THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

REPORTABLE
Case number :  270/05

In the matter between :

KEVIN JOHN ROLLO SUMMERLEY

APPELLANT

and

THE LAW SOCIETY OF THE
NORTHERN PROVINCES

RESPONDENT

CORAM :
MPATI DP, BRAND, CONRADIE, VAN
HEERDEN et JAFTA JJA

HEARD :
2006-05-05
DELIVERED :
2006-05-19

Summary:

Attorney struck from the roll by court a quo – misconduct not
involving dishonesty – decided that he should rather be
suspended from practice with further restrictions imposed after
expiry of suspension period.
Neutral citation:
This judgment may be referred to as Summerley v Law
Society, Northern Provinces [2006] SCA 59 (RSA)
_____________________________________________________

JUDGMENT

BRAND JA/

BRAND JA:

[1] The appellant practises as an attorney in the province of Gauteng. On
application by the respondent (‘the society’), in terms of s 22(1)(d) of the
Attorneys Act 53 of 1979 (‘the Act’), the Pretoria High Court (Van der
Merwe J, with Els J concurring) ordered that his name be struck from the roll
of attorneys. Further ancillary orders were made, dealing with such matters as
the appointment of a curator to administer and control the appellant’s trust
account, with the view to ensuring payment of his trust creditors. In
accordance with the established custom in matters of this kind, the
respondent was also ordered to pay the society’s costs of the application on
an attorney and client scale. The appeal against the court a quo’s judgment is
with the leave of this court.

[2] In terms of s 22(1)(d), an attorney may, at the instance of ‘the law
society concerned, be struck from the roll or suspended from practice by the
court . . .  – if he, in the discretion of the court, is not a fit and proper person to
continue to practise as an attorney’. It has now become settled law that the
application of s 22(1)(d) involves a threefold enquiry (see eg Jasat v Natal
Law Society 2000 (3) SA 44 (SCA) para 10 at 51C-I and Law Society of the
Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA) para 2 at 13I-14B). The
first enquiry is aimed at determining whether the law society has established
the offending conduct upon which it relies, on a balance of probabilities. The
second question is whether, in the light of the misconduct thus established,
the attorney concerned is not a ‘fit and proper person to continue to practise
as an attorney’. Although this has not always been the position, s 22(1)(d)
now expressly provides that the determination of the second issue requires an
exercise of its discretion by the court (see eg A v Law Society of the Cape of
Good Hope 1989 (1) SA 849 (A) at 851C-E). As was pointed out by Scott JA
in Jasat (at 51E-F), the exercise of the discretion at the second stage
‘involves in reality a weighing up of the conduct complained of against the
conduct expected of an attorney and, to this extent, a value judgment’ (see
also eg Budricks supra at 14A). The third enquiry again requires the court to
exercise a discretion. At this stage the court must decide, in the exercise of its

discretion, whether the person, who has been found not to be a fit and proper
person to practise as an attorney, deserves the ultimate penalty of being
struck from the roll or whether an order of suspension from practice will
suffice.

[3] As to the appellant’s offending conduct, the facts were largely common
cause. Factual allegations on the papers which turned out to be contentious,
were not held against the appellant by the court a quo. I propose to do the
same. The complaints, thus established against the appellant on the
undisputed facts, fell into two broad categories. Firstly, those relating to the
maladministration of his trust account and, secondly, those arising from other
contraventions of the society’s rules.

[4] Problems relating to the appellant’s trust account first came to the
notice of the society when he failed to submit the annual report on the audit of
the account – as required by the rules of the society – for the financial year
which ended on 28 February 2001. In consequence, he could not be provided
with the fidelity fund certificate prescribed by s 41(1) of the Act. The appellant
was therefore practising for his own account without the required certificate,
which in itself constituted a criminal offence under s 83(10) of the Act.

[5] As a result of the appellant’s failure to file the annual audit report, the
society instructed a chartered accountant, Mr Swart, to investigate the
appellant’s management of his trust account for the 2001 financial year. From
the report subsequently prepared by Swart, it appeared that, during that
financial year, the appellant had failed to comply with the most basic rules of
the society pertaining to the administration of trust accounts. Although in
theory the appellant kept a trust account separate from his business account,
as required by s 78(1) of the Act, his business account became dormant
because he had exceeded the limit of his overdraft. When that happened, the
appellant simply used his trust account for both business and trust purposes.
This practice brought him into perpetual conflict with the society’s rule that
money in an attorney’s trust account not owing to trust creditors, should be
transferred to his or her business account without delay.

[6] The appellant’s practice of utilising his trust account for dual purposes
also led to difficulties in identifying trust funds. According to Swart’s report,
these difficulties were exacerbated by the fact that, apart from his bank
statements, the appellant kept no accounting records whatsoever. So, for
example, he could not provide Swart with a cash book or any ledger of trust
creditors or business debtors. Nor did he keep any updated list of trust
creditors, as specifically required by the society’s rules. A further infringement
of these rules found by Swart, was that trust cheques were regularly drawn by
the appellant, not crossed in any way and made out to ‘bearer’.

[7] Most disturbing to the society, was the finding by Swart that the
appellant’s trust account had been in overdraft on numerous occasions. On
one such occasion the account was in overdraft for more than one month. It
would appear that, in the society’s view, every one of these occasions
constituted a breach of its most fundamental rule, that the total amount in an
attorney’s trust account must at all times be sufficient to cover the amounts
owing to trust creditors. I do not think this view can be sustained. To me it
seems that these overdraft situations resulted directly from the appellant’s
custom of running his whole business through his trust account. Once it is
clear that all the deposits in the appellant’s trust account were not trust
monies, in the sense that they were held on behalf of another person, logic
dictates that the rule referred to would only be contravened by an overdraft on
the trust account if, at the time of the overdraft, there was money owing to at
least one trust creditor. It is true that in a ‘regular’ attorney’s practice the
existence of at least one trust creditor would be virtually axiomatic. But, not so
for the appellant. From Swart’s report it appears that during the financial year
investigated by him, the appellant had handled only one trust transaction.
Though the appellant did debt collections on behalf of one client, these
collections were paid directly to the client and not into the appellant’s trust
account. The one trust transaction was a conveyancing matter where,
pending transfer of the property, the appellant received the purchase price in
trust for the seller, who was his client. As it happens, it was with reference to
this transaction that the appellant’s most serious transgression occurred. I will
come to that. In the circumstances, it appears that the other occasions on

which the appellant’s trust account was found to have been overdrawn did not
involve any mismanagement of trust money at all.

[8] This brings me to the single trust transaction which related to the sale
of an immovable property by the appellant’s client, Mrs Hairs. On 11 August
2000, so Swart reported, the purchase price of roughly R330 000 was
deposited into the appellant’s trust account. On that day the credit balance in
the account was only about R400. Immediately after 11 August a number of
cheques were drawn on the account which were unrelated to the trust
transaction. On 23 August 2000 an amount of approximately R270 000 was
paid to Mrs Hairs. The appellant’s trust cheque for the balance of R30 558
was, however, dishonoured on presentation, because there were insufficient
funds available in the account. According to Swart, the cheque was eventually
honoured by the bank after an amount of R50 000 had been deposited into
the account on 31 August 2000. With regard to the Hairs transaction, the
society was clearly correct in its conclusion that the appellant had breached
its rule that there should never be any shortfall in an attorney’s trust account.
Moreover, on the face of it, the appellant on this occasion appropriated trust
funds for purposes other than those for which they were intended.

[9] Compared to his transgressions with regard to the handling of his trust
account, and particularly those resulting from the Hairs transaction, the
appellant’s other contraventions of the society’s rules were considerably less
serious. In the main, they consisted of two types. Contraventions of the first
type resulted from his persistent failure to respond to enquiries by the society,
emanating from relatively minor complaints by some of his clients. The
second kind of contravention consisted of his failure ‘to pay within a
reasonable time, the fees and disbursements of other legal practitioners in
respect of work that he entrusted to them’.

[10] The appellant’s explanations for his misconduct were closely tied up
with his narrative about the history of his professional career. Though he was
admitted as an attorney on 16 July 1974, the appellant recounted, he only
practised for about six months as a professional assistant, at the firm where

he served his articles of clerkship. He thereafter left the profession for more
than 18 years, which were largely taken up by his involvement in various
business ventures. In July 1993, the appellant said, he was persuaded to
return to the attorney’s profession. According to the appellant, over the next
ten years, which preceded the striking-off application, he never succeeded in
establishing a financially viable practice. He always practised on his own. He
had very few clients and he constantly struggled to survive. During those ten
years, he moved office no fewer than eight times because he could not afford
the rental. He mostly did his own typing and administration and his
bookkeeping often fell behind. During 2001, when most of his non-trust
related transgressions occurred, he worked almost exclusively for one client
who was in financial difficulty, hoping that he would be rewarded for his time
and effort if the client survived. Unfortunately that did not happen. Towards
the end of 2001, the ailing client was finally wound up. Because he had
neglected the rest of his practice, so the appellant said, the liquidation of this
client left him in an even greater predicament, financially and otherwise, than
he had been before.

[11] Against this background, the appellant gave various explanations as to
how it came about that he managed his trust account in a way which, at least
on the face of it, seemed to demonstrate an almost wanton disregard for the
rules of the society. Apart from the fact that he had to do everything himself
while under pressure to survive, the appellant explained, he was never good
at bookkeeping and he always had problems with accounting. Moreover, he
said, he actually had very little practical experience to begin with at the time of
his departure from the attorney’s profession in 1975. When he eventually
returned to practice in 1993, he had been out of what he described as ‘the
attorney culture’ for too long. Although he was therefore aware of the fact that
he was administering his trust account in contravention of the society’s rules,
he had no real appreciation of the seriousness of his transgressions. So, for
instance, although he knew that he should not use his trust account for
business purposes, he believed that as long as he only used funds due to him
personally, ‘I could regard the money as being in trust for myself and that it
would not do anyone any harm’. With regard to his custom of not crossing

trust cheques and making them payable ‘to bearer’, his explanation was that
these cheques were always made out to himself as payee; that he had
cashed them at the bank and that he regarded them as ‘merely transfers of
my money’.

[12] With regard to the Hairs transaction, the appellant attributed his
transgressions to another client, Mr Martin, who had assured him ‘at about
that time’ that an amount of R50 000 owing to him, had been transferred into
his trust account. On the basis of this assurance, the appellant said, he wrote
out ‘certain cheques’ until his cheque of R30 558 in favour of Mrs Hairs was
dishonoured. According to the appellant, he only then realised that Martin’s
assurance was not true. To the appellant’s way of thinking, his only real
mistake was that he accepted Martin’s word without verification before he
started writing out cheques. In the end, however, so the appellant contended,
Mrs Hairs suffered no prejudice, because she received the amount owing to
her once Martin’s deposit of R50 000 was made at the end of August 2000, as
was borne out by Swart’s report.

[13] His other contraventions, not arising from the administration of his trust
account, were essentially blamed by the appellant on his struggle during 2001
– when most of these contraventions occurred – to keep both his practice and
his ailing client alive. In conclusion, the appellant conceded that he had made
many mistakes and that ‘I have blundered through certain situations in a
manner that I am not proud of’. Nevertheless, he submitted, he does not
deserve to be struck from the roll, but he should be allowed to practise as an
employee of another attorney, where his inability to manage a trust account
would not be of any consequence. In support of this submission he referred to
the affidavit of Mr Warwick Jones, an attorney practising for 26 years, who
confirmed that he was prepared to take the appellant under his wing, as it
were, in the capacity of a ‘consultant’.

[14] Despite these submissions the court a quo held, as I have said, that
the appellant’s name should be removed from the roll. It’s ratio decidendi

seems to be encapsulated by the following quotation from the judgment of
Van der Merwe J:
‘The [appellant] now wants this court to allow him to continue his practice as an attorney,
though as a consultant with another firm of attorneys, and, for the protection of the public, not
to allow him to maintain or administer an attorney’s trust account.
In my judgment, an attorney who is a fit and proper person to practise as an attorney, must
also be able to maintain and administer a trust account. If he is not able to maintain and
administer a trust account, he is, in my judgment, not a fit and proper person . . . .
I am satisfied that on the evidence as a whole the respondent is not a fit and proper person to
practise as an attorney. His name will therefore be struck from the roll of attorneys.’

[15] In this court it was argued on behalf of the appellant that the court a
quo had erred in finding, as a matter of principle, that an attorney’s inability to
maintain a trust account automatically renders him or her not a fit and proper
person to continue in practice. In support of this argument it was pointed out,
inter alia, that it is no requirement for admission as an attorney that the
applicant should satisfy the court of his ability to maintain a trust account and
that a separate trust account and a fidelity fund certificate are only required if
the attorney wants to practise in partnership or for his own account (see
s 41(1) of the Act).

[16] Though this argument is not completely without merit, it is unnecessary
to decide in the abstract whether the view held by the court a quo can as a
matter of principle be sustained. I say in the abstract, because the case
against the appellant is not simply that he was unable to maintain and
administer a trust account. Even more disturbing than mere inability is his
degree of non-compliance with the society’s rules which, in my view, showed
no less than a total lack of appreciation of both the nature of and the reason
for the institution of a trust account. This lack of appreciation is accentuated
by some of his statements in mitigation. By way of example I refer to his
statement with reference to the Hairs transaction, namely, that his only real
mistake was that he had failed to verify Martin’s statement that the amount of
R50 000 had been transferred to his trust account before he started writing
out cheques. What he obviously failed to consider was the question: what
would have happened if Martin was unable to meet his obligation? Or, what

would have happened if the appellant’s estate was sequestrated before he
was eventually paid by Martin? He therefore failed to realise that in these
situations Mrs Hairs would clearly have been at risk, while the total absence of
risk constitutes the very essence of an attorney’s trust account (see eg Law
Society, Transvaal v Matthews 1989 (4) SA 389 (T) at 394B-C).

[17] Added to this are the appellant’s other transgressions not related to his
trust account. Though they may not on their own have been serious enough to
render the appellant not fit and proper, this issue must be decided on the
totality of all the evidence. On the evidence as a whole I am satisfied that the
court a quo cannot be faulted in arriving at the conclusion that the appellant is
not a fit and proper person to continue to practise as an attorney, as is
envisaged by s 22(1)(d) of the Act. In the light of this finding there were only
two options available to the court a quo: to suspend the appellant from
practice or to strike him from the roll (see Budricks supra at 16C-E). Merely
interdicting him from practising for his own account, would not suffice.

[18] This brings me to the third enquiry, namely, whether the appellant
should be removed from the roll of attorneys or whether an order suspending
him from practice would be an appropriate sanction. In answering this
question sight should not be lost of the reality that in its effect the imposition of
the former stricture constitutes a severe penalty. Apart from the ignominy of
being struck off the roll, the attorney will be precluded from practising his
profession for a substantial period of time. This is so because, as was pointed
out by Galgut AJA in Law Society of the Cape v C 1986 (1) SA 616 (A) at
640D-E:
‘Such an order envisages that the attorney will not be re-admitted to practise unless the court
can be satisfied by the clearest proof that the applicant has genuinely reformed, that a
considerable period has elapsed since he was struck off and that the probability is that, if
reinstated, he will conduct himself honestly and honourably in the future.’

[19] Before imposing this severe penalty, the court should therefore be
satisfied that the lesser stricture of suspension from practice will not achieve
the objectives of the court’s supervisory powers over the conduct of attorneys.

These objectives have been described as twofold: firstly, to discipline and
punish errant attorneys and, secondly, to protect the public, particularly where
trust funds are involved (see eg Budricks supra at 16E-G).

[20] It was argued on behalf of the appellant that he did not deserve the
ultimate penalty of striking-off, because he was never found to be dishonest.
Factually this argument appears to be well founded. None of the appellant’s
transgressions seems to reflect on his honesty and integrity. Although his trust
account was in debit on a number of occasions, these mostly did not involve
trust funds at all. It is true that on the one occasion where he was called upon
to manage trust funds, he did in effect use those funds for unauthorised
purposes. But even on this occasion he cannot be said, in my view, to have
misappropriated trust money, in the sense of dishonestly using it for himself.
His explanation is that he did so inadvertently because he acted on the
assurance of a client that sufficient funds had previously been transferred to
his trust account. It is true that his explanation was rather vague, but it is not
gainsaid by any direct evidence. On the contrary, his version is to some extent
borne out by the investigation of Swart. It is, at least indirectly, supported by
both Martin and Hairs.

[21] The further argument on behalf of the appellant was that, as a general
rule, striking-off is reserved for attorneys who have acted dishonestly while
transgressions not involving dishonesty are usually visited with the lesser
penalty of suspension from practice. Although this can obviously not be
regarded as a rule of the Medes and the Persians, since every case must
ultimately be decided on its own facts, the general approach contended for by
the appellant does appear to be supported by authority (see eg A v Law
Society of the Cape of Good Hope 1989 (1) SA 849 (A); Reyneke v
Wetsgenootskap van die Kaap die Goeie Hoop 1994 (1) SA 359 (A); Law
Society of the Cape of Good Hope v King 1995 (2) SA 887 (C) at 892G-894C;
Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA) at
538I-539A; Law Society, Cape of Good Hope v Peter [2006] SCA 37 (RSA)
para 19). This distinction is not difficult to understand. The attorney’s
profession is an honourable profession, which demands complete honesty

and integrity from its members. In consequence, dishonesty is generally
regarded as excluding the lesser stricture of suspension from practice, while
the same can usually not be said of contraventions of a different kind.

[22] Though not contending that the appellant had been dishonest, the
essential theme of the argument on behalf of the society was that the
appellant’s transgressions were so serious that they show him to be unworthy
to remain in the ranks of the attorney’s profession. Inter alia, it was
contended, his misconduct displayed a complete inability to distinguish
between the true nature of trust funds and funds in a business or private
account, which lack of insight can only be ascribed to a reckless disregard for
the most basic rules of the society aimed at the protection of trust funds. In
any event, so the society argued, the appellant had failed to demonstrate a
misdirection by the court a quo which would warrant an interference with the
exercise of its discretion to strike the appellant off the roll.

[23] With reference to the society’s last argument, it is, of course, a well-
established principle that, in an appeal against the exercise by a court of a
discretion, the appeal court has a limited power to interfere; that it cannot do
so merely because it would have exercised that discretion differently (see eg
Budricks supra at 14B). My problem is, however, that it does not appear from
the court a quo’s judgment in this matter that it had exercised its discretion in
a proper manner. From the statement that I have quoted (in para 14 above)
the court seemed to suggest that, because it had found the appellant not to be
a fit and proper person, his striking-off should follow as a matter of course.
That would mean that the third enquiry under s 22(1)(d) had been passed
over entirely. The only alternative meaning that can, in my view, be ascribed
to the court’s statement, is that, if an attorney is found unable to administer
and conduct his trust account, his striking-off should follow automatically. For
reasons that are, in my view, self-evident, such a broad statement cannot be
sustained. Either way, the court’s statement therefore reflects a misdirection
which obliges this court to exercise its discretion anew.

[24] That the appellant’s transgressions were serious, particularly when
viewed in their totality, cannot be gainsaid. The question whether they were
serious enough to warrant the extreme penalty of striking-off, ultimately
depends on a value judgment. On the application of that value judgment, I am
persuaded that in all the circumstances the penalty of striking-off is too
severe. What weighs heavily in the appellant’s favour is the consideration that
I have already referred to, namely, that he was not guilty of dishonesty. The
society’s contention was that, though a finding of dishonesty may not be
warranted, the appellant’s misconduct displayed a complete lack of insight
into an attorney’s obligations with regard to his trust account. I agree. What I
do not agree with, however, is the inference sought to be drawn by the society
that this lack of insight must be attributed to a reckless disregard for its rules
aimed at the protection of trust funds. On the appellant’s version, which
cannot be rejected, his lack of insight resulted from a dearth of knowledge and
experience. Though these answers will rarely be acceptable from an attorney
such as the appellant, who must be approaching middle age and who has
been practising for more than ten years, his situation appears to be quite
exceptional. He had no experience of note before he left the attorney’s
profession for about 18 years and he has hardly had any exposure to trust
transactions since his return. Because he always practised on his own, he
never benefited from the guidance of more experienced colleagues and,
because he was always struggling to survive, he was unable to employ
knowledgeable assistance.

[25] The next question is whether protection of the public requires that the
appellant be struck from the roll. Again I think not. The appellant has clearly
learnt a hard and painful lesson. In the circumstances, the probabilities are, in
my view, that if he is suspended from practice for a period of one year, he will
no longer suffer from the lack of insight into the nature of an attorney’s trust
account which now renders him unfit to continue his practice. Moreover, the
appellant’s declared intention is to practise as an employee for an
experienced attorney and not in partnership or for his own account. I propose
to secure that undertaking by way of a court order. That, I think, will as far as
humanly possible, eliminate any residual public risk. In the end, the type of

order made by the Cape High Court and recently endorsed in a majority
judgment of this court in Peter (supra), seems to be eminently suitable for this
case. Though Ms Peter was found to be unfit to practise as an attorney,
because she had dishonestly misappropriated trust money for her own
purposes, the majority agreed with the Cape High Court that she did not
deserve to be struck off the roll and that an order suspending her from
practice for a period of one year would suffice. Writing for the majority, Farlam
JA then proceeded as follows (at paras 22-23):
‘I am also of the view that it was appropriate for the court a quo to impose a further restriction
on the respondent after the expiry of the period of suspension, namely that for a minimum
period of one year she should not practise for her own account.
At first blush it may appear illogical to impose such a restriction on a person as to whose
fitness to practise one is satisfied, but this is in my opinion a case where it is preferable to err
on the side of caution. Although a repetition is unlikely there is always, by the very nature of
things, uncertainty. The respondent has shown herself to be naïve and immature, lacking in
experience and insight. It therefore seems to have been a wise precaution for the court a quo
to have restricted her from practising for her own account for a further period after the expiry
of her suspension so that she has the opportunity to gain the necessary insight and maturity,
the lack of which led to her present predicament.’

[26] I believe, however, that whereas Ms Peter was precluded from
practising independently for a period of one year after the expiry of her
suspension, that period should, as an additional precaution, be extended to
two years in the appellant’s case. Otherwise I also propose to follow the
precedent in Peter by ordering that, after that period of two years, he will only
be allowed to practise for his own account if he can satisfy the court that it
would be appropriate to allow him to do so. Apart from the changes to the
court a quo’s order which are necessitated by what I have said above, that
order can for the rest be confirmed.

[27] For these reasons the following order is made:
1.
The appeal is upheld with costs.
2.
Paragraph 1 of the order of the court a quo is set aside and replaced
by the following:

‘1(a) Kevin John Rollo Summerley (hereafter referred to as the
respondent) is suspended from practice as an attorney for a
period of one year.
(b)
The respondent is precluded from practising as an attorney for
his own account, either as principal or in partnership or in
association or as a director of a private company for a period of
two years from the expiry of the suspension in (a) above.
(c)
Should the respondent, after the expiry of the period referred to
in (b) above elect to practise in the manner set out in that
paragraph, he shall satisfy the High Court within the jurisdiction
of which he then practises that he should be permitted to
practise for his own account.’
3.
For the rest, the order of the court a quo is confirmed.

……………….
F D J BRAND
JUDGE OF APPEAL

Concur:

MPATI DP
CONRADIE JA
VAN HEERDEN JA
JAFTA JA