An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
An attorney is supposed to be an honest person who adheres to the highest standards of professional conduct. (I assume it is at this point that the cynics out there are starting to snigger, but hear me out.) Sadly, attorneys (like members of most other professions) do not always live up to these stringent standards of ethical conduct expected by their profession.
Anyone familiar with Afrikaans movies and TV series of three or four decades ago will recall the often used storyline of the heroine’s father — an attorney — who is disgraced after misappropriating trust funds and is then struck off the roll of attorneys. The family is then financially ruined and the heroine — played by actresses with names like Zaza Vorster or Sybil Coetzee – has to go and work as — gasp! — a waitress in a cafe in a small town in the Karoo where an eligible bachelor (usually a teacher played by a guy called Hans Strydom) with a dark secret of his own (no, not that he is secretly gay) is waiting to fall in love with her.
(This was almost as bad as the unmarried heroine falling pregnant, in which case she was banished to Pofadder or — if it was a big budget production — to Paris in France to have the baby and to wander around the cobblestone streets of Paris for ten minutes in a big winter coat and heavy make-up while weeping violins emphasised the sad fate of the “fallen woman”, before she jumped in the Seine and drowned and was thus suitably punished for having sex out of wedlock.)
I am digressing. The point is that misappropriating the trust funds is — as the Supreme Court of Appeal remarked in the case of Law Society of the Cape of Good Hope v Budrick – “about the worst professional sin that an attorney can commit”.
Hans Jurie Zietsman is one of the (now former) attorneys who did just this. He was therefore recently struck off the roll by the Cape High Court in a judgment reported as The Law Society of the Cape of Good Hope v Zietsman. In such a case, the Law Society – acting as the statutory custos morum of the attorneys’ branch of the legal profession and as protector of the public in their dealings with that profession — approaches the court, provides the relevant evidence and requests that an attorney be struck off the roll.
What makes the case of Mr Zietsman of interest is that the Court had some stern words for the Law Society who seemed to be less than diligent in exercising this very important duty. The Court, per Dlodlo J and Binns-Ward J, complained about the lack of evidence placed before the court by the Law Society. As the Court explained:
in matters like this, particulars of the manner in which the misconduct is discovered and the reaction of the delinquent attorney in the particular circumstances are issues which might become of interest later should the attorney apply in the future for re-admission. If that should occur, the court seized with the re-admission application will always look at the judgment in the striking off matter to see how these issues were treated there. It would, for example, be significant for that purpose if it were to appear from the striking off judgment that the delinquent attorney had turned him or herself in, rather than being reported by a client, or discovered in the context of an audit to have been plundering the trust funds. On the state of the founding papers in this matter, however, we were none the wiser because the narration of events appeared to begin with what read as if it should have been the second chapter.
In short, the Law Society was not as diligent as it was supposed to be. Worse, it took more than nine months from the time that the misappropriation became known, before the proceedings to have Mr Zietsman struck off the roll were instituted by the Law Society. Because the Court considered this delay to be “unsatisfactory on the face of it”, it requested an explanation from the Law Society.
However, when such an explanation was provided this was also found to be unsatisfactory by the Court. As the judgement explains:
In matters in which it is appropriate for the court to determine in its discretion whether a delinquent attorney’s name should be removed from the roll, it is the duty of the law societies to bring the relevant facts to attention of the courts without delay. The degree of urgency with which these matters must be attended to will obviously be affected by the extent to which the public might be exposed to danger by the attorney in question remaining active as a practitioner; but in all cases in which a striking off or suspension order might be appropriate expedition is required. The somewhat leisurely course that preceded the launch of these proceedings is therefore to be deprecated.
Even in cases in which the attorney has ceased to practise, it is inimical to the high status and esteem in which the attorneys profession should, in the public interest, be generally regarded if persons whose names should not be on the roll in consequence of their defalcation of clients’ money remain registered as attorneys any longer than practicably necessary. This much is inherent in any achievement of the object of maintaining and enhancing the prestige, status and dignity of the profession; the very first of the objects of a law society listed in s 58 of the Attorneys Act. Thus in all striking off applications, even where no considerations of urgency are involved, there is nevertheless a duty on the society concerned to institute proceedings expeditiously. That duty was not satisfactorily discharged in this case.
I am not an attorney, but I would imagine that the average attorney in Cape Town would be rather perturbed by this cavalier attitude of the Law Society and its tardy behaviour which might have placed the reputation of the attorney’s profession at risk and might well have been severely detrimental to members of the public who might have made use of the services of the attorney who was already known to have misappropriated trust funds.
One would expect this kind of thing from officials at CIPRO, not from officials at the Cape of Good Hope Law Society who are the legal custodians of the attorney’s profession and must protect the public from skelm lawyers who want to steal their money. One wonders if those involved in this case have been reprimanded or disciplined to prevent an occurrence of this rather lackadaisical behaviour or whether they are merrily continuing not to do their jobs properly. Lastly, one wonders what ordinary attorney’s can do to ensure that the body tasked with protecting their interest, the reputation of the profession they belong to and the interest of the public dealing with attorneys does its job properly.
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