Botha v Law Society of the Northern Provinces

The three appellants were attorneys who practised in partnership under the name De Jongh & Pienaar. The first and second appellants were also conveyancers. The Law Society of the Northern Provinces brought an application under s 22 of the Attorneys Act 53 of 1979 alleging three categories of misconduct: (1) their books of account reflected a trust shortage exceeding R12m and were chaotic - not properly kept, not up to date, containing large-scale mistakes with incorrect procedures; (2) they touted for work by making payments to estate agents for referrals; and (3) numerous complaints of unprofessional conduct in dealings with clients and colleagues. The High Court suspended them from practice for two years. The appellants appealed seeking a lesser penalty (a fine and suspended suspension), while the respondent counter-appealed seeking an order striking them from the roll.

• Whether the appellants' conduct rendered them unfit to continue practising as attorneys and conveyancers
• Whether the High Court exercised its discretion correctly in imposing a two-year suspension rather than striking the appellants from the roll
• What standard of bookkeeping and honesty is required of attorneys
• Whether dishonesty in disciplinary proceedings warrants striking off rather than suspension

1. The appeal was dismissed. 2. The counter-appeal was upheld. 3. The High Court order was set aside and replaced with an order: (a) striking all three appellants from the roll of attorneys; (b) striking the first and second appellants from the roll of conveyancers; (c) requiring them to hand in their certificates of enrolment; (d) authorizing the sheriff to attach certificates if not surrendered within two weeks; (e) ordering them to pay costs jointly and severally on an attorney-client scale, including costs of two counsel and the qualifying fees of the accountant Mr L Marais.

1. Attorneys have an absolute duty to keep proper books of account in accordance with the Attorneys Act and rules; no excuse (expansion of practice, software problems, staff changes) justifies failure to maintain proper financial records, as the public is at risk. 2. Dishonesty by an attorney in disciplinary proceedings demonstrates unfitness to practise and justifies striking off rather than suspension. 3. Where an attorney is found not to be a fit and proper person to continue practising, suspension from practice should not be suspended, as this creates an anomalous situation where someone unfit to practise is allowed to continue practising. 4. The primary purpose of disciplinary proceedings under s 22 is protection of the public, not punishment of the attorney. 5. Striking off is appropriate where character defects (dishonesty, lack of integrity, lack of insight) cannot be remedied during a fixed period of suspension and the public cannot be adequately protected by suspension.

The Court noted that the distinction created by the appellants between their firm and a company called Red Lager appeared artificial, raising suspicions about their financial arrangements. The Court also observed that payments by attorneys to estate agents for expenses like advertising and business cards, described as 'sponsorships' or 'entertainment', might amount to touting, but found it unnecessary to decide this point given the clear findings of dishonesty. The Court commented that the High Court had erred in focusing on aggravating and extenuating features as if imposing a criminal sentence, when the proper focus in disciplinary proceedings is protection of the public. The judgment emphasized that attorneys cannot rely on the Plascon-Evans principle (requiring acceptance of reasonable denials in motion proceedings) where their denials are clearly untenable and contradicted by documentary evidence.

This case reinforces the high standards of honesty, integrity and proper bookkeeping required of attorneys in South Africa. It establishes that dishonesty in disciplinary proceedings is a particularly serious matter that warrants striking off rather than mere suspension. The judgment emphasizes that the primary purpose of disciplinary proceedings is protection of the public rather than punishment of the attorney. It clarifies that suspension of practice should only be suspended where the attorney is found fit and proper but the court still wishes to penalize; where unfitness is established, striking off is the appropriate remedy unless there is confidence the attorney can reform. The case also illustrates the degree of openness and cooperation required in disciplinary proceedings - mere denials, evasions and obstructionism are unacceptable.