The appellant, an attorney practising in Gauteng, was struck from the roll by the Pretoria High Court on application by the Law Society of the Northern Provinces under s 22(1)(d) of the Attorneys Act 53 of 1979. The application was based primarily on serious irregularities in the administration of his trust account, including failure to submit audit reports, practising without a fidelity fund certificate, using the trust account for business purposes, inadequate accounting records, and an incident where trust funds received for a conveyancing transaction were temporarily insufficient to pay a trust creditor (Mrs Hairs), resulting in a dishonoured cheque. Additional misconduct included failure to respond to the Law Society’s correspondence and failure to pay other practitioners’ fees timeously. The appellant explained his conduct by reference to long absence from practice, financial hardship, lack of bookkeeping skills, and inexperience with trust accounts. Importantly, there was no finding that he acted dishonestly.
The appeal was upheld with costs. The order striking the appellant from the roll was set aside and replaced with an order suspending him from practice for one year, together with ancillary orders. After the suspension, the appellant was prohibited from practising for his own account for a further two years, and thereafter only with leave of the court. Other aspects of the High Court’s order were confirmed.
This case clarifies the proper application of s 22(1)(d) of the Attorneys Act, particularly the need for courts to distinctly and properly exercise the third discretionary stage when deciding between suspension and striking-off. It reinforces the principle that striking-off is a severe sanction, generally reserved for cases involving dishonesty, and that serious but non-dishonest misconduct may justify suspension with protective conditions rather than permanent removal from the roll.