THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable

CASE  NO: 270/06

In the matter between :

JOHAN VAN DER BERG
Appellant

and

THE GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA
Respondent

____________________________________________________________________________
Before:
HARMS ADP, STREICHER, NUGENT, LEWIS JJA & MUSI AJA
Heard:
26 FEBRUARY 2007
Delivered:
22 MARCH 2007
Summary:
Application to strike advocate from the roll – restatement of the duties
of advocates.

Neutral citation:
This judgment may be referred to as Van der Berg v General Council of
the Bar [2007] SCA 16 (RSA)
____________________________________________________________________________

NUGENT  JA

NUGENT JA:
[1] A person who is admitted to practise as an advocate, and who chooses to
exercise that right to practise, must adhere to the recognised standards of the
profession.1 An advocate who fails to adhere to those standards to a degree that
satisfies a court that he is unfit to continue to practise is liable to be suspended from
practise or to have his name struck from the roll of advocates.2   On the application of
the General Council of the Bar of South Africa (GCB) the name of the appellant –
who has practised as an advocate at the Cape Bar for over 30 years, the last sixteen
years as Senior Counsel – was struck from the roll of advocates by the Cape High
Court (H.J. Erasmus and Dlodlo JJ).  This appeal is with the leave of that court.

[2] Proceedings to discipline a practitioner are generally commenced on notice of
motion but the ordinary approach as outlined in Plascon-Evans3 is not appropriate to
applications of that kind.  The applicant’s role in bringing such proceedings is not
that of an ordinary adversarial litigant but is rather to bring evidence of a
practitioner’s misconduct to the attention of the court, in the interests of the court, the
profession and the public at large, to enable a court to exercise its disciplinary
powers.4  It will not always be possible for a court to properly fulfil its disciplinary
function if it confines its enquiry to admitted facts as it would ordinarily do in motion
proceedings and it will often find it necessary to properly establish the facts.  Bearing
in mind that it is always undesirable to attempt to resolve factual disputes on the
affidavits alone5 (unless the relevant assertions are so far-fetched or untenable as to
be capable of being disposed of summarily) that might make it necessary for the court
itself to call for oral evidence or for the cross-examination of deponents (including
the practitioner) in appropriate cases.  In the present case that might well have been

1 Those standards are largely reflected in the Uniform Rules of Professional Conduct of the GCB though a court ‘is not
bound by those rules and remains the ultimate arbiter of the ethical rules of conduct of the profession’. See General
Council of the Bar of South Africa v Van der Spuy 1999 (1) SA 577 (T).
2 Section 7(1)(d) of the Admission of Advocates Act 74 of 1964.
3 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 620 (A) at 634E-635D.
4 Society of Advocates of South Africa (Witwatersrand Division) v Edeling 1998 (2) SA 852 (W) at 860B-D;  General
Council of the Bar of South Africa v Matthys 2002 (5) SA 1 (E) at 5A-C.
5 Middelberg v Prokureursorde Transvaal 2001 (2) SA 865 (SCA) at 870G-H; Summerley v Law Society of Northern
Provinces 2006 (5) SA 613 (SCA) para 3.

prudent and desirable so as to resolve the many questions that are raised by the
evidence, but that notwithstanding, the appeal can in any event be properly disposed
of on the undisputed facts.  (For that reason it is also not necessary to revisit what
degree of persuasion evidence must carry before facts can be taken to have been
established in cases of this kind.6)

[3] The issues and material facts in this matter appear from the careful and
meticulous judgment of the court below but some repetition is nonetheless
unavoidable.  Various procedural matters that were raised in the papers and dealt with
by the court below were not pursued in this court and I need say no more about them.
I will deal with the various complaints against the appellant in the chronological
order in which the relevant events occurred.

[4] The complaints against the appellant all arise from his relationship with Mr
Jürgen Harksen who arrived in this country from Germany in 1993 to seek relief from
what Harksen quaintly described as ‘mounting pressure’ from his European creditors.
The creditors concerned had paid substantial sums of money to Harksen in the belief
that the moneys would be invested with large returns.  Harksen led them to believe
that they were assured of being repaid because he was the beneficiary of a large
fortune – Harksen placed it at about DM1.85 billion – that was invested in a fund
known as SCAN 1000 that was held in trust.  But when investors sought to recover
their money there was none to be had and Harksen fobbed them off with various
explanations for why the trustees were unable to release the necessary funds. I think it
can now safely be accepted that in truth there was no fund, there was no trust, and
there were no trustees (although that is not admitted by the appellant).

MISLEADING THE COURT

6  Olivier v Die Kaapse Balieraad 1972 (3) SA 485 (A) at 496F-G; Cf Campbell v Hamlet [2005] 3 All ER 1116 (PC) at
1120 para 15 and 1123 para 26.

[5] One creditor, Mr Siegfried Greve, pursued his claim against Harksen in this
country by applying for Harksen’s sequestration in March 1995. Other creditors later
intervened to support the application. In his founding affidavit Greve alleged that
there was no SCAN 1000 fund, no trust, and no trustees.  Harksen disputed those
allegations, and in support of his assertion that the fund and the trust existed he
produced what purported to be affidavits of three of the alleged trustees (Mr Hans-
Josef Siegwart, Mr Ove Unri Johannson, and Mr Lars-Peter Arnemann) that
purported to have been attested before a Swiss official.

[6] Enquiries that were made by the attorney for an intervening creditor revealed,
amongst other things, that the Swiss official had never encountered Johannson and
Arnemann, and that the attestations to their affidavits had been forged. When these
facts were brought to the attention of Harksen’s legal representatives – who included
the appellant – there was naturally some consternation.

[7] The upshot was that the appellant, accompanied by an attorney, travelled to
Switzerland, intent upon meeting with the alleged trustees, obtaining an explanation
for the forged attestations, and securing authentic affidavits. In Switzerland they met
Siegwart.  It is not necessary to deal in any detail with the explanations they received
from Siegwart.  It is sufficient to say that he told them that the affidavits had indeed
been signed by Johannson and Arnemann respectively but admitted that he had
forged the attestation and obfuscated why he had done so.

[8] The appellant prepared fresh affidavits for the signature of the three deponents,
having been assured by Siegwart that Johannson and Arnemann would soon arrive to
sign them (they were said to be in the vicinity of the Mediterranean and in New York
respectively). Days went by, the two men did not arrive, various explanations were
offered by Swiegart, and when it became apparent that, in the words of the appellant,
‘the whole issue had become ridiculous’, the appellant and his attorney packed up
and left.

[9] While returning to South Africa the appellant prepared a memorandum
recording his impressions of what had occurred.  He recorded that Swiegart had been
obstructive, dishonest and fraudulent, and had never intended that Johannson and
Arnemann would appear. He went on to record the following:
‘It is our duty to satisfy ourselves whether Jürgen Harksen has any knowledge of the attitude
adopted by Siegwart and/or Siegwart, Johannson and Arnemann, and whether Johannson and
Arnemann in fact exist.  If Harksen is in any way whatsoever part of this scheme to mislead the
Court including the representation that there is a trust of which they are trustees, and this is a scam,
we have no option but to withdraw. …. If we are not satisfied that Jürgen Harksen is a part of this
unacceptable conduct and behaviour of Siegwart and/or Siegwart, Johannson and Arnemann, we
have no right to withdraw from our mandate.’ (I will return to that view of his ethical duty
later in this judgment.)

[10] What happened thereafter in relation to the sequestration application is not
material to the complaint made against the appellant. For completeness it is sufficient
to say that Harksen’s legal representatives asked for the offending affidavits to be
struck out and Harksen was finally sequestrated on 16 October 1995. Whether the
appellant ever discussed his experience in Switzerland with Harksen, and if so what
Harksen said, does not appear from the affidavits.

[11] In April 1996 Harksen’s provisional trustees brought an application aimed at
recovering certain property that was believed to belong to Harksen.  In the founding
affidavit it was again alleged that SCAN 1000 and the trust were fictitious.  Harksen
deposed to an answering affidavit in which he once more asserted that there was
indeed such a fund, and that there were indeed trustees who were administering the
fund.

[12] Harksen’s affidavit was settled by the appellant and the fact that he did so
forms the subject of the first complaint.  The GCB alleged in the founding affidavit
that it should be inferred from the surrounding facts that at the time the appellant

settled the affidavit he ‘either knew that SCAN 1000 and the alleged trustees thereof
did not exist, alternatively, he suspected that they were a fiction but allowed the
assertion as to their existence to be made recklessly and without regard for the truth.’
In effect the complaint is that the appellant was a party to misleading the court by
knowingly or recklessly allowing perjured evidence to be placed before it.

[13] The appellant denied that he knew or suspected that the fund and the trustees
did not exist at the time he settled Harksen’s affidavit but acknowledged that he had
had some reservations7 in that regard.  The court below found that the appellant
settled the affidavit while suspecting that the evidence it contained was untrue and
thereby ‘acted in a manner that was incompatible with the high standards of integrity
and honesty that are expected of an advocate.’8

[14] Advocacy fulfils a necessary role in the proper administration of justice.
(What is said in this judgment applies equally to attorneys to the extent that they play
an equivalent role but for convenience I have referred to advocates). It is through the
availability of the knowledge and skills of an advocate that a litigant is able to realise
the right of every person to have a dispute resolved by a court of law.  Its function in
the administration of justice at the same time defines the duties of those who practise
it. The right of every person to have a dispute resolved by a court of law would be
seriously compromised if an advocate were to be required to believe the evidence of
his client before being permitted to present it.  That would mean that the rights of the
litigant would be determined by the advocate rather than by the court.  As David
Pannick QC observes (in his book entitled ‘Advocates’) an advocate is required
‘to keep his personal opinions of the merits of the case (legal or otherwise) to himself and not make
them the subject of his submissions. The advocate’s duty to his client authorizes and obliges the
advocate to say all that the client would say for himself (were he able to do so) … He has no right to
“set himself up as a judge of his client’s case” and should not “forsake [his] client on any mere
suspicion of [his] own or any view [he] might take as to the client’s chances of ultimate success”.

7 ‘Sekere voorbehoude’.
8 ‘…het nie voldoen aan die hoë graad van eerlikheid en integriteit wat van ‘n advokaat vereis word nie.’

As Baron Bramwell explained in 1871, a “man’s rights are to be determined by the Court, not by his
[solicitor] or counsel … A client is entitled to say to his counsel, I want your advocacy, not your
judgment; I prefer that of the Court.”’9
The Master of the Rolls made the same point when describing the duty of an advocate
towards his client in Rondel v Worsley:10
‘[A barrister] has a monopoly of audience in the higher courts. No one save he can address the
judge, unless it be a litigant in person. This carries with it a corresponding responsibility. A barrister
cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the
courts.  No matter how great a rascal the man may be.  No matter how given to complaining. No
matter how undeserving or unpopular his cause.  The barrister must defend him to the end.’

[15] The finding by the court below that it was improper for the appellant to settle
the affidavit because he suspected that the evidence was false is not correct.  Merely
to suspect, or even to firmly believe, that evidence is false does not preclude an
advocate from permitting his client to place the evidence before a court.  On the
contrary, it would be improper for an advocate to refuse to do so on those grounds
alone.  For the same reason the submission on behalf of the GCB that an advocate
may settle an affidavit only if ‘the advocate has a reasonable basis for believing that
the evidence might be true’ is also incorrect. An advocate is not called upon to
believe, to any degree, the evidence that he is instructed to place before a court.  Even
if he believes positively that his client’s evidence is false, he is entitled, and indeed
obliged, to place it before a court if those are his client’s instructions, and there can
be no qualification in that regard.  (No doubt it would be prudent for an advocate to
advise his client that a court is likely to share his belief but that is something else.)

[16] But it is a different matter altogether if an advocate knows (as a fact and not
merely as a matter of belief) that evidence is false or misleading.  For the role of
advocacy in furthering the proper administration of justice also gives rise to duties
that are owed to the court, primarily a duty upon an advocate not to deceive or
mislead a court himself. After observing in Rondel v Worsley that the advocate must

9 Pages 92-93.
10 1967 (1) QB 443 (CA) at 502.

do ‘all he honourably can on behalf of his client’ the Master of the Rolls went on as
follows:11
‘I say “all he honourably can” because his duty is not only to his client.  He has a duty to the court
which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he
wants: or his tool to do what he directs.  He is none of these things.  He owes allegiance to a higher
cause.  It is the cause of truth and justice.  He must not consciously mis-state the facts.  He must not
knowingly conceal the truth.  He must not unjustly make a charge of fraud, that is, without evidence
to support it.  He must produce all the relevant authorities, even those that are against him.  He must
see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case.
He must disregard the most specific instructions of his client, if they conflict with his duty to the
court.’
In Incorporated Law Society v Bevan12 the Chief Justice expressed it as follows:
‘Now practitioners, in the conduct of court cases, play a very important part in the administration of
justice. Without importing any knowledge or opinion of their own – which it is entirely wrong that
they should ever do – they present the case of their client by urging everything, both in fact and in
law, which can honourably and properly be said on his behalf. And this method of examining and
discussing disputed causes seems to me a very effective way of arriving at the truth – as effective a
way, probably, as any fallible human tribunal is ever likely to devise. But it implies this, that the
practitioner shall say or do nothing, shall conceal nothing or state nothing, with the object of
deceiving the Court; shall quote no statute which he knows has been repealed, and shall put forward
no fact which he knows to be untrue, shall refer to no case which he knows has been overruled. If
he were allowed to do any of these things the whole system would be discredited. Therefore any
practitioner who deliberately places before the Court, or relies upon, a contention or a statement
which he knows to be false, is in my opinion not fit to remain a member of the profession.

[17] An advocate breaches his duty to the court not only by permitting evidence to
be given knowing it to be false but also by failing to speak when he knows that the
court is being misled.  An example is Meek v Fleming,13 in which counsel knew that
the jury was under the impression that a police witness was a Chief Inspector and
failed to disclose that the officer had been demoted to the rank of sergeant on account
of misconduct.

11   At 502.
12 1908 TS 724 at 731-732.
13 1961 (2) QB 366 (CA).

[18] Advocates who confine themselves to acting upon instructions will usually
avoid ethical conflicts of that kind.  But advocates who depart from that salutary
practice, and set about discovering the truth for themselves (which they have no duty
to do) invite such conflicts.  For by doing so they run the risk of becoming material
witnesses themselves and thereby compromising their ability to perform their proper
function.  That is what occurred in the present case.

[19] That an attempt to make contact with the three alleged trustees had produced
only a dishonest, fraudulent and obstructive man claiming to be a trustee, but had
failed to discover the others, was clearly material to the truth of Harksen’s assertion
that a trust existed. So material that in my view a court with knowledge of those facts
might justifiably have rejected Harksen’s assertion summarily on the grounds that it
was ‘far-fetched [and] untenable’.14  Having discovered those facts the appellant was
not obliged to refuse to permit Harksen’s evidence to be placed before the court – it
was for the court and not for the appellant to assess the impact of those facts on
Harksen’s evidence – but if Harksen’s evidence was to be placed before the court the
appellant was obliged to ensure that those facts were also disclosed.  Without them
the evidence misrepresented the true state of affairs, which was not only that Harksen
alleged that the trust existed, but also that a search for them had produced only the
results that I have described.

[20] The appellant’s view of his ethical duties once he had discovered those facts,
as reflected in the extract from his memorandum that I referred to earlier, was
misguided. The fact that Harksen might not have known of or been a party to
Siegwart’s machinations was quite immaterial.  It was the appellant’s own knowledge
of the facts that gave rise to the dilemma and not whether Harksen was aware of or a
party to them.  Once the appellant became aware of the facts his duty was to tell
Harksen that if he persisted in asserting that the trustees existed, the appellant’s own

14 Plascon-Evans, above.

evidence of what he had discovered would also need to be disclosed.  If Harksen had
instructed the appellant not to make the disclosure the appellant’s proper course
would have been to withdraw.  Any explanations that might have been forthcoming
from Harksen were properly to be directed to the court and not merely to his counsel:
explanations by Harksen could not somehow have made the appellant’s knowledge of
the facts disappear.

[21] The appellant cannot be faulted for permitting Harksen to assert to the court (in
the affidavit that the appellant settled) that the fund and the trustees existed, which
was the charge brought against him by the GCB.  (The GCB expressly refrained from
contending in this court that the appellant knew those assertions to be false.)  Where
he is to be faulted is for permitting those assertions to be made without
simultaneously disclosing the additional facts he had discovered that were material to
the truth of the assertions, and in that respect he acted improperly.  I have pointed out
that that is not strictly the offence with which the appellant was charged but we
would fail in our duty if we were to overlook it merely on that ground. The facts that
establish the offence are all undisputed, no further evidence could alter the position in
that regard, and there can be no explanation that would justify the appellant’s
conduct.

CHARGES CONCERNING FEES.
[22] Complaints of various kinds were made by the GCB concerning fees that were
received by the appellant and it is convenient to deal with them together.

[23] It has been affirmed by this court in recent cases that, at least in regard to the
conduct of litigation, advocacy is a referral profession, and that an advocate
misconducts himself if he acts in such matters without the intervention of an
attorney.15  It follows, as a consequence of that rule, that ‘fees for professional

15 De Freitas v Society of Advocates of Natal 2001 (3) SA 750 (SCA);  Commissioner, Competition Commission v
General Council of the Bar of South Africa 2002 (6) SA 606 (SCA) para 19; Rösemann v General Council of the Bar of
South Africa 2004 (1) SA 568 (SCA).

services may only be paid by or through an attorney’16 (subject to certain exceptions
that are not now relevant).  Needless to say, fees charged by an advocate must be
reasonable.17

[24] In about February 1999 Harksen was taken into custody (apparently pending
proceedings for his extradition to Germany). In April 1999 Harksen’s wife
telephoned the appellant and asked him to represent her husband in various
proceedings, including proceedings for his release on bail. The appellant informed
her that he needed to be instructed by an attorney if he was to assist.  On 12 April
1999 he received a letter from a legal practitioner in Switzerland, Mr Studer, in the
following terms:
‘This morning I was instructed by Janette Harksen to ask you [to represent] Jürgen Harksen’s
interests in his extradition case immediately and, if necessary, her interests in different matters. I
was also instructed that you will be paid by third parties, represented by attorney Uwe Griem,
Hamburg/Germany.’
Later that day the appellant received the following letter from Studer:
‘We are relieved – and I do not only speak for Jürgen and myself, but for all those who believe in
Jürgen that you are going to take care of the pending matters. I have been instructed to confirm that
you have been mandated as the leader for the following cases:
1.
Bail application (coming Wednesday), if lost
2.
Bail Review at Supreme Court;
3.
Appeal against [Magistrate Wagner’s] committal of Jürgen;
4.
Filing of an application to secure the bail of R1 000 000,00;
5.
Appeal against judgment of [Judge Brand] (of last Friday);
6.
Control of the application § 3.2 pending at the Constitutional Court;
7.
Jeannette’s sequestration.
I am convinced that we shall have a perfect cooperation.’

[25] The appellant required payment of the sum of R250 000 – his estimate of his
fees for the work that would be required, which he anticipated would engage him for

16 Rule 7.9.1 of the Uniform Rules of Professional Conduct of the GCB.
17 Rule 7.1.1 of the Uniform Rules of Professional Conduct of the GCB.

about two months.  The following day the sum of £25 000 was deposited to the
appellant’s account at a foreign bank at the instance of a third party.

[26] In 2001 the appellant received two further amounts of R150 000 and R100 000
respectively from an entity known as the Voyager Trust.  According to the appellant
these payments constituted his fees for further work that he performed on the
instructions of Studer (the appellant recorded the work in an invoice as being
‘consultation, advice, drafting papers and opinion’).

[27] The GCB alleges in respect of all these payments that the appellant acted
improperly by receiving payment other than from or through an attorney and that the
fees concerned were excessive. (Certain further fees received by the appellant –
amounts of DM58 000, DM56 000 and DM168 000 – were also said to be excessive
but I do not intend dealing with them for reasons that follow.)

[28] The appellant explained, but only in general terms, the nature of the work that
he performed in return for these fees. The court below found that in each case the fees
were excessive.  I do not think those findings were justified on the evidence, which is
insufficient to determine what work was done. (That is not to say that the evidence
established that the fees were not excessive.)  In the absence of proper evidence of
the work that was done – or not done, as the case may be – there is no foundation for
determining whether the fees were reasonable.  No doubt it is incumbent upon an
advocate who is alleged to have charged excessive fees to provide sufficient detail of
the work that was performed to enable the fee to be assessed, and in appropriate cases
cross-examination might be called for to establish the true facts, but in the absence of
such evidence I do not think the court below was justified in making its finding.

[29] With regard to the further charges (‘receiving payment other than from or
through an attorney’) the court below found that, at least in relation to work that
concerned litigation, Studer was no more than a nominal attorney.  Since the

payments were not received through an attorney as contemplated by the rule the
appellant acted improperly in receiving them. I agree with those findings.  But I think
I should add that the difficulties relating to fees, at least so far as they related to
litigation, all arose because the appellant acted without proper instructions in the first
place.  An advocate may not act in litigation other than on the instructions of an
attorney and by that I do not mean a nominal attorney. Had the appellant been
properly instructed, as required by that rule, he would no doubt have been held to
account by his attorney for the fees that he charged.  That would necessarily have
required that he record his fees in the ordinary way, that he mark his briefs with the
work he had done and the fee that was relevant to that work, that he submit accounts
that could be scrutinized by his attorney, and no doubt he would have received
payment in a more conventional way. Had he acted at the outset in accordance with
his obligations these charges need never have arisen.

THE MANDATE RELATING TO THE ‘CHASE-MANHATTAN FUND’ AND
THE FEE RELATING TO THAT MANDATE
[30] By March 2001 the appellant had terminated full-time practice and turned his
hand to viticulture.  The Cape Bar Council permitted him to keep associate
membership.

[31] It seems that Harksen was aware that the appellant was on the lookout for
investment capital to develop a wine cellar on his farm. In March 2001 Harksen
telephoned the appellant and told him that he wished to introduce him to a potential
investor.  It seems that this was the start of a plan by Harksen to lure the appellant
into a new fraudulent scheme.

[32] Harksen arrived at the appellant’s farm accompanied by Studer who told the
appellant that he was acting for a foreign investor who would be interested in
investing in the appellant’s project. In due course Studer, purporting to act on behalf

of a trust, agreed that the trust would advance $1.7 million on loan to the appellant
for a period of ten years. Needless to say, the money was never forthcoming.

[33] Meanwhile Harksen and Studer told the appellant that Studer was to undertake
the payment of Harksen’s creditors. Payment was to be made, so the appellant was
told, from a fund of US$44 billion that was being held by Chase Manhattan Private
Bank and Trust Ltd (Chase Manhattan) on behalf of an entity called Global Finance
SA. (What relationship was said to exist between Harksen and Global Finance is not
clear. It is also not clear what relationship, if any, there was said to be between the
Chase Manhattan fund, and the SCAN 1000 fund.)

[34] Some time later the appellant was induced (precisely how this occurred does
not appear from the papers but clearly Harksen was masterminding the scheme) to
accept a mandate to participate with Studer in paying the creditors. The arrangement
was essentially this:  Global Finance purported to authorise the appellant and Studer
to take charge of the fund that was purportedly being held by Chase Manhattan and to
pay various creditors, including those of Harksen, from the fund.  In return, the
appellant and Studer were to be paid $22 million, from which they were to meet
disbursements incurred in performing the mandate.

[35] The authorisation by Global Finance was recorded in a document purporting to
be a power of attorney given by ‘Frederick Chanberie in my capacity as Director of
Global Finance SA’ authorising the appellant
‘on behalf of Global Finance SA to sign the Notarial Recordal dated 14 May 2001, to act as set out
in the said Notarial Recordal on behalf of Global Finance SA, and to do all that is necessary to give
effect to the mandate in terms of the said Notarial Recordal dated 14 May 2001.’

[36] In the ‘notarial recordal’, which was a notarialised document signed by the
appellant on the same day, the appellant recorded that he was

‘acting for the directors of Global Finance SA Registration No. 19525792584 in terms of a Power
of Attorney of Global Finance SA dated 14th of May 2001 and signed at Cape Town of which a
copy is annexed as Annexure 1’ (the document that I referred to earlier)
and that
‘he, JOHAN VAN DER BERG and WALTER ADRIAN STUDER with power of substitution,
have been authorised to make payments to all creditors of the companies Nord Analyse Hamburg or
Fates Finance Inc or Global Finance SA or of Mr Jürgen Harksen upon documentary proof of the
creditors’ legal claims against the aforesaid companies or Mr Jürgen Harksen and against valid
cession of such claims.’

[37] There are many loose ends in the evidence relating to the scheme but I need not
deal with them because in truth it was all an elaborate fraud.  If there was an entity
known as ‘Global Finance SA’ it certainly had no fund of money at Chase
Manhattan, least of all a fund of $44 billion, because Chase Manhattan was not
involved at all. The appellant had regular telephone conversations with two people
who purported to be representatives of Chase Manhattan (‘Mr Goldstein’, who
purported to be a Vice President, and ‘Mr Rothschild’, who purported to be its
attorney) but at the time he signed the documents the appellant had not met them
personally. Indeed, the only person purporting to be from Chase Manhattan whom he
ever met (on only one occasion after the documents had been signed) was ‘Mr
Goldstein’.  The appellant also had regular telephone conversations with Mr
Hamman, who purported to be the President of Global Finance, but it is not clear
whether he had any contact at all with ‘Frederick Chanberie’.  Who all these people
actually were does not appear from the papers but it is clear that they were not who
they purported to be.

[38] The documentation, under the hand of the appellant, was clearly designed by
Harksen and his associates to create the impression that a large fund of money was
immediately available for distribution by two respectable lawyers.  Armed with that
documentation Harksen would be in a position to once again persuade people to part
with money on the assurance that they would be repaid.  What clinched the deception

was that the notarial document signed by the appellant recorded not only that had he
been authorised to make the distribution but also that he was already in possession of
cheques drawn by Chase Manhattan and a guarantee by Chase Manhattan (in the
form of a letter of credit) that the moneys would be paid.  It recorded that
‘the undersigned JOHAN VAN DER BERG
1.
has been given the necessary authority and power to receive a Letter of Credit Drawn by
The Chase Manhattan Private Bank and Trust Ltd, in favour of Global Finance SA …
which he has duly received from The Chase Manhattan Private Bank and Trust Ltd and
confirm that the Letter of Credit is now legally in his possession, he acting for Global
Finance SA.
2.
records that he has received bank cheques the drawer being The Chase Manhattan
Private Bank & Trust Ltd from The Chase Manhattan Private Bank & Trust Ltd and
confirm that the bank cheques are now legally in his possession, he acting for Global
Finance SA.’

[39] Those statements by the appellant were false. The appellant had no cheques nor
a letter of credit.  (Documents that purported to be cheques and a letter of credit were
later shown to him by Harksen.)  With the written assurance from the appellant that
he was in possession of documents that were almost the equivalent of ready money
the potential for deception was complete. (Whether moneys were in fact solicited
does not appear from the papers.)

[40] The appellant was later told by Harksen that because of his ‘busy program’
Studer was no longer available and the appellant agreed to execute the mandate alone
(the amount available to pay disbursements and his fees remained $22 million).  The
appellant appointed an attorney to receive the funds into his trust account and to
make the distribution under the appellant’s supervision and he waited for the funds to
arrive.  Days, and then months, went by, and still the funds did not arrive, various
explanations were given to the appellant for the delay, letters went back and forth,
and eventually Harksen was arrested in April 2002, bringing the charade to an end.

[41] The saga resulted in three charges being brought against the appellant by the
GCB.  First, it alleged that by accepting the mandate the appellant ‘engaged in
another occupation which adversely affected the reputation of the Bar and prejudiced
his ability to attend to the interests of his clients’ in breach of Rule 4.15.1.18
Secondly, it alleged that ‘in performing or purporting to perform the mandate the
[appellant] made certain false statements’ and that in doing so he ‘acted
unprofessionally and in a manner unbecoming to an advocate’.  And thirdly, it
alleged that the amount of $22 million that the appellant agreed to receive was
excessive.

[42] A person who is admitted to practise as an advocate need not necessarily enter
into practice and may embark upon any other occupation that is not incompatible
with his standing as an advocate.  The only additional restrictions that apply once an
advocate chooses to practise are those in Rule 4.15.1.  The second proviso to the rule
is not now material – the appellant was not in full-time practice and his duty to other
clients was not interfered with by accepting the mandate.  Moreover, I do not think a
mandate of this nature – which was essentially to arrange for the distribution of a
fund to creditors – is one that an advocate may never accept.  Distributing a fund of
money to creditors, if done honestly and responsibly, is not inherently detrimental to
the reputation of the Bar.  But when seen against its background this was no ordinary
mandate.

[43] The mandate that was offered to the appellant came against a considerable
background.  The appellant was well aware at the time that Harksen had once before
claimed to have an interest in a large fund (SCAN 1000) and that large sums of
money had been paid to Harksen on the strength of the existence of the fund.  He also
knew that Harksen’s creditors claimed that there was no such fund and that they had
been defrauded. His own enquiries had also revealed facts that had led the appellant

18   ‘A member of the Bar is entitled to engage directly or indirectly in any occupation unless:
(i) his association with that occupation adversely affects the reputation of the Bar, or
(ii) such engagement prejudices the ability to attend properly to the interests of clients.’

to suspect that the scheme might be a scam (as he recorded in the memorandum that
he dictated while returning from Switzerland).  Since then Harksen had been
sequestrated, attempts had been made to locate his assets amidst allegations that he
had surreptitiously concealed them, and Harksen faced proceedings to extradite him
to Germany to face criminal charges.  If anything had occurred by March 2001 to
dispel what the appellant coyly referred to as ‘some reservations’ that he had had
some six years earlier the evidence does not disclose what it might have been. Indeed,
the continued elusiveness of any objective evidence of the existence of the SCAN
1000 fund should only have exacerbated them. For the appellant to have associated
himself with another alleged fund that was connected to Harksen, at least without
first making careful and diligent enquiry, was most certainly detrimental to the
reputation of professional advocates and hence to that of the Bar.19

[44] But it is in the purported execution of the mandate that the conduct of the
appellant was even more extraordinary. The key to a confidence trick of that nature is
to convince potential victims that a fund of money does indeed exist.  The appellant
provided Harksen with the means for doing just that when he signed a false statement
that he was in possession of cheques and a letter of credit from Chase Manhattan.
The appellant’s explanation for making those false statements is that he was told by
Studer, amongst others, that the document ‘was required by the bank to get its funds
and administrative documents in order for the purpose of making the funds available
to Global Finance’ and that the document was ‘confidential and was not to be used
for any purpose other than that of the bank’.  I have considerable difficulty
understanding why the appellant would have thought that the bank required him to
make false statements in order to get its affairs in order.  But the submission before us
on behalf of the appellant was that that evidence showed that the appellant did not
intend to mislead.  I think that submission misses the point.  The question is not
whether the appellant had fraudulent intent but rather whether an advocate should be

19 The appellant contended that his acceptance of the mandate was conditional but even if that was so it is immaterial.

making false statements at all, least of all false statements of the kind that the
appellant made, in a document that is to leave his possession and control (and in fact
left his possession and control).  By doing so the appellant lent the reputation and
standing of an advocate to a fraudulent scheme, whether or not he knew it at the time,
and thereby brought the profession into disrepute, which would not have occurred if
he had desisted from making false statements at all irrespective of his intent.

[45] With regard to the charge concerning the amount of the fee I am not sure that
the rules regulating the profession apply to fees that are earned from other
occupations.  But in any event I have found that it was improper for the appellant to
have accepted the mandate at all and the amount he was to be paid for doing so does
not seem to me to take the matter further.

MISREPRESENTATIONS TO THE DIRECTOR OF PUBLIC PROSECUTIONS.
[46] In July 2002, after Harksen had been arrested, the appellant deposed to an
affidavit outlining his relationship with Harksen, at the request of the Director of
Public Prosecutions, in which he listed the fees that he had earned from representing
Harksen.  The GCB alleges that the affidavit was misleading because it omitted
various fees that had been earned.

[47] The list did not reflect the amounts of £25 000, (an amount of R30 000 was
listed instead), R150 000 and R100 000 that I referred to earlier in this judgment, and
in that respect, at least, it was inaccurate. The appellant alleged that the absence of
proper record-keeping had resulted in the fees being omitted inadvertently. The court
below rejected the appellant’s explanation and found by inference that the fees had
deliberately been mis-stated and concealed respectively.

[48] The state of a person’s mind is as much a fact as any other and I have already
referred to the undesirability of resolving factual issues on affidavit.  In the absence

of cross-examination of the appellant to test the truth of his explanation I do not think
the finding against him was justified.

CONCLUSIONS
[49] In summary, the evidence discloses that the appellant acted in conflict with the
duties of an advocate in various respects.  He failed to disclose facts that were
material to the truth of evidence that he permitted to be placed before the court and
without which the evidence was misleading.  He received fees other than through an
attorney (which was merely a consequence of acting without proper instructions in
the first place).  He associated himself with a mandate that was detrimental to the
reputation of the profession. And in executing the mandate he lent his name to false
statements that had the potential to facilitate the perpetration of fraud.

[50] It remains to determine whether the conduct of the appellant justified an order
striking his name from the roll.  The enquiry before a court that is called upon to
exercise its disciplinary powers is not what constitutes an appropriate punishment for
a past transgression but rather what is required for the protection of the public in the
future.  Some cases will require nothing less than the removal of the advocate from
the roll forthwith.  In other cases, where a court is satisfied that a period of
suspension will be sufficiently corrective to avoid a recurrence, an order of
suspension might suffice.

[51] The various transgressions of the appellant should not be viewed in isolation.  I
accept that the appellant was not aware that the Chase Manhattan fund did not exist
and was not a knowing party to the fraudulent scheme. I also accept that he had no
fraudulent intent when he made the false statements.  But the absence of such
knowledge and fraudulent intent does not detract from the appellant’s breach of his
professional duties.  A person who practises as an advocate is expected to know what
those duties are and there are no grounds for excusing the appellant’s various
transgressions.  This is not an inexperienced advocate whose judgment and

appreciation of what his professional duties demand has yet to mature.  The appellant
has practised for more than thirty years and for sixteen years he has worn silk.  The
various transgressions, when viewed together, paint a picture of an advocate who is
quite indifferent to the demands of his profession.  His initial responses to the GCB,
and his affidavit that is now before this court, betray not the slightest appreciation of
where he has fallen short, but instead reflect indignation that his conduct should be
called into question at all.  I have no doubt that he is not fit to continue in practice
and that the court was correct in ordering his name to be struck from the roll.

[52] With regard to costs we were informed from the bar that counsel for the GCB
acted in this appeal without fee and that an order should be made only for the
recovery of their disbursements.  We intend making the ordinary order with regard to
costs though we note for the information of the taxing master that the costs of counsel
are restricted to the recovery of disbursements that have been made by them or on
their behalf.  I need only add that we have appreciated the assistance we have
received from all counsel in this appeal.

[53] The appeal is dismissed with costs that include the costs of three counsel.

_____________________
R.W. NUGENT
JUDGE OF APPEAL

CONCUR:
HARMS ADP)
STREICHER JA)
LEWIS JA)
MUSI AJA)

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
22 March 2007
Status:
Immediate

J VAN DER BERG v THE GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

* * *
The Supreme Court of Appeal (SCA) today dismissed an appeal against a decision of the
Cape High Court striking the name of an advocate from the roll of advocates.
The complaints against the advocate concerned, Mr Johan van der Berg SC, arose from
his relationship with a certain Mr Jurgen Harksen, who was alleged to have defrauded
various people.

The SCA held that in the course of the relationship Mr van den Berg acted in conflict with
the duties of an advocate in various respects.  It held that he failed to disclose facts to a
court that were known to him and that were material to the truth of evidence that he
permitted to be placed before the court; that he received fees other than through an
attorney, which was a consequence of acting without proper instructions; that he
associated himself with a mandate relating to a fraudulent scheme that was detrimental to
the reputation of the profession; and that in executing the mandate he made false
statements that had the potential to facilitate the perpetration of fraud.

The SCA held that when exercising its disciplinary powers a court is not concerned with
what constitutes an appropriate punishment for a past transgression but rather with what is
required for the protection of the public in the future.  The court accepted that Mr van den
Berg was not a knowing party to the fraudulent scheme and that he had no fraudulent
intent when he made the false statements.  But it held that the various transgressions,
when viewed together, painted a picture of an advocate who was indifferent to the
demands of his profession, and that he was not fit to continue in practise.