Albert Jacob van Eeden v Die Prokureursorde van die Noordelike Provinsies

The appellant was admitted as an attorney in 1986 and struck from the roll of attorneys on 4 March 1996. He practiced with his father under the name Van Eedens in Pretoria from 1989. A prominent client, Deelgroei Eiendomme (Edms) Bpk, terminated their mandate in August 1995 due to failure to pay over funds received from purchasers after property transfers. Court orders were obtained against Van Eeden to pay over funds. Following multiple client complaints, the Law Society appointed Van Rooyen to audit the books, who found a provisional trust shortage of R2.218 million. The Law Society obtained an urgent suspension order on 22 September 1995, and the appellant was sequestrated on 4 October 1995. Final sequestration was granted on 13 December 1995. The appellant was struck from the roll on 4 March 1996 based on the trust shortage and sequestration. In June 2003, the appellant applied for re-admission under section 15(3) of the Attorneys Act 53 of 1979, claiming there never was a trust shortage. He alleged that all accounting books and records for the eight years preceding September 1995 were stolen from the firm's offices during the period 2-14 September 1995 when the offices were under control of the provisional curator, Mr Wilsenach. The curator provided uncontested evidence that no theft could have occurred during this period as he had secured the premises with locks and 24-hour security guards, only allowing access on one occasion to other attorneys to remove files while he was present.

• Whether the appellant was a fit and proper person to be re-admitted as an attorney under section 15(3) of the Attorneys Act 53 of 1979
• Whether the appellant discharged the onus of proving no trust shortage existed
• Whether the alleged theft/disappearance of accounting books was credible
• Whether the appellant's conduct in relation to the accounting books demonstrated unfitness to practice

The appeal was dismissed. The appellant was ordered to pay the first respondent's costs on the attorney and client scale.

An attorney who deliberately conceals or removes accounting books and records to prevent regulatory inspection and investigation into trust shortages, provides false explanations about their whereabouts, and persists in dishonest conduct during re-admission proceedings, is not a fit and proper person to be re-admitted to practice under section 15(3) of the Attorneys Act 53 of 1979. An applicant for re-admission bears the onus of proving fitness and proper character, and dishonest conduct in the re-admission proceedings themselves demonstrates unfitness, regardless of whether the underlying trust shortage is definitively proven.

The court noted but did not decide the question of whether the finding of a trust shortage in the original striking-off proceedings constituted res judicata, as this issue was not raised by either party in either court. The court also observed that the custom in cases of this nature is to order costs on the attorney and client scale where the appellant is unsuccessful. The court noted that the appellant declined the trial court's offer to refer the question of the disappearance of the books to oral evidence, which was a significant factor in the assessment of credibility. The judgment also contains observations about the inherent implausibility of the theft scenario, questioning why an alleged thief would steal old accounting records but not valuable equipment like computers, photocopiers and law reports that were in the offices.

This case establishes important principles regarding re-admission applications by struck-off attorneys under the Attorneys Act. It demonstrates that courts will scrutinize not only the original misconduct but also the applicant's conduct and credibility in the re-admission proceedings themselves. The case illustrates that deliberate concealment of accounting records to thwart regulatory investigations, coupled with false explanations and contradictory evidence, constitutes fundamental unfitness to practice. It reinforces the high standard of honesty and transparency expected of legal practitioners, particularly in relation to trust accounting obligations. The judgment emphasizes that an applicant for re-admission bears the onus of proving fitness, and dishonest conduct in attempting to meet that onus will be fatal to the application. The case also demonstrates the court's willingness to draw adverse inferences from uncontested evidence and to assess credibility based on the probabilities and internal contradictions in an applicant's case.