

1. The Respondent, Ephraim Seima is ordered to pay to the Road Accident Fund the amount of R141 900.00 payable In twelve equal monthly instalments, commencing on 1 October 2011;

2. The Respondent is suspended from practising as an advocate for a period of six months.

3. The suspension referred to in (2) above is suspended for three years on condition:

(i) that the Respondent is not found guilty of a contravention of Rules 2.6 and 7.1.1 of the Uniform Rules of Professional Ethics, committed during the period of suspension; and

(ii) that the Respondent repay to the Road Accident Fund the amount of R141 900.00; and

(iii) that the Respondent furnish during the period of suspension to the Professional and Ethics Committee of the Pretoria Bar (or to the equivalent committee of any constituent Bar where the Respondent may choose to practice in South Africa), or to any other person appointed by such body on a quarterly basis, commencing on 7 December 2011 and thereafter on or before 7 March, 7 June, 7 September and 7 December of every successive year of suspension, full details of all RAF matters he has attended to that he had attended to during such quarterly period, which details must include: (h) the date of trial;

(i) date of settlement (if applicable);

(J) whether the brief was held on trial or settlement; (k) the fees marked on trial or settlement;

(1) the hourly rate for preparation; (m) the number of hours of preparation and consultation,

indicating the dates and times thereof; and (n) if applicable any contingency fee marked.

4. The Respondent is ordered to pay the costs of the First and Second Applicants on a scale as between attorney and own client.

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Respondent Marthinus Christoffel Cornelius de Klerk Case No 57163/2010

1. The Respondent, De Klerk, a member of the Pretoria Bar of some fourteen years standing, pleaded guilty before a disciplinary committee of the Pretoria Bar to the following charges:

Seventy-four counts of contravening Rule 2.6 by accepting multiple briefs on one day, i.e. double briefing; and seventy-four counts of contravening Rule 7.1.1 by charging additional trial day fees, I.e. overreaching. The disciplinary committee (the Voster committee) found that De Klerk's contraventions had been "deliberate, continuous and substantia!" and that he had acted dishonestly. The committee recommended that the Bar Council apply that De Klerk's name be struck off.

2. The Pretoria Bar rejected this recommendation and imposed the following sanctions: (a) in respect of contraventions of Rule 2.6 and Rule 7.1.1 he was fined an

amount of R500 in respect of each count - in total R74 000; and (b) his membership of the Pretoria Bar was terminated which termination was

suspended for a period of two years on various conditions infer alio, that he would for a period of three months commencing 1 September 2010 not perform any services as an advocate, nor any services of a legal nature for gain. In addition he was for a period of eighteen months, by not later than the seventh day of each month to deliver to the convener of the Professional and Ethics Committee of the Pretoria a full and complete schedule reflecting certain specified particulars in regard to each and every Road Accident Fund matter attended to on brief during the preceding month. Furthermore he was to pay the fine by not later than 31 December 2010.

3. The fine has been paid and the suspension from practice has been served.

4. De Klerk had been charged on 117 counts in respect of each of the two rules. At the hearing before the disciplinary committee De Klerk pleaded guilty to 74 counts in respect of each of the two rules. However, the precise counts to which De Klerk pleaded guilty were not determined in relation to the 117 counts appearing on the schedule to the charge sheet. When the issue arose during the hearing before us, Mr Delport, acting for De Klerk, after taking instructions from him, informed the Court that the 74 counts to which De Klerk had pleaded guilty commence from 6 June 2009 until the end of November 2009. Mr Delport added that there had been an arithmetical error since the matters reflected on the schedule to the charges amount to a total of 82 and not 74 since 6 June 2009.

5. Although De Klerk should, on the basis of Mr Delport's said communication, strictly speaking, have been found guilty on 82 counts in relation to each of the

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said rules, we shall accept In De Klerk's favour that he pleaded guilty to and was found guilty in respect of 74 counts in relation to each of the said rules.

6. After taking his said instructions, Mr Delport informed the court that the reason why De Klerk pleaded guilty to 74 counts, was that De Klerk was unaware of the circular signed by Ellis SC, dated 1 November 2006, but that De Klerk states that he must be deemed to have become aware of its contents when it was included in the Rule Book of the Pretoria Bar which was distributed to on 6 June 2009 (see also par 12.2 of De Klerk's answering affidavit in the Pretoria Bar's application). Indeed, De Klerk avers (in par 12.3 of his said affidavit) that he "only became aware of the existence of the said general circular between 23 November 2009 and 26 November 2009".

7. In reply to De Klerk's averment that the Rule Book including the circular was distributed to members during the course of 2009, Ellis SC replied (in par 5.2 of the Pretoria Bar's replying affidavit that 'the Rule book was from 2008, published in electronic format and for those members who required if, also in loose leaf format", and that the circular was contained therein since the Rule Book was published in its present format.

8. There is accordingly a dispute on the papers as to when the Rule Book was published. We shall accept in De Klerk's favour that it was distributed to members on 6 June 2009".

9. In reply to De Klerk's denial that he had any actual knowledge of the circular before 23 November 2009, Ellis SC stated (in par 6.1 of the Pretoria Bar's replying affidavit) that he could not comment on whether De Klerk received a copy of the circular. He said that the process of distribution followed in the Bar is that copies of circulars are placed in each member's pigeonhole in the mail room from where it is fetched either by the member or by a messenger. He added (in par 6.2) that he, however, found it strange that De Klerk did not take cognisance of the contents thereof at the time, because if was a topic that had overshadowed most discussions in the Common Room at the time.

10. In our view, it is indeed very likely that De Klerk would have known the contents of the circular from approximately the time it was distributed to members. Its contents would undoubtedly have been of great importance, especially to members doing RAF work and would, as Ellis SC observed, certainly have been a great talking point amongst advocates at the Pretoria Bar. It is most unlikely that De Klerk would not have known about it.

11. In our view, it is probable that De Klerk had actual knowledge of the contents of the circular as from the time it was distributed to members. His attempt to deny

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actual knowledge thereof before 23 November 2009 is accordingly unacceptable.

12. We are a bit puzzled by the emphasis placed by De Klerk on the receipt of the circular. Every advocate knows that there is a rule against double briefing. An advocate takes only one trial per day. If De Klerk did not know this, he is not fit to be an advocate. He leaves us in the dark as to his knowledge of this basic principle.5 0

13. However, since De Klerk pleaded guilty to only 74 counts in respect of the contravention of each rule, we shall accept that his contraventions in respect thereof only commenced on 11 June 2009 and that they number 74. We shall, therefore, accept that, instead of eleven contraventions during June 2009, as indicated on the schedule to the charge sheet, De Klerk was only guilty of contraventions as from 11 June 2009, and not from 6 June 2009, as was conceded by Mr Delport.

14. De Klerk, as in the case of the other Respondents, did not give evidence before the Disciplinary Committee. The facts and circumstances surrounding the commission of the offences were not outlined by counsel appearing for him before the Committee, but were explained by De Klerk in his answering affidavits to the applications by the Pretoria Bar and the GCB. We shall deal with these aspecfs later in the judgment.

15. As stated in the main judgment, section 7( 1) (d) of the Act contemplates a three stage inquiry. De Klerk pleaded guilty to 74 counts in respect of the contravention of each rule and accordingly the first leg of the inquiry stands. What must be addressed are the second and third stages that is whether De Klerk is a fit and proper person to continue to practice and whether in all the circumstances he should be struck from the roll or suspended from practice. As stated in the main judgment this is a value judgment where the court having regard to all the facts and circumstances must exercise its discretion in deciding which one of the sanctions should be applied.

16. We have already found that the Respondents (which include De Klerk) acted dishonestly. (See main judgment). On the authorities quoted in that part of the judgment the circumstances must be exceptional before a court will order a suspension rather than a removal from the roll.

17. The investigation is therefore limited to determining whether there are exceptional circumstances present in the case of De Klerk which would warrant

50 There is a short pa ragraph in Lawsa 2 n d ed para 138 on double briefing. The sect ion on Advocates was prescr ibed reading for pupi ls.

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a suspension rather than a striking off. In the main judgment we have set out circumstances which we consider to be exceptional. In the case of De Klerk the following can be added (though not all are exceptional): 17.1 He paid a considerable fine imposed by the Pretoria Bar. In addition he

was unable to practice for three months which in itself must have brought about economic hardship.

17.2 He had been in practice at the time of the hearing of the disciplinary committee for a period of thirteen years. During that period he had no charges of misconduct brought against him.

17.3 De Klerk's personal circumstances: He was admitted on the 24 t h April 1997 and commenced practice at the Pretoria Bar on 7 July 1997.

18. In the main judgment we have set out the aggravating factors which we consider should be taken into account. These factors apply to De Klerk. To the aggravating factors the following should be added:

18.1 The scale on which he committed the contraventions of the rules and the period of time over which the contraventions were committed. The schedule of his offences shows: In June 2009 he was double-briefed on one day and held one additional brief. In July the figures were 3 and 6; in August 10 and 17; in September 9 and 16; in October 9 and 17; in November 9 and 17.

18.2 The court's calculation of De Klerk's ill-gotten gains was not disputed. The amount is R310,800.

18.3 Although De Klerk does not deny prior knowledge of the GCB rule 2.6, the tenor of his evidence is that the November 2006 circular attached a particular interpretation to this rule, and that it is only on this interpretation that he breached the rule. He expressly says that he pleaded guilty to the charges on the basis of the interpretation having been attached to it (par 38.2 of his answering affidavit in the Pretoria Bar application). However, one must be concerned about the fitness and propriety of an advocate who contends that accepting more than one brief on trial on a particular day does not constitute a breach of rule 2.6.

18.4 It is evident from De Klerk's affidavits that he has no remorse as to what he has done. He clearly does not believe that he has done something wrong. In his mind he had to plead guilty to a rule as interpreted by the Pretoria Bar.

18.5 It is evident that De Klerk has not seen the error of his ways, nor is there any chance that he has been rehabilitated or that these types of

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transgressions will not recur in future. This also appears from the contents of the sub-paragraphs which follow below.

6 De Klerk, with regard to the charges of overreaching claims that he had charged a lower fee than his "normar fee (par 22.2 of his answering affidavit in the GCB application), in addition, he says he had to wait months to be paid (par 22.3 of the said affidavit). He also contends that he kept meticulous time and that he never charged for work not done (par 46 of his answering affidavit in the Pretoria Bar application). De Klerk's argument that he as a result did not overreach is wrong. The flaw in the argument is that De Klerk approaches the raising of fees on a holistic basis instead of a case by case basis. The fact that the RAF was in each instance his client, does not mean that when he raises a fee, that fee needs not be appropriate with regard to the specific matter to which that fee pertains.

7 In par 46.2 of De Klerk's answering affidavit in the Preforia Bar application, he denied that he unconditionally accepted a brief on trial at any time. The attorney knew that should the other matter not become settled and proceed to trial that " I would have to deal with the first matter on trial and return the further brief". This seems not to pertain to the 74 instances of overreaching to which he pleaded guilty, as had he taken the second brief only after the first one had become settled, he would never have pleaded guilty because there would then not have been any double briefing. De Klerk's explanation rings especially hollow when one has regard to certain of the days in respect of which he confessed breaches of the rules. For instance, on 2 September 2009 he accepted and charged for seven matters on trial. If is simply impossible for one person to accept instructions in seven matters to take them to trial on the same day. Furthermore, had he (and this is not his version) accepted some of these instructions on settlement, he has dishonestly and fraudulently charged a trial fee instead of a fee on settlement.

8 In par 47.1.3 of De Klerk's affidavit in the Pretoria Bar application, he avers that "(a)ll of the above taken into consideration 1 held the view at the investigation meeting/disciplinary proceedings that: I had not overcharged my client or had charged improper fees for the

work done by myself". In reply to this, Ellis SC, the Pretoria Bar's deponent to its replying affidavit, in our view correctly points out that De Klerk's "view is contradicted by his plea of guilty of 74 counts of overreaching".

.9 As appears from the schedule to the charge , De Klerk continued double-briefing during November 2009 after receipt of the letter of Ellis SC dated

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26 October 2009. According to the schedule, in the course of 9 court days, he double-briefed on no less than 17 occasions.

18.10 Mr Delport submitted that the answer to such double-briefing during November 2009 lay in the fact that if an advocate accepts a brief conditionally, he does not contravene the rule. This argument has been dealt with above. De Klerk was represented at the disciplinary hearing by Mr da Silva SC. If De Klerk had a valid defence to the charges against him, Mr da Silva would surely not have advised him to plead guilty to 74 of the 117 counts in respect of each rule. Nor, would Mr Delport, also a senior counsel, have advised De Klerk to plead in mitigation if indeed he had incorrectly pleaded guilty to 74 counts in respect of each rule. At no time were we requested to permit De Klerk to withdraw his plea of guilty, or to treat him as if he had mistakenly pleaded guilty before the disciplinary committee. De Klerk himself does not aver in his answering affidavits that he made a mistake in pleading guilty. In our view we must approach the matter on the basis that De Klerk's plea of guilty stands.

18.11 We do not accept that De Klerk Is not guilty in respect of the counts to which he advisedly pleaded guilty. The submission that De Klerk did not contravene the rules because he accepted the briefs conditionally is rejected.

18.12 The fact that De Klerk continued double-briefing during November 2009 on seventeen occasions in the course of nine court days is a seriously aggravating factor. De Klerk does not deny the averments of Ellis SC that he wrote to De Klerk, calling upon him to hand in his fee books and diary for the period 1 March 2009 to the date of his letter (namely 26 October 2009). (Par 18 of the Pretoria Bar founding affidavit, read with par 22 of De Klerk's answering affidavit).

18.13 The letter to De Klerk dated 26 October 2009 is annexed to De Klerk's answering affidavit in the Pretoria Bar application, as annexure "MDK 3". The letter is addressed to De Klerk and is signed by Ellis SC. It bears the heading: "Investigation into certain allegations of unethical conduct regarding the handling of third party trials". The first two paragraphs of the letter read as follows: "The Bar Council has appointed the Professional and Ethics Committee to investigate certain allegations of double briefing and over-reaching in the conduct of trials in RAF matters and the Bar Council's powers in terms of articles 36 and 37 of the Constitution of the Society have been delegated to the Committee.

"The Committee has reason to believe that these allegations implicate you, and for that purpose require you within 24 hours of receipt hereof, to

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produce to me your fee book for the period 1 March 2009 to date hereof and your diary for fhe same period". (Our underlining).

18.14 In contemptuous disregard of the contents of the letter, De Kerk continued with double-briefing and overreaching until 23 November 2009.

18.15 When he appeared before fhe disciplinary committee De Klerk, instead of showing remorse, requested that he be expelied from fhe Pretoria Bar, intending to set up practice as an independent advocate untrameiled by the rules against double briefing.

18.16 Before us he still contended that "the charging of more than one 'day fee' representing a professional fee does not per se constitute overreaching (Para 53.3). He points out that in his case he could not overreach the RAP as each fee debited by him was in accordance with their tariff and had to be approved by Professional Taxing Masters in their employ. (Para 53.4) If this is correct, why did he plead guilty? But it is not correct. In terms of fhe Bar rules he at best could only debit on a lower (hourly) tariff and not a daily fee. He therefore overreached his client.

18.17 He ill-advisedly in justification referred to the Important Notice of the Johannesburg Bar Council of 9 March 2007.(Para 20.2 Answering Affidavit to Second Applicant). We have dealt with it above.

19. In the light of the aggravating circumstances set out above, the exceptional circumstances present in the case of De Klerk, in our view, do not warrant a suspension rather than a striking off. He is not a fit and proper person to practise as an advocate and his name should be removed from the roll.


1. The Respondent is ordered to pay to the Road Accident Fund the amount of R310 800,00;

2. The name of the Respondent, Marthinus Christoffel Cornelius de Klerk is removed from fhe roil of advocates;


5 3

Respondent Cos Greyiing Jordaan Case No. 57172/2010

1. The Respondent was admitted as an advocate on 30 May 2002 and commenced practice at the Pretoria Bar on 15 July 2002. He was a former employee of the Road Accident Fund.

2. He was charged with and pleaded guilty to twenty counts of double briefing and twenty counts of overreaching. He was fined R500 per count - total R20,000.00. In addition he was suspended from practice at the Pretoria Bar for a period of four weeks commencing on 23 March 2010. He served his suspension and paid his fine.

3. Jordaan is the most junior of the thirteen offending advocates which we have had to deal with. He, after Upton, had the least number of counts against him. His gain (R94,000.00) was the least of everyone.

4. Because of his association with the Fund the majority of his practice was work stemming from that institution. He, because of his close association with the Fund was pressurised by it and its attorneys to accept more than one brief on trial per day.

5. Being the most junior of the thirteen advocates in this matter it is understandable that Jordaan as it were went with the flow and was influenced by his more senior colleagues into participating in the offending scheme.

6. Jordaan co-operated fully with the Bar Council from the outset and made his books available when called upon to do so. He has furthermore expressed regret and contrition and assured us of his intention never again in the future to fall foul of any of the Bar rules.

7. Jordaan's transgressions pale into insignificance when compared to the majority of the other Respondents. Without minimising the seriousness of the offences, Jordaan must be treated as being at the lower end of the scale when it comes to moral blame worthiness. We consider that there are apart from the circumstances set out In the main judgment additional exceptional circumstances present which do not warrant a striking off. In summary, in this regard, we have in mind his junior status, the fact that he was influenced by the example set by his more senior colleagues who participated in the scheme, the number of transgressions, the small amount of his gain and the fact that he was pressurised by the Fund and its attorneys to accept the

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briefs. Lastly the fact that the Pretoria Bar Council had imposed the sanction of a fine and a suspension from practice.


1. The Respondent Cas Greyling Jordaan is ordered to pay to the Road Accident Fund fhe amount of R94,000.00 payable in twelve equal monthly instalments commencing on 1 October 2011;

2. The Respondent Cas Greyling Jordaan is suspended from practising as an advocate for a period of 6 months;

3. The suspension referred to in (2) above is suspended for 3 years with effect from 1 October 2011 on condition: (i) that the Respondent is not found guilty of a contravention of Rules 2.6 or

7.1.1 of the Uniform Rules of Professional Ethics, committed during the period of suspension; and

(ii)fhat the Respondent pay to the Road Accident Fund the amount of R94,000.00; and

(iii)that the Respondent furnish during the period of suspension to the Professional and Ethics Committee of the Pretoria Bar (or to the equivalent committee of any constituent Bar where the Respondent may choose to practice in South Africa), or to any other person appointed by such body on a quarterly basis, commencing on 7 December 2011 and thereafter on or before 7 March, 7 June, 7 September and 7 December of every succeeding year of suspension, full details of all RAF matters he has attended to do in such quarterly period, which details must include: (a) the date of trial; (b) date of settlement (if applicable); (c) whether the brief was held on trial or settlement; (d) fhe fees marked on trial or settlement; (e) fhe hourly rate for preparation; (f) the number of hours of preparation and consultation, indicating the

date and times thereof; and (g) if applicable any contingency fee marked.


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Respondent Colin Roy van Onselen Case no 57173/2010


2. The Respondent (Van Onselen) a member of the Pretoria Bar of some 15 years standing pleaded guilty before a disciplinary committee of the Pretoria Bar to the following charges: (i) 133 counts of contravening Rule 2.6 by accepting multiple briefs on one day,

i.e. double briefing; (ii) 133 counts of contravening Rule 7.1.1 by charging additional trial day fees, i.e.

overreaching; The Pretoria Bar imposed the following sanctions:

(a) in respect of contraventions of Rule 2.6 and Rule 7.1.1 he was fined an amount of R500 in respect of each count - in total R133 000 ; and

(b) his membership of the Pretoria Bar was terminated which termination was suspended for a period of two years on various conditions inter alio, that he would for a period of three months commencing 1 April 2010 not perform any services as an advocate, nor any services of a legal nature for gain, in addition he was for a period of eighteen months, by not later than the seventh day of each month to deliver to the convenor of the Professional and Ethics Committee of the Pretoria Society of Advocates a full and complete schedule reflecting certain specified particulars in regard to each and every Road Accident Fund matter attended to on brief during the preceding month. Furthermore he was to pay the fine by not later than 30 September 2010.

3. Van Onselen appeared unrepresented before the Disciplinary Committee, pleaded guilty and set out the facts and circumstances surrounding the commission of the offences and expanded thereon in his answering affidavit to the application by the Pretoria Bar. We shall deal with these aspects later in the judgment.

4. As stated in the main judgment Section 7(1 )(d) of the Act contemplates a three stage inquiry.

5. Van Onselen pleaded guilty to the counts with which he was charged and accordingly the first leg of the inquiry stands. What must be addressed is the second and third stages that is whether Van Onselen is a fit and proper person to continue to practise and whether in all the circumstances he should be struck from the roll or suspended from practice. As stated in the main judgment this is a value judgment where the court having regard to all the facts and circumstances must exercise its discretion in deciding which one of the sanctions should be applied.

5 6

6. We have already found that fhe Respondents (which includes Van Onselen) acted dishonestly. (See main judgment). On the authorities quoted in that part of the judgment fhe circumstances must be exceptional before a court will order a suspension rather than a removal from the roll.

7. The investigation is therefore limited to determining whether there are exceptional circumstances present in the case of Van Onselen which would warrant a suspension rather than a striking off. In the main judgment we have set out circumstances which we consider to be exceptional (see para 54). In the case of Van Onselen fhe following can be added (though not every fact is an exceptional circumstance):

(i) he paid a hefty fine imposed by fhe Pretoria Bar. In addition he was unable to practice for three months which in itself must have brought about economic hardship;

(ii) he had been in practice at the time of the hearing of the disciplinary commitfee for a period of 14 years. During that period he had no charges of misconduct brought against him;

(iii) there were many instances where he assisted at court, facilitating a settlement, and refused to charge. This is supported by letters from attorneys that were handed by him to the committee. Avarice was thus not his mainspring.

(iv) When the investigation started he immediately came forward, gave fhe prosecutor all fhe information and told him: "...just tell me what you think is appropriate, I'll co-operate, let's get it over with."

(v) The pro forma prosecutor stated that there was "no reason to say that he de facfo prejudiced anyone, that's all on the basis of potential prejudice by the double briefing."

(vi) During the hearing he apologised, saying: "That's fhe thing that saddens me the most is I've, I've wasted your valuable time to have to do all this." And: "1 feel ashamed in the one sense, that I brought shame upon the Society and I value fhe Society dearly." And: "And 1 have to live with that. And I sincerely mean it that I, I am saddened by (my) part in that." Reading his address it is clear that he is truly remorseful and that a recurrence of this transgression is in his case extremely unlikely.

(vii) Asked by the committe why he did it he explained that the opportunity had presented itself but that fhe roll was a big problem especially from August 2009. The same attorneys would send him three matters for a day because

57

the dates had been brought forward. And there were a lot of roli-over matters where there were no instructions from the Fund. "Now everybody benefitted from that. ! realize it's wrong to have charged day fees on the next day's matter, but what happened was you'd say to the Fund, if we settle before tomorrow when standing down, there'll be no fee applicable. But if you only get the instruction tomorrow, then there's going to be a fee. Only, came the next morning, draff orders were handed up with consent including counsel's fees for two, three days, left right and centre. I'm not saying it's right but it was a, was a system that just exploded. And yes, if you're caught up in it, unfortunately you exploit."

(viii) Van Onselen's personal circumstances: He is relatively young a man. He was admitted on 13 August 1996 and commenced practice at the Pretoria Bar on 2 December 1996.

8. We have set out in the main judgment the aggravating factors which we consider should be taken into account. He did not continue with the offending practice after his books were called for.

9. A disturbing fact came to light after the disciplinary hearing of the Bar Council when his invoices were examined. It is that for four days in four separate months in different matters he charged for hours which overlapped. On 2 August 2009 he charged for overlapping hours in 4 matters a total of 11 ]A hours. On 2 March he charged for overlapping hours in 6 matters a total of 16 hours.On 27 July he charged for overlapping hours in 4 matters and his total hours for the day were 16 'A .On 16 August he charged for overlapping hours in 7 matters 17 ]A hours. It will be noted that this occurred only in respect of 4 days over ten months and that the total hours did not exceed the normal. There is no pattern leading to a conclusion of dishonesty. His explanation is that errors occurred when compiling the invoices relating to the recordai of when the time was spent and not the time itself. He refers to the invoices and points out that in no case was any unreasonable amount charged or excessive hours billed for the work done. This explanation cannot be refuted.

10. If is not disputed that the amount of R967 800 is a fair reflection of the ill-gotten gains which Van Onselen received. It is just that these be returned to the RAF.

11. Van Onselen will have learnt his lesson after the suspension which we impose, if he has not already done so. We do not consider that there is any prospect of him again breaching the Rules of the Bar. The public interest does not require that he be removed from practice permanently, in all the circumstances we consider that he should be suspended from practice for a period rather than struck off the roll. We have come to this conclusion after applying the general guidelines laid down in the main judgment.

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1. The Respondent is ordered to pay to the Road Accident Fund the amount of R967,800.00 payable in tweive equal monthly instalments commencing on 1 October 2011 and thereafter on or before the last day of each successive month;

2. The Respondent Colin Roy van Onselen is suspended from practice as an Advocate for a period of twelve months with effect from 10 October 2011.

3. Six months of the suspension referred to in 2 above is suspended for three years on condition:

(i) fhaf the Respondent is not found guilty of contravention of Rules 2.6 or 7.1.1 of the Uniform Rules of Professional Ethics committed during the period of suspension; and

(ii) that the Respondent repay to the Road Accident Fund the amount of R967,800; and

(iii) that the Respondent furnish during the period of suspension to the Professional and Ethics Committee of the Pretoria Bar (or to fhe equivalent committee of any constituent Bar where the First Respondent may choose to practice in South Africa), or to any other person appointed by such party, on a quarterly basis, commencing on 11 April 2011 on or before 7 July, 7 October, 7 January and 7 April of every successive year of suspension, full details of all RAF matters he has attended to during such quarterly period, which detail must include: (a) the date of trial; (b) date of settlement (if applicable); (c) whether the brief was held on trial or settlement; (d) the fees marked on trial or settlement; (e) the hourly rate for preparation; (f) the number of hours of preparation and consultation

indicating the dates thereof; and (g) if applicable any contingency fee marked.

4. The Respondent will accordingly serve six months of his suspension as from 10 October 2011 until 10 April 2012.

5. The Respondent is to pay the costs of the First and Second Applicants on the scale as between attorney and own client.

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Respondent Percy Makgotshe Leopeng Case No. 57153/2010

1. Leopeng was one of fhe most serious offenders in this case. The charges he faced were exceeded only by Mogagabe and Bezuidenhout.

2. Leopeng was charged with and pleaded guilty to three hundred and fifteen counts of double briefing and three hundred and fifteen counts of overreaching. The Pretoria Bar Council imposed a fine of R250.00 for each count, a total of Rl57,500.00 and suspended his membership of the Society for a period of six months commencing 1 May 2010.

3. Although fhe circumstances outlined in the main judgment are equally applicable to Leopeng there are overriding aggravating factors which militate against Leopeng merely being suspended from practice. These factors are fhe following:

(I) The high number of additional briefs in overreaching. Over fhe period February to October 2009 he accepted three hundred and fifteen additional briefs. On one day in August he had six additional briefs excluding the one on trial and on another he had seven (5 August and 14 August respectively);

(ii) He cannot fall back on fhe excuse of increased congestion of fhe roil. That occurred after July. He already in February accepted twenty three additional briefs and in the following months fhe figures were twenty five, eighteen and thirty three;

(iii) The amount of his ill-gotten gains was enormous. In total it was Rl ,323,000.00;

(iv) Despite fhe fact that he had notice that fhe Professional and Ethics Committee were investigating him and had called for his books on 26 October 2009 he nevertheless continued with his practice of double briefing and overreaching during the month of November. Apart from August, November was the month where he received the greatest number of additional briefs namely forty-eight. On fhe 17 t h and 25 t h November respectively he double briefed and overreached in six matters;

(v) The convenor of the Professional and Ethics Committee in a supplementary affidavit to the founding affidavit in the application by the Pretoria Bar Council stated that he had subsequently examined Leopeng's accounts and discovered serious irregularities. He found that on a number of occasions Leopeng debited for hours worked in excess of eighteen hours a day. Leopeng had debited for hours worked as follows:

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(a) 1 April 2009, 25.25 hours;

(b) 11 May 2009, 27.5 hours;

(c) 4 August 2009, 18.5 hours;

(d) 7 August 2009, 31 hours;

(e) 24 August 2009, 18 hours;

(f) 26 August 2009, 18 hours;

(9) 1 September 2009, 35 hours;

(h) 7 September 2009, 20.5 hours;

8 September 2009, 23 hours.

(vi) In a supplementary answering affidavit Leopeng put forward the following explanation for the irregularities:

I deem if necessary to set out very briefly the following facts to the attention of this Honourable Court:

4.1 My practice is mainly third party litigation acting for both the Claimants and the Road Accident Fund.

4.2 In many instances third party matters settle a day before the trial date or at the civil trial roll at 9h45 or l lh30 thus affording me more time in a day to peruse and prepare on other briefs.

4.3 In most instances like in other matters briefs in respect of these third party matters are forwarded to me much earlier before the trial date. However in other instances and on a number of occasions some briefs are forwarded to me a few days before fhe trial dates.

4.4 This being the case more often perusal of these briefs and preparation of these matters are done much earlier and in other instances only a few days before the trial dates resulting in time spent on these matters for perusal and preparation overlapping and excessive as recorded in paragraph 3 of Patrick Ellis' supplementary affidavit.

4.5 This overlapping is mainly caused by my lack of keeping proper record of the exact dates and times spent on each matter. It is also as a result of the large number of these third party matters 1 am handling. This is however not intentional and is regretted."

4.

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(vii) We regard this explanation as totally inadequate and unconvincing. On one day, 11 May 2009 he debited for the following hours worked:

(a) Sekaobela v The Road Accident Fund - 5 hours at R1000 an hour for perusal and preparation;

(b) Khumaio v The Road Accident Fund - 4 hours for perusal and preparation;

(c) Makua v The Road Accident Fund - 5 hours for perusal and preparation;

(d) van Schalkwvk v The Road Accident Fund - 4 hours for perusal and preparation;

(e) Maphifshi v The Road Accident Fund - 5 hours for perusal and preparation;

(f) Mosena v The Road Accident Fund - 4 hours for perusal and preparation and attending pre-trial conference - 30 minutes.

4 It is to be noted that in respect of all these matters the hourly fee was in respect of "perusal, attending to the matter and preparation". No consultations are referred to and no times are given. The amount charged is invariably a globular amount. It is simply not good enough to merely make the bald statement that it was due to fhe fact that proper records weren't kept. It will be recalled that the Respondent Williams when faced with ostensible irregularities, similar to these, furnished a comprehensive reply to the convenor of the Professional and Ethics Committee which satisfied him that Williams had In fact done fhe work. If Williams could have done it Leopeng could have done it. The irresistible inference is that Leopeng could not possibly have worked fhe hours that he has claimed. He represented to the attorney, the Fund and the Taxing Master that he had done the work well knowing that in fact he had not. He acted fraudulently and is not fit to be an officer of this court.

5 Leopeng is a disgrace to the profession and should not be allowed to practise as an advocate.

The following order is made:

1. The Respondent is ordered to pay to the Road Accident Fund an amount of Rl,323,000.00;

2. The Respondent Percy Makgotshe Leopeng's name is removed from the roll of advocates;

3. The Respondent is to pay fhe costs of the First and Second Applicants on the scale as between attorney and own client.

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Respondent Daniel Poli Mogagabe Case no 57159/2010

1. The Respondent (Mogagabe), a member of the Pretoria Bar of some 10 years standing, pleaded guilty before a disciplinary committee of fhe Pretoria Bar to the following charges relating to the period February to November 2009: 1.1. 461 counts of contravening Rule 2.6 by accepting multiple briefs on one day,

i.e. double briefing; 1.2. 461 counts of contravening Rule 7.1.1 by charging additional trial day fees, i.e.

overreaching.

2. The Pretoria Bar imposed the following sanctions: 2 .1 . in respect of contraventions of Rule 2.6 and Rule 7.1.1 he was fined an

amount of R250 in respect of each count - in total R230 000; and 2.2. his membership of the Pretoria Society of Advocates was terminated which

termination was suspended for a period of two years on various conditions inter alio, that he would for a period of six months commencing 1 April 2010 not perform any services as an advocate, nor any services of a legal nature for gain. In addition he was for a period of eighteen months, by not later than the seventh day of each monfh to deliver to the convenor of the Professional and Ethics Committee of the Pretoria Society of Advocates a full and complete schedule reflecting certain specified particulars in regard to each and every Road Accident Fund matter attended to on brief during the preceding monfh. Furthermore he was to pay fhe fine by not later than 31 December 2010.

3. The suspension from pracfice has been served. The fine has now been paid.

4. Mogagabe did give evidence before the Disciplinary Committee. The facts and circumstances surrounding the commission of the offences were outlined by him before fhe Committee and were expanded on by Mogagabe in his answering affidavits to fhe applications by the Pretoria Bar and fhe GCB. We shall deal with these aspects later in the judgment.

5. As stated in the main judgment section 7(1 )(d) of the Act contemplates a three stage inquiry. Mogagabe pleaded guilty to the counts with which he was charged and accordingly the first leg of the inquiry stands. What must be addressed is the second and third stages, that is whether Mogagabe is a fit and proper person to continue to practise and whether in all the circumstances he should be struck from the roll or suspended from practice. As stated in the main judgment this is a value judgment where fhe court having regard to all the facts and circumstances must exercise its discretion in deciding which one of fhe sanctions should be applied.

6. We have already found that the Respondents (which includes Mogagabe) acted dishonestly. (See main judgment). On fhe authorities quoted in that part of the

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judgment the circumstances must be exceptional before a court will order a suspension rather than a removal from the roll.

7. The investigation is therefore limited to determining whether there are exceptional circumstances present in fhe case of Mogagabe which would warrant a suspension rather than a striking off. In the main judgment we have set out circumstances which we consider to be exceptional. In fhe case of Mogagabe nothing can be added thereto.

8. He had been In practice at fhe time of the hearing of the disciplinary committee for a period of about eight years. During that period he had no charges of misconduct brought against him. He was admitted on 20 March 2001 and commenced practice at the Pretoria Bar on 15 December 2001.

9. We have set out in the main judgment the aggravating factors which we consider should be taken into account. Those factors apply to Mogagabe. His offences were on a vast scale. He has the questionable honour of ranking second, after Bezuidenhout. The schedule of his offences shows: in February 2009 he was double briefed on 14 days and held 33 additional briefs. In March the figures were 18 and 49; in April 12 and 54; in May 17 and 68; in August 19 and 78; with a high water mark in October of 84 in 19 days. In May he held 7 or more briefs per day on 5 occasions, in October he did the same on 6 occasions. His highest score was 12 briefs on 17 August 2009. His explanation to the disciplinary committee was that he had been motivated by greed. If was common cause that his ill-gotten gains amounted to R1916 800.

10. When the investigation started he was one of a group of members who sent a letter to fhe Bar Council and the Professional and Ethics Committee stating that the investigation was "racist". At the hearing of the disciplinary committee he retracted that unfounded slur.

11. Before us the ill-considered argument that under the Johannesburg Bar rules his conduct would not have been double briefing was repeated. We have dealt therewith in fhe main judgment. We have also dealt with the arguments that everything was done openly and to the knowledge of the attorneys. And that the chaotic roll was to blame.

12. There is a further matter which throws a shadow over Mogagabe's integrity. It came to light when his accounting records were examined after fhe hearing of fhe disciplinary committee. In the period 18 February 2009 to 28 October 2009 he debited for hours (as opposed to day fees ) 18 hours or more per day on 73 occasions. On 40 occasions he debited for 24 hours per day or more. On 24

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occasions he debited for 30 hours or more per day. His maximum hours worked per day amounted to 49 hours on 21 October 2009. Surely the longest day in his life!

13. His explanation is that he had an extremely busy practice, he worked till late at night, over weekends and on holidays. He only took Sundays off. Under the circumstances his administration was prone to lack behind. He kept a time sheet in the front of each brief. He normally marked time as he worked. He wrote down the time spent but was not in the habit of writing down the specific day. He sometimes recorded his preparation later in fhe week when it was still easy to recollect what had been done. He normally invoiced his attorneys on Fridays or every second Friday by sending his time sheets to his secretary. Due to the fact that he had no record when the preparation was actually done he normally recorded his total preparation on fhe brief a day or two before the trial date. In some cases he kept proper records and allocated fees accordingly. In certain instances the date reflects the actual day when the work was done and in others the date on the invoice reflects work done previously. Due to his methodology it is not possible to indicate on what specific calendar day the work was done.

14.This is a glib explanation. It amounts to this: though each invoice sets out a specific date or dates when work was done, they do not reflect fhe truth. The truth lies elsewhere, but where, one cannot say. The hours complained of are a composite result of a number of invoices in different cases, in each case a few hours. There is no attempt to rearrange the information to prove that when all is properly set out, there was no overcharging. One would have expected such an attempt to have been made in view of fhe seriousness of the prima facie facts. But then, rearranging the deck chairs will probably not prevent the Titanic from sinking. To merely say, as Mogagabe in effect does, that if is ail due to erroneous bookkeeping is not in these circumstances an acceptable answer. It indicates that knowingly over a long period he gave Incorrect information to his attorneys. This detracts from his integrity. It is probable that Mogagabe did not work the hours which he recorded and that he falsely represented to the clients that he in fact did consult or prepare for the recorded number of hours. This is nothing less than fraud.

15. We have taken due note of the personal circumstances of Mogagabe. He comes from a poor background and through untiring effort has worked himself up to a position of eminence. Alas, it is sad when one who has striven so hard to reach the top, slips and fails into a crevasse. In this case one so deep that we are unable to pull him out.

16.There is no dispute that fhe amount of Rl 916 800 is a fair reflection of his ill-gotten gains. We were informed by counsel acting for Mogagabe that considerable sums were still owing to him in respect of fees for 2009 and that these should be set off against fhe ill-gotten gains. The amounts mentioned were: Owing by the RAF: R870

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017.00 and owing by plaintiffs' attorneys but payable by the RAF to them: R881 671.80. A total of Rt 751 688.80. We have no means of checking this and in the absence of the RAF and the attorneys we do not express an opinion thereon. Set off will operate. How this is to be structured is a matter between Mogagabe, fhe Fund and the attorneys, in passing we mention that it is strange that these sums are still outstanding in view of the provisions in the rules for blacklisting defaulters. Probably Mogagabe also did not comply with this rule.

17.Apart from breaching the rules of the Pretoria Bar repeatedly, Mogagabe in addition charged for work which he did not do. He is not a fit and proper person to practice as an advocate.


1 The Respondent Daniel Poli Mogagabe is ordered to pay to the Road Accident Fund the amount of Rl 916 800.00; 2 The Respondent's name is removed from the roll of advocates. 3 The Respondent is ordered to pay the costs of the First and Second Applicants on the atforney and own client scale.

Respondent LEONARD FRANCOIS BEZUIDENHOUT Case no: 72290/2010

1. The Pretoria Bar applies to have fhe name of the Respondent (Bezuidenhout) who became a member in 1986, struck from the roll of advocates together with an order that he pay the costs of the application on the scale as between attorney and own client. The charges are: 819 counts of contravention of rule 2.6 of fhe Code of Conduct (the rule against double briefing); and 819 counts of contravention of rule 7.1.1 of the Code of Conduct (overreaching).

2. The present application was not preceded by a disciplinary hearing in terms of fhe rules of the Applicant. Such a hearing is, however, not a pre-condition for an application of this nature.

a. Throughout the proceedings Bezuidenhout was obstructive. His view is that the relevant rules are "antiquated, it's no longer what happens in day to day life".5 1 He did not willingly participate in the disciplinary process. He did not produce his books when requested to do so and ultimately together with MCC De Klerk, T Pillay, PG Leopeng and CG Jordaan

5 1 Expressed dur ing a meet ing wi th the pro forma prosecutor on 23 November 2009 66

threatened the deponent to the founding affidavit with section 14 of the Constitution of fhe Republic of South Africa.

On 24 May 2010 he requested a postponement of the proceedings of the Vorster committee, which request was granted. When eventually he appeared before the committee he requested fhe committee to recuse itself alleging that it was biased having in fhe interim found against Botha & De Klerk. The committee refused fhe application for recusal and Bezuidenhout withdrew from the proceedings. He threatened a review application. The Bar Council initially elected to rather convene a third disciplinary committee to deal with fhe case against him but subsequently decided to bring the present application. During this application he twice sought a postponement on grounds without merit. His attitude during argument was that his actions were morally justified, as they would be permissible under the Johannesburg Bar rules. We have shown that that is wholly incorrect. He has shown no remorse.

3. Bezuidenhout is under a duty to assist the Court In its inquiry so as to enable it to come to a correct and just evaluation.5 2 He failed in his duty in that he did not comply with the request of the Bar to place before the Court his VAT invoices for the period 24 November 2009 to the date the application was launched. The later invoices are relevant to the question whether he is persisting in the conduct that led to the investigation which in turn led to this application. The request was proper. In terms of its rules the Bar has a right to call for its members' books and it had a reasonable apprehension that the misconduct was continuing. In these proceedings the Bar pertinently raised the absence of remorse on the part of Bezuidenhout.

4. When we eventually ordered him to produce his books, if turned out that the misconduct had continued. This is dealt with below.

5. Mr Reiser SC who appeared for fhe Bar with Mr Vilakazi, relied in this application on the charges set out above which are found in annexure PE24 of the founding affidavit, but argued the arithmetics of the application on the analysis by Bezuidenhout himself in annexures FB40 and FB41 to the answering affidavit. To avoid any factual dispute we will make our findings on the facts as presented by Bezuidenhout.

6. The present case is a distillation of fhe facts reflected in the VAT invoices produced by Bezuidenhout for the period February to November 2009. Mr Reiser pointed out that the VAT invoices are extremely sloppy. As far as time based fees (preparation, pre-trial conference and consultations) are concerned the duration and time are, except in a single instance, not reflected. In one instance fhe name of Bezuidenhout is omitted. The contents of the invoices are not in dispute. It is

5 2 K leynhans supra 853 F-H

accepted to be a reflection of the work done by the Respondent during the period.

There are therefore no factual disputes.

7. Annexure FB40 is according to Bezuidenhout a correction of the spread sheet prepared by the pro forma prosecutor Mr NGD Maritz SC and annexure FB41 a correction of the analysis prepared by a chartered accountant on behalf of fhe Bar, Mr Van Wyk. In annexure FB41 Bezuidenhout allegedly removed cases in which he was briefed at court after he had done his day's work. The total is then 871 (as opposed to Mr Van Wyk's 988. In FB40 he credited himself with one (legitimate) trial per day and set out the additional trials. The total of additional trials is 651.

8. Annexure FB40 reflects that on Bezuidenhout's version he over a period of 152 court days appeared in 803 trials. Should one approach the facts on the basis that he was entitled to appear in 1 trial per day, he appeared in an additional 651 trials, averaging 5.25 trials or 4.25 additional trials per day. On his version he on only 8 of the 152 days did not double brief. He on 11 days had 10 or more trials. The dates thereof are 18 May, 1 June, 28 July, 6 August, 18 August, 4 September, 9 September, 18 September, 19 October, 27 October and 9 November. The high wafer mark was 19 additional trials on 9 September 2009. On that date his fees totalled R237 400,00. On the others his fees totalled R124 800,00 Rl 12 800,00, Rl 12 800,00, R143 000,00, R120 000,00, R124 800,00, R175 600,00, R133 200,00, R152 000,00 and R120 000,00 respectively. That much appears from annexure FB41.

9. According to annexure FB41 Bezuidenhout appeared in 871 trials during 2009 debiting an amount of R10 208 500,00 (VAT exciusive).

10 A reading of the VAT invoices reflects that throughout 2009 he on ail occasions was briefed on trial (as opposed to on settlement) and debited a day fee (as opposed to an hourly fee on settlement). His trial fee was R12 000,00 when appearing for a Plaintiff and R5 600,00 when appearing for the RAF. He in 73% of the trials appeared for Plaintiffs.

All this in flagrant disregard of the circular of 1 November 2006.

11 .A further analysis of his VAT invoices reflects that of all the trials in which he had been briefed during 2009 only 34 were not for or against the RAF. Of all fhe trials Bezuidenhout did for or against fhe RAF (871 - 34 = 837) he consulted in only 36. More important is the fact that in,801 (837 - 36) RAF trials there was no consultation at ail. He consulted in only 4.4% of his RAF trials. In 95,6% he did not. (There were four more trials in which there were consultations. They have this startling feature that in three the consultation only took place after the first trial day and in the remaining one after the second trial day.)

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12. It follows that with negligible exceptions the trial briefs Bezuidenhout accepted were never intended by him to go on trial. If was Intended to settle the matters. It is difficult to see how he could have done justice to his clients' cases.

13. He could not have operated without the connivance of colleagues who broke rule 1.6 which obligated them to report misconduct. The assumption in the circular of November 2006 was correct: "6. The widespread contravention of the Code of Conduct in this regard is

presumabiy also facilitated by the fact that counsel regularly appearing in these matters accommodate one another to prevent that such conduct is exposed and a member is called to account... Members are therefore urged to report such matters to the Professional and Ethics Committee."

14. it is significant that during the period under consideration there was no charge against Bezuidenhout pertaining to a specific incident of double briefing save one. He likewise did not lay any charge against any counsel appearing against him in RAF matters. The one instance where he was reported to the Bar Council was by adv JT Roos in respect of alleged double briefing on Monday 9 November 2009. Bezuidenhout committed perjury when he dealt with such charge in his answering affidavit. In paragraph 24.4.1.11 he stated: "/ was not involved in another matter, as he now states, and I reject his allegations in this regard". He called the allegations of Roos "spurious".

The truth is that on 9 November 2009 he was involved in 10 trials, 5 of which were standing over from Friday, 6 November when he had 6 trials.

15. An advocate who lies under oath in defending himself in an application for the removal of his name from the roll cannot complain if his perjury is held against him when the question arises whether he is a fit and proper person to continue practicing.5 3

16. Double briefing on fhe scale and in the manner found here can only be ascribed to dishonesty. Only a naive person would believe that fhe modus operandi of Bezuidenhout was aimed at addressing fhe clogging of the trial roll, as he alleges.

17. It is practice at the Bar that when counsel is briefed on trial (as was the case with the Respondent) counsel is entitled to a full day fee irrespective of the time spent at court on the date of the trial. The day fee is intended to compensate counsel for the fact that the full day is to be devoted to the trial and takes into account that counsel was precluded from taking another trial for that day. A trial fee was wholly inappropriate. Bezuidenhout in marking a trial fee knowing that no pre-trial conference had been held, resulting in it being impossible to proceed with the trial

5 3 Kekana supra 655G-J 69

and/or thai he had not consulted with any witnesses (be it his client or other witnesses or experts) and/or that he simply would not be available to proceed to trial (because he had one or five or ten or nineteen additional trials) should fhe Court or his opponent call on him to proceed, on at fhe very least 651 occasions overreached his clients. He was in breach of his undertaking to charge a legitimate fee. He took an undue advantage of his clients. If is dishonest to charge a trial fee if a trial was never a possibility.

18. It is no excuse to say that he was briefed on trial. The client on the probabilities envisaged his advocate would use his best endeavours (which encompassed leading evidence etc. if need be) to bring about the best conceivable result. This was not what Bezuidenhout envisaged would happen. He knew he would not and could not proceed with the trial.

19.It also is no excuse (as Bezuidenhout does) to point to the fee itself (whether it be R l2 000,00 or R5 600,00) and allege it is a reasonable or too low a fee. He should have debited on an hourly basis which is fhe correct basis in respect of settlement. Mr Reiser calculated that Bezuidenhout debited R70,000 per day average for each of fhe 152 court days in the relevant period. Had he settled for 10 hours per day (which is totally impossible) his takings would have been R 12,000 per day. The R70,000.00 per day is calculated on the total earnings of the Respondent for 2009 (Rl0,208,500.00) divided by the 152 Court days. The fact that no fee list of Bezuidenhout was taxed off is of no consequence.

20.The Respondent acted in an unprofessional, unworthy and dishonourable way. By debiting and accepting more than one trial fee per day the Respondent was acting dishonestly. He is guilty of overreaching on a consistent basis over a considerable period of time.

21 .The main thrust of his argument seems to be that he amongst other colleagues did a public duty in assisting in an unbearable situation resulting from fhe clogging of the roll. The simple answer to such approach is that he could have done so within the rules of fhe Bar by accepting a brief or briefs on settlement. Had he done so, there would have been no double briefing and no overreaching. He didn't do so because it would have been to his financial prejudice, if he was intent on addressing a problematic situation and nothing else, he would have refrained from charging a day fee in respect of the days trials stood down for purposes of settlement.

22. Bezuidenhout alluded to the fact that fhe system would have collapsed had the 13 members involved been limited to taking only one trial a day. The fact of the matter is that the system has not collapsed after the clamp down.

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23. A disconcerting fact came to light when we ordered Bezuidenhout to produce his books to substantiate certain deductions he wanted to make from the ill-gotten gains we were debating. It is that he continued with his misconduct at least as late as June 2011. The details are set out in exhibit 1 6 (heading: "Fakture 2011") (He did not supply invoices after 7 June 2011). The picture that emerged is as follows: February 2011 20 additional trial matters on 9 days (most: 6 on one day) March 2011 9 additional trial matters on 6 days (most: 2 on one day) April 2011 13 additional trial matters on 6 days (most: 4 on one day) May 2011 36 additional trial matters on 10 days (most: 7 on one day) to 7 June 2011 4 additional trial matters on 4 days (most: 1 on one day) A firm of attorneys that had been double briefing him in 2009 continued this practice in 2011. For example, in May for 7 days he received multiple briefs ranging from 2 to 4 additional ones. (Due to time constraints the situation in 2010 was not investigated. St fell outside the period of the charge. The probabilities are that his misconduct also persisted in 2010 but we make no finding in this respect.)

24. When it came to our knowledge that the practice of double briefing was being continued by Bezuidenhout, we suspended him from practice pending fhe final judgment in this case.

25. How could Bezuidenhout take fhe risk of double briefing on the scale he did? What if he were found out by his instructing attorney? The answer is simple. There was a group of attorneys who regularly over the same period of time briefed him on trial on behalf of (almost exclusively) Plaintiffs. Often with numerous matters for one day. They patently did not intend their matters to go on trial either. If the instructing attorney was not a problem, what about the attorney and counsel acting on behalf of the other party? They were in the same boat, if is only natural that they would help each other out. The one hand washes fhe other. All in fhe knowledge that codes of conduct are not complied with.

26. Bezuidenhout has discredited fhe profession of advocates. He has relegated the Bar to a mere money getting trade. He is not a person of integrity. He is not fit to be an advocate. There is no indication that he will rehabilitate himself.

27. If Is only fair that an order be made that he return fhe wages of sin. To calculate this is not an easy matter in view of the fact that Bezuidenhout declined to go under oath to substantiate an allegation by him that some R4 million of his earnings of R10 million plus is bad debt. On his behalf a list was handed up. (It was handwritten and included items up to fhe end of the financial year ie February 201 OThis elicited the remark from the Bench that if did not tally with the period under consideration and contained double briefings. It seems to have been replaced ex post facto by a typed list, which is now marked exhibit 16, with heading: Advokaaf LF Bezuidenhout

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Slegte Skulcl 2010). Just before we adjourned a further list was handed up (marked exhibit 19, with the same heading but which runs till 19 November 2011). We were not addressed on the lists but were told the first one had been accepted by the Receiver of Revenue. There are, however, the following problems: Bezuidenhout did not confirm the correctness of the lists under oath or at all. He is not a man of integrity and we are not prepared to accept lists emanating from him at face value. The lists contain numerous names (nearly 200 in fhe case of exhibit 19) under the heading: "Ref" The question arises: How can individuals be his debtors where he receives his briefs from attorneys? The latter are his debtors. There are none on the list. Why are there bad debtors at all? Bezuidenhout debited fees which were taxed and were paid or payable by the RAF, whether he acted for or against fhe Fund. The fact that the Fund is late in paying does not make if a bad debtor. Without an explanation under oath we do not attach any credence to these lists of alleged bad debts.

28. We therefore have to make do with what we have. If Bezuidenhout is unhappy with the result, he has himself to blame. He had a duty to assist us and failed to do so. At the commencement of the hearings we handed down a calculation (exhibit 2, headed calculations) which took as basis the double briefs which were common cause multiplied with the daily fee of counsel, in the case of Bezuidenhout R 12,000 for plaintiffs and R5,600 for the RAF. It was not disputed that 73% of his cases were for plaintiffs. This gives fhe following calculation of the wages of sin: 73% of 651 = 475 x Rl 2000 = R5 700 000 27% of 651 = 176 x R5600 = R985 600

R6 685 600 29. In fhe calculation (exhibit 2) a deduction was made for the hourly tariff on

settlement. Two hours per case were taken as basis, but it was stated that in some cases the 2 hours seemed over-generous. This is such a case. In settling 3 or 4 or 10 or 19 cases per day Bezuidenhout did not waste 2 hours per case. On average one hour seems generous and will be applied. The allowance for fhe settlement fees he would have earned is then calculated as follows: 73% of 651 x R1200 = R570 000 27% of 651 x R700 = R123 200

R693 200 The end result is (R6 685 600 - R693 200) R5 992 400 which sum reflects fhe ill-gotten gains Bezuidenhout received through his breach of the rules in the period February to November 2009. These were received to the detriment of fhe RAF and have to be repaid.

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F R O M ; K U 3 F P f c NO. J 0 1 2 32&3iaF H o v , 1 2 goes 9 ? * . 5 B P r t

We m a k e f h e following o r d e r *

1 , The Respondent Leonard Francois Bezuiaenhouf is ordered to pay to. the Road Accident fund an amount of 992 ^00.00,

2, The name of the' Respondent is removed from he rail of advocates,

3, The Respondent is to pay the costs of fhe Pretoria Bar on the attorney and own

Acting Judges of the? High Court

Additional information:

For First Applicant: Advocates: MR Madlanga SC, LE Vilakazi; Attorney: Roofh & Wesseis Attorneys

For Second Applicant: Advocates: H Epstein SC, A Bester, C Malema, R Wilson Attorney. Bemhard van der Hoven Attorneys

For Geach: Advocate: FH Terblanche SC, EC Labuschagne SC; Attorney: N Geach Attorneys

For Guldenpfennig: Advocate: FH Terblanche SC, E Botha; Attorney: N Geach Attorneys

For Piiiay: Advocate: FH Terblanche, H Vermaak, A Politis; Attorney: N Geach Attorneys

For Upton: Advocate: FH Terblanche, WJ Bofha; Attorney: N Geach Attorneys For Williams: Advocate: JH Stroh SC; Attorney N Geach Attorneys For Botha: Advocate: JF Mullins SC, RL Kayingo; Attorney Klagsbrun de Vries For Seima: Advocate: JF Mullins SC, RL Kayingo; Attorney N Geach Attorneys For De Klerk: Advocate PP Delport SC, GT Avvakoumides;

Attorney: Snyman de Jager For Jordaan: Advocate: BC van den Heever SC, WW Geyser, C Woodrow;

Attorney: N Geach Attorneys For Van Onselen: Advocate: BC van den Heever SC, WW Geyser, C Woodrow;

Attorney: N Geach Attorneys For Leopeng: BH Swart SC; Attorney: N Geach Attorneys For Mogagabe: Advocate: EM Coetzee SC, HJ de Wet, LC Jansen van Vuuren;

Attorney: 1J Croukamp Attorneys For Bezuidenhout; Advocate: PP Delport SC; Attorney: Snyman de Jager

Record: (Africa Transcriptions (Pty) Ltd Tel: 012 326 1881

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