THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 948/2018

In the matter between:

YOLANDI HEWETSON
APPELLANT

and

THE LAW SOCIETY OF THE FREE STATE
RESPONDENT

Neutral citation:
Hewetson v The Law Society of the Free State (948/2018) [2020]

ZASCA 49 (5 May 2020)
Coram:
CACHALIA, LEACH and NICHOLLS JJA and WEINER and HUGHES

AJJA
Heard:
7 November 2019
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down
is deemed to be 10h00 on 5 May 2020.

Summary:
Attorney – misconduct – failure of co-director to ensure accounting
records and trust account properly maintained – appropriate order – suspension or
removal from roll – matter referred back to the court a quo for oral evidence on when
the appellant first became aware of the misappropriation of trust funds by her husband
and co-director.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: Free State Division of the High Court, Bloemfontein (Mathebula J
and Chesiwe AJ sitting as court of first instance):

The appeal is upheld to the extent that the order of the high court of
15 December 2017 is set aside only insofar as it refers to the appellant.
The high court’s order of 23 June 2016 insofar as it applies to the appellant is
reinstated pending the finalisation in the high court of the application to strike her from
the roll.
The application to strike the appellant from the roll of attorneys is referred to a
freshly constituted bench of the Free State High Court for its determination after
hearing such oral evidence as the parties seek to place before it in regard to the
appellant’s fitness to remain on the roll, and in particular as to:
(a)
when the appellant first became aware of her husband’s abuse of trust funds;
(b)
the extent of her knowledge;
(c)
whether the appellant agreed to or was in any way a party to the withdrawal of
trust funds from the account of Mr Ahmed Nabil;
(d)
the appellant’s explanation for the delay, if any, in reporting trust fund
deficiencies to the Law Society.
In the event of either party wishing to lead a witness who has not deposed to
an affidavit in these proceedings, a summary of such witness’s evidence is to be filed
and served on the other side not later than 10 days before the hearing.
The appellant is suspended from practising as an attorney pending the outcome
of the above hearing.
The appellant is to pay the Law Society’s costs of this appeal on the scale as
between attorney and client.

___________________________________________________________________
JUDGMENT
___________________________________________________________________

Nicholls JA (Cachalia JA and Hughes AJA concurring):

[1] The appellant, Mrs Yolandi Hewetson (Mrs Hewetson), and her husband,
Mr Alexander Fowly Hewetson (Mr Hewetson) practised as attorneys in the Free State
for many years. They conducted their practice through a company Hewetson
Incorporated (the firm) of which they were the sole directors. On 23 June 2016, the
Law Society of the Free State (the Law Society) obtained interim relief against them
from the Free State high court pending an investigation into the financial affairs of the
firm. Thereafter, on 15 December 2017, pursuant to an application by the Law Society
for such relief, both Mr and Mrs Hewetson were struck from the roll of practising
attorneys and the firm was placed into liquidation. Mr Hewetson did not oppose the
application. Only the appellant had opposed the relief sought against her. Whilst
conceding that relief against her was justified, she appeals the harshness of the
sanction. The appeal is with the leave of this Court.

[2] Such proceedings are of a disciplinary nature and are sui generis.1 Their
primary purpose is to protect the public from malfeasance of attorneys. As far back as
1934, in Solomon v Law Society of the Cape of Good Hope,2 this Court described
them as follows:
‘Now in these proceedings the Law Society claims nothing for itself . . . . It merely
brings the attorney before Court by virtue of a statutory right, informs the Court what
the attorney has done and asks the Court to exercise its disciplinary powers over him
. . . . The Law Society protects the interests of the public in its dealings with attorneys.
It does not institute any action or civil proceedings against the attorney. It merely
submits to the Court facts which it contends constitutes unprofessional conduct and
then leaves the Court to determine how it will deal with this officer [of the court].’

1 Hepple and Others v Law Society of the Northern Provinces [2014] ZASCA 75; [2014] 3 All SA 408
(SCA) para 9; Cirota and Another v Law Society, Transvaal [1979] 1 All SA 179 (A); 1979 (1) SA 172
(A) at 187.
2 1934 AD 401 at 408-409.

[3] The application in this matter was brought in terms of s 22(1)(d) of the Attorneys
Act 53 of 1979 (the Act) which provides that:
‘Any person who has been admitted and enrolled as an attorney may on application by the
society concerned be struck off the roll or suspended from practice by the court within the
jurisdiction of which he or she practices–
. . .
(d) if he or she, in the discretion of the court, is not a fit and proper person to continue to
practise as an attorney.’

[4] The test to determine whether a person is fit and proper is well established and
needs no further elaboration.3 The first enquiry is to determine whether the offending
conduct has been proven on a balance of probabilities. Once this is shown, the second
enquiry is to determine whether the person is fit and proper taking into account the
proven misconduct. The final enquiry is to determine whether the person concerned
should be suspended from practice for a fixed period or should be struck off the roll.
The last two enquiries are matters for the discretion of the court, which involve a value
judgment.

[5] Only the final stage of the enquiry is relevant in this matter. The appellant, for
the purposes of this appeal, has conceded that she is not a fit and proper person to
practise and, therefore, the only question that remains is whether the high court was
correct in striking her off the roll. The appellant contends that her suspension from
practice would have been sufficient.

[6] Although every case must be determined in the light of its own facts, if a court
is of the view that after a period of suspension the person will be fit and proper, the
appropriate order ordinarily would be one of suspension.4 This is because the

3 General Council of the Bar of South Africa v Jiba and Others [2019] ZACC 23; 2019 (8) BCLR 919
(CC) para 20. Jiba and Another v General Council of the Bar of South Africa and Another, Mrwebi v
General Council of the Bar of South Africa [2018] ZASCA 103; [2018] 3 All SA 622 (SCA); 2019 (1) SA
130 (SCA); 2019 (1) SACR 154 (SCA) para 6. Malan and Another v Law Society of the Northern
Provinces [2008] ZASCA 90; 2009 (1) SA 216 (SCA); [2009] 1 All SA 133 (SCA) para 4. General Council
of the Bar of South Africa v Geach and Others, Pillay and Others v Pretoria Society of Advocates and
Another, Bezuidenhout v Pretoria Society of Advocates [2012] ZASCA 175; [2013] 1 All SA 393 (SCA);
2013 (2) SA 52 (SCA) para 50. Jasat v Natal Law Society 2000 (3) SA 44 (SCA); [2000] 2 All SA 310
(SCA) para 10.
4 Malan and Another v Law Society of the Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216
(SCA); [2009] 1 All SA 133 (SCA) para 8.

implications of removing an attorney from the roll for misconduct are serious and far-
reaching. It is visualised, prima facie at least, that the attorney will never be permitted
to practise again because the misconduct complained of is of such a serious nature
that it manifests a character defect and a lack of integrity rendering the person unfit to
practise. Any person applying for readmission will have to satisfy a court that he or
she is a completely reformed character.5

[7] It is well established that an appeal court has limited grounds to interfere with
the decision of a high court in matters such as this. As stated by this Court in Malan v
Law Society of South Africa6 at para [13]:
‘(T)his Court has held consistently that the discretion involved is a strict discretion, which
means that a court of appeal may only interfere if the discretion was not exercised judicially:
Kekana v Society of Advocates SA, 1998 (4) SA 649, [1998] 3 All SA 577 (SCA); Vassen v
Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA) 537. This means that a court
of appeal is not entitled to interfere with the exercise by the lower court of its discretion unless
if failed to bring an unbiased judgment to bear on the issue; did not act for substantial reasons;
exercised its discretion capriciously, or exercised its discretion upon a wrong principle or as a
result of a material misdirection. (See also Mabaso v Law Society, Northern Provinces 2005
(2) SA 117 (CC) at para 20; Giddey NO v JC Barnard & Partners 2007 (5) SA 525 (CC) at
para 20.’

[8] In the exercise of its discretion, the high court decided to impose the more
stringent sanction of removing the appellant from the roll rather than merely
suspending her from practice. However, in doing so, it materially misdirected itself in
its finding that the appellant had made ‘loans’ totalling R305 489.09 to herself from
trust creditors’ accounts. There was no proof of that fact, and the high court conceded
in its judgment in the subsequent application for leave to appeal that it had erred in
that regard. It went on to record that its decision to strike off did not ‘turn primarily on
the error’ but that matters not. The high court was clearly influenced by a material and
grave error which by its very nature has a substantial effect upon the issue at hand.
Essentially it found the appellant had stolen a substantial sum when there was no

5 Incorporated Law Society, Natal v Roux 1972 (3) SA 146 (N) quoted with approval in Cirota v Law
Society, Transvaal 1979 (1) SA 172 at 194B-D.
6 Malan and Another v Law Society of the Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216
(SCA); [2009] 1 All SA 133 (SCA) para 13.

evidence that she did. In the light of the authorities I have referred to this court is
therefore free to exercise its discretion on the issue under s 22(1)(d) of the Act
untrammelled by the decision of the high court. Thus it is necessary to examine the
facts to consider whether a suspension would suffice in the circumstances of this
particular case.

[9] The appellant and her husband were married in 2001 and soon thereafter set
up the law firm of which they were the sole co-directors. The firm’s main office was in
Welkom with a branch office in Theunissen. In terms of the Rules of the Law Society
of the Free State7 directors in an incorporated company of attorneys are jointly
responsible to keep proper books of account, notwithstanding that only one of them
may be responsible for the bookkeeping in the firm.

[10] There is no dispute that the firm failed to keep proper accounting records.
Significant sums of trust monies were misappropriated over the period 1 May 2013 to
29 February 2016. Notwithstanding this, the firm was given an unqualified audit by its
own auditors, Deane & Thresher, over this period until the 2015/2016 financial year
where a trust deficit of R1 069 119.81 was reflected.

[11] The appellant’s defence is that her husband controlled the finances of the firm
to her exclusion. Blame for the financial irregularities and the trust deficit was laid
squarely at his door. From September 2011 until January 2014 she was away from
the practice on extended maternity leave. On her version, towards the latter part of
2015 she began to realise that something was amiss with the trust account. By that
stage, the relationship between Mr Hewetson and the appellant had reached the point
of no return.

[12] After an informal investigation within the firm in December 2015, the appellant
ascertained that there was a trust shortfall of R 1 789 766.56. She approached her

7 Prior to 1 March 2016 the Rules of the Free State Law Society were operative. On 1 March 2016 the
Rules for the Attorneys' Profession came into operation and replaced the Rules of the Free State Law
Society. Where reference is made to rules pertaining to conduct or obligations that occurred or are
binding prior to 1 March 2016, reference is made to the Rules of the Free State Law Society. Where
reference is made to rules pertaining to conduct or obligations that occurred or are binding after 1 March
2016, reference is made to the Rules for the Attorneys’ Profession.

attorney and submitted an affidavit to the Law Society on 15 January 2016, wherein
these facts are set out, together with affidavits from staff members. She requested the
Law Society to intervene on an urgent basis, assuring them of her full co-operation. At
the same time, the appellant instituted divorce proceedings against Mr Hewetson.

[13] Various staff members deposed to the financial irregularities and Mr
Hewetson’s utilisation of trust funds for personal gain. Mr Andries Knoetze, an attorney
in the employ of the firm, confirmed certain financial irregularities and that the appellant
was excluded from financial matters over which Mr Hewetson had sole control. He
stated that he overheard a confrontation between the appellant and her husband in
October 2015 regarding the irregular payments of trust funds. Ms Jacqui
Labuschagne, a candidate attorney who worked in the conveyancing department,
stated that she became aware of irregularities on the files assigned to her in November
and December 2015 which compelled her to discuss the matter with the bookkeeper.
Ms Mandie Janse van Rensburg, the conveyancer at the firm, became aware of
financial irregularities in certain files during December 2015. She immediately
approached the appellant who took steps to remove Mr Hewetson as the managing
partner.

[14] In February 2016 Mr Ramoro Maleme, a messenger in the firm, submitted an
affidavit to the Law Society. He recorded how he had deposed to false statements at
the request of Mr Hewetson. He received cash payments which he did not receipt but
handed directly to Mr Hewetson. Properties were registered in his name by
Mr Hewetson. He was instructed not to inform the appellant of the above. Mr Maleme
was given a motor vehicle and cash by Mr Hewetson in return for his loyalty. In 2015,
after a disciplinary hearing, the appellant dismissed Mr Maleme from the firm for theft.

[15] On the strength of the appellant’s affidavit, the Law Society initiated an
investigation into the financial records the firm. Reports were prepared by PKF
Accountants and by the financial forensic investigator of the Attorneys Fidelity Fund.
The reports identified weaknesses in the financial controls of the firm, irregular
payments and a misappropriation of trust funds. The PKF report highlighted the
following: monies were paid from the trust bank account into a personal account of
Mr Hewetson; trust monies were paid to fund a property business owned by

Mr Hewetson and his son (from a previous marriage); unpaid personal loans to
Mr Hewetson in the sum of R305 489.09 were identified (these were the funds in
respect of which the high court misdirected itself); transfers were made from one trust
creditor to another for no apparent reason; and interest due to clients on s 78(2A)8
interest bearing accounts were not paid to the relevant trust creditors but debited as
fees and paid into the business account. Another PKF report showed a trust deficit in
the amount of R2 132 741.85.

[16] An interdict was granted on 23 June 2016 restraining and interdicting the
appellant and Mr Hewetson from operating a trust account. A curator bonis was
appointed to control and administer the firm’s books of account, files and documents.
The present application to strike off the appellant and Mr Hewetson from the roll of
attorneys was launched in April 2017.

[17] Mr Hewetson did not file any opposing papers but filed an affidavit in response
to the PKF report, which is attached to the Law Society’s founding papers. He accused
the appellant of attempting to take over the business for herself and stated that she
had lied to the Law Society that she first became aware of the trust fund shortages in
December 2015. In support of this, he referred to three instances which he alleged
were proof of her dishonesty. The first is the confrontation during October 2015,
overheard by Mr Knoetze, over trust shortages. The second is a series of SMSs
between himself and the appellant in November 2015 when the marriage was in the
throes of disintegrating. Thirdly, Mr Hewetson attached an affidavit deposed to in July
2016 from Ms Belinda Petzer (Ms Petzer), who was employed as a conveyancing
secretary at the firm from February 2012 to July 2014.

[18] Ms Petzer stated under oath that both the appellant and Mr Hewetson bought
houses on public auction utilising trust money. In the affidavit she sets out that, in
either January or February 2014, Mr Hewetson was required to make payment in

8 Section 78(2A) of the Act provides as follows:
‘(2A) Any separate trust savings or other interest-bearing account —
(a) which is opened by a practitioner for the purpose of investing therein, on the instructions of any
person, any money deposited in his or her trust banking account; and
(b) over which the practitioner exercises exclusive control as trustee, agent or stakeholder or in any
other fiduciary capacity, shall contain a reference to this subsection.’

respect of two properties, which he had purchased. In the presence of the appellant,
he asked Ms Petzer, to identify a trust creditor from whom he could borrow money for
a few days. Ms Petzer suggested the trust account of Mr Ahmed Nabil. When the
appellant expressed concern as to when the money would be paid back, Mr Hewetson
informed her that it would take two days. This is in fact what occurred, said Ms Petzer.
She added that there was no room for the appellant to deny her knowledge as Moroka
Attorneys had written to the firm in early 2015 accusing it of ‘rolling’ trust monies.

[19] The appellant vehemently denied the allegations contained in Ms Petzer’s
affidavit. On 27 February 2015 once Ms Petzer left the firm, and pursuant to an inquiry
from a client concerning the refund of municipal charges, it came to light that these
trust monies had been paid into the bank account of Ms Petzer’s daughter, Ms Britney
Lee. It was her job to load all internet payments made on behalf of the firm which Mr
Hewetson would check and approve. Upon further investigation it became apparent
that Ms Petzer had also fraudulently deposited money into the bank accounts of other
family members. The appellant laid a charge of theft against Ms Petzer and reported
her conduct to the Law Society in a detailed complaint dated 4 March 2015.

[20] From the letter it emerged that Mrs Hewetson contacted Ms Petzer at her new
place of employment on the same day the irregularities were uncovered. Immediately
thereafter Mr Bertus Maritz of Moroka Attorneys, apparently acting on the instruction
of Ms Petzer, telephoned the firm and spoke to Mr Hewetson. An undertaking was
made that the trust monies amounting to R10 142.61 paid into Ms Lee’s account by
Ms Petzer would be refunded at once. The bank accounts of Ms Petzer’s family
members would be made available to the firm in order to ascertain what other trust
monies had been fraudulently paid by Ms Petzer.

[21] This is the background to the letter from Mr Maritz of Moroka Attorneys dated
5 March 2015, clearly written in response to the allegations of theft against Ms Petzer.
It was provided by the appellant in response to Ms Petzer’s allegations that she had
long been aware of her husband’s conduct. In this letter Mr Maritz confirmed the re-
payment of the R10 142.61 and stated that he would get copies of other bank
statements of family members. In an apparent attempt to exonerate her of the theft
and fraud she had committed, he said that Ms Petzer believed that R29 000 was owed

to her as a performance bonus. He further recorded the existence of rumours that she
was having an affair with Mr Hewetson. Mr Maritz stated that, without intending to
threaten anyone, Ms Petzer wanted it to be known that she had copies of documents
from a number of files that proved Mr Hewetson utilised trust money to purchase
properties. These were later repaid once a bond was registered or the said properties
were sold. The appellant’s response is that she confronted her husband with these
allegations which he denied. Significantly, to date these documents have never
materialised.

[22] In respect of Ms Petzer’s allegations that the appellant was present when a
conversation took place between her and Mr Hewetson in January or February 2014,
regarding the borrowing of trust monies to pay for the two properties, the appellant
conducted an investigation. She discovered that the said monies were indeed paid
from the firm’s trust account, not in January or February 2014, but on 13 December
2013 and repaid by Mr Hewetson on 20 December 2013. At this time, she was still on
maternity leave and had no knowledge of the transactions.

[23] Pursuant to Ms Petzer’s allegations that properties bought with trust monies
were transferred into her name, the appellant conducted a deeds office search. She
found two properties registered in her name of which she had no knowledge. On
drawing the relevant files, she saw her signature had been forged. This was confirmed
by a handwriting expert, whose finding was that the disputed signatures were not those
of the appellant and were written with the same pen as that of Mr Hewetson, the strong
inference being that it was his attempt to forge her signature.

[24] In my view Ms Petzer’s affidavit must be treated with circumspection. Her
motives are dubious. She may well have stolen trust monies which she had to repay
and have harboured a grievance against the appellant for the charge of theft that was
laid against her. She was clearly well aware of Mr Hewetson’s misconduct and on the
face of it may have colluded with him to her own benefit. The question is whether she
has provided reliable evidence to impute knowledge to Mrs Hewetson.

[25] A more serious problem for the appellant are the SMS and WhatsApp
exchanges between herself and Mr Hewetson, attached by him as further evidence

that she had been aware of the misuse of trust funds for a long period. On 19
November 2015 she wrote (as translated into English):9
‘I have finally had enough of your use of trust funds for your personal gain . . . . If you want to
cut my throat I will cut yours, but the consequences for you will be much worse.’

[26] Relying on Mr Hewetson’s affidavit, the Law Society submitted that it was
inconceivable that the appellant was not aware of her husband’s misappropriation of
trust funds and other transgressions in the handling of the trust account. Moreover,
she lied under oath when she stated that once she became aware of the true state of
affairs she immediately reported it to the Law Society. Having regard to the November
WhatsApp messages referred to above, at best for her, she became aware of trust
shortages in November 2015 but reported these only in January 2016. Thus even on
her own version, she was aware of the trust shortage for several months prior to
reporting her husband’s misconduct to them. The Law Society argued that the only
reason that the appellant approached the Law Society was due to the deterioration of
her marriage and the acrimony that had developed between them. Had this not
happened, suggested the Law Society, the appellant would not have made the
disclosure. In addition, she must have known that the accounting records had been
manipulated for a number of years in order to obtain an unqualified audit. Because
she had conceded that the trust account in the Theunissen office had never complied
with the Act, she should be struck off the roll for this reason alone, the Law Society
contended.

[27] This view found favour with the high court. It held, quite correctly, that the
appellant had a duty to ensure that proper books of account were kept and that
transactions were conducted in accordance with the rules of the Law Society and with
generally accepted accounting standards. Because she had not prevented her
husband’s misconduct, she must have acquiesced to it. It was found that she was ‘also
a party to the massive dishonest schemes’ perpetrated by Mr Hewetson. The high
court held, incorrectly, that she had taken a loan in the amount of R305 489.09 from
funds of trust creditors. The high court decried the flippant manner in which the

9 The Afrikaans version reads: ‘Ek het nou finaal genoeg gehad van jou aanwending van trustgeld vir
persoonlike gewin . . . . As jy my keel wil afsny deur my deur die ore te werk, gaan ek jou bedank deur
presies dieselfde vir jou te doen. Jou konsekwensies gaan net erger wees.’

appellant treated the Law Society, refusing to give ‘his’ co-operation. Whether this is,
in fact, a reference to Mr Hewetson is unclear. The next sentence of the judgment then
criticises the appellant for what it called her ‘flimsy and unconvincing defences’
advanced in the face of overwhelming evidence of mismanagement.

[28] In the light of the above facts, it is clear that the appellant is guilty of serious
transgressions, and that is not disputed. The question is whether she should be
removed from the roll of attorneys, rather than suspended from practising as an
attorney for a determinate period.

[29] Notwithstanding that there is no evidence to suggest the appellant in any way
benefitted, a crucial factor in determining whether the appellant should be struck from
the roll is if she has been dishonest, and/or lied under oath. Although dishonesty is not
the sine qua non for striking off, it is only in exceptional circumstances that a court will
order a suspension instead of striking off where dishonesty has been established.10

[30] It is therefore incumbent upon the appellant to explain any contradictions as to
when she first became aware of the theft of trust funds by Mr Hewetson and the extent
of her knowledge. In her initial affidavit to the Law Society dated 15 January 2015 the
appellant stated that ‘[d]uring December 2015’ she started receiving complaints about
trust monies being misappropriated by her husband. In the opposing affidavit to this
application dated 8 June 2017 she stated that she did not have any knowledge of trust
shortages prior to 13 November 2015.

[31] This was contradicted by the affidavit of Mr Knoetze, dated 7 January 2016
which he stated was made on the instruction of the appellant herself, and which was
attached as an annexure to the appellant’s first affidavit. Mr Knoetze mentioned that
on various occasions during October 2015 he overheard the appellant confront
Mr Hewetson about business and trust monies being utilised, inter alia, for
RJ Constructions, one of his businesses. She accused him of using the business card
of the firm for petrol, wages and building materials. Mr Hewetson chased her out of his
office, shouting and swearing.

10 Malan para 10. Summerly v Law Society, Northern Provinces 2006 (5) SA 613 (SCA) para 21.

[32] Mr Knoetze further stated the firm did various collections for Nian Shun Trading.
In October 2015 there was a trust credit of R22 208.83. On drawing the file on
13 November 2015 he noticed that Mr Hewetson had paid an amount of R344.10 to
Matsepe Attorneys and an amount of R20 679.45 to the Matjhabeng Municipality. He
did not know what these payments were for but they were not made on the instruction
of the client. Mr Knoetze immediately reported this to the appellant who confronted
Mr Hewetson. In total Mr Knoetze had personal knowledge of R497 023.53 irregularly
transferred from the trust account.

[33] No explanation is provided by the appellant for the apparent contradiction as to
whether she became aware of the trust shortages in October, November or December
2015. Her uncontradicted evidence is that after the investigation in December 2015
she confiscated Mr Hewetson’s bank token used to authorise EFT payments and
changed all the bank passwords and pins. In early January she suspended him as an
employee and director of the firm pending an investigation into his misappropriation of
trust funds.

[34] The WhatsApp exchanges are indicative of an ugly and acrimonious breakdown
of a relationship. More importantly, on a plain reading of these messages there is
certainly room to suggest that the appellant had knowledge of her husband’s
misconduct for some time. It could be a reference to Mr Hewetson’s previous charge
of misuse of trust monies by the Law Society in 2012, of which he was acquitted. But
in the absence of an explanation from the appellant it is impossible for this Court to
speculate on what she meant and thereby determine the extent, if any, of the
appellant’s prior knowledge of the misappropriation.

[35] In my view it was not unreasonable for the appellant to take a month (or even
longer as it was over Christmas holiday period) to consult her attorneys before
reporting the matter to the Law Society. Such a step had far reaching implications not
only for her husband but also her family. She would have been well apprised of the
professional consequences it would have for herself. One is sympathetic to a spouse
who delays in reporting the wrongdoings of her husband for a month or so when the
consequences of such action go far beyond the reaches of one’s professional life.
However, it is difficult to exonerate the appellant if she had been aware of her

husband’s conduct over a long period of many months or even years. By electing to
remain silent about such conduct over an extended period she would have known that
the public was being put at risk unnecessarily.

[36] In her favour the appellant has been an attorney for over 20 years with an
unblemished record until now. She reported the misconduct to the Law Society well
knowing of the consequences for herself. She fully co-operated in their subsequent
investigation. The curator bonis appointed by the Law Society observed in November
2016 that the firm was well-managed by the appellant and that she was doing her best
to make good the shortfall. The affidavits of the employees at the firm largely absolve
the appellant of any misconduct and date her knowledge, at least to the extent of the
problem, to late 2015.

[37] Nonetheless, as set out above there are gaps in the appellant’s evidence that
are cause for concern. If one has regard to the apparent contradictions between her
own affidavits and the affidavit of Mr Knoetze there is a discrepancy which requires an
explanation from the appellant. Likewise the SMS and WhatsApp exchanges between
Mr Hewetson and the appellant require an explanation insofar as they are indicative
of prior knowledge of her husband’s misuse of trust funds. Ms Petzer’s allegations,
although not wholly convincing, also require a response. There may well be
satisfactory explanations for all the apparent contradiction but, given the nature of the
application, it is in the public interest that a hearing be conducted an on these narrow
issues. In addition, the appellant is required to explain her delay, if any, in reporting
the matter to the Law Society.

[38] A court is loath to impute dishonesty on the basis of untested allegations in
motion court proceedings in the absence of clear proof and where these allegations
were denied on grounds that cannot be described as far-fetched.11 But because of the
sui generis nature of these proceedings it is in the interest of the public and the
appellant herself that these issues be referred to oral evidence in the high court. Only
then can a court properly exercise its inherent jurisdiction to penalise the appellant by
either striking her from the roll of practising attorneys or suspending her from practising

11 Prinsloo NO and Others v Goldex [2012] ZASCA 28; 2014 (5) SA 297 (SCA) para 19.

for a specific period. For obvious reasons any bench constituted should not include
those judges who presided over the original application.

[39] I have had the benefit of reading the second judgment of my colleague
Leach JA. He expresses the unequivocal view that the appellant has been dishonest.
I am not persuaded that such a far-reaching conclusion can be made on the papers
alone. Nor can it be concluded that she necessarily poses any risk to the public. To
strike the appellant from the roll of practising attorneys would have a grave impact on
her career. Rather than imposing the ultimate penalty on what is, in my view,
inadequate evidence, a referral to oral evidence would serve the interests of justice
and fairness. A court having heard the relevant evidence will be better placed to
determine whether the appellant was indeed dishonest and unjustifiably delayed in
reporting the trust fund deficit, thus deserving of such a sanction.

[40] In the light of the sui generis nature of these proceedings the appellant, quite
correctly, tendered to pay the Law Society’s costs on the scale of attorney and client,
whatever the outcome of the appeal. This will be reflected in the order set out below.

[41] In the result it is ordered:
The appeal is upheld to the extent that the order of the high court of
15 December 2017 is set aside only insofar as it refers to the appellant.
The high court’s order of 23 June 2016 insofar as it applies to the appellant is
reinstated pending the finalisation in the high court of the application to strike her from
the roll.
The application to strike the appellant from the roll of attorneys is referred to a
freshly constituted bench of the Free State High Court for its determination after
hearing such oral evidence as the parties seek to place before it in regard to the
appellant’s fitness to remain on the roll, and in particular as to:
(a)
when the appellant first became aware of her husband’s abuse of trust funds;
(b)
the extent of her knowledge;
(c)
whether the appellant agreed to or was in any way a party to the withdrawal of
trust funds from the account of Mr Ahmed Nabil;
(d)
the appellant’s explanation for the delay, if any, in reporting trust fund
deficiencies to the Law Society.

In the event of either party wishing to lead the evidence of a witness who has
not deposed to an affidavit in these proceedings, a summary of such witness’s
evidence is to be filed and served on the other side not later than 10 days before the
hearing.
The appellant is suspended from practising as an attorney pending the outcome
of the above hearing.
The appellant is to pay the Law Society’s costs of this appeal on the scale as
between attorney and client.

_________________
C H NICHOLLS
JUDGE OF APPEAL

Leach JA (Weiner AJA concurring)

[42] I have read the judgment of my colleague Nicholls JA. For the reasons set out
below, I find myself unable to agree with her decision in regard to the outcome of this
appeal. In my view, the appellant should be struck from the roll of attorneys and the
appeal ought thus to be dismissed.

[43] As set out in the judgment of my colleague, for many years the appellant and
her former husband practised as attorneys in Welkom as directors of the company,
Hewetson Incorporated (the firm). On ascertaining that there were serious
irregularities in the firm’s trust accounts, the respondent in these proceedings, the Law
Society of the Free State (the Law Society), applied to the Free State Division of the
High Court, Bloemfontein to strike both the appellant and her husband from the roll of
attorneys and to wind up the firm.  The appellant alone opposed the application, and
only in regard to the issue of her striking off. In December 2017, however, the high
court struck both her and her husband off the roll and wound up the firm. The appellant
appeals now solely against her striking off, contending that she had not been
responsible for the financial irregularities that had occurred.

[44] It must throughout be remembered that an application for the striking off of an
attorney is not an ordinary proceeding but one sui generis, of a disciplinary nature,12
in which the court has the inherent jurisdiction to penalise errant attorneys found unfit
to practice by either striking them from the roll or suspending them from practice for a
period.13 There is no room for an attorney to adopt an adversarial position in regard to
the enquiry. Instead, as was stressed, inter alia, in Kleynhans14 an attorney is expected
to co-operate and to provide all necessary information so that the full facts are placed
before the court to enable it to make a correct and just decision.

[45] It is not suggested on the appellant’s behalf that the high court erred in finding
her to be unfit to practice, and the appeal was conducted solely on the basis that, in
the exercise of its disciplinary discretion, the court a quo ought merely to have
suspended her rather than striking her name from the roll.  In considering this, there
are certain general principles which have always to be borne in mind.

[46] First, s 15(1)(a) of the Attorneys Act 53 of 1979 (the Act) requires a person who
seeks admission as an attorney to satisfy the court, in its discretion, that he or she is
a fit and proper person to be so admitted and enrolled. Section 15(3)(a) provides that
the court may exercise a similar discretion on an application by a person who was
previously admitted and enrolled as an attorney, but who has been either removed
from or struck off the roll, to readmit such person. As this court observed in Malan,15 it
is a matter of simple logic that the combined effect of these two subsections is that a
person who is not fit and proper to be an attorney should be removed from the roll.
That is in effect what might be referred to as the default position.

[47] However, depending on the circumstances, the default position may operate
harshly or unjustly. This was recognised by the legislature which, under s 22(1)(d) of
the Act, has provided that a person who has been admitted and enrolled as an attorney
may be struck off the roll or suspended from practice by the court if he or she, ‘in the

12 Law Society of the Northern Provinces v Morobadi [2018] ZASCA 185; [2019] JOL 40677 (SCA)
para 4; Summerley v Law Society, Northern Provinces [2006] ZASCA 59; 2006 (5) SA 613 (SCA) para 2
and the cases there cited.
13 Malan & another v Law Society, Northern Provinces [2008] ZASCA 90; 2009 (1) SA 216 (SCA)
para 23.
14 Prokureursorde van Transvaal v Kleynhans 1995 (1) SA839 (T) at 853.
15 Para 8.

exercise of the discretion of the court, is not a fit and proper person to continue to
practice as an attorney’. Accordingly, even where a practitioner has been shown as
not fit and proper to practice, removal does not necessarily follow and the court has a
discretion to suspend instead. As Harms ADP pointed out in Malan,16 in deciding which
course to follow the court’s main consideration is not first and foremost the imposition
of a penalty but, rather, the protection of the public (and in my view that is especially
important where, as here, the offence has resulted in a substantial shortage of trust
funds).17 The learned judge went on to point out that only ‘(i)f the court has grounds to
assume that after the period of suspension the person will be fit to practice as an
attorney in the ordinary course of events it would not remove him from the roll but
order an appropriate suspension’.18

[48] As appears from this, an order of suspension should be made only where the
court is satisfied that after a period of suspension the attorney concerned will have
reformed and become a fit and proper person to practice. Unless so satisfied, the only
viable course is to strike off the attorney who has been shown to be unfit to practice.
The obvious corollary, too, is that the more grievous the misdeed committed by the
errant attorney, the less appropriate it will be to merely order a suspension. The
authorities are legion that where there is dishonesty involved, it will require exceptional
circumstances before suspension will be ordered instead of a removal.

[49] Moreover, in order for the court to properly exercise its discretion, there is an
evidential burden at least (for present purposes I put it no higher than that) for an
attorney shown to be not fit and proper to practice, to place evidence before court to
demonstrate why it would be appropriate that he or she be suspended rather than
struck off. By reason of the sui generis nature of the proceedings, this would require a
full and frank disclosure of all material information so as to allow the court to make a
proper and informed decision. There is no room for an attorney who wishes to remain
on the roll to be coy about material facts in a matter of this nature. As officers of the
court, attorneys are at all times expected to be scrupulously honest and observe the

16 Paras 3-4.
17 See eg Law Society of the Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA); [2002] 4 All SA
441 (SCA) para 7.
18 Para 8.

utmost good faith in their dealings with the court,19 even if it means disclosing
information which may be adverse to their own interests, and this rule applies equally
in applications to strike them off.

[50] The appellant argued that she had herself not been guilty of dishonesty, and
relied heavily on the decision of this court in Summerley20 in support of a proposition
that striking off is generally reserved for attorneys who have acted dishonestly. As a
general rule, dishonesty and remaining on the roll are mutually exclusive. But striking
off is not reserved solely for cases involving dishonesty and, for example, attorneys
have been struck off for not replying to correspondence, an inaction which not only
speaks of a lack of courtesy but constitutes a breach of professional integrity. And as
this court pointed out in Malan:21
‘As mentioned in Summerley (at para 15), the fact that a court finds that an attorney is unable
to administer and conduct a trust account does not mean that striking-off should follow as a
matter of course. The converse is, however, also correct: it does not follow that striking-off is
not an appropriate order (compare Prokureursorde van Transvaal v Landsaat 1993 (4) SA 807
(T); Law Society of the Transvaal v Tloubatla [1999] 4 All SA 59 (T)).’

[51] Furthermore, although the court has a discretion under s 22(1)(d), a suspension
holds the potential hazard to the public of errant attorneys being returned to practice
without having to satisfy either their professional organisation or the court that they
have in fact reformed and have become fit and proper to practice. Consequently, the
discretion to suspend must be conservatively exercised. As Harms ADP went on to
state in Malan,22 even in cases which do not involve dishonesty, in order to stem an
erosion of professional ethics the court should adopt a conservative rather than a ‘kid-
gloves’ approach. A court should therefore not be influenced by maudlin sympathy in
considering whether suspension rather than striking off is the appropriate remedy.
After all, its main consideration is to protect the public, not to feel sorry for a person
whose conduct has fallen short of the mark.

19 Eg Incorporated Law Society, Transvaal v Meyer 1981 (3) SA 962 (T) at 970F and Society of
Advocates, Natal v Merret 1997 (4) SA 374 (N) at 382J – 383H.
20 Summerley v Law Society, Northern Provinces [2006] ZASCA 59; 2006 (5) SA 613 (SCA) para 20.
21 Para 11.
22 Para 11.

[52] In the exercise of its discretion, the high court decided to impose the more
stringent sanction of removing the appellant from the roll rather than merely
suspending her from practice. Generally this court, on appeal, would not have a free
hand to interfere with the high court’s decision merely if it would have exercised its
discretion differently, but as Nicholls JA correctly points out, it may interfere where
there has been a material misdirection or irregularity. And for the reasons set out by
my learned colleague the high court in this instance got the facts wrong and materially
misdirected itself in effectively finding that the appellant had stolen a substantial
amount of trust funds, which she had not done. That leaves this court free to exercise
its discretion on the issue at hand.

[53] Bearing all of this in mind, I turn to consider whether on the facts of this matter,
a striking off or a suspension is the appropriate order. Much of the background has
been set out in my colleague’s judgment and I shall attempt insofar as possible to
avoid repetition.

[54] The appellant is not a young, inexperienced attorney who possibly did not fully
appreciate the scope and ambit of her duties in regard to trust funds. As I have said,
she is an experienced practitioner who had practised together with her husband for a
good many years. It is indeed so, as is set out in the judgment of my colleague, that
their firm’s trust account was used by the appellant’s husband for his own purposes.
He clearly made himself guilty of the theft of trust moneys over an extended period, in
particular during the course of 2015, which resulted in a loss of trust funds in excess
of R1.7 million. According to the appellant’s affidavit of 15 January 2016 used to report
the matter to the Law Society, she had been unaware of any irregularities until
December 2015 when staff rumours reached her ears and she confronted her
husband. In a subsequent affidavit deposed to on 18 March 2016, filed to oppose the
application for her striking off, her explanation for the dismal state of the firm’s trust
accounts was that her husband had been in charge of the financial administration of
the firm throughout its existence, and that she had to trust him to attend to the finances
as he was the more experienced attorney. In any event, so she alleged further, he had
insisted upon attending to all financial affairs at the office and any attempt from her to
have a say over the finances, or to make any input regarding the financial affairs of
the firm, had been met with his disrespectful and sarcastic response.

[55] Simply put, then, the appellant’s excuse was that she had entrusted the
handling of the firm’s trust funds to her husband. But this excuse holds no water. An
attorney cannot abdicate his or her responsibilities in regard to funds held in trust.
Over 60 years ago, in an oft quoted passage that remains as true today as it did then,
the court in Incorporated Law Society, Transvaal v K23 said:
'It frequently happens in partnership firms that one or more of the partners is concerned with
court work and that either another partner or an individual person is entrusted with the books
of account and with seeing that the trust accounts are properly kept, and that sufficient trust
moneys are properly held at all times . . . no attorney should be heard to say that, because of
the arrangement that he would be doing a particular type of work and therefore was not
concerned with the manner in which the books of account had been kept, or the trust account,
he should not be blamed. He will not be heard in that regard.
Every attorney must realise that it is a fundamental duty on his part, breach of which may
easily lead to his being removed from the roll, to ensure that the books of the firm are properly
kept . . . .’

[56] Nothing has changed since then. On the strength of numerous previous
decisions in which a similar excuse was rejected, this court said in Hepple:24
‘Moreover, that he was not involved with the financial management of the firm, is no defence
at all. The duty to comply with the provisions of the Act and the Rules is imposed upon every
practising attorney, whether practising in partnership or not, and no attorney can therefore be
heard to say that under an arrangement between him and his partner, the latter was not
responsible for the keeping of the books and control and administration of the trust account,
and that he was therefore not negligent in his failure to ensure compliance with the provisions
of the Act and the Rules.’(My emphasis.)

[57] Consequently, the appellant failed completely to comply with her statutory
obligations to properly control the administration of the funds her firm held in trust. She
also conceded that the books of the firm’s Theunissen branch that was opened for a
time never met the Law Society’s requirements. As a result of this gross negligence
on her part, there was a trust deficiency of some R1.7 million by the time the matter
was brought to the Law Society’s attention. This, alone, distinguishes the matter from

23 Incorporated Law Society, Transvaal v K and others 1959 (2) SA 386 (T) at 391C-E.
24 Hepple & others v Law Society of the Northern Provinces [2014] ZASCA 75; [2014] All SA 408 (SCA)
para 21. (Citation omitted.)

the position in Summerley in which no financial loss was suffered. This factor, in itself,
suffices in my view to strike her off in order to protect the public. There are, however,
many other relevant factors which have to be taken into account.

[58] First, but most importantly, the appellant’s statement under oath to the Law
Society when reporting the firm’s trust fund difficulties in January 2016, that she had
been unaware of any trust account irregularities before December 2015, was false. As
appears from both her subsequent affidavits, of 18 March 2016 and 8 June 2018, the
latter filed in opposing the application to strike her from the roll of attorneys, she had
learned in mid-November 2015 of the misappropriation of a substantial sum of money
from the trust account of a client, Nian Shun. This was confirmed by an affidavit of an
attorney employed by the firm as a professional assistant, Mr Andries Knoetze, who
stated that on 13 November 2015 he had ascertained that, on 14 October 2015 and 6
November 2015, the appellant’s husband had improperly paid two amounts, totalling
approximately R365 000, out of an amount being held in trust on behalf Nian Shun.
He immediately reported this to the appellant, who promptly confronted her husband
about the matter. The appellant never disputed or explained this and we must
therefore accept that she learned of the Nian Shun affair much earlier than what she
told the Law Society.

[59] This is not the only reason why the appellant’s statement that she had no
reason to suspect any wrongdoing in respect of trust funds until December 2015
cannot be believed. When the Nian Shun matter came to her knowledge there was,
as Mr Knoetze confirms, a confrontation between her and her husband. This led to an
exchange of WhatsApp messages between them, during the course of which the
appellant berated her husband, at times using language which would have made a
sailor blush. In the process, on 19 November 2015, the appellant stated ‘I have finally
had enough of your use of trust money for your personal gain’ (my translation of the
original Afrikaans). In my view this admits of only one inference, namely, that the
appellant was at that time already aware that her husband had used trust money for
his personal benefit on previous occasions. The use of the word ‘finally’ in this context
excludes any other connotation.

[60] It is suggested by my colleague that the appellant may possibly have been
referring to either a 2012 incident, when her husband had been charged before the
Law Society for the misuse of trust funds, or to a letter from Moroka Attorneys earlier
in 2015 in which a similar allegation was made. With respect, in my view, that amounts
to impermissible speculation, particularly as the appellant, herself, does not state that
to be the case. And therein lies the rub. It should not be necessary for a court to indulge
in speculation as to what the appellant may have had in mind when she said what she
did. She was obliged to fully explain her outburst, but failed to do so.

[61] Consequently, although the appellant insisted that she had no knowledge of
her husband’s misappropriations prior to the Nian Shun incident on 13 November 2015
(without explaining why she initially told the Law Society that he was oblivious to his
misconduct until December 2015) the only reasonable inference that may be drawn
from the words she used in her WhatsApp message when she learned of the Nian
Shun incident, leaves no doubt that this is not true. The clear inference of her message
is that, prior to that incident, the appellant was aware of at least certain of her
husband’s abuse of the firm’s trust funds and that the Nian Shun incident was, in effect,
the last straw that broke the camel’s back. If there was any other explanation, it was
incumbent upon the appellant to provide it. She did not, and one must infer that she
meant what she said. What she said can only mean that she knew, before the Nian
Shun incident, that her husband had previously used trust money for his personal
benefit.

[62] Any doubt about this is removed by Mr Knoetze’s undisputed evidence. He
placed on record that the appellant had on a number of previous occasions attempted
to obtain clarity from her husband regarding various payments he had made from both
the firm’s trust and business accounts, but that her husband had repeatedly chased
her out of his office, swearing and shouting at her. In particular he stated that during
October 2015 the appellant and her husband had a serious confrontation in respect of
trust or business funds paid out to another business conducted by her husband under
the name of RJ Construction. All of this, he says, he had heard clearly as his office
was immediately adjacent to that of the appellant’s husband. None of this has been
disputed by the appellant and must therefore be accepted. This clearly establishes

that the misuse of trust funds was an issue between the appellant and her husband
long before the time she attempted to persuade the Law Society had been the case.

[63] The appellant was not open and frank about this as was to be expected from
an officer of the court. Her failure to properly deal with the matter is telling. It must be
accepted that she knew of her husband’s abuse of trust funds months before the date
she attempted to make out to the Law Society and the court as being when she first
learned of his mischief. She therefore lied under oath to both the high court and to the
Law Society on this issue, and persisted in advancing such untruth in this court. This
is inherently dishonest and is deserving of the severest stricture. The cases are legion
that a lack of scrupulous honesty and truthfulness constitute a ‘fatal barrier’ to practice
as an attorney.25 In my view, lies under oath and her attempt to mislead the high court
(and this court on appeal), renders a mere suspension from practise wholly
inappropriate. The only way to protect the public from dishonest attorneys who are
prepared to lie to a court is to remove them from the roll.

[64] That brings me to a chapter of the events involving Ms Belinda Petzer, who had
formerly been employed by the firm as a conveyancing secretary. In an affidavit
deposed to on 31 January 2016, she alleged that the appellant had occasionally also
purchased houses which were funded from trust money. She also attested to an
incident in January or February 2014 when, for purposes of speculation, the
appellant’s husband had purchased two houses at an auction in execution. In
response to a question from the appellant’s husband, but in the presence of the
appellant, she identified a client, Mr Ahmed Nabil, out of whose trust money the
amount needed to pay for the two houses could be taken. This was done and the
houses were paid for. They were resold shortly thereafter and, within days, the money
was repaid to trust. All this she says was done with the appellant’s knowledge and
consent.

[65] Although the appellant denied these allegations, and alleged that Ms Petzer
had perjured herself, they were supported to an extent by the firm’s records which
indicate that the two properties were, indeed, purchased and resold, albeit in

25 See eg Merret at 382J–383H and the cases there cited.

December 2013 not early in 2014 (but nothing turns on that discrepancy).
Furthermore, it would seem at first blush to be wholly improbable that a third party,
having no interest in the matter, would make such an incriminating statement if it were
not true. However, the appellant points out that she had laid a charge of theft of some
R 30 000 against Ms Petzer after she had left the firm’s employ in 2014, and suggests
that, in all probability, Ms Petzer had been influenced to make a false statement by
her husband, who may have been helping her in her defence in the criminal
proceedings.

[66] Leaving aside for the moment the truth or otherwise of Ms Petzer’s version of
events, there are important ancillary matters which arise out of this episode. First, it
appears that on 4 March 2015 the appellant wrote to Ms Petzer’s new employer,
Moroka-Attorneys of Welkom, informing them that she had discovered that Ms Petzer
had stolen money (the precise terms of this communication do not form part of the
record). Moroka-Attorneys replied the same day, stating that Ms Petzer denied
stealing the money and alleged that although the amount had in fact been paid to her
as part of her performance bonus, she was prepared to repay it. However, they went
on to record that although Ms Petzer was making no threats, she had informed the
writer of the letter that she was in possession of documentation relating to a number
of files in which trust funds had been used to purchase properties in the name of the
appellant’s husband, after which the money had been returned once bonds had been
registered over such properties. (I should mention that the appellant went on to lay
charges of theft against Ms Petzer but it seems nothing came of any prosecution.)

[67] In her opposing affidavit, the appellant stated the following in regard to this
incident:
‘I did confront [my husband] regarding the allegations by Petzer of him misappropriating trust
money and [he] denied these allegations. It was hardly possible for me to magically be aware
which monies Petzer was referring to which were, according to her, misappropriated.’
This sarcastic response was of a tone totally uncalled for in responding to her
professional organisation attempting to comply with its duty to place facts before court.
Her sarcasm in itself shows a lack of professional integrity on her behalf. The Law
Society is the watchdog of the profession, obliged to investigate complaints laid
against practitioners. A practitioner has a concomitant duty to fully participate in any

enquiry conducted by the Law Society, and a failure to do so serves to undermine
public trust in the profession as a whole. Consequently, and as this court  pointed out
in Kudo v Cape Law Society,26 not only integrity but also loyalty to the Law Society is
expected from an attorney, and a practitioner who does not honour and appreciate his
or her professional organisation is truly a fly in the ointment. Sarcasm of this nature
should never have formed part of the appellant’s response.

[68] Furthermore, but most importantly, the appellant’s failure to take further steps
to investigate a very serious allegation of abuse of trust funds was just not good
enough. It was not the first occasion that, to her knowledge, her husband had been
accused of misappropriating trust funds. In 2012 he had been charged before the Law
Society with abusing trust funds and, although he was not convicted on that charge,
that incident constituted a clear warning that he was possibly not to be trusted and the
administration of the firm’s trust funds might not be in reliable hands. Trust funds are
sacrosanct, and even if she had not had this warning, on learning of Ms Petzer’s
allegations it was wholly insufficient for the appellant to merely accept her husband’s
denial of any wrongdoing. Instead, in the light of the statutory obligations she bore as
a director of the firm it was incumbent upon her to immediately make full enquiries in
regard to the trust funds with which her husband had been dealing, especially those
with which Ms Petzer had been associated (which required no magic on her part). That
was her clear and obvious obligation. Had she done so, the loss of more than
R1.7 million out of trust may well have been avoided.

[69] In the light of the previous charges against him, her meek acceptance of her
husband’s denial of wrongdoing, and her failure to take any steps to investigate the
matter further or to report the allegation to the Law Society (and, significantly, she
made no mention of this when she wrote to inform the Law Society that Ms Petzer had
apparently stolen what appears to have been funds held in trust), was not only reckless
but constituted a cavalier attitude towards her trust fund obligations. Not only was this
a gross breach of the obligations as an attorney to ensure that her trust accounts were
in order, but her failure to appreciate the seriousness of the matter in the present
proceedings is, to me, a cause of great concern. It speaks volumes for her lack of

26 Kudo v Cape Law Society 1977 (4) SA 659 (A) at 668E-F.

appreciation of her duties as an attorney and the rules of the Law Society, all of which
in my view renders her mere suspension from practice wholly inappropriate.

[70] The appellant’s hesitation in reporting her husband’s theft of trust moneys is
also a cause for concern. I accept that the existence of a marriage relationship
between directors of a law firm may make it awkward for one to report the other to the
Law Society, but it does not permit greater leeway than would otherwise be the case.
With great respect, I am unable to agree with my learned colleague’s statement that it
was not unreasonable for the appellant to delay reporting her husband for a month or
more. Her duty as an attorney was paramount. The protection of the public was at
stake. She was obliged in the interests of both the public and her chosen profession
to report the matter ‘immediately’, as is enshrined in the rules of South African Legal
Practice27 (and a delay of months can by no stretch of the imagination be regarded as
compliant with this). She did not do so. In any event, as I’ve set out above, it is clear
from the undisputed evidence that she had been aware of the abuse of trust funds for
several months before December 2015 and that by then the marriage relationship had
effectively ended. The WhatsApp tirade in November 2015, which contains threats of
reporting the matter, clearly proves that to have been the case. Surprisingly it was only
after the appellant had consulted with legal representatives that she made her report
to the Law Society. That consultation, during which she must presumably have been
reminded of her duty as an attorney, should not have been necessary at all. On the
undisputed evidence, there was a wholly unreasonable delay before the matter was
reported.

[71] The Law Society points out that when the appellant realised that her husband
had made himself guilty of the Nian Shun abuse, it was unnecessary to do anything
more than report the matter to it. Instead, the appellant initially accepted her husband’s
undertaking to rectify the matter, which the Law Society stated it understood to mean

27 Rule 54.14.10 of the South African Legal Practice Rules, promulgated under the Legal Practice Act
28 of 2014, and which reflect what has always been the position for attorneys, provides :
‘A firm shall immediately report in writing to the Council should the total amount of money in its trust
bank accounts and money held as trust cash be less than the total amount of credit balances of the
trust creditors shown in its accounting records,  together with a written explanation of the reason for the
debit and proof of rectification.
A firm shall immediately report in writing to the Council should an account of any trust creditor be in
debit, together with a written explanation of the reason for the debit and proof of rectification.’

that he would repay the money and, if he had, the appellant would not have reported
the misconduct. This the appellant does not deny. Accordingly, it is only because her
husband had not repaid the debt that she reported him to the Law Society. Not only
does it explain her delay but it shows an unwillingness to do the right thing, and that
must count heavily against her in considering whether she should be removed from
the roll or merely suspended. Whether the trust funds were repaid or not, there was
an obligation to report the matter to the Law Society. Of that there can be no doubt. I
therefore see no point in referring the matter for oral evidence in regard to the delay
which on the undisputed facts was wholly unreasonable.

[72] As detailed above, even if the appellant was not herself guilty of any abuse of
trust funds, she has been neither open nor frank with the Law Society, the high court
or this court in regard to the material events. In fact, in certain respects she has shown
to have been untruthful. Her statements under oath that she first learned of trust fund
irregularities in December 2015, which later changed to November 2015, were simply
false. Not only does this untruthfulness show a lack of the necessary qualities required
of an attorney, it is a weighty consideration militating against any lesser stricture than
removal from the roll (as emphasised by this court in Vassen).28 Further, the manner
in which an attorney conducts proceedings to strike him or her from the roll may in
itself be relevant to the sanction to be imposed and, should the attorney not have been
frank and open with the Law Society, this, too, is a pertinent factor to be taken into
account. After all, as an attorney the appellant was under an obligation to assist the
court in its search for the truth. As mentioned at the outset, the attorney is expected to
co-operate and to provide all necessary information so that the full facts are placed
before the court to enable it to make a correct and just decision. In contradistinction,
as already mentioned, the appellant’s conduct of her case in various respects is
hallmarked by her lack of candour and truth.

[73] Furthermore, the appellant approached her responsibilities in regard to the
firm’s trust funds in a cavalier fashion. That is all the more so given the fact that she
was aware of alleged irregularities, certain of which she has declined to disclose, for

28 At 539B-C.

months before she ultimately brought the matter to the Law Society’s attention. This
brings the element of protection of the public to the fore.

[74] In Kekana,29 Hefer JA stated that absolute integrity and scrupulous honesty are
demanded from legal practitioners and that those who have demonstrated a lack of
those qualities cannot be expected to play their part. In the present case, the conduct
of the appellant detailed above demonstrates a lack of these necessary qualities. As
detailed above, she failed to treat the firm’s trust funds with the necessary care and
attention; she knew of reports that her husband was abusing the firm’s trust moneys
and failed to make the necessary enquiries in regard thereto; she in fact had learned
of certain of his abuses before the Nian Shun incident was brought to her attention
but, apart from arguing with her husband, she did nothing to prevent such abuses
continuing and failed to report his indiscretions to the Law Society; and, even once the
marriage had broken down, it took her two months to report the Nian Shun episode to
the Law Society, notwithstanding her threat to do so immediately (which she should
have done). And in what is in my view the final nail in the coffin of her argument, it has
been shown that she has been untruthful, not only in her reporting of abuse of trust
funds to the Law Society, but by not making a full and frank disclosure to both it and
the court as she was obliged to do. Indeed, she has been a stranger to the truth,
displaying an inherent dishonesty against which the public needs to be protected

[75] It must also be stressed that although the final decision of course lies in the
hands of the court, due to the special position the Law Society holds in relation to its
members, its views are of great importance in a case such as this: see eg
Prokureursorde, Transvaal v Van der Merwe.30 Counsel for the appellant correctly
conceded that the Law Society had a measure of sympathy for the appellant who
appears to have been abused by her husband, but nevertheless felt that the severity
of the matter was such that striking off was necessary. This is a weighty consideration
to be placed in the scales in deciding whether suspension would be an adequate order
to make. In the light of the appellant’s dishonesty and the other factors that I mentioned
above, in my opinion the only appropriate sanction is to strike the appellant’s name

29 Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA); [1998] 3 All SA 577 (A) at
656A-B.
30 Prokureursorde, Transvaal v Van der Merwe 1985 (2) SA 208 (T) at 213A-B.

from the roll of attorneys. It has certainly not been shown to me that suspension for a
couple of years will ensure that the appellant will thereafter be a fit and proper person
to practice as an attorney. If she is struck from the roll, and subsequently wishes to be
re-enrolled, it will be incumbent upon her to prove that she has in fact reformed.
Striking from the roll will therefore provide a greater degree of protection for the public
than a mere suspension.

[76] My learned colleague expresses the view that there are gaps and contradictions
in the appellant’s evidence which is a cause for concern. I agree wholeheartedly with
her. Where I disagree, however, is whether the matter should be referred for the
hearing of oral evidence to deal with these gaps and contradictions as she suggests.
In my respectful opinion, it was incumbent upon the appellant, in seeking to persuade
the court to exercise its discretion in her favour, to fully explain what her case is in
regard to these issues. She declined the opportunity and I see no reason for this court
to refer the matter back to the high court to investigate, by way of oral evidence issues,
which the appellant has declined to either raise or dispute. I see no reason for the high
court to take evidence when the matter can readily be decided on the undisputed
evidence on record.

[77] Accordingly, although the court of first instance seriously misdirected itself, by
reason of the other factors that I have mentioned and which are not in dispute, in my
judgment an order striking the appellant from the roll is the only appropriate order to
be made.

[78] I have reached this conclusion without reaching a decision on whether the
appellant knew of or gave her approval to the misuse of Mr Ahmed Nabil’s trust fund,
as alleged by Ms Petzer. If the allegations made against the appellant in that regard
were to be established, the appellant would have made herself guilty of what has been
described by this court31 as ‘about the worst professional sin that an attorney can
commit by misappropriating trust funds’. As this is a matter which by a majority is to
be referred for the hearing of evidence, it would be wrong for me at this stage to

31 Budricks para 11.

possibly influence the court which is to hear that evidence by expressing any opinion
on the papers in regard to the inherent probabilities, one way or the other.

[79] I mention this last aspect merely as an aside. In my view, despite the
misdirection of the court of first instance, an order striking the appellant from the roll
was correctly made. In my judgment, the appeal should therefore be dismissed with
costs on the scale as between attorney and client, such costs having been correctly
tendered by the appellant.

_________________
L E LEACH
JUDGE OF APPEAL

APPEARANCES:

For appellant:

S J Reinders
Instructed by:

Symington & De Kok, Bloemfontein

For respondent:

N Snellenberg SC
Instructed by:

Hill, McHardy & Herbst Inc, Bloemfontein