Swartzberg v The Law Society of the Northern Provinces

Isaac Swartzberg was originally admitted as an attorney on 18 October 1955 and practised in Pretoria for approximately 44 years. On 13 August 1999, his name was struck from the roll of attorneys by Mynardt J following an application by the Law Society of the Northern Provinces. The grounds for striking-off included: (1) failure to keep proper books of account and trust monies over a protracted period, resulting in deficiencies of approximately R249,000; (2) devising a stratagem to conceal shortages from at least 1996 until August 1998, deceiving his auditor; (3) using trust monies from one client to pay another client (Ms Uys); (4) overreaching a client (Mr Jacobs); (5) failing to repay a loan from a client (Ms van der Linde); and (6) most seriously, stealing R198,356.35 from his long-standing employee Mr Bambise's deceased estate trust account in 1996. The appellant was subsequently convicted of theft of R220,000 from his trust account in 2000, fined R100,000 and ordered to repay R220,000 to the Fidelity Fund. He made an unsuccessful application for readmission in August 2002 (withdrawn) and another in 2004 which was dismissed by Daniels J. The current application for readmission was brought in December 2005 when the appellant was 77 years old.

• Whether the appellant had discharged the onus of proving genuine, complete and permanent reformation of character
• Whether the appellant was a fit and proper person to be readmitted as an attorney under section 15(3)(a) of the Attorneys Act 53 of 1979
• Whether the court should exercise its residual discretion to refuse readmission even if the appellant was found to be a fit and proper person
• What weight should be given to the attitude of the Law Society in applications for readmission
• What evidence is required to establish rehabilitation and reformation in cases involving serious dishonesty

The appeal was dismissed with costs. The majority upheld the decision of the Pretoria High Court (Bosielo J and Pretorius J) refusing the appellant's application for readmission to the roll of attorneys.

Where an attorney has been struck off the roll for serious, deliberate and persistent dishonesty involving theft from trust accounts, the onus to prove genuine, complete and permanent reformation on a balance of probabilities is particularly onerous. To discharge this onus, the applicant must: (1) properly and correctly identify the specific defect of character or attitude involved; (2) demonstrate cognitive appreciation of that defect as a prerequisite to any true and lasting reformation; (3) allow sufficient time since the original striking-off for critical introspection and reflection proportionate to the gravity of the misconduct; (4) provide cogent evidence of reformation, ideally including evidence of honestly handling money without supervision over time; (5) make full and frank disclosure of all relevant facts; and (6) demonstrate that atonement was spontaneous and voluntary rather than contrived for self-preservation. The use of "may" in section 15(3) of the Attorneys Act confers a residual discretion on the court to refuse readmission even where an applicant is found to be a fit and proper person, distinguishing readmission from initial admission under section 15(1).

Ponnan JA made several non-binding observations: (1) Where professional misconduct consists of theft, it should be relatively easy to establish complete and permanent reformation by placing evidence before the court that the individual has handled money without supervision for some length of time and proved his honesty; (2) A person struck off the roll for conduct involving serious moral turpitude must realize that prospects of readmission will be "very slim indeed" and only in the most exceptional circumstances, where he has worked to expiate the results of his conduct and satisfy the court of complete change, will a court consider readmission at all; (3) It may be postulated that the nature of the appellant's original lapse spoke of a defect of character incapable of reformation, though the court did not need to go that far; (4) The question confronting the court is not whether the appellant has been sufficiently punished for his misdeeds but whether he can safely be trusted to faithfully discharge all duties and obligations of an attorney; (5) The court opened with a quotation from Reginald L Hine's "Confessions of an Uncommon Attorney" suggesting that law practitioners are sometimes "driven to do other things - preferably illegal - to preserve their health of mind," noting that while one recoils at this indictment, the case exemplified conduct "wholly incongruous with the calling of an honourable profession."

This case establishes important principles regarding readmission of attorneys struck off for dishonesty. It clarifies that: (1) Section 15(3) of the Attorneys Act confers both a discretion to determine fitness and a residual discretion to refuse readmission even where fitness is established (using "may" rather than "shall"); (2) The onus on an applicant for readmission is to prove on a balance of probabilities genuine, complete and permanent reformation; (3) In cases of serious dishonesty, particularly theft, more cogent evidence of reformation is required, ideally including evidence of handling money without supervision; (4) Full and frank disclosure is essential in readmission applications; (5) Mere expressions of contrition and repentance, even if genuine, do not without more establish reformation; (6) The time period since striking-off must allow for adequate introspection and reflection proportionate to the gravity of the misconduct; (7) Courts must be astute to protect the prestige and dignity of the legal profession and public trust in attorneys. The case demonstrates the high threshold for readmission where the original misconduct involved persistent dishonesty and breach of trust, particularly theft from clients and vulnerable parties.