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

Johan van der Berg was a senior advocate with over 30 years' experience at the Cape Bar (16 years as Senior Counsel) who represented Jürgen Harksen, a German national who arrived in South Africa in 1993 fleeing creditors. Harksen had persuaded various European creditors to invest with him claiming he had access to a large trust fund (SCAN 1000) worth approximately DM1.85 billion, but when investors sought repayment, the fund appeared to be fictitious. During sequestration proceedings in 1995, Van der Berg traveled to Switzerland with an attorney to verify the existence of the alleged trustees. He met one alleged trustee (Siegwart) who admitted to forging attestations to affidavits of two other alleged trustees (Johannson and Arnemann), who never appeared despite promises. Van der Berg concluded the affair was "ridiculous" and that Siegwart was "obstructive, dishonest and fraudulent." Despite these reservations, Van der Berg subsequently settled an affidavit for Harksen in April 1996 asserting the existence of SCAN 1000 and the trustees, without disclosing his Swiss experience. Van der Berg also received fees totaling £25,000, R150,000 and R100,000 through a Swiss attorney (Studer) rather than through a South African attorney. In 2001, while semi-retired and pursuing viticulture, Van der Berg accepted a mandate purporting to distribute a US$44 billion fund held by Chase Manhattan on behalf of Global Finance SA, for a fee of US$22 million. He signed a notarial document falsely stating he had received cheques and a letter of credit from Chase Manhattan, which he had not. The entire Chase Manhattan fund was another elaborate fraud orchestrated by Harksen. Van der Berg later provided an affidavit to the Director of Public Prosecutions that omitted certain fees he had received.

• Whether an advocate may settle an affidavit containing assertions he suspects are false
• Whether an advocate has a duty to disclose to the court material facts within his own knowledge that affect the truthfulness of his client's evidence
• Whether an advocate may accept fees other than through an attorney in litigation matters
• Whether acceptance of a mandate to distribute funds connected to a client with a history of fraudulent schemes is detrimental to the reputation of the Bar
• Whether making false statements in a notarial document, even without fraudulent intent, constitutes professional misconduct
• What standard of proof applies in disciplinary proceedings against legal practitioners
• What constitutes sufficient grounds for striking an advocate's name from the roll

The appeal was dismissed with costs, including costs of three counsel (limited to disbursements for counsel acting for the GCB). Van der Berg's name remained struck from the roll of advocates.

1. An advocate may present his client's evidence even if he suspects or believes it to be false—the advocate is not required to judge his client's case, as that is the function of the court. 2. However, an advocate has a paramount duty not to mislead the court. Where an advocate personally discovers material facts that bear on the truthfulness of evidence he permits to be placed before the court, he must ensure those facts are also disclosed; without such disclosure, the evidence misrepresents the true state of affairs. 3. When an advocate departs from acting on instructions and discovers facts himself, he risks becoming a material witness and compromising his ability to perform his proper function. 4. In litigation matters, advocacy is a referral profession: advocates must act through attorneys and may only receive fees through attorneys. This applies to actual attorneys properly instructed, not nominal foreign attorneys. 5. An advocate's duty to the court is paramount and overrides duties to the client. An advocate must not make false statements or knowingly conceal the truth from the court. 6. Professional misconduct may be established even in the absence of fraudulent intent where an advocate makes false statements or lends his professional standing to statements or schemes that have the potential to mislead or facilitate fraud. 7. In disciplinary proceedings, the inquiry is not what constitutes appropriate punishment but what is required for the protection of the public in the future.

1. The Court noted the undesirability of attempting to resolve factual disputes on affidavits alone in disciplinary proceedings, and observed that courts may need to call for oral evidence or cross-examination of deponents in appropriate cases. 2. The Court expressed some uncertainty as to whether rules regulating professional fees apply to fees earned from other occupations (outside the practice of advocacy). 3. The Court observed that advocates who depart from the salutary practice of confining themselves to acting on instructions "invite ethical conflicts" because they run the risk of becoming material witnesses. 4. The Court noted that an advocate's proper course, upon discovering material facts that must be disclosed, is to inform the client that if the client persists in certain assertions, the advocate's own evidence must also be disclosed; if the client instructs against disclosure, the advocate must withdraw. Explanations from the client cannot make the advocate's knowledge of facts disappear. 5. Nugent JA cited with approval the observation that the advocate's role fulfills "a necessary role in the proper administration of justice" and that "the right of every person to have a dispute resolved by a court of law would be seriously compromised if an advocate were to be required to believe the evidence of his client before being permitted to present it."

This is a leading South African case on the professional duties of advocates. It provides authoritative guidance on several critical issues: 1. **Clarifies the limits of the "cab rank rule"**: While advocates must present their client's case regardless of personal belief in its truth, they have an overriding duty not to mislead the court. 2. **Establishes the duty of disclosure**: When an advocate personally discovers material facts (beyond mere instructions) that bear on the truthfulness of client evidence, those facts must be disclosed to the court or the advocate must withdraw. 3. **Reinforces the referral principle**: In litigation, advocates must act through attorneys and may only receive fees through attorneys (not nominal foreign attorneys). 4. **Addresses the tension between duties to client and court**: The judgment emphasizes that while advocates owe duties to clients, their duty to the court is "paramount"—they must not "consciously mis-state the facts" or "knowingly conceal the truth." 5. **Establishes that professional misconduct doesn't require fraudulent intent**: Making false statements or lending one's professional standing to improper schemes constitutes misconduct regardless of subjective intent. 6. **On disciplinary proceedings**: Clarifies that the ordinary Plascon-Evans approach to motion proceedings is not appropriate; courts may need to call oral evidence to properly establish facts, and the inquiry focuses on future protection of the public rather than punishment for past transgressions. The case is regularly cited for the proposition that advocates, while zealous in representing clients, cannot cross the line into misleading courts, and that senior members of the profession are held to exacting standards.