Van der Berg v General Council of the Bar of South Africa

The appellant, a senior advocate of long standing, was struck from the roll by the Cape High Court on application by the General Council of the Bar (GCB). The complaints arose mainly from his professional relationship with Mr Jürgen Harksen. First, while representing Harksen in sequestration-related litigation, the appellant settled affidavits asserting the existence of a foreign trust (SCAN 1000) and trustees, despite having personally investigated the matter in Switzerland and discovered facts strongly suggesting that the alleged trustees were fictitious and that affidavits previously filed were fraudulently attested. He nonetheless allowed Harksen to repeat assertions about the trust without disclosing his own knowledge of these material facts to the court. Secondly, the appellant received substantial fees directly from third parties and entities not acting as proper instructing attorneys, contrary to the referral rule, and without adequate records to justify their reasonableness. Further complaints concerned his involvement in later fraudulent investment schemes linked to Harksen, including a supposed Chase Manhattan fund.

The appeal was dismissed. The order striking the appellant’s name from the roll of advocates was confirmed.

The case is a leading authority on advocates’ ethical duties in South African law. It clarifies that while advocates are not judges of their clients’ cases and may present evidence they do not believe, they may never knowingly mislead a court or allow it to be misled by omission. It also reaffirms the referral nature of advocates’ practice and the prohibition on receiving fees otherwise than through a properly instructing attorney.