THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 277/12
Reportable
In the matter between:

THE GENERAL COUNCIL OF THE BAR
OF SOUTH AFRICA
Appellant

and

BRENTON PATRICK GEACH
1st Respondent
JOHANNES STEPHANUS MARITZ
GÜLDENPFENNIG
2nd Respondent
MARK UPTON
3rd Respondent
JOHN O’DONOVAN WILLIAMS
4th Respondent
EPHRAIM SEIMA
5th Respondent
CAS GREYLING JORDAAN
6th Respondent
COLIN ROY VAN ONSELEN
7th Respondent
THE PRETORIA SOCIETY OF ADVOCATES
8thRespondent

And in the matters between:

THILLAY PILLAY (273/12)
Appellant in case no 273/12
MATTHEUS JOHANNES BOTHA
Appellant in case no 281/12
MARTHINUS CHRISTOFFEL CORNELIUS
DE KLERK
Appellant in case no 280/12

PERCY MAKGOTSHE LEOPENG
Appellant in case no 275/12
DANIEL POLI MOGAGABE
Appellant in case no 274/12

and

THE PRETORIA SOCIETY OF ADVOCATES
1st Respondent
THE GENERAL COUNCIL OF THE BAR
OF SOUTH AFRICA
2nd Respondent

And in the matter between:

Case No: 278/12

LEONARD FRANCOIS BEZUIDENHOUT
Appellant

and

THE PRETORIA SOCIETY OF ADVOCATES
Respondent

Neutral citation: The General Council of the Bar of SA v Geach & others
(277/12; 273/12; 274/12; 275/12; 278/12; 280/12; 281/12)
[2012] ZASCA 175 (29 November 2012)
Coram:
MPATI P, NUGENT, PONNAN, LEACH and WALLIS JJA
Heard:
4 SEPTEMBER 2012
Delivered:
29 NOVEMBER 2012
Summary:
Admission of Advocates Act 74 of 1964 – Section 7(1)(d) –
applications for striking off – appeal from high court.

___________________________________________________________________

ORDER
__________________________________________________________________

Appeals from orders of North Gauteng High Court, Pretoria (Van Dijkhorst, P C
Combrinck and De Villiers AJJ) sitting as court of first instance.

Per NUGENT JA, MPATI P and PONNAN JA concurring, LEACH and WALLIS
JJA dissenting in part. (The order appears at para 86).

1.
The appeal of the General Council of the Bar is dismissed. The first to
seventh respondents in that appeal are to pay the costs of the General
Council of the Bar and those of the Pretoria Society of Advocates, jointly
and severally, which are to include the costs of two counsel.
2.
The orders for repayment of moneys made against the appellant advocates in
appeals 273/12, 281/12, 280/12, 275/12, 274/12 and 278/12 are set aside.
That apart, their appeals are dismissed, in each case with costs that include
the costs of two counsel.

_______________________________________________________________

JUDGMENT
______________________________________________________________

NUGENT JA (MPATI P and PONNAN JA CONCURRING)

[1] These appeals concern thirteen practising advocates who are members of the
Pretoria Society of Advocates. Twelve1of the advocates were found guilty by the
Bar Council of the Society, on their own admissions, of unprofessional conduct. In
each case the Bar Council visited their conduct with disciplinary sanctions. The
Society thereupon applied to the North Gauteng High Court for orders ‘noting’ the
disciplinary action that had been taken. It also applied for an order striking the
name of a thirteenth advocate2from the roll of advocates. The General Council of
the Bar (GCB) intervened in the proceedings and sought orders striking the names
of all the advocates from the roll.

[2] The applications were heard together by a Full Court (Van Dijkhorst, PC
Combrinck and De Villiers AJJ).3 It imposed further sanctions upon seven4 of the
twelve who had been disciplined by the Bar Council, which included paying
various amounts to the Road Accident Fund. As for the remaining five,5 and the
thirteenth6 advocate who had not been sanctioned by the Bar Council, it ordered

1B P Geach SC, J O’D Williams SC, J S M Güldenpfennig, T Pillay, M Upton, M J Botha, E Seima, M C C De
Klerk, C G Jordaan, C R Van Onselen, P M Leopeng, D P Mogagabe.
2L F Bezuidenhout.
3 Pretoria Society of Advocates v Geach 2011 (6) SA 441 (Ngoza).
4Geach SC, Williams SC, Güldenpfennig, Upton, Seima, Jordaan, Van Onselen.
5Pillay, Botha, De Klerk, Leopeng, Mogagabe.
6Bezuidenhout.

them to pay various amounts to the Fund, and struck their names from the roll of
advocates.

[3] The GCB appeals the orders made in respect of the seven advocates who
were not struck from the roll, contending that they ought to have been. The
remaining six advocates appeal the orders made against them, contending that it
was not competent to order them to make payments to the Fund, and that they
ought not to have been struck from the roll. All the appeals are before us with the
leave of this court.

[4] I conclude that all the appeals should fail and I think it is useful at the outset
to state briefly the basis upon which I reach that conclusion.

[5] As I expand upon later in this judgment the case called for three steps in the
enquiry before the court below. The first two are not controversial. The appeal
turns on the third step of its enquiry – which was whether the advocates concerned
ought or ought not to have been struck off, as the case may be.  That decision fell
within the discretion of the court below and there are limited grounds upon which
an appeal court may interfere. The only ground relied upon in this case (apart from
reliance by two advocates upon perceived bias on the part of one member of that
court, which is dealt with in the judgment of Ponnan JA) was that the court was
said to have misdirected its enquiry in various ways.  It is only if we conclude that
it did misdirect its enquiry that we are entitled to embark upon that enquiry afresh
and, if appropriate, substitute our decision for that of the court below.

[6] The enquiry before us thus falls to be conducted in two stages.  The first
enquiry is whether the court misdirected its enquiry. It is only if we conclude that it
did that we move to the second stage.

[7] I see no proper grounds for finding that the court below indeed misdirected
its enquiry.  On that basis the second stage does not arise.  It is on that basis that I
dismiss all the appeals.

[8] Some background is necessary to understand the nature of the misconduct.
The Road Accident Fund established under the Road Accident Fund Act 56 of
1996 is obliged to compensate any person for loss or damage from death or bodily
injury caused by or arising from the negligent or other wrongful driving of a motor
vehicle. A large majority of claims made against the Fund are meritorious. To the
extent that any dispute exists in those cases the dispute is generally confined to the
apportionment of responsibility or to the amount of compensation to which the
claimant is entitled, or to both. For those who are experienced in that field, settling
disputes of that kind is often relatively straightforward.  Thus it might be expected
that many claims against the Fund would be promptly assessed and paid, perhaps
after discussion with attorneys for the claimants to settle disputed issues, thereby
minimising legal costs and ensuring that claimants promptly receive their due.

[9] But that is not how the Fund conducted its affairs at the relevant time. For
some years the administration of the Fund had been in disarray. Claims were not
being evaluated and settled promptly, and claimants found themselves compelled
to institute action. Even then the Fund would procrastinate and claimants would be
compelled to bring the pleadings to a close, and to set the actions down on the trial
roll, even when claims were not truly disputed. In the belief that procrastination

would ease its cash flow the Fund went so far as to have as its policy that claims
would not be settled more than twenty days before the date set for the trial.

[10] The situation that prevailed was described in his affidavit by the Chairman
of the GCB as follows:
‘The Fund is frequently wholly unprepared for trial and has often incurred substantial expenses
in taking to trial or appeal matters which it should responsibly have not contested and should
have resolved. The Fund has sought to manage its ongoing cash flow problems by delays in
conceding liability, forcing matters to trial and only conceding liability after a trial matter has
been called at roll call. The Fund’s inadequate and inefficient administration has resulted in legal
costs being driven up by the Fund drawing out litigation and by generating unnecessary litigation
with the overall intention of settling matters at the doors of the court. A vast number of RAF
trials do not start or run but are settled at court. Moreover, settlements are invariably concluded
on the basis that the Fund either makes a contribution towards or agrees to pay the claimants’
costs. It has been financially constrained which has impeded its ability to pay claims, and to a
large extent the Fund has been dysfunctional.’

[11] The Fund’s procrastination in promptly settling and paying meritorious
claims can only be deprecated. Not only was its conduct increasing legal costs that
became payable by the Fund – both its own costs and the costs that were incurred
by claimants, for which the Fund would invariably be liable – but it kept claimants
from the compensation that they were entitled to.

[12] Its conduct also had adverse consequences for the management of the trial
roll in the North Gauteng High Court. It became inundated with actions that
claimants were compelled to set down for trial, even though no trial was
anticipated, only to bring matters to a head. The problem became so acute that the

Deputy President of that court found it necessary to compile a separate roll for
actions against the Fund on which 70 actions against the Fund were listed per day.

[13] Needless to say, the burden imposed on the court, and upon attorneys acting
for claimants, was intolerable. To find 140 or more advocates every day – one for
the claimant and one for the Fund – to bring each of those cases to finality would
be well nigh impossible. Moreover, it could hardly be expected that advocates
would hold themselves available for a full day in matters that were clearly destined
to be settled or postponed. And so a practice developed that advocates would
receive and accept briefs for multiple cases that had been set down on the trial roll
on one day.

[14] Accepting briefs to conduct more than one trial on the same day is generally
prohibited by the rules of the bar for the obvious reason that an advocate is not
capable of conducting trials simultaneously. The consequence of holding briefs to
conduct two trials on one day is inevitably that if both trials proceed the advocate
will find himself or herself compelled to overcome the dilemma by directing at
least one case to settlement, perhaps against the interests of the client, or by
postponing one so as to continue with the other, again against the interests of the
client, or by surrendering the brief to an unprepared colleague (assuming a
colleague was willing to accept it). It is not surprising then that the practice of
accepting potentially conflicting briefs – commonly called ‘double-briefing’ – is
expressly prohibited by Rule 2.6 of the Uniform Rules of the bar:
‘It is improper for counsel to retain a brief previously accepted by him if the circumstances are
such that he should reasonably foresee … that he would have to surrender the brief for whatever
reason, and that the surrender of such brief could cause inconvenience and/or embarrassment

and/or prejudice to his client and/or a colleague who is to succeed him in the brief and/or his
instructing attorney’

[15] In its heads of argument the GCB submitted that an advocate transgresses
the rule if he or she holds briefs even to settle two or more cases on the trial roll on
a day but I do not think that is necessarily correct. The rule prohibits accepting a
brief if the advocate ‘should reasonably foresee’ that it would have to be
surrendered and whether that is so will depend on the particular case. No doubt
there are cases in which settlement negotiations can be expected to be intense and
protracted, calling for the advocate’s full attention and time, but that will not
always be so, particularly in road accident cases.  Indeed, Rule 2.8 recognises that
multiple briefs in such cases is not prohibited when it provides that
‘[it] is not improper for counsel to accept a brief to settle a matter, as opposed to a brief on trial’

[16] An advocate who accepts a brief to conduct a trial must hold himself or
herself available to do so. Because the advocate has held himself or herself
available he or she is generally entitled to a full day’s fee if the case settles on the
day or even shortly before that and the advocate has been left with no other income
for the day.  But if his or her instructions are to postpone a case when the roll is
called, or to note that the case has been settled, or to negotiate a settlement of the
claim, then the fee must be commensurate with that service. To charge a trial fee
where the instructions are not to conduct a trial but instead to do something else is
overreaching.

[17] In the cases that are before us the advocates on numerous occasions held
multiple briefs for cases on the trial roll on one day and in each case they charged a
full trial free. They were charged by the Bar Council with multiple counts of

double-briefing and overreaching and in most cases they readily admitted the
transgressions. At the same time they protested that their clients had not been
prejudiced, nor had there even been potential prejudice, because their true
instructions had usually been only to settle or to postpone, and in many cases that
is probably true.

[18] Consistent with the evidence of the Chairman of the GCB that I have
referred to this is how one advocate explained the position:
‘In the matters in which I was briefed, the [Fund] very rarely, if ever, briefed counsel to appear
on its behalf. Matters would always stand down for settlement. On the rare occasions when
counsel were briefed it was in the greatest majority of cases not to run a trial at all but merely to
facilitate the settlement thereof or to seek a postponement of quantum or of both liability and
quantum. Witnesses from both sides were hardly ever present at Court. As a general rule, the
[Fund] was never ready to proceed to trial and, often, neither party could have proceeded to trial.
Experts were not in attendance nor even on standby. There was no doubt that the matters would
not proceed to trial. In many instances, acceptable offers were or had been made and it was a
question of only trying to persuade the [Fund] to increase the offer. These were not real trial
briefs at all. It was not necessary to proceed on the basis that they would proceed to trial if not
settled. In truth, in my case, they were virtually all briefs purely on settlement. This is illustrated
by the fact that when I took more than one brief at a time they were mostly from the same
attorney. The [Fund] would not properly consider settlement until the trial date was at hand. The
extraordinarily few cases that would ultimately have to proceed to trial were readily identifiable
in advance. That is why, as it transpired, I never encountered a situation where I prejudiced this
Honourable Court, my clients, my colleagues, any attorneys or myself. There was, in fact, no
juggling of briefs in my case. Matters always stood down for recalculations or simply for formal
mandates from the [Fund] sometimes for days at a time. By then, these matters were for all
practical purposes already settled. No-one was ever under any illusion that these matters would
ever proceed to trial. I was under pressure from my briefing Attorneys who were themselves
under pressure to assist them with multiple briefs daily. I found it extremely difficult to refuse.’

[19] Some advocates went so far as to say in their affidavits that by holding
multiple briefs they had performed a valuable service to their attorneys and also to
the court, because it had assisted to manage the congested trial roll. Indeed, the
judges calling the trial roll complimented them at times for assisting to ease the
congestion.

[20] To that extent there is no reason not to believe them.  The practice of the
Fund to pay claims only at the doors of the court can be expected to have resulted
in cases being on the trial roll in which there was no dispute at all.  What would
have been required was only for the Fund to apply its mind to the claim and pay it.
There must also have been cases in which the dispute was narrow and a ready
settlement could be expected.  There would also have been cases in which it would
quickly become apparent that settlement was not possible and the case would have
to be postponed to prepare for a trial.  It is apparent from the affidavits that many
of the multiple briefs must in truth have been briefs to perform services of that
kind. In cases of that kind an advocate might indeed not ‘reasonably foresee’ a
conflict arising as contemplated by Rule 2.6, and their conduct would not have
amounted to double-briefing as contemplated by that rule. Yet they all admitted
that they had indeed contravened the rule.

[21] To apply the law justly I think it should be applied to the facts as they are
known to be, in preference to the facts as they are merely said to be, where the two
conflict, and that applies as much to admissions that are made incorrectly. No
doubt they were charged with double-briefing because their records reflected that
in each case they had been briefed to conduct a trial.  Yet on the facts they allege,
in many cases neither they nor their attorneys intended that to occur, and the briefs
were marked in that way as a sham.  Rule 2.6 is concerned with what the advocate

is in truth called upon to do by his instructions, not to what is written on the
briefing document.  It is probably true that in many cases the manner in which they
carried out their instructions indeed did not prejudice their clients and the
admissions of double-briefing recede to the background.  But simultaneously the
further charges of overreaching come sharply to the fore.

[22]  Because what the protestations of the advocates overlooks is that if their
true instructions were indeed to postpone or settle cases, and not to conduct trials,
then by their own admissions they were not entitled to charge a fee as if they had
been briefed to conduct a trial.

[23] Yet in every case they, abetted by their attorneys, charged a fee as if they
had been instructed to conduct a trial when, on their own versions, they knew full
well that was not true. Most said their trial fees were reasonable, and perhaps they
were, but that is beside the point: they were not entitled to a trial fee at all. As the
high court expressed it:
‘The respondents are on the horns of a dilemma: Should they say that the additional matter
would surely settle, the question is: Why then mark a trial fee? Should they say we were ready to
proceed to trial, the question is: What then about the other matter?’

[24] It is an extraordinary feature of these cases that some of the advocates, at
least initially, seemed rather unconcerned at having charged those fees, and that
was shared by senior colleagues at the bar. Indeed, after the GCB intervened, and
questions were posed by the court below, some were dismayed that their honesty
should be questioned. In argument before us counsel for one of the advocates even
persisted in submitting that charging trial fees when there was no intention that the
matter would go to trial was not dishonest.

[25] Why advocates should have thought it was not dishonest to charge trial fees
when they knew full well that they were not briefed to conduct a trial remains a
mystery to me. Mr Pelser SC, who appeared for the Society, could provide no
explanation, but glimmerings were evident in some of the submissions. I have
pointed out that it is accepted practice, within limitations, for an advocate who is
briefed on trial to charge a full trial fee if the matter becomes settled on the day or
shortly before then.  Absent an alternative explanation I can only assume that it
was believed, by extension, that a trial fee was permissible provided only that the
case was on the trial roll, or that the brief was marked on trial, even if only as a
sham. If that was indeed the belief then it is perturbing.

[26] Apart from the protestations that clients were not prejudiced because their
true instructions in one case were capable of being carried out without prejudice to
the other, most went on to say that claimants for whom they acted were also not
financially prejudiced because the Fund was invariably liable for the costs. Though
claimants may not have been financially prejudiced certainly there was prejudice to
the Fund in paying fees to which the advocates were not entitled. It is no answer to
say, as some of them did, that the administrators of the Fund were aware of what
was occurring. Dereliction of duty by officials of a public fund is not the
benchmark against which to measure the conduct of advocates.

[27] To summarise what occurred, the manner in which the affairs of the Fund
were being conducted made it ripe for plundering, and the advocates concerned set
about doing just that. To the extent that they double-briefed they transgressed and
that was at least potentially prejudicial to their clients. But even where each
instruction was capable of being fulfilled without prejudice to the others they

charged fees to which they were not entitled. To have charged trial fees in those
circumstances was dishonest. It is unfortunate that the Pretoria Bar Council did not
see things that way.

[28] Against that background I turn to the facts.

[29] During 2006 it came to the attention of the Bar Council that some members
were announcing themselves at the roll call as having been briefed in more than
one case, particularly in actions against the Fund. After investigation the Bar
Council issued a circular to its members. The circular recorded the following:
‘It has come to the attention of the Bar Council that some members appear at the roll call of civil
trials in several matters set down for the same day. This phenomenon is prevalent especially in
third party matters.
In the normal course the matters in which one counsel appears are either postponed or a
settlement is made an order of court or noted, while in many instances the same counsel
announces that he/she is ready to proceed in another matter, in some instances even having
requested another matter to stand down for settlement.
What is further most alarming is that such counsel probably charge full fees in respect of
preparation and appearance (a day fee) in each of such matters. Such conduct is viewed in a
serious light as it undoubtedly amounts to double briefing, and in many instances even to
multiple briefing, and overreaching.
1.
Counsel may not retain more than one brief for the same day and charge a day fee in
respect of more than one brief;
2.
It is permissible to retain more than one brief for the same day strictly provided that:
2.1
A full day fee may only be charged in respect of one brief, if counsel has been
briefed for trial thereon and the matter becomes settled not more than two days
before the trial date, or the matter proceeds to trial, or there is an opposed
postponement or an opposed argument on costs.

2.2
In the other matters in which the same counsel appears, it will be assumed that
counsel was briefed only to settle the matter in accordance with paragraph 2.8 of
the Code of Conduct. Counsel will be entitled to charge for the time spent and the
reasonable fee for the taking of the order or the postponement of the matter on an
unopposed basis.
2.3
Retention of a brief under paragraph 2.2 above is only permissible if counsel’s
specific mandate is to settle. If there is any possibility of the matter proceeding
to trial, or becoming an opposed postponement, or a costs argument, counsel shall
not be entitled to take or retain the brief together with a brief falling under
paragraph 2.1 above.
3.
Members who take or retain a brief contrary to the guidelines in paragraph 2.3 above, act
in contravention of paragraph 2.6 of the Code of Conduct and shall therefore be guilty of
misconduct.
4.
Charging a full day fee in respect of more than one trial shall be seen as overreaching and
a contravention of paragraph 7.1.1 of the Code of Conduct.
5.
In order to remove any misunderstanding, it shall be seen as misconduct if at roll call a
matter is requested to stand down for settlement if counsel holds another brief in respect
of which he has been briefed on trial.
8.
The above scenarios are clearly to be distinguished from the case where counsel was
briefed on trial and the matter is settled before the trial date and subsequent to settlement
counsel is briefed on trial in another matter for the same day. In such case counsel is
entitled to mark a normal reasonable reservation fee in respect of the matter which has
become settled together with full fees in respect of the other matter.’

[30] The practice appeared to abate for a while but in September 2009 it came to
the attention of the Bar Council that it had resumed. It instructed the convener of
its Professional and Ethics Committee, Ellis SC, to investigate. The committee met
and twelve of the advocates who are parties to these appeals were identified as
suspects. Upton was later added to the list.

[31] It was agreed by the committee that the advocates concerned would be
called upon to produce their fee books and diaries for the period from 1 March
2009, which would be submitted to an auditor for analysis. Ellis SC duly wrote to
them asking for their books to be produced. Their books were not produced but
instead various discussions ensued. The upshot was that six immediately confessed
to transgressing,7 four asked for the mandate of the committee to be reconsidered
and proposed a general amnesty,8 and two, according to Ellis SC, flatly refused to
produce their books.9 The confessions of the six were accepted and the request to
produce their books was not pursued.

[32] Further discussions ensued with the implicated members. Meanwhile, the
four members I referred to earlier wrote to the Bar Council advising, amongst other
things, that approximately 62 other advocates had engaged in the practice, and that
they were being subjected to unequal treatment, and proposing that there be a
general amnesty.

[33] The committee made the following recommendations to the Bar Council:
‘13.1
The two members who defied the Bar Council’s instruction to surrender their books,
should be referred to the disciplinary committee for appropriate action;
13.2
The proposal of an amnesty, proposed by Pillay, should be declined;
13.3
The signatories of the Pillay letter should be placed on terms to:
13.3.1
Divulge the names of the 62 members they allege are also guilty of double briefing or
over-reaching; and
13.3.2
Tender their fee books and diaries to the convener, before close of business on 19
November 2009;
13.4
The “confessions” of the six be accepted, on the following terms:

7Geach SC, Williams SC, Botha, Güldenpfenning, Seima, and Van Onselen
8Pillay, Leopeng, Mogagabe and Seima.
9De Klerk and Bezuidenhout.

13.4.1 They should pay the amounts tendered by them into a special fund, to be administered
by the Bar Council, to assist junior members who are unable to pay their Bar fees, in the
first year of their practice;
13.4.2 A finding of guilty of double briefing and overreaching be entered on their files;
13.4.3 Each should be suspended for one month, which suspension should be effective during
the court term, over a period determined by the Bar Council.
13.5
The resolution in paragraph 13.4 above shall apply as benchmark to all other members
who voluntarily submit similar tenders before 15 December 2009, to the convener of the
committee, whether they are identified by the committee or not;
13.6
Future similar misconduct will be summarily dealt with by the Disciplinary Committee.’

[34] The recommendations of the committee were debated by the Bar Council
and a committee comprising De Vos SC, SJ Maritz SC and LP Dicker was
appointed to investigate the allegations and to report its findings to the Bar
Council. NGD Maritz SC and FJ Labuschagne were appointed to assist in the
investigation.

[35] The following day four members – Bezuidenhout, De Klerk, Pillay, Leopeng
and Jordaan – sent a memorandum to the Bar Council that, although misguided,
was clearly aimed at resisting disclosure of their books.  Amongst other things they
said the following:
‘[From] this moment on we invoke our rights guaranteed to us under the Constitution of the
Republic of South Africa, Act 108 of 1996, more specifically the rights afforded us under
Chapter 2, Section 14 of the Constitution ….’10

10 "Everyone has the right to privacy, which includes the right not to have -
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.'

[36] The investigating committee – I will call it the ‘De Vos committee’ to
distinguish it from another committee that was subsequently appointed –
commenced enquiring into the matter. Meanwhile N Maritz SC, acting as pro-
forma prosecutor, had formulated charges against the various advocates. In each
they were charged with multiple counts of double-briefing and corresponding
counts of overreaching. He also formulated sanctions that he would recommend to
the committee.

[37] Ten of the advocates were called before the committee and consented to it
being converted to a disciplinary tribunal. They formally admitted the charges and
the committee imposed sanctions on each of them.

[38] The disciplinary measures provided for in the Constitution of the Society
allow for suspension from membership and for the imposition of a maximum fine
of R2 000. The sanctions imposed by the committee all followed a standard form. I
need only set out their effect. In each case the committee imposed a fine,
suspended the advocate from membership of the Society, and placed him under a
supervisory regime for 18 months after the suspension expired. I tabulate below the
number of counts admitted by each advocate (in each case a count of double
briefing and a corresponding count of overreaching), the fine that was imposed,
and the period for which his membership was suspended.
Geach SC
82 counts
R164 000
3 months
Güldenpfennig
90 counts
R90 000
2 months
Upton
16 counts
R 16 000
4 weeks
Williams SC11
60 counts
R120 000
6 months
Seima
33 counts
R33000
5 weeks
Jordaan
20 counts
R 20 000
4 weeks

11An additional fine of R76 000 was imposed on 38 counts of failing to register a contingency fee agreement.  The
contingency fees were returned.

Van Onselen
133 counts
R133 000
3 months
Pillay
28 counts
R 28 000
5 weeks
Leopeng
315 counts
R157 500
6 months
Mogagabe
461 counts
R230 000
6 months

[39] In its report to the Bar Council the committee recorded, amongst other
things, that it had had ‘the fullest, candid and honest co-operation’ of the members
concerned, that the members had acted ‘in wilful disregard of the ethical rules of
practice of [the Society]’, and that their conduct ‘displayed a decided ongoing
pattern of double-briefing and overreaching over a lengthy period’. The committee
went on to report that ‘there was no element of dishonesty on the part of the
members’: on the contrary they had performed their duties ‘honestly,
professionally, and with dedication in each instance’ and that ‘on the evidence
before us it is also evident that neither the plaintiffs nor the [Fund] were prejudiced
in the matters in which the affected members acted on brief.’ It reported that the
courts, the attorneys and counsel had ‘co-operated in a concerted effort to remedy
an insufferable situation that had arisen’ and that as a result ‘the incidences of
double briefing pale to a significant extent.’

[40] It is astonishing that the committee should have held those latter views. I
have already said that to charge a trial fee where an advocate is instructed to
perform a service that is not to conduct a trial is dishonest and constitutes
overreaching. That was made plain in the circular issued by the Bar Council in
2006.

[41] The Bar Council debated the report of the committee – the debate was said
to have been ‘vigorous’ – and adopted the sanctions that had been recommended. It

resolved as well to place its decision before the High Court for orders to be made
that I refer to presently.

[42] That disposed of the ten members leaving three. The Bar Council appointed
a new committee to deal with them, comprising L Vorster SC, P Van Niekerk SC
and A Laka (I refer to it as the Vorster committee). De Klerk and Botha appeared
before the committee. At his request the investigation of Bezuidenhout was
postponed to a later date.

[43] The Vorster committee took a different view of the matter. It found the two
members to have acted without integrity, that their conduct had prejudiced the
Fund, and it recommended that the Bar Council take steps to have them struck
from the roll. The recommendations of the Vorster committee were rejected by the
Bar Council. Instead the two advocates were sanctioned consistently with the other
ten. The counts that each admitted, and the fines and effective periods of
suspension imposed, were as follows:
Botha
170 counts
R170 000
5 months
De Klerk
74 counts
R 74 000
3 months

[44] That left only Bezuidenhout. He appeared again before the committee and
applied for the recusal of its members, in view of the findings they had made in
relation to Botha and De Klerk. The members declined. He announced his
intention to apply to the high court to review their decision, whereupon the Bar
Council revoked the mandate of the committee and launched an application for an
order striking Bezuidenhout from the roll.

[45] At the same time the Society applied to the North Gauteng High Court, in
separate applications in respect of each advocate, for orders as follows:
‘1.
That the disciplinary sanctions imposed upon the respondent by the [Society] be noted;
and/or
2.
That such other order be made as the Honourable Court may deem appropriate’.

[46] Thirteen separate applications were thus before the high court: twelve for the
sanctions that had been imposed to be ‘noted’, or for such other appropriate order
to be made, and in the case of Bezuidenhout, for an order striking him from the
roll. After the advocates had filed answering affidavits the GCB was admitted as a
party to the proceedings and asked for orders striking all the advocates from the
roll. It advanced no further facts of its own but relied on the facts contained in the
founding affidavit of the Society. Further affidavits were filed by the advocates in
response to the orders sought by the GCB.

[47] At the time the applications were heard by the high court all the advocates
had paid the fines imposed on them and had served their periods of suspension. In
respect of seven of the advocates, it ordered them to pay varying amounts to the
Fund. In four of those cases it ordered a further period of suspension, part of which
was suspended for a period on certain conditions. In the remaining three cases a
period of suspension was imposed, all of which was suspended. By the time the
matter came before us all had paid the moneys and had served their further periods
of suspension.

[48] I tabulate below the full sanction visited on each of the seven once the high
court had made its orders under the following columns: the fine imposed by the
Society, the amount the advocate was ordered to pay to the Fund, the total period

of actual suspension (those in bold are suspensions imposed by the Society that
were not added to by the court) and, in brackets, the further period of suspension
that was suspended.

Geach SC
R164 000
R984 000
12 months
(6 months)
Güldenpfennig
R 90 000
R864 000
12 months
(6 months)
Upton
R 16 000
R166 400
4 weeks
(6 months)
Williams SC
R120 000
R864 000
11 months
(7 months)
Seima
R33 000
R141 900
5 weeks
(6 months)
Jordaan
R 20 000
R 94 000
4 weeks
(6 months)
Van Onselen
R133 000
R967 800
9 months
(6 months)

[49] The other six advocates were struck off the roll and in addition they were
ordered to pay the following amounts to the Fund:
Pillay
R   268 800
Botha
R1 768 000
De Klerk
R   310 800
Leopeng
R1 323 000
Mogagabe
R1 916 800
Bezuidenhout
R5 992 400

[50] Section 7(1)(d) of the Admissions of Advocates Act 74 of 1964 allows a
court to suspend any person from practise as an advocate or to order that his or her
name be struck off the roll of advocates ‘if the court is satisfied that he [or she] is
not a fit and proper person to continue to practise as an advocate.’ It is trite that
there are three steps in the enquiry whether such action should be taken.  In Malan
v Law Society, Northern Provinces12 this court said, in the context of the
comparable provision of the Attorneys Act 53 of 1979, relying upon what had been
said to similar effect in Jasat v Natal Law Society:13

12Malan v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) para 4.
13Jasat v Natal Law Society 2000 (3) SA 44 (SCA) para 10.

‘First, the court must decide whether the alleged offending conduct has been established on a
preponderance of probabilities, which is a factual inquiry.
Second, it must consider whether the person concerned “in the discretion of the court” is not a fit
and proper person to continue to practise. This involves a weighing up of the conduct
complained of against the conduct expected of an attorney and, to this extent, is a value
judgment.
And third, the court must inquire whether in all the circumstances the person in question is to be
removed from the roll of attorneys or whether an order of suspension from practice would
suffice.’

[51] The words ‘in the discretion of the court’ in the second stage of the enquiry
appear in s 22 of the Attorneys Act and are absent from the Admission of
Advocates Act but that is not significant for present purposes. The enquiry in each
case necessarily calls for the conduct complained of to be weighed against the
standards of the profession, which is partly value judgment and partly objective
fact.14

[52] In view of their admissions of overreaching it is curious that at least some of
them denied in their affidavits that they had been dishonest, because overreaching
is, by definition, dishonest.

[53] The court below was alive to that contradiction, and queried whether the
guilty pleas were admissions of dishonesty. The response of the advocates was that
they were not admitting dishonesty but had intended in their pleas to admit only to
overcharging – which is not necessarily dishonest – and not to overreaching.
Accepting those explanations the court said that ‘giving the respondents the benefit

14Jasat v Natal Law Society at 51E-F; Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA) at 654
D-F.

of the doubt, in our view the plea should be read as guilty to overcharging as
opposed to overreaching’.  On that basis it said that ‘the sole question that remains
at this stage was whether they acted honestly’.

[54] I ought to make it clear what the court meant when it said that ‘in our view
the plea should be read as guilty to overcharging as opposed to overreaching’.
When seen in its context, and in relation to the question that was then under
consideration, the court meant only that it accepted that the pleas of guilty by the
advocates concerned had been intended by them to be pleas of guilty to
overcharging. The court did not mean that it accepted that they were guilty only of
that offence. On the contrary, it is clear from the manner in which it then dealt with
the issue, and the findings that it then made, that it concluded, in effect if not in
words, that their offences were indeed overreaching and not merely overcharging.
For it found in each case that the advocates were not entitled to charge fees at all,
and that in every case they had done so they had acted dishonestly, and the court
dealt with the matter of sanction accordingly.

[55] On the second stage of the enquiry the high court said that ‘it must consider
whether the person concerned ‘in the discretion of the court’ is not a fit and proper
person to continue to practise’. Its expression of the test was drawn from cases
dealing with attorneys and was not strictly correct. I have pointed out that the
words ‘in the discretion of the court’ do not appear in the Admission of Advocates
Act. Be that as it may, there was no dispute that they were not fit and proper to
continue in practice.

[56] On appeal before us its findings on those two legs of the enquiry are not
controversial. The controversy is confined to the third stage of the enquiry.

[57] At the third stage of the enquiry the sanction that should be imposed lies in
the discretion of the court. Where a discretion is conferred it implies that the matter
for decision has no single answer and calls for judgment, upon which reasonable
people might disagree. That being so a court on appeal is restricted to determining
whether the decision-maker has correctly gone about the enquiry.  If he or she has
correctly gone about the enquiry then a court on appeal may not interfere with the
decision, albeit that it considers the decision to be wrong.

[58] That restriction upon the power of a court to interfere on appeal was
expressed as follows in Kekana v Society of Advocates of South Africa:15
‘[A]ppellate interference with the trial Court’s discretion is permissible on restricted grounds
only. In Beyers v Pretoria Balieraad 1966 (2) SA 593 (A) at 605F-H, Olivier v Die Kaapse
Balieraad 1972 (3) SA 485 (A) at 495D-F and Swain v Society of Advocates, Natal 1973 (4) SA
784 (A) at 786H ad fin the grounds for interference are stated in slightly different terms, but the
approach is essentially the one adopted in all other cases where a Court of Appeal is called upon
to interfere with the exercise of a discretion, viz that interference is limited to cases in which it is
found that the trial Court has exercised its discretion capriciously or upon a wrong principle, or
has not brought its unbiased judgment to bear on the question, or has not acted for substantial
reason. (See Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) at 781I-782A and
the cases referred to there.)’

[59] In Fine v Society of Advocates of SA (Witwatersrand Division)16 it was
expressed differently, but to the same effect, when the court said that
‘the Appeal Court will only interfere with the exercise of this discretion on the grounds of
material misdirection or irregularity, or because the decision is one no reasonable Court could
make. (See Nyembezi v Law Society, Natal 1981 (2) SA 752 (A).)’

15At 654E-H.
161983 (4) SA 488 (A) at 494H-495(A).

[60] There are two enquiries to be made when exercising a discretion. The first is
to establish the material facts. The second is to evaluate those facts towards the
correct objective. The various grounds for interference referred to in the cases
merely identify the failures that might occur in that process.  Where the conclusion
arrived at has been actuated by bias, or is capricious, there has been no evaluation
at all. Where the evaluation proceeds from incorrect facts, or from an incorrect
appreciation of the law, or where a wrong principle is applied, the evaluation has
gone in the wrong direction. As this court said S v Pillay,17 which related to
criminal sentencing in which the same principles apply, ‘“misdirection” in the
present context simply means an error committed by the Court in determining or
applying the facts for assessing the appropriate sentence’.

[61] Misdirection of the enquiry might be revealed by the express language of the
reasoning, or by necessary inference from that expressed reasoning, or by an
outrageous conclusion. For if the conclusion it came to is one that ‘no reasonable
court could make’18 it can be inferred that somewhere along the line it must have
misdirected its enquiry, or acted with bias or been capricious, or acted upon a
wrong principle, notwithstanding the language in which it expresses its reasoning.
But in reasoning along those last lines a court must be careful not to cast itself as
the archetypal reasonable court, and reason from there that because its view of the
matter differs from that of the court below, the decision of that court is one that
could not reasonably have been made. The question is not whether a reasonable
court could have reached a different conclusion, but instead whether a reasonable
court could not have reached the conclusion that it did.

17S v Pillay 1977 (4) SA 531 (A) at 535B.
18Fine v Society of Advocates of SA at 494A-495A.

[62] When analysing the language of the decision-maker it needs always to be
kept in mind that a judgment is generally written to inform the parties why they
have respectively won and lost and not only with an eye to an appeal. For that
reason a court of appeal should not scrutinize the language as if it was construing a
statute. In particular it must not be thought that a point was overlooked only
because it was not expressly mentioned. As this court said in Lepholletsa v S,19
which was an appeal against sentence, in which the same principles apply:
‘Soos opgemerk in vorige uitsprake van hierdie Hof (wat ek nie nodig ag om aan te haal nie) dui
die blote versuim om 'n besonderefeit of aspek van die saak pertinent in 'n uitspraak te opper, nie
noodwendig daarop dat dit nie oorweeg is nie.’

[63] That is particularly relevant in the present case, in which the papers were
voluminous and the case was argued over five days.  To expect that everything that
was taken into account by the court below would appear in its judgment would be
unrealistic. Indeed, some matters might have been conceded, or argument on the
matter might not have been advanced, in which case it can be expected that the
court would not express itself on the issue, or at least not do so fully. I think it is
also appropriate to bear in mind that in this case the judges who comprised the
court below were themselves at one time senior advocates of long standing. That is
no reason to defer to their conclusions but it is reason to expect that they would not
always find it necessary to express themselves on matters that would be trite to
those in the profession.

[64] I deal first with the GCB’s appeal against the decision concerning the seven
advocates who were not struck off, and later I deal with Bezuidenhout’s appeal.

19[1997] 3 All SA 113 (A) at 115F-G  Also see S v Pillay  at 533B.

The appeals of the remaining five advocates are dealt with in the judgment of
Ponnan JA, and I agree with his conclusions, and also with his reasons for reaching
them, supplemented by the views expressed in this judgment so far as they apply
generally to all the advocates.

[65] There is no suggestion by the GCB that the high court proceeded from an
incorrect appreciation of the facts. Nor, obviously, does it contest that the seven
advocates were not fit and proper to practice. Perhaps I need to repeat that those
two stages of the enquiry were not contentious before us and I do not find it
necessary to deal with them.  Leaving aside the allegations by two of the advocates
that they perceived bias on the part of the one of the judges – with which the
remaining advocates pertinently disassociated themselves, and which have been
rightly rejected in the judgment of Ponnan JA – the appeals were directed solely to
whether the court below properly exercised its discretion at the third stage of the
enquiry.

[66] There has been no suggestion of bias, nor that the decision was capricious.
The GCB submitted only that in various ways the court below misdirected its
enquiry.

[67] The end to which the court below conducted its enquiry was that stated in
Van der Berg v General Council of the Bar,20 which was reiterated in Malan:
‘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

20Van der Berg v General Council of the Bar [2002] 2 All SA 499 (SCA) para 50.

suspension will be sufficiently corrective to avoid a recurrence, an order of suspension might
suffice.’

[68] I ought to mention that the court below questioned whether that case held
that the powers of a court in proceedings of this nature are confined to striking off
or suspension, and rightly concluded that it had not done so. On a proper and
careful reading I think it will emerge that the references to striking off and
suspension were illustrative of what was being said. I deal further with that subject
later in this judgment.

[69] It was said in Malan that ‘if a court finds dishonesty, the circumstances must
be exceptional before a court will order a suspension instead of a removal’.  That
does not purport to lay down a rule of law but expresses what follows naturally
from a finding of dishonesty.  Once an advocate has exhibited dishonesty it might
be inferred that the dishonesty will recur and for that reason he or she should
ordinarily be barred from practice. What was said in Malan means only that when
the person concerned has been shown to have been dishonest a court will need to
be satisfied that the circumstances of the case are such that that inference,
exceptionally, need not be drawn, and thus that striking off need not follow.  In
Law Society, Cape v Peter21 that exception was expressed by distinguishing a
‘character defect’ from a ‘moral lapse’.  It is clear that the court below was alive to
that distinction and directed its enquiry to whether these cases were indeed the
exception.

[70] Once having proceeded from a correct appreciation of the facts, and having
directed its enquiry towards answering the correct question, it is difficult to see

21Law Society, Cape v Peter 2009 (2) SA 18 (SCA) para 16. See, too, Malan’s case, para 28.

how it can be said that the court’s enquiry in this case was misdirected. Upon
proper analysis it seems to me that the complaints of the GCB and Bezuidenhout
are no more than that the court ought to have evaluated the facts differently, which
is not a ground upon which this court may interfere with its decision.

[71] In going about its evaluation the court below collected together various
factors that it categorised collectively as ‘exceptional circumstances’, others that it
called ‘aggravating circumstances’, and some that it said were ‘mitigating’.  I do
not think that undue store should be placed upon that use of language, which is
more appropriate to evaluating sentence in a criminal case. I think it is clear from a
fair reading of the judgment as a whole that what it called ‘exceptional’ and
‘mitigating’ circumstances were simply those factors that the court considered, in
different degrees, to militate against striking off, and those that it called
‘aggravating circumstances’ were factors that favoured striking off.22

[72] The approach of the GCB was to isolate some of those factors and take issue
with their characterisation. Thus it submitted that it was not an ‘exceptional
circumstance’ that the advocates had complied with the sanctions imposed by the
Bar Council, nor was it an ‘exceptional circumstance’ that the judges calling the
roll had ‘shut their eyes to the insidious practice of double briefing’ (the words
used by the court below). Nor was it an ‘exceptional circumstance’ that members
of the Pretoria bar, including members of the Bar Council, were aware of the
practice of double briefing and had not acted to end it.  It was also not an
‘exceptional circumstance’ that the advocates had practiced professionally from the
time they had admitted their transgressions to the time of the hearing of the
applications. In the same vein it was submitted that the court ought to have treated

22Malan v Law Society Northern Provinces, para 28.

the fact that the advocates had not disclosed details of transgressions committed
outside the period for which they were charged as an ‘aggravating circumstance’.
(So far as that submission is concerned it is true that the duty of an advocate in a
disciplinary enquiry is to be frank and co-operative, but I do not think that means
that he must necessarily insist that the Bar Council receive information that it
knows to exist but shows no interest in having. In this case the advocates readily
admitted that they had transgressed outside the time period being investigated and
neither the Society nor the GCB took the matter further. I cannot see how they can
then be criticised for not pressing the matter themselves. That is also how the court
below saw the matter and in my view it cannot be faulted.)

[73] I think I have already indicated that to ask whether a ‘circumstance’ of the
case in isolation is ‘exceptional’ is not the proper approach to cases of this kind.
The proper approach is instead to ask whether the circumstances as a whole reveal
that the case the court has before it is an exception from those in which it can
ordinarily be inferred that the dishonesty will recur and should thus be met with
striking off. To debate whether a particular factor is a ‘circumstance’ that is
‘exceptional’ – or ‘mitigating’ or ‘aggravating’ – leads the enquiry astray. Going
behind the inapt language used in the judgment and examining instead the line of
reasoning that it reveals – which I think one must do where the judgment is no
model of linguistic exactness or elegance, as in this case – I find the judgment to
reveal clearly that that is indeed how the court dealt with the matter.

[74] The question that fell for decision was whether, upon an evaluation of all the
material circumstances, which include ‘the nature of the conduct complained of,
the extent to which it reflects upon the person’s character or shows him to be
unworthy to remain in the ranks of an honourable profession, the likelihood or

otherwise of a repetition of such conduct and the need to protect the public’23, the
advocate should be barred from continuing to practise.  The manner in which the
court applied the various factors reflects that it considered some to point in one
direction and others to point in the other direction and it evaluated each case
accordingly.  That is precisely what a proper exercise of its discretion required.
What each of those various factors was called seems to me to be neither here nor
there.

[75] Stripped of terminological niceties the submissions advanced for the GCB
amount to no more than a challenge to the weight, or lack of it, that the court below
accorded to the various factors it placed in the scales.  It was the prerogative of that
court to determine what factors should weigh with it one way or another – and
even whether no weight should be attached to any one of them at all – and how
they should be weighed relative to one another.  This court is not entitled to
interfere only because it might have seen things differently.

[76] The GCB also placed in issue the approach that the court took to factors that
were said in individual cases to have ‘mitigated’ the conduct of the advocate
concerned. Thus the court considered it to be ‘mitigating’ that some had practised
for many years with no blemish to their names, and that some were said not to have
been motivated by ‘greed’– a rather imprecise term in the context of the
profession.  Once again I think it is clear, when viewed in context, that what was
meant was only that those factors, in varying degrees, indicated that the case was
one in which it could be expected that the dishonesty would not recur, which it was
the prerogative of that court to decide.

23 Malan's case above, para 5, citing Jasat's case'.

[77] There are two further matters that I find it necessary to deal with. The first
concerns the orders that were made by the court for repayment of money to the
Fund. The GCB submitted that those orders were not competent in relation to the
advocates who were struck off the roll and I agree. Once the court struck them
from the roll its disciplinary powers over them were exhausted.  In relation to the
other advocates it submitted that it was competent, and those advocates do not
suggest the contrary, but I find it necessary to say something about those orders
nonetheless.

[78] The Act is directed to regulating who may practise in the courts.  In effect it
provides that a court may permit a person to do so, and it may also withdraw that
permission, whether permanently by striking off, or temporarily by suspension. It
does not purport to say anything about the powers of a court to exercise discipline
over practitioners while they enjoy the right to practise.  I agree with the court
below that a court has an inherent power to do so, as this court, and other courts,
have said before.24 That it has its roots in antiquity, and that we no longer employ
the disciplinary remedies of earlier times, seem to me to be neither here nor there.
I see no reason why that inherent power does not permit a court to order a
practitioner to repay moneys as a condition for further practice.

[79] The second matter I find it necessary to deal with concerns only Geach SC.
The Value Added Tax Act 89 of 1991 requires every person who carries on an
enterprise to be registered as a vendor.  In its affidavit the GCB said that in the
course of the investigation into his affairs it had emerged that Geach SC had not
registered as a vendor, although he had been obliged to do so, and that was

24De Villiers v McIntyre, N.O. 1921 AD 425 at 428 and 435;  Law Society of the Cape Hope v C 1986 (1) SA 616
(A) 638C-E; Society of Advocates of Natal v Knox 1954 (2) SA 246 (N) 247 G-H.

admitted. Having said that, the GCB moved on, and said nothing further on the
matter. The fact was mentioned, but not elaborated upon, by the court below. The
GCB mentioned in its heads of argument before us as an act of misconduct, but
made nothing more of it. The matter was raised from the bench.

[80] By failing to register Geach SC committed an offence. It can be expected
also to have resulted in loss to the revenue authorities of VAT that he should have
charged. The court below must have been aware of those ordinary consequences. I
see no reason to infer, merely from the absence of elaboration, that it failed to take
them into account, particularly if the GCB made no issue of it in argument, just as
it made no issue of it in this court.

[81] Turning to the appeal of Bezuidenhout, unlike the seven advocates I have
dealt with, he was un-cooperative, even obstructive in dealing with the allegations
against him.  He denied the evidence of Ellis SC that at first he ‘flatly refused’ to
produce his records but that denial can be summarily dismissed.  He was one of
those who claimed their right to privacy when they became aware that the Bar
Council was once more in search of their books, which is hardly consistent with an
intention to disclose his books. Moreover, the court below recorded that he failed
to comply with a request by the Bar Council to place certain of his records before
the court.  When he was compelled to do so by the court they reflected that his
transgressions were continuing, obliging the court to order his suspension until the
outcome of the application.

[82] No misdirection has been demonstrated so far as the striking off order is
concerned, but on another issue the appeal has merit. I have already said the GCB
conceded that the court below was not entitled to make an order for the payment of

money to the Fund in the case of those who were struck off, and I agree.  That
order must be set aside.

[83] One might pick away at this part of the judgment, and then at that part, but I
think that, when looked at overall and from afar, it cannot be said that the court
below misdirected its enquiry. It went about it on the correct facts, and on a correct
construction of the law, and the rest fell within its discretion. Perhaps the acid test
is whether its conclusions could not have been reached by a reasonable court.
Whether or not I agree with them I don’t think they can be said to be unreasonable.

[84] So far as the costs of the appeal of the GCB are concerned the seven
advocates have succeeded in resisting it, and would ordinarily be entitled to their
costs.  On this occasion, however, I do not think that would be apposite. The GCB
was justified in bringing the matters on appeal in protection of the standing of the
profession. I think the advocates concerned should incur the costs they have
brought upon the GCB and the Society.  Bezuidenhout has failed in his appeal and
there is no reason why he should not be liable for the costs occasioned by his
appeal.  Punitive costs were ordered in the court below. The manner in which the
appeals were conducted does not further punitive costs. The same applies to the
other appellants. As to the division of the costs between the appeals, that is a
matter that can be left to the taxing master if it becomes necessary.

[85] Mr Epstein SC and Mr Bester have acted for the GCB at no charge, for
which we commend them, and express our appreciation for their assistance, and
the assistance of their two juniors. The two juniors, whose assistance was justified,
cannot similarly be expected to have acted without remuneration.  For that reason
the costs should include the costs of two counsel.

[86] For the reasons given in this judgment and that of Ponnan JA the following
orders are made:

1.
The appeal of the General Council of the Bar is dismissed. The first to
seventh respondents in that appeal are to pay the costs of the General
Council of the Bar and those of the Pretoria Society of Advocates, jointly
and severally, which are to include the costs of two counsel.
2.
The orders for repayment of moneys made against the appellant advocates in
appeals 273/12, 281/12, 280/12, 275/12, 274/12 and 278/12 are set aside.
That apart, their appeals are dismissed, in each case with costs that include
the costs of two counsel.

_________________
R W NUGENT
JUDGE OF APPEAL

PONNAN JA (MPATI P and NUGENT JA CONCURRING):

[87] ‘The first thing we do, let’s kill all the lawyers’ is Dick the Butcher’s
exhortation in Henry VI to Jack Cade - ‘the head of an army of rabble and a
demagogue pandering to the ignorant’. That oft misunderstood phrase was William
Shakespeare’s homage to lawyers as the primary defenders of democracy.
Through it, The Bard recognised that for tyranny and anarchy to flourish, the law
and all those who were sworn to uphold it had to first be eliminated. Lawyers,
because of the adversarial nature of litigation in this country, will never be

universally loved by the public. That is not to suggest that as members of a
distinguished and venerable profession they do not occupy a very important
position in our society. After all they are the beneficiaries of a rich heritage and the
mantle of responsibility that they bear as the protectors of our hard won freedoms
is without parallel. As officers of our courts lawyers play a vital role in upholding
the Constitution and ensuring that our system of justice is both efficient and
effective. It therefore stands to reason that absolute personal integrity and
scrupulous honesty are demanded of each of them.25 It follows that generally a
practitioner who is found to be dishonest should in the absence of exceptional
circumstances expect to have his name struck from the roll.26

[88] As Nugent JA has intimated this judgment deals with the appeals of the five
advocates27 who contend that they ought not to have been struck from the roll.
Each application, although part of the series of applications by the Pretoria Bar
against various members, fell to be adjudicated upon its own facts. That the high
court did. As is evident from the judgment of my learned Brother none of the five
contest the factual findings of the court below or the finding that they are not fit
and proper persons to continue to practise. Nor, it seems to me, could they have.
Rather what they seek to achieve is to persuade us that they have been treated too
harshly. I am by no means satisfied that such arguments as were advanced on
behalf of each of the five brings the matter within the compass of any of the
recognised grounds for interference.28 On the contrary as I shall show with
reference to each of the five a striking off was wholly justified. It is so that at first
blush they appear to have been treated more harshly relative to their colleagues

25Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA) at 656A.
26Malan v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) para 10.
27Pillay, Botha, De Klerk, Leopeng and Mogagabe.
28See paras 58-61 of the judgment of Nugent JA.

who were suspended. But on closer examination that is not so. In my view the
disparity in treatment between them and those who were suspended was plainly
justified. The high court was alive to the task that confronted it. It appreciated that
the enquiry with which it was engaged was ‘what is required for the protection of
the public in the future’.29 And that in embarking upon that enquiry the various
transgressions of the advocates were not to be viewed in isolation but that their
conduct was to be viewed holistically. In that regard the high court explained why
it plumped for a striking off as opposed to a suspension, thus:
'In the case of contraventions after the notice of 26 October 2009, unexplained fiddling with
hours, mendacious explanations to the Court and exorbitant numbers of transgressions the scale
swung to striking off.'

[89] Before turning to a consideration of the individual appeals of the five, it is
necessary first to dispose of a contention advanced both before this court on appeal
as also the high court at the application for leave to appeal stage of the
proceedings, that Van Dijkhorst AJ ought not to have sat in the matter because the
parties (or more accurately some of them) entertained a reasonable apprehension
that he had not brought an impartial and unprejudiced mind to bear on the matter.
According to Pillay, after judgment was handed down in the matter but prior to the
application for leave to appeal being heard, a transcript of the minutes of the
meeting of the Pretoria Bar Council held on 17 November 2009 came to hand. In it
W Maritz SC, who was the pro forma prosecutor before the disciplinary enquiry, is
recorded as having informed the meeting that Van Dijkhorst AJ had expressed the
view that ‘anyone who takes two briefs for the same day should be nailed’. Pillay
alleges that that utterance, which only came to his attention after the matter had
been heard, has led him to believe that the learned Judge had failed to bring an

29Van der Berg v General Council of the Bar of SA [2007] 2 All SA 499 (SCA) para 50.

open and impartial mind to the resolution of the question involved in the matter
before the court and that he should accordingly have disqualified himself from
sitting. His failure to recuse himself, so it was asserted, vitiated the entire
proceedings. Whilst some of the other advocates specifically disavowed any
suggestion of bias, there was as well an alternative argument advanced on behalf of
Botha that did not conclude with a request that the entire proceedings before the
Court a quo should be set aside. Instead it was submitted that inasmuch as Van
Dijkhorst AJ had failed to bring an unbiased judgment to bear on the issue (Malan
para 13), that part of the Court a quo's order, which required the exercise of a
discretion, namely a striking off as opposed to  a suspension, fell to be set aside.
The consequence of that, so the argument went, is that this court would be at large
to reconsider the issue, untrammelled by any constraint imposed by the exercise of
a discretion by the Court a quo.

[90] Actual bias was not asserted, rather it is alleged that there is an appearance
of bias. As it was put by Centlivres CJ in R v Milne and Erleigh (6)1951 (1) SA 1
(A) at 6H: ‘ . . . there can be no doubt that if a Judge, who ought not, because he is
biased, to preside at a criminal trial, nevertheless does so he commits . . .  an
irregularity in the proceedings every minute he remains on the Bench during the
trial of the accused.’ It matters not that here the complaint is levelled against just
one of a panel of three judges. For, if a Judge incorrectly refuses to recuse himself
the remaining members should not sit with that Judge as the proceeding would be
irregular (President of the RSA v South African Rugby Football Union 1999 (4) SA
147 (CC) (Sarfu) para 32). In Sarfu para 48, the Constitutional Court formulated
the proper approach to recusal as follows:
‘The question is whether a reasonable, objective and informed person would on the correct facts
reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the

adjudication of the case, that is a mind open to persuasion by the evidence and the submissions
of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of
office taken by the Judges to administer justice without fear or favour, and their ability to carry
out that oath by reason of their training and experience. It must be assumed that they can
disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into
account the fact that they have a duty to sit in any case in which they are not obliged to recuse
themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental
prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if
there are reasonable grounds on the part of a litigant for apprehending that the judicial officer,
for whatever reasons, was not or will not be impartial.’

[91] The test thus contains a two-fold objective element – the person considering
the alleged bias must be reasonable, and the apprehension of bias itself must also
be reasonable in the circumstances of the case (Sarfu para 45). It follows that mere
apprehensiveness on the part of a litigant – even a strongly and honestly held
anxiety – would not be enough.  The question to be answered is: ‘what would an
informed person, viewing the matter realistically and practically – and having
thought the matter through – conclude’.30 Applying those principles to the facts
here present I am by no means satisfied that the fairly high threshold set by the test
has been surpassed. The gist of the complaint appears to be that the robust tone
with which the learned Judge expressed himself would have instilled in a
reasonable litigant in the position of Pillay a reasonable apprehension that he was
biased against him. It is so that he appears to have expressed himself in a strong
and perhaps even emphatic fashion. But had Van Dijkhorst AJ employed a less
emotive word such as ‘punished’ instead of ‘nailed’ that could hardly have
provoked any feelings of disquiet. Counsel was constrained to concede as much.
After all it needs to be remembered that disqualification flows from a reasonable

30Per De Grandpré’ J in Committee for Justice and Liberty et al v National Energy Board (1976) 68 DLR (3d) 716 at
735; Sarfu para 45.

apprehension that the judicial officer will not decide the case impartially and
without prejudice, rather than that he will decide the case adversely to the one
party.31

[92] It must be remembered as well that by the time the matter came to be heard
in the court below the issues of fact, which were not in dispute since the
transgressions had first surfaced, had long since crystallised. To that must be added
a further important consideration: the reasonable litigant through whose eyes the
appearance of bias must be assessed, is in this instance a trained lawyer, who no
doubt must have a proper appreciation of what judicial impartiality truly entails. In
SA Commercial Catering & Allied workers Union v I & J Ltd 2000 (3) SA 705
(CC) para 13, the Constitutional Court elaborated thus:
'The second in-built aspect of the test is that "absolute neutrality" is something of a chimera in
the judicial context. This is because Judges are human. They are unavoidably the product of their
own life experiences and the perspective thus derived inevitably and distinctively informs each
Judge's performance of his or her judicial duties. But colourless neutrality stands in contrast to
judicial impartiality – a distinction the Sarfu decision itself vividly illustrates. Impartiality is that
quality of open-minded readiness to persuasion – without unfitting adherence to either party or to
the Judge's own predilections, preconceptions and personal views – that is the keystone of a
civilised system of adjudication. Impartiality requires, in short, "a mind open to persuasion by
the evidence and the submissions of counsel"; and, in contrast to neutrality, this is an absolute
requirement in every judicial proceeding.

[93] A reasonable litigant in the position of Pillay is expected to be mindful that
in applying the test Courts have recognised a presumption that judicial officers are
impartial in adjudicating disputes. This is because Judges on account of their

31In Re JRL: Ex Parte CJL (1986) 161 CLR 342 (HCA) at 352; Sarfu para 46.

training are assumed to be capable of judging fairly. The presumption carries
considerable weight. Thus reviewing courts are generally hesitant to make a
finding of bias or to perceive a reasonable apprehension of bias on the part of a
Judge, in the absence of convincing evidence to that effect. (See Sarfu paras 40-
42.) It goes without saying that an unfounded or unreasonable apprehension is not
a justifiable basis for recusal. The apprehension of the reasonable person must of
necessity be assessed in the light of the true facts. One cannot ignore from the
reckoning that prior to the commencement of the hearing of the matter, the learned
Judge despatched a note to the parties, the relevant portion of which read:
‘Die volgende inligting word bekend gemaak aangaande myself. Ek het begin om kennis te dra
van die gevalle (sonder detail van afsonderlike sake) toe Quintus Pelser SC my geraadpleeg het
oor die vraag of dubbelbrevettering in die sake van die Fonds op onprofessionele gedrag
neerkom. My uitgesproke mening was dat dit is en dat dit homvrystaan om die inligting oor te
dra aan die Balieraad. Ek het geen kennis gedra van die verdure verloop van sake nie en later
verneem dat die sake afgehandel is en strawwe bepaal is en dat die geval van adv French
Bezuidenhoutoorstaan. Ek het my nooit uitgelaat oor die gepastheid van die strawwe nie. Adv
Quintus Pelser SC het my op ‘n latere stadium gevra of dit gepas sou wees as die Balieraad die
sake aan die Hof voorlê sonder ‘n sanksie te bepleit. Ek het hom meegedeel dat dit kan.Dit is die
omvang van my betrokkenheid na die beste van my herinnering.
Indien die vraag of die optrede op onprofessionele gedrag neerkom, tersprake is, kan ek nie sit
nie. Waar die betrokkenesegterskuldigge pleit het en bloot die sanksie ter sprake is, is hierdie
Bank van mening dat ek kan sit. U word versoek om binne 7 dae enige beswaar wat u mag hê,
voor te lê vir oorweging’.
Van Dijkhorst AJ had thus disclosed of his own volition that he had engaged in
discussions with members of the Pretoria Bar. The parties were invited to intimate
whether any of them had any objections to him sitting in the matter. None of them
did.

[94] Nor can one lose sight of the fact that when the allegation first surfaced at
the application for leave to appeal stage, Van Dijkhorst AJ availed himself of the
opportunity to place the following on record:
‘The note refers to two discussions. In the first I was consulted about the question whether
double briefing in the matters of the RAF constituted unprofessional conduct. I expressed the
view that it was and that this could be conveyed to the Bar Council. From the context it is clear
that this was before the disciplinary hearings of the Bar Council. I was not involved at all in the
hearings or in Maritz SC’s preparation, therefore, or Pelser SC’s role therein, if any, and did not
know what the outcome was till much later.
The second discussion was much later. After the hearings and when it was being considered by
the Bar Council to bring an application to Court. The advice was that the Bar could put the
matters before Court without pleading a specific sanction. The facts disclosed in the notes were
communicated to all respondents. I stated that if the dispute was whether the actions of the
respondents amounted to unprofessional conduct I could not sit as the respondents had pleaded
guilty and it was merely a matter of sanction. The bench held the view that I could.’

[95] It follows that when assessed in the light of all the true facts, if Pillay indeed
apprehended that Van Dijkhorst AJ would not bring an impartial and unprejudiced
mind to the adjudication of the matter, that apprehension was unreasonable, and
the submission that he ought to have recused himself is without merit.

[96] That clears the way for a consideration of whether the high court erred in the
exercise of its discretion in respect of each of Pillay, Botha, De Klerk, Leopeng
and Mogagabe.

Pillay
[97] The high court stated:
'The number of charges he faced and the amount he gained [R268 800.00] [out of the
commission of the offences] is on the lower end of the scale compared to the other respondents.

Had it not been for two other matters we would have in all probability suspended him from
practice'.
The two matters that the court had in mind were: first, that he had invoiced for
work done for the same periods in respect of different briefs; and, second, that he
had lied to a Judge.

[98] As to the first: An examination of Pillay's books revealed that on two
occasions, in addition to marking a fee on trial, he charged for as many as 18 or 19
hours of consultations per day. On a third day he charged for a total of 20½ hours
of consultations. In many instances the fee notes submitted by him reflected him to
have consulted in more than one matter at the exact same time. His answer in a
supplementary affidavit filed in reply to those allegations was:
'I confirm that the errors in respect of the overlapping hours are due to my inaccurate and
deficient recordkeeping'.

[99] As to the second:  The gist of the complaint may be gleaned from two letters.
The first was written by Mojapelo DJP to the Pretoria Bar. It reads:
‘On the day in question the matter of Mr Pillay was stood down at the first roll call at 09:30 in
Johannesburg while he was as it was put to the court, delayed on the N1 motorway travelling
from Pretoria.
When counsel finally appeared in the Johannesburg High Court at 12:00, the court was
suspicious that he might have appeared first in the Pretoria High Court. In response to a direct
enquiry from the court, Mr Pillay denied having appeared in the Pretoria High Court before
coming to the Johannesburg High Court. As Mr Pillay’s answer appeared somewhat muffled, the
question was reiterated and Mr Pillay's response was an unequivocal denial. He unequivocally
denied having appeared in the Pretoria High Court that morning.
Later that same day I phoned my colleague, the Honourable Mr Justice van der Merwe, who was
by then the Acting Deputy Judge President in charge of the trial roll in Pretoria. And he
confirmed that Mr Pillay had appeared in that court that very same morning.

It was in the wake of the developments sketched above that I confronted Mr Pillay and requested
him to report his conduct to the Professional and Ethics Committee in Pretoria.’
In the second letter, which was written (as already alluded to) at the request of
Mojapelo DJP, Pillay informed the Pretoria Bar:
‘During the conversation between Justice Mojapelo and myself, I gained the impression that
Justice Mojapelo had suggested that the reason that I was late was that Advocate Bezuidenhout
and I may have had a case together in the Transvaal Provinical Division. This was not the case. I
believe that Advocate Bezuidenhout from Pretoria may have been late as well. I believe that Mr
Justice Mojapelo had also suggested that I may have appeared at the calling of the roll for a trial
in Pretoria separately from Mr Bezuidenhout. I confirm that my answers to Mr Justice
Mojapelo’s questioning on my belatedness, was on the understanding that the presumption that
he was and the presumption that he was suggesting that Mr Bezuidenhout and I had a case
against each other in the Transvaal Provincial Division and that therefore we were both late for
the calling of the roll in the WLD. I wish to place on record that I in no way sought to mislead
the court or Justice Mojapelo.’

[100] Pillay was the only one of the advocates to testify before the high court. He
was afforded an opportunity to deal with those two aspects. In respect of the first
he told the court:
'My Lord I submit to you with respect that all the hours which I debited I worked. Those invoices
are as a result of the fact that I tried to reconstruct these hours at a time much later than I worked.
When I made those notes I didn't keep proper records of the time, the hours. I would write one
hour or two hours for reading and then I would think okay I thought I read it on Sunday or
Monday between this time and that time ... that is improper and it is a mistake ...'.
And in respect of the second his evidence went thus:
‘This is then the correspondence which we have from the correspondence it appears that
according to you, you denied having appeared against Mr Bezuidenhout in Pretoria and that is
how you understand the question. Judge Mojapelo answers that by saying, I asked him directly
whether he had appeared in the Pretoria High Court before coming to Johannesburg, he denied it,
the question was reiterated and he responded with an unequivocal denial. He unequivocally

denied having appeared in the Pretoria High Court that morning. Now, do you admit or deny this
statement by the Deputy Judge President Mojapelo? --- I do not deny it.

You do not deny it? --- No

So, what happened is, you were confronted by Judge Mojapelo because you did not
attend the roll call. You were asked why you did not attend and you were asked why you had
appeared or whether you had appeared in the Pretoria Court. You denied that you had appeared
in the Pretoria Court, whereas you in fact had appeared in the Pretoria Court. So this is then the
fact? --- What had happened was, at the time that Justice Mojapelo asked me why I was late, I
started to explain the circumstances of the morning from the morning. He then started
suggesting, because I told him that my daughter was sick and as a result of her being ill, I could
not make it for 09:30 and then he suggested yes, that Mr Bezuidenhout, did you have a case
against Mr Bezuidenhout and the conversation went along those lines. I did not pay proper
attention to him and I did not and that is a grave mistake on my part. But I was, you now
answered that question, I was under the impression that he was still referring to that Mr
Bezuidenhout and I were in Pretoria and we had a case against each other, that is, I was
completely flustered that morning because of the events of that morning. I had no reason to lie to
him, I with hindsight, I should have clarified his question, I should have said to him, Judge, I was
in Pretoria on my own, but I was not there with Mr Bezuidenhout, that is a mistake I made. It
was a grave mistake.

Mr Pillay you were, if you were completely flustered on the 26 August, when this
happened, you surely were not still completely flustered on 9 September when you wrote this
letter? --- No.

Which is in conflict with what Judge Mojapelo says and you say that Judge Mojapelo is
right, why then did you write a letter which is exculpatory and which is incorrect? --- M’Lord,
the letter simply seeks to convey my state of mind at the time. All it seeks to convey is at that
time when I made that answer, my state of mind. My state of mind was, I was completely under
pressure because my daughter was sick, I was late for the calling of the roll, I was under
tremendous pressure because there was a suggestion, I got the impression that Judge Mojapelo
was suggesting that I was in court on a trial in Pretoria with Mr Bezuidenhout and that is why I
was late and I only wanted to convey my state of mind and to convey to the judge that I did not
do anything intentionally.

Mr Pillay, you are now under oath? --- Yes.

With hindsight, looking at your letter of 9 September which I read out in full, are those
facts correct or are they incorrect? --- They are correct and I should have gone further to say that
I should have paid proper attention to Judge Mojapelo’s question, I should have answered, I
should have enquired exactly what he wanted and I should not just have made the assumption.

Do you admit that your letter is in conflict with the letter of Judge Mojapelo? --- M’Lord,
I do not know it is in conflict in so far as it, I only tried to tell my state of mind. I wanted to give
the impression that this is what I was going through at the time.

Did you attend roll call in Pretoria? --- Yes, I did.

Did you deny when Judge Mojapelo asked you, whether you had appeared in the Pretoria
High Court that morning, did you deny that you had appeared there? --- M’Lord, my recollection
of the matter was, that question followed a suggestion that Mr Bezuidenhout and I appeared
together on a trial and I said no. I remember saying no and I should have with hindsight, I should
have said, M’Lord no, I did not appear with Mr Bezuidenhout in a trial but if Your Lordship, is
asking me whether I appeared on my own, to confirm a cost order in a settled matter, I did
appear according to the roll. It is a grave, grave error, I did not pay proper attention and it is a
grave error.’

[101] The high court, quite correctly in my view, disbelieved Pillay. It concluded:
'It is overwhelmingly probable that Pillay did not work the hours which he recorded and that he
falsely represented to the clients that he in fact did consult for the recorded number of hours.
This is nothing less that fraud
. . .
'We have no hesitation in disbelieving Pillay and concluding that he deliberately lied to the
judge.'

Botha
[102] By the time the application came to be heard in the high court an
investigation had been conducted in respect of Botha's accounting records, which
revealed that he had, inter alia, on diverse occasions charged for more hours than

there were in the day. By way of example on 11 August 2009 he charged for four
court appearances, a settlement at the RAF tariff and seventeen hours of
preparation. On 12 August 2009 he charged for two trials and 27 hours of
preparation. On 26 August 2009 he charged for three court appearances and 33
hours of inspections in loco, consultations and preparation.

[103] In an affidavit filed in response to those allegations he states:
'3.4
My secretary, Mariëtte Munik, would, on receipt of each brief, automatically insert a
worksheet. She would then contact the other side, establish precisely who was dealing
with the matter on the other side (usually counsel; sometimes attorney), and insert his or
her detail on the worksheet. I would then, as I prepared, consult etc, note my times on the
worksheet. I unfortunately always noted times, but not dates, of my work. From leading
other counsel and tallying times with them, I have come to see that this is a failing of
many advocates. I am thus far from alone in this weakness.
3.5
On finalisation, I would hand the brief over to my secretary, who would make up the
account on the strength of the worksheet. The computer programme which generates my
invoices will not accept an amount in the horizontal column without a date having been
inserted. My secretary as a matter of rote inserted dates prior to the trial date, to enable
her to complete the invoice. In the nature of things, these dates might or might not be
correct. I accept that the result could be a misleading invoice, but not materially so,
because the important fact would be that the work was done, and not the exact date on
which it was done.'

[104] The high court held:
'Botha's explanation is unconvincing. It amounts to this: though each invoice sets out a specific
date or dates when work was done, these do not reflect the truth. One cannot determine what the
truth is. There is no attempt to rearrange the information to prove that when all is properly set
out, there has been no overcharging. One would have expected such an attempt to be made in
view of the seriousness of the prima facie facts. To merely say that it is all due to erroneous
bookkeeping is not in these circumstances an acceptable answer. It indicates that knowingly over

a long period he gave incorrect information to his attorneys. This detracts from his integrity. It is
probable that Botha did not work the hours that he recorded and that he falsely represented to the
attorneys that he did in fact consult or prepare for the recorded number of hours. This is nothing
less than fraud.'

[105] What, moreover, weighed with the high court was the fact that even after the
investigation into his conduct had commenced, Botha, as the high court put it
'brazenly continued with his contraventions'. He accordingly, so the high court
stated 'displayed a persistent violation of the Bar Rules and a contemptuous
attitude thereto', which it found to be 'seriously aggravating'.

De Klerk
[106] De Klerk took the view that his conduct was not proscribed by the Uniform
Rules of Professional Ethics. Thus in his answering affidavit he stated:
'12.1
I deny that the logical correlative of the so-called "cab rank rule" is the rule which
prevents counsel from taking on more than one trial brief per day. I am not aware that the
alleged "logical correlative" has become known as the rule against "double briefing".
12.2
I have perused the whole of the Rule Book of the Pretoria Society of Advocates, the only
reference to the words "double briefing" may be found in the Section B2 as a heading and
the general circular of the Pretoria Society of Advocates dated 1 November 2006 in
which certain "guidelines" were laid down.

The aforesaid general circular only became part of the "new" Rule Book distributed to
members in the form of a clip file that allowed for the substitution of pages. The "new
"Rule Book in this form was distributed to members during the course of June 2009.
12.3
I only became aware of the existence of the said general circular between 23 November
2009 and 26 November 2009.'
The high court found that it was 'most unlikely that De Klerk would not have
known about [the circular] given that it would certainly have been a great talking
point amongst advocates at the Pretoria Bar'. It expressed puzzlement at the

emphasis placed by De Klerk on receipt of the circular as in its view every
advocate knows that there is a rule against double briefing. Accordingly, so it held,
if De Klerk did not know that, he was not fit to be on the roll of advocates.

[107] A recurring theme throughout De Klerk’s answering affidavit was a denial
of any wrongdoing. He thus asserted:
'47.1
. . . I held the view at the investigation meeting/disciplinary proceedings that:
47.1.1 I never acted improper[ly] towards a client,
47.1.2 I never acted surreptitiously;
47.1.3 I had not overcharged my client or had charged improper fees for the work done by
myself.'
. . .
'50.1
I deny that the misconduct of which I had been found guilty was motivated by greed.'
Continuing to protest his innocence was at odds though with him having pleaded
guilty before the disciplinary committee. He, however, explained that he felt
compelled to plead guilty before the disciplinary enquiry because of the
interpretation placed by the Ellis circular on the rule. The high court held that it
was evident from De Klerk's affidavit that he had shown no remorse or contrition
as he did not genuinely believe that he had done wrong.

[108] Despite his plea of guilty to overreaching before the disciplinary committee,
De Klerk subsequently sought to protest his innocence. The high court dealt with
that contention thus:
'De Klerk's argument that he as a result did not overreach is wrong. The flaw in the argument is
that De Klerk approaches the raising of fees on a holistic basis instead of a case by case basis.
The fact that the RAF was in each instance his client, does not mean that when he raises a fee,
that fee need not be appropriate with regard to the specific matter to which that fee pertains.
...

De Klerk's explanation rings especially hollow when one has regard to certain of the days in
respect of which he confessed breaches of the rules. For instance, on 2 September 2009 he
accepted and charged for seven matters on trial. It is simply impossible for one person to accept
instructions in seven matters to take them to trial on the same day. Furthermore, had he (and this
is not his version) accepted some of these instructions on settlement, he has dishonestly and
fraudulently charged a trial fee instead of a fee on settlement.'

[109] The additional considerations that weighed with the high court were: First,
De Klerk initially adopted the attitude that he would not submit his books of
account to the scrutiny of the Professional and Ethics Committee of the Pretoria
Bar. Second, when he appeared before the Vorster Disciplinary Committee, De
Klerk requested that he be expelled from the Pretoria Bar so that he could set up
practice as an independent advocate untrammelled by the Society's rules. Third, on
26 March 2012 and after being summoned to appear before the Vorster Committee,
he tendered his resignation from the Pretoria Bar. The Bar Council declined to
accept his resignation. Despite the fact that his resignation was not accepted, he
vacated his chambers on Saturday 1 May 2010. Fourth, De Klerk had continued, as
the high court put it, in contemptuous disregard of the Ellis circular, with his
pattern of multiple briefing and did so on no less than 17 occasions on nine court
days during November 2009.

Leopeng
[110] The high court took the view that Leopeng was one of the more serious
offenders, with the number of charges that he faced being surpassed only by
Mogagabe and Bezuidenhout. For the period February to October 2008 he had
accepted in excess of 300 additional briefs. For the months of February, March,
April and May 2009 and prior to the rolls having become congested, which only

occurred during July, Leopeng accepted 23, 25, 18 and 33 additional briefs per
month, respectively.

[111] Despite having been made aware of the fact that the Professional and Ethics
Committee was investigating him and had called for his books, his conduct
continued unabated. An examination of his books revealed that on multiple
occasions he had marked fees for consultations, perusal and preparation in excess
of twenty four hours per day. Thus by way of example he had marked fees as
follows: 1 April 2009 - 25.25 hours, 11 May 2009 - 27.5 hours, 7 August 2009 - 31
hours, 1 September 2009 - 35 hours. His response to these allegations was:
'This overlapping is mainly caused by my lack of keeping proper record of the exact dates and
times spent on each matter. It is also as a result of the large number of these third party matters I
am handling. This is however not intentional and is regretted.'
The high court was not persuaded by Leopeng's explanation, stating: '[i]t is simply
not good enough to merely make the bald statement that it was due to the fact that
proper records weren't kept'.

[112] The high court went on to record:
'We regard this explanation as totally inadequate and unconvincing. On one day, 11 May 2009 he
debited for the following hours worked:
(a)
Sekgobela v The Road Accident Fund - 5 hours of R1 000 an hour for perusal and
preparation;
(b)
Khumalo v The Road Accident Fund - 4 hours for perusal and preparation;
(c)
Makua v The Road Accident Fund - 5 hours for perusal and preparation;
(d)
van Schalkwyk v The Road Accident Fund - 4 hours for perusal and preparation;
(e)
Maphitshi v The Road Accident Fund - 5 hours for perusal and preparation;
(f)
Mosena v The Road Accident Fund – 4 hours for perusal and preparation and attending
pre-trial conference - 30 minutes.’

In each of those matters the fee charged did not include consultations but was
restricted to perusal and preparation and in one instance attending a pre-trial
conference. Actual times were not furnished, instead globular amounts were
charged. The high court concluded:
'[t]he irresistible inference is that he could not possibly have worked the hours that he has
claimed. He represented to the attorney, the Fund, and the Taxing Master that he had done the
work well-knowing that in fact he had not. He acted fraudulently and is not fit to be an officer of
this Court'.

Mogagabe
[113] Mogagabe's transgressions ranked second only to Bezuidenhout. During
February, March, April, May, August and October 2009 he held 33, 49, 54, 68, 78
and 84 additional briefs per month, respectively. An examination of his books
revealed that during February to October 2009 he had debited fees for 18 hours or
more per day on 73 occasions. On 40 occasions he debited fees for 24 hours or
more per day. On 24 occasions he debited fees for 30 hours or more per day. And
on what the high court described as the longest day of his life, namely 21 October
2009, he allegedly worked for a total of 49 hours.

[114] In response to the allegations Mogagabe stated in his affidavit:
' ... one gathers the impression that I dishonestly marked fees for preparation. The evaluation of
my accounts apparently leads to the conclusion that I marked fees and charged for work that I
did not in fact do. This is not correct, as appears from what is stated below. The above inference
however hinges on the correctness of my accounts. My accounts according to me reflect the
correct hours taking into account what is stated below. In certain instances the dates create the
wrong impression as to when the work was actually done. In order to put this in perspective, I
will deal with my routine and my administration.
...

The Honourable Court, will, with respect, realise that under the above circumstances office
administration is prone to lack [lag] behind. I kept a timesheet in the front of each brief. I
normally marked the time as and when I did the work. I wrote down the time spent, but I was not
in the habit of writing down the specific day on which I did specific work. I did not always
distinguish between the nature of my preparation (consultations; pre-trial conferences;
inspections; perusal, etc). It from time to time happened that I was interrupted in my preparation
to attend to other urgent matters. I would then record my preparation hours later that day, or later
in the week whilst it was still easy to recollect the work done. In the unusual event that I could
not recall the hour(s) spent later in the week, I would evaluate the brief and estimate the time
spent on preparation and/.or perusal, taking into account the fee arrangement with the RAF.
...
I normally invoiced my attorneys on Fridays or every second Friday by sending the relevant
worksheet to my typist after having recorded the hours spent on preparation and perusal. I added
all the preparation and perusal times on the worksheet, but due to the fact that I had no record
when the preparation was actually done, I normally recorded my total preparation on the brief a
day or two before the trial date. In some cases I kept proper records and allocated the fees
accordingly. In other words, in certain instances, the date reflects the actual day when the work
was done and others the date on the invoice reflects work done previously.'

[115] The high court dealt with his explanation thus:
'This is a glib explanation. It amounts to this: though each invoice sets out a specific date or dates
when work was done, they do not reflect the truth. The truth lies elsewhere, but where, one
cannot say.
The hours complained of are a composite result of a number of invoices in different cases, in
each case a few hours. There is no attempt to rearrange the information to prove that when all is
properly set out, there was no overcharging. One would have expected such an attempt to have
been made in view of the seriousness of the prima facie facts. But then, rearranging the deck
chairs will probably not prevent the Titanic from sinking. To merely say, as Mogagabe in effect
does, that it is all due to erroneous bookkeeping is not in these circumstances an acceptable
answer. It indicates that knowingly over a long period he gave incorrect information to his
attorneys. This detracts from his integrity.

It is probable that Mogagabe did not work the hours which he recorded and that he falsely
represented to the clients that he in fact did consult or prepare for the recorded number of hours.
This is nothing less than fraud.'

[116] Like Bezuidenhout, the high court ordered each of Pillay, Botha, Leopeng
and Mogagabe to repay what may be described as the extent of their ill-gotten
gains32 to the Fund. As Nugent JA points out (para77) those orders were not
competent and they accordingly fall to be set aside. For the rest the appeals are
devoid of any merit. To be sure no court relishes having to impose the ultimate
sanction upon an advocate. But here in respect of each there were 'aggravating
circumstances' present that favoured striking off. The explanations advanced by
each of the five under oath were generally unconvincing if not plain dishonest.
And as it was put by Hefer JA in Kekana (at 655G):
‘I share the view expressed in Olivier’s case supra at 500H ad fin that, as a matter of principle,
an advocate who lies under oath in defending himself in an application for the removal of his
name from the roll, cannot complain if his perjury is held against him when the question arises
whether he is a fit and proper person to continue practising.’
In Malan (para 10), Harms JA said ‘[o]bviously, if a court finds dishonesty, the
circumstances must be exceptional before a court will order a suspension instead of
a removal’. Although not a rule of law, Nugent JA explains (para 69) why the
logical corollary of a finding of dishonesty is that an advocate should generally be
barred from practice.

[117] A person who practises as an advocate is expected to know what his duties
are, including that he mark his brief with the work that has been done and the fee
that is relevant to that work. In the ordinary course it would thereafter have fallen
to the instructing attorney to hold an advocate to account for the fees that he has

32Those amounts are set out in paragraph 49 of Nugent JA's judgment.

charged, by properly scrutinising the accounts that have been submitted. That, as
we well know, simply did not happen here. Thus when confronted with the
allegation that excessive fees had been charged, the advocates in question were
unable to furnish sufficient detail of the work done, but sought to explain in
general terms only the nature of the work done in return for those fees. That was
wholly unsatisfactory. For, as Nugent JA put it in Van der Berg (para 29): ‘[n]o
doubt it is incumbent upon an advocate who is alleged to have charged excessive
fees to provide sufficient detail of the work that has been performed to enable the
fee to be assessed, and in appropriate cases cross-examination might be called for
to establish the true facts . . .’

[118] Their transgressions paint a picture of advocates who appear to be quite
indifferent to the demands of their profession. The sustained nature of their
transgressions, unlikely excuses and exculpatory explanations ‘manifest character
defects, a lack of integrity, a lack of judgment and a lack of insight’.33 None of
them betray the slightest appreciation of where they may have fallen short or the
enormity of their wrongdoing. Instead they responded with enmity and indignation
that their conduct could have been called into question at all. In short having taken
all of the relevant considerations into account the high court concluded that there
were no exceptional circumstances present warranting the suspension of any of the
five as opposed to their striking off. That, as already stated, was a matter for the
discretion of the high court. Given that it is in the nature of a ‘narrow’ discretion34
(and not having brought the matter within the compass of any of the recognised
grounds for interference) this court is not simply at large to decide the matter
afresh and to substitute its decision for that of that court. It follows that the appeals

33Malan para 28.
34Botha v Law Society, Northern Provinces 2009 (1) SA 227 (SCA) para 3.

of Pillay, Botha, De Klerk, Leopeng and Mogagabe, must – like the other appeals
in this matter – also fail.

_________________
V M  PONNAN
JUDGE OF APPEAL

WALLIS JA (LEACH JA CONCURRING)

[119] Having had the advantage of reading the judgments prepared by my brothers
Nugent and Ponnan, I find myself in respectful disagreement with Nugent JA in
regard to the determination of the appeals by the GCB in respect of Messrs Geach,
Güldenpfennig and Van Onselen. I agree with him that the GCB’s appeals in
respect of Messrs Upton, Jordaan, Seima and Williams should fail and that the
appeal by Mr Bezuidenhout must fail. I agree with Ponnan JA that the appeals of
Messrs Pillay, Botha, De Klerk, Leopeng and Mogagabe against the orders that
they be struck off the roll of advocates should be dismissed. The appeals by them
against the orders by the court below that they repay certain amounts to the Road
Accident Fund (the Fund) should, however, succeed.

[120] The broad grounds for my disagreement with my colleague are as follows.
First, Mr Geach failed to register for, or to pay, VAT from its inception in 1992
until 2010. That was a sustained course of dishonesty for which he gave a
dishonest explanation. The high court mentioned ‘VAT’ as further misconduct, but
did not mention it again. Accordingly there are no factual findings in that regard in
the judgment. In any event, in my opinion, it resulted in a clear misdirection in

regard to sanction, because the high court either failed to have regard to material
misconduct or treated it as inconsequential. In regard to Mr van Onselen, the high
court held that he, unlike some of his colleagues, had not engaged in improper
duplication of hours charged for work done in chambers. In my opinion that factual
finding was incorrect, and it resulted in a misdirection in regard to sanction.
Second, I think that the high court misdirected itself in its approach to sanction,
both at an individual level in relation to those who were not struck from the roll,
and at a general level in failing to apply the principle of parity in assessing sanction
and in regard to its orders for payment to the Fund. That conclusion necessitates a
reconsideration of the sanctions imposed in relation to both those who were struck
off the roll of advocates and those who were not. As will appear, in approaching
that task, my approach differs in certain respects from that of my colleagues. The
judgment of the high court is now reported as Pretoria Society of Advocates &
another v Geach & others.35 I shall refer to it as the reported judgment. I will refer
to Nugent JA’s judgment as the main judgment. A large part of the background
emerges from the main judgment and I shall endeavour, so far as possible within a
coherent narrative, to avoid repetition.

The Background
[121] The circumstances in which the conduct of these advocates attracted the
scrutiny of the court can be summarised fairly shortly. In the North Gauteng High
Court there was a considerable backlog of cases against the Road Accident Fund
(the Fund). This was largely due to some misguided decisions by the Fund in an
endeavour to address its chronic funding problems. The decisions aimed at
avoiding incurring legal costs until a late stage of the actions against the Fund and

35Pretoria Society of Advocates & another v Geach & others 2011 (6) SA 441 (GNP).

postponing the settlement of cases until the very last minute. The consequence was
that the Fund was rarely, if ever, properly prepared for trial. Pre-trial conferences
were held late and were ineffectual because of a lack of instructions. Witnesses,
both on the merits and in regard to quantum, were not consulted or available.
Attorneys could not obtain instructions and briefed counsel at the very last minute.
This meant that there was no advice on evidence. One of the advocates, who did a
substantial amount of work for the Fund, estimated that his briefs on trial would
arrive between three and seven days prior to the date of set down. The result was
that when the day for trial arrived the Fund could not proceed in any sensible
fashion. It was compelled to settle the majority of cases on the best terms it could
obtain. Otherwise it would postpone them, or, in a few instances, try to defend
them on the basis of the plaintiff’s evidence. In virtually every instance an order
would be made that the Fund pay the costs of the action or the postponement.

[122] In this situation these thirteen advocates took more than one brief a day for
matters set down for trial before the North Gauteng High Court. The extent of the
multiple briefing varied from one advocate to the next and from one day to
another. Sometimes only a single extra brief would be taken. In one instance one of
them took 21 briefs on a single day. Sometimes the multiple briefs came from the
same attorney and sometimes not. Sometimes all the briefs would be to represent
plaintiffs, or the Fund, but sometimes the advocate would hold briefs for both
plaintiffs and the Fund on the same day. The disarray in the Fund’s conduct of
cases enabled them to do this. They could be reasonably certain that the cases
would settle or be postponed and that, if any needed to proceed, they would be able
to conduct those cases, whilst disposing of the balance of the matters in which they
had been instructed. Experience no doubt taught them which cases stood a risk of
proceeding and required rather more preparation, but the conduct of actions against

the Fund, at least on the merits, is rarely complex, involving as it does a
description of how a particular motor accident occurred and an analysis of who
was at fault and the degree of their fault. Consequently, if a case proceeded
unexpectedly, this did not pose any great difficulty.

[123] Accepting multiple briefs to conduct trials in the same court on the same day
in circumstances where, if one case ran the others could not, was a clear breach of
the rules governing the professional conduct of advocates as contained in the
Uniform Rules of Professional Conduct of the GCB as well as the domestic rules
of the Pretoria Bar. However, matters did not rest there. The other aspect of the
conduct of these thirteen advocates related to the fees they charged for these cases.
In each instance identified by the Pretoria Bar in the course of its internal
investigation, the advocates charged a full trial or day fee for the case irrespective
of what work had been done on it or what effort or input it involved from the side
of the advocate. This was so even though many of the briefs ultimately involved no
more from them than to settle the cases, rather than conduct a trial. It appears that
the advocates charged in accordance with the Fund’s in-house tariff of fees for
counsel, when they were briefed on behalf of the Fund,36 and the fee that would be
allowed on taxation by the taxing master where they appeared for the plaintiff.37
The end result was that, by multiplying the number of briefs they took and
charging a full trial fee in respect of each of them, they could earn far more than
would otherwise have been the case. In every case the Fund bore the costs and the
advocates appear to have set their fees with this in mind.

36These fees appear to have ranged from R4 000 per day in the case of more junior members up to R5 600 per day in
the case of the more senior advocates.
37This seems to have been of the order of R12 000 to R15 000 per day.

[124] The history of the disciplinary proceedings and this litigation are set out in
paras 29 to 49 of the main judgment. I add the following detail. Each advocate
faced two general charges, one of ‘double briefing’ and one of over-reaching with
the number of counts dependent on how often they had impermissibly taken an
extra brief. In regard to double briefing they took multiple trial briefs on the same
day, in circumstances where they could not have conducted trials in all cases,
because that would have required them to be in more than one court at the same
time. The charge specifically alleged that the additional briefs forming the subject
of the charges were not briefs with ‘a specific mandate to settle the matter.’ The
advocates accepted this as correct when they pleaded guilty to these charges. It is
accordingly not open to them to contend, as some did, that these were not in reality
trial briefs. They were trial briefs (albeit that it was not anticipated that many of
them would result in trials being fought) and were treated as such by the advocates
because they charged trial fees for them. This led directly to the second general
charge, one of over-reaching. Here it was alleged that, in contravention of the Bar
rules governing the charging of fees, they charged a full trial fee in every ‘extra’
case accepted under this practice of accepting multiple trial briefs on the same day.
Each extra fee charged constituted a separate count of over-reaching. In substance
the charges of double briefing and over-reaching constitute two sides of the same
coin. Had the former not occurred, the latter would also not have occurred.

The Law
[125] In South Africa the advocates’ profession is primarily under the control of
voluntary professional organisations, situated in each centre where a high court is
located. These organisations in turn are the constituent members of the GCB. On
questions of admission to, and continued membership of, the profession the high
court exercises control. It is the high court to which application must be made for

admission and the high court that has the power to remove practitioners from the
roll of advocates or attorneys. It exercises these powers in terms of the Admission
of Advocates Act, 74 of 1964 (the Act).

[126] A person can only be admitted to practise as an advocate if they satisfy the
court that they are a fit and proper person to be admitted as such.38 Central to the
determination of that question, which is the same question that has to be answered
in respect of attorneys, is whether the applicant for admission is a person of
‘complete honesty, reliability and integrity’.39 The court’s duty is to satisfy itself
that the applicant is a proper person to be allowed to practise and that admitting the
applicant to the profession involves ‘no danger to the public and no danger to the
good name of the profession’.40  In explaining the reasons for this I need go little
further than the words of Hefer JA in Kekana v Society of Advocates, of South
Africa,41 when he said:
‘Legal practitioners occupy a unique position. On the one hand they serve the interests of their
clients, which require a case to be presented fearlessly and vigorously. On the other hand, as
officers of the Court they serve the interests of justice itself by acting as a bulwark against the
admission of fabricated evidence. Both professions have strict ethical rules aimed at preventing
their members from becoming parties to the deception of the Court. Unfortunately the
observance of the rules is not assured, because what happens between legal representatives and
their clients or witnesses is not a matter for public scrutiny. The preservation of a high standard
of professional ethics having thus been left almost entirely in the hands of individual
practitioners, it stands to reason, firstly, that absolute personal integrity and scrupulous honesty
are demanded of each of them and, secondly, that a practitioner who lacks these qualities cannot
be expected to play his part.’

38Section 3(1)(a) of the Act.
39Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA) at 538G.
40Ex parte Knox 1962 (1) SA 778 (N) at 784.
41Kekana v Society of Advocates of South Africa 1998 (4) SA 649 (SCA) at 655I-656A.

The need for absolute honesty and integrity applies both in relation to advocates’
duties to their clients and their duties to the courts.42 In the past, applicants for
admission as an advocate, who were unable to demonstrate those qualities of
honesty and integrity, had their applications refused.43

[127] These qualities of honesty and integrity must continue to be displayed
throughout an advocate’s practice. That is apparent from the provisions of s 7(1) of
the Act that reads as follows:
‘Subject to the provisions of any other law, a court of any division may, upon application,
suspend any person from practice as an advocate or order that the name of any person be struck
off the roll of advocates—
(a) – (c)
…
(d) if the court is satisfied that he is not a fit and proper person to continue to practise as an
advocate.’
Conduct by an advocate in the course of his or her practice that demonstrates a lack
of honesty or integrity has repeatedly been held to lead to the conclusion that they
are no longer a fit and proper person to continue to practise as an advocate.44
Although in these cases the court is usually concerned with conduct in the course
of the advocate’s practice, that does not mean that conduct unconnected with
practice may not be taken into account in assessing whether the advocate lacks the
honesty and integrity to remain in practice as an advocate.45

42Hayes v The Bar Council 1981 (3) SA 1070 (ZAD) at 1081H-1082D.
43Ex parte Swain 1973 (2) SA 427 (N) and on appeal Swain v Society of Advocates, Natal 1973 (4) SA 784 (A);
Hayes v The Bar Council 1981 (3) SA 1070 (ZAD) and Ex parte Ngwenya: In re Ngwenya v Society of Advocates,
Pretoria, & another 2006 (2) SA 88 (W).
44Olivier v Die Kaapse Balieraad 1972 (3) SA 485 (A); General Council of the Bar of South Africa v Matthys 2002
(5) SA 1 (E) paras 34 and 35. The same ethical standards are demanded of attorneys. Society of Advocates of Natal
& another v Merret 1997 (4) SA 374 (N) at 383D-G.
45Society of Advocates of Natal & another v Knox & others, 1954 (2) SA 246 (N) at 249A-B. I am aware of a case
where an advocate was struck off the roll for making a fraudulent insurance claim and a conviction of a serious
criminal offence would ordinarily result in the advocate being struck from the roll.

[128] Hefer JA set out the proper approach to an application under s 7(1)(d) of the
Act in Kekana,46 where he said:
‘In terms of s 7(1) of the Admission of Advocates Act 74 of 1964, as amended, the Court may
suspend any person from practice, or order that the name of any person be struck off the roll, if it
is satisfied that he is not a fit and proper person to continue to practise as an advocate. The way
in which the Court had to deal with an application for the removal of an attorney's name from the
roll under a similar provision in the Attorneys, Notaries and Conveyancers Admission Act 23 of
1934, as amended (before that Act was repealed), was considered in Nyembezi v Law Society,
Natal 1981 (2) SA 752 (A) at 756H-758C. It emerges from the judgment that the Court first has
to decide whether the alleged offending conduct has been established on a preponderance of
probability and, if so, whether the person in question is a fit and proper person to practise as an
attorney. Although the last finding to some extent involves a value judgment, it is in essence one
of making an objective finding of fact and discretion does not enter the picture. But, once there is
a finding that he is not a fit and proper person to practise, he may in the Court's discretion either
be suspended or struck off the roll.’

[129] On the first two questions, namely what conduct has been proved and
whether, in the light of that conduct, the advocate is a fit and proper person to
remain on the roll of advocates, this court determines on appeal whether the high
court was correct and interferes if it was not. It approaches the matter in the same
way that it approaches any other appeal involving factual questions. Insofar as the
second issue has elements of a value judgment, it is not discretionary in the sense
of being open to a number of possible conclusions. It is a judgment by the court in
the light of all relevant considerations and does not involve a choice between
alternatives.47 Where, as here, the decision is made in application proceedings

46At 654C-D.
47Media Workers Association of South Africa & others v Press Corporation of South Africa Ltd (‘Perskor’) 1992 (4)
SA 791 (A) at 800D-G. Para 46 of the main judgment notes the difference of language between the provisions of the
Admission of Advocates Act and the corresponding provision in s 22 of the Attorneys Act. It is unnecessary to go
into the effect of that difference as it does not arise in the present case.

without a reference to oral evidence, this court is in as good a position as the high
court to assess the facts.48 In regard to the third element of the enquiry – the issue
of an appropriate sanction – Hefer JA, in Kekana, said that:
‘All that need be added is that appellate interference with the trial Court's discretion is
permissible on restricted grounds only. In Beyers v Pretoria Balieraad 1966 (2) SA 593 (A) at
605F--H, Olivier v Die Kaapse Balieraad 1972 (3) SA 485 (A) at 495D-F and Swain v Society of
Advocates, Natal 1973 (4) SA 784 (A) at 786H ad fin the grounds for interference are stated in
slightly different terms, but the approach is essentially the one adopted in all other cases where a
Court of Appeal is called upon to interfere with the exercise of a discretion, viz that interference
is limited to cases in which it is found that the trial Court has exercised its discretion capriciously
or upon a wrong principle, or has not brought its unbiased judgment to bear on the question, or
has not acted for substantial reason. (See Benson v SA Mutual Life Assurance Society 1986 (1)
SA 776 (A) at 781I-782A and the cases referred to there.)’49
In National Coalition for Gay and Lesbian Equality & others v Minister of Home
Affairs & others50 the Constitutional Court, in dealing with a similar kind of
discretion, said the following about the powers of a court of appeal:
'(I)t may interfere only when it appears that the lower court had not exercised its discretion
judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or
that it had reached a decision which in the result could not reasonably have been made by a court
properly directing itself to all the relevant facts and principles.'
It is not sufficient that the court made correct factual findings. It must also direct
itself in accordance with those facts. Relevant factors must be considered and
irrelevant ones ignored. If manifestly relevant facts do not feature in its evaluation,
or irrelevant facts are taken into account, or facts are treated as pointing to one
result, when they clearly point to the opposite result, the court misdirects itself and

48Malan & another v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) para 12.
49At 645E-F.
50National Coalition for Gay and Lesbian Equality & others v Minister of Home Affairs & others 2000 (2) SA 1
(CC) para 11.

the appeal court may interfere.51 It is in terms of those principles that I approach
this case. In doing so I am mindful that the best, indeed the only, evidence of what
a court considers in arriving at its decision is the contents of its judgment and one
can only consider the question of misdirection by looking at the contents of the
judgment in the light of the evidence in the record.  I start by addressing the factual
findings of the high court under the general headings of ‘The principal misconduct’
and ‘Additional misconduct’ and conclude that, save in one respect in relation to
Mr Geach and another in respect of Mr van Onselen, their factual findings were
justified. I then consider the issue of whether the advocates were fit and proper
persons to remain in practice as advocates and lastly deal with the issue of
sanction.

The principal misconduct
[130] The high court held that the advocates were guilty of misconduct in
accordance with their pleas. It then enquired into the question of dishonesty
because all of them denied that their conduct was dishonest. It rejected a
suggestion that the double briefing was merely technical and endorsed an opinion
furnished to the Johannesburg Bar Council that:

51For an example see Manong & Associates (Pty) Ltd v City of Cape Town 2011 (2) SA 90 (SCA) para 94. In the
context of review proceedings the same point was made in Jacobs & ń ander v Waks & andere 1992 (1) SA 521 (A)
at 550D-551B where Botha JA pointed out that the limitation on the power of a court to interfere with a
discretionary decision by a functionary means that the court does not substitute its view for that of the functionary
but it also means ‘dat die Hof wel sal ingryp op grond daarvan dat die funksionaris 'n relevante faktor oor die hoof
gesien het (of te veel of te min gewig daaraan geheg het), wanneer die Hof oortuig is daarvan dat hy nie behoorlike
aandag aan die saak bestee het nie. Die passasie beteken nie dat die Hof nie by magte is om in te gaan op die vraag
of 'n relevante oorweging verontagsaam is (of verkeerd aangeslaan is) en, as dit bevind word die geval te wees, om
op daardie grond die besluit tersyde te stel nie, op die grondslag dat die funksionaris in daardie opsig nie behoorlike
aandag aan die saak bestee het nie.’

‘It is not possible for one counsel to act in the best interests of clients in two or more trials set
down for the same day, even if only one action is set down for trial and counsel is briefed on
settling the other matters.’52
Insofar as the over-reaching charges were concerned, the high court held that the
advocates had not been entitled to charge full trial fees for the additional briefs
they had improperly taken and likened this to ‘daylight robbery’. Its conclusion,
apparent from the opening paragraph of its judgment, was that their conduct was
due to greed.53 The court accordingly concluded that their conduct was dishonest.

[131] I agree with these conclusions and in my judgment they justified the charge
(and guilty pleas) of over-reaching. Advocates are only entitled to charge a
reasonable fee, and if they charge an unreasonable fee they are guilty of over-
charging. That may or may not involve dishonesty. A misjudged view of the
advocate’s worth or the value of the service rendered is not necessarily dishonest.
Of course the excess may be such that it justifies an inference of dishonesty.54
Over-reaching is something more and it may be of assistance to indicate why this
is so.

[132] Over-reaching involves an abuse of the person’s status as an advocate, to
take advantage for personal gain of the person who is paying them. Advocates
enjoy a considerable advantage in setting a fee. They know what standards are
applicable to the charging of fees; they know what work has been done on the brief
and what time and effort has gone into that work; they know in broad terms the

52To this extent its findings appear to go further than the main judgment in paras 20 and 21, but little turns on this in
the light of the conclusion of dishonesty in relation tot the fees they charged on the additional briefs.
53‘Where counsel mount the steed of greed and attempt to clear the hurdle of their professional rules their fall
inevitably dents the reputation of their profession.’
54Algemene Balieraad van Suid-Afrika v Burger en 'n ander 1993 (4) SA 510 (T) at 525I-526A.

fees charged by advocates of comparable seniority and ability for similar work.
This creates what economists call information asymmetry between the advocate
and the client and even the attorney, one of whose functions is to ensure that the
advocate does not claim or be paid unreasonable fees.55 Where the attorney is
ignorant of what constitutes a reasonable fee, or is unable or has no incentive to act
as a check on counsel, which was probably the situation here because all concerned
anticipated that the fees were to come out of the Fund, the advocate’s advantage is
magnified as the check built into the system is absent. For the advocate to take
advantage of that situation, by marking a fee knowing that it is not a proper fee, but
one that is unreasonable and improperly marked under the rules, is an abuse of the
advocate’s position and amounts to over-reaching. It is innately dishonest
behaviour.

[133] These advocates claimed to be entitled to charge a full first day fee on trial,
not only on the one brief it was legitimate for them to accept each day, but on all
the extra briefs as well. They thereby represented to their attorney, the lay client,
and more importantly – since the costs were inevitably going to come out of the
Fund – the representatives of the Fund, that it was legitimate for them to charge
these fees. For the reasons that follow I am satisfied that they were not.

[134] Traditionally a first day fee on trial compensated the advocate for the work
done in preparation for the trial, apart from work, such as drafting pleadings or
conferences, that had been the subject of a separate specific brief. It thus covered
all work, such as considering the available evidence; reading the documents;
deciding which witnesses to call; preparing to lead witnesses; preparing cross-

55Ibid, 521I-522B.

examination of the opponent’s witnesses; legal research and the general planning
of the conduct of the case. It also compensated the advocate for the appearance on
the first day of the case. Fees for the second and further days, known as refreshers,
were significantly lower. In current practice, where many advocates charge
separately for their preparation, a first day fee on trial should not be markedly
different from the refresher because they are compensating for the same work – the
day in court.56

[135] A misapprehension that infected some of the arguments before us was that,
if a trial settles shortly before the date of set down, that entitles the advocate to a
fee on brief equivalent to a first day fee on trial, irrespective of whether any work
had been done on the brief and irrespective of whether the acceptance of the brief
resulted in work being turned away to the advocate’s detriment. That approach is
incorrect. It would have the result that the mere fact of entering a trial date in the
advocate’s diary would give rise to an entitlement to charge a fee on brief. But that
would breach the basic rule that an advocate is only entitled to charge a reasonable
fee. The true position is expressed in rule 8(b)(i) of the rules of the Society of
Advocates of KwaZulu-Natal (which has for many years been the ethics committee
of the GCB), which reads as follows:
‘A fee on brief is chargeable by counsel in order to compensate him for work done in preparation
for the trial of a case and for the loss of opportunity to earn fees from other work suffered in
consequence of his acceptance of a trial brief. Where neither of these factors is present counsel
will not ordinarily be entitled to charge a fee on brief.’57

56The two different approaches to charging fees are discussed in City of Cape Town v Arun Property Development
(Pty) Ltd & another 2009 (5) SA 227 (C) paras 5-6 and 22-23.
57This is the point of the explanation for charging a fee on brief in Pretorius v Santam Bpk 2000 (2) SA 858 (T) at
867F-868A. It also illustrates why there cannot be a direct comparison between the fees charged by advocates and
attorneys for trial work. Road Accident Fund v Le Roux 2002 (1) SA 751 (W) at 757B-D; Aircraft Completion

For that reason the rule goes on to provide that if a trial settles before the date of
set down the advocate’s fee should not be settled with the attorney or marked until
the date of set down. This enables the advocate to assess the extent of any
prejudice arising from the acceptance of the brief. Advocates who wish to claim
payment of a fee on the footing that they have been prejudiced by accepting the
brief should be able to demonstrate that they have had to turn other work away as a
result.

[136] The twelve advocates engaged in double briefing because of the virtual
certainty, as many of them explained, that the Fund would settle or require an
adjournment. The amount of work involved in preparation must have been
minimal, amounting largely to guiding the attorney in assessing a fair figure at
which to settle and perhaps conducting all or part of the negotiations. Experienced
attorneys specialising in personal injury cases would probably have done much of
the groundwork and the advocates’ own experience would have enabled them to
make a reasonable assessment without undue effort. They were already being
compensated for the day’s appearance, so charging a day’s fee in the extra cases
they were taking as a result of their double briefing was clearly impermissible.

[137] In addition they cannot have failed to be aware of the cumulative effect on
their earnings of charging multiple fees on the same day. I attach little weight to

Centre (Pty) Ltd v Rossouw & others 2004 (1) SA 123 (W) para 154(5) and fn 11. The article in De Rebus
(September 2012) 21 which seeks to equate the two, proceeds from the erroneous perspective that advocates are
entitled (and therefore attorneys should likewise be entitled) to charge a fee for a day merely because they have set
the day aside, even though they have been paid separately for their preparation and were not prejudiced by having to
turn work away as a result of their reserving the day. That is incorrect. If the attorney wishes to claim a fee for the
day then it is for the attorney to show that this is justified by work performed and not charged for separately and by
prejudice in their practice as a result of agreeing to undertake the trial. This may be more difficult in the case of an
attorney because of the differences between an attorney’s and an advocate’s practice.

the suggestion made by many of them that they kept their fees to the level of the
Fund’s tariff or the amount recoverable on taxation. It was obviously profitable –
indeed extremely profitable – for them to do so.58 In addition fixing their fees at
that level was consistent with the entire system, which was that the fees would be
paid out of the Fund. They must all have been aware that the fees they were
charging in these cases were not reasonable fees assessed in accordance with the
rules governing their profession. The rapidity with which, once the Pretoria Bar
conducted its investigation, the majority of them admitted to over-reaching merely
reinforces that.

[138] In regard to the counts of double briefing, the explanations proffered by the
advocates all turned, to a greater or lesser extent, around the circumstances of the
Fund and the backlog in Fund cases described in paras 8 to 13 of the main
judgment. Some suggested, in exculpation of their conduct, that they assisted in
ameliorating this situation. It is apparent from the record of the first ten
disciplinary hearings conducted by the Pretoria Bar that it was treated as
exculpatory by both the counsel acting as pro forma prosecutor and the members of
the committee. In my view that was a mistake. The incompetence of the Fund
created an opportunity that these advocates exploited to engage in double briefing
on a relatively risk free basis. Like the high court and my colleague59 I am unable
to accept that their reason for doing this was altruism and not their own financial
benefit. Had it been altruism they would not have charged the fees that they did,
but would have undertaken the resolution of cases for nominal fees and possibly

58The high court calculated and the advocates accepted that the extent of their financial gain from these activities
during the ten months of the bar’s enquiry was R984 000 (Geach); R864 000 (both Williams and Güldenpfennig);
R268 000 (Pillay); R166 400 (Upton); R1 768 000 (Botha); R141 900 (Seima); R310 800 (De Klerk); R94 000
(Jordaan); R967 800 (Van Onselen); R1 323 000 (Leopeng); and R1 916 800 (Mogagabe). It did not explain how it
arrived at these figures.
59Main judgment para 18 and 22.

made helpful suggestions to the Judge President or his Deputy of ways in which
the problems being experienced could be resolved. There is no indication that they
did either of these. All that they did was exploit the situation and by doing so
obtained significant financial benefits. As Nugent JA so aptly expresses it, they set
about plundering the Fund.60

[139] The acknowledgements of misconduct by these twelve advocates in relation
to double briefing were in my view entirely justified. I do not think it correct to say
that they had perhaps been mistaken in accepting that they were guilty of double
briefing. They could not have been certain in advance which cases would proceed
and which not so all were potentially cases where trials could proceed. The fact
that in the light of experience they could be fairly sure that almost all of them
would settle or be postponed does not in my view affect matters. Every advocate
has encountered cases that they thought would settle, but did not, in the same way
as they encountered cases that they were convinced would proceed that settled.
They were charged and admitted their guilt on the express basis that these were not
briefs on settlement, but briefs on trial. As experienced advocates they presumably
read the charge sheet and accepted that it was correct. However, in view of the
linkage between double briefing and over-reaching there is no need to explore this
any further.

[140] Overall their misconduct was deliberate, flagrant, serious and committed
over a lengthy period of time. It was undertaken in the face of a specific warning
from their professional body of the consequences of such conduct. To behave in
that fashion shows a lack of integrity. Whilst the investigation by the Pretoria Bar

60Main judgment para 27.

only spanned a ten month period from February to November 2009 it is plain that
some of the advocates had been guilty of the same conduct before. There was
evidence that Messrs Geach, de Klerk and Pillay (as well as Mr Bezuidenhout)
were engaged in this conduct in 2007 and Messrs Upton, Van Onselen and Seima
acknowledged that they had double briefed prior to February 2009. The other
advocates declined to deal with transgressions of the rules prior to February 2009
although they were specifically challenged by the GCB to do so. Instead they
adopted the attitude that this was not within the scope of the enquiry. That was not
a proper approach. It has frequently been pointed out that disciplinary proceedings
against a legal practitioner are of a special kind61 and that an advocate facing such
proceedings should approach them with candour and not resort to a technical
approach based on bland or evasive denials.62

Additional misconduct
[141] Certain further conduct was placed before the court in relation to those
individuals in respect of whom striking off orders were made and one who was not.
Five of them, Messrs Pillay, Botha, Van Onselen, Leopeng and Mogagabe, were
found, on an inspection of their books of account by the Pretoria Bar, to have
charged fees for preparation, conferences and the like at times when, according to
their records, they were engaged in trials or other consultations or preparatory
work. In effect fees were being raised in respect of different clients in respect of
the same periods of time. The explanations of administrative inefficiency given for
this were, save in the case of Mr van Onselen, rejected by the high court.  I will

61The cases are collected in Society of Advocates of South Africa (Witwatersrand Division) v Edeling 1998 (2) SA
852 (W) at 859F-861E.
62Prokureursorde van Transvaal v Kleynhans 1995 (1) SA 839 (T) at 853E-G; Malan & another v Law Society,
Northern Provinces, supra, para 12.

revert to the finding in his case in due course. In the case of Mr de Klerk there was
no evidence of any separate and additional misconduct, but it was pointed out that
he had continued on his path of double briefing and over-reaching for nine days in
November 2009 at a stage when he was aware of the Pretoria Bar’s investigation
into that topic.

[142] In respect of Mr Pillay, the high court considered a complaint that he had
lied to Mojapelo DJP, when asked by the latter if the reason for his not being in
court at the roll call in Johannesburg one day was that he was appearing in the roll
call court in Pretoria. Not only did the high court accept that he had indeed lied to
Mojapelo DJP, but it correctly held that Mr Pillay’s evidence about this was
untruthful. That conclusion reflects directly on his honesty and integrity. The
courts have repeatedly (and rightly) said that a dishonest explanation by a legal
practitioner of misconduct, and seeking to mislead the court that is considering
charges of misconduct, can be taken into account in determining whether the
practitioner is a fit and proper person to remain on the roll of advocates or
attorneys as the case may be.63 After all one of the cardinal duties owed by an
officer of the court is not to mislead the court in any way.64

[143] That brings me to the matter of Mr Geach’s failure to register for, and pay,
VAT, where in my view the high court erred. When he was required to make his
books of account available for inspection he disclosed what would have been
apparent from them, namely that he had never registered as a vendor in terms of

63The authorities are collected in General Council of the Bar of South Africa v Matthys, supra, paras 34 and 35.
64See the passage from the judgment in Rondel v W [1966] 1 All ER (QB) at 479 cited in Natal Law Society v N
1985 (4) SA 115 (N) at 121I-122B.

the Value Added Tax Act,65 notwithstanding the fact that he had for many years
earned considerably more than the statutory threshold at which such registration is
mandatory. Nor had he accounted for VAT on his fees. His non-compliance with
s 23(1) of the VAT Act was an offence in terms of s 58(c) of the VAT Act and
rendered him liable on conviction to a fine or a sentence of imprisonment of up to
two years. In addition for the reasons explained in the following paragraphs his
non-payment of VAT caused a loss to the fiscus and was potentially detrimental to
his clients.

[144] Although not registered, Mr Geach was a ‘vendor’ as defined in s 1 of the
VAT Act. As such, when he rendered services as an advocate, they were taxable
supplies under the VAT Act. His non-registration does not mean that he did not
have to charge VAT on his fees and pay it to SARS. It merely provided the
occasion for his not doing so. Taxpayers may either charge VAT on an exclusive
or an inclusive basis. It is usual for advocates to charge on an exclusive basis.
Their accounts then reflect the VAT as an additional amount over and above the
fee. This amount they are supposed to collect from the client and pay to SARS. If
they do not do so then there is a loss to the revenue. The reason is that in terms of
s 7(1)(a) of the VAT Act, VAT is only payable by a vendor on the supply of goods
or services. Attorneys may be obliged to procure services for their clients, such as
the services of the Sheriff, an advocate or an expert witness. However, those
services are rendered to the client, not the attorney. That principle was established
in this court in Minister of Finance & another v Law Society, Transvaal,66 where
Goldstone JA said:

65Act 89 of 1991 (the VAT Act).
66Minister of Finance & another v Law Society, Transvaal 1991 (4) SA 544 (A) at 556H-557A.

‘The moneys now in question are in nowise paid to the attorney, notary or conveyancer for a
service rendered by him. They are paid in respect of the service rendered by counsel,
correspondent attorney, notary or conveyancer, expert witness, deputy sheriff or messenger of
the court, as the case may be, on behalf of the client. The moneys may not be claimed from the
client by the instructing attorney, notary or conveyancer save in respect of the service performed
by the third party. In no way does the fee or other amount accrue to and in no way is it received
by the attorney, notary or conveyancer for a service rendered by him. The fact that because of a
professional practice or a contract the attorney, notary or conveyancer may be personally liable
to pay for the service performed by the third party in no way has as a consequence that the
attorney, notary or conveyancer himself performs that service.’

[145] The fact that advocates look to their instructing attorney for payment of their
fees does not affect this.67 The payments the attorney makes for those services are
disbursements and the attorney does not charge VAT on those disbursements. If
the advocate does not charge VAT the attorney’s account to the client does not
include VAT in respect of that service. The same is true in relation to other
disbursements. The attorney is not concerned with whether the person to whom
disbursements are made is charging VAT. They may after all, like many advocates,
have earnings that are below the threshold for registration and charging of VAT.68
The attorney recovers whatever amount has been charged for the services in
question whether or not the fee includes VAT and does not himself add VAT if
none has been charged. In the result there is a clear loss to the revenue if the
advocate is obliged to charge VAT and does not do so. In addition, in terms of
s 61(1) of the VAT Act, the client may be required by SARS to pay the unpaid
VAT once the failure to collect and pay it over is discovered. In common parlance
this is described as a fraud on the revenue. It is probably a fraud in law as well, but

67Serrurier & another v Korzia & another 2010 (3) SA 166 (W).
68Currently R1 million.

that is irrelevant. What is important for present purposes is that it is fundamentally
dishonest. 69

[146] For the sake of completeness I deal also with the situation where the
advocate, who is a VAT vendor, charges on an inclusive basis. VAT is then
included in the fee. The default position where no election is made or where the
vendor does not register is that the amount charged is deemed to be inclusive of
VAT.70 One does not avoid that by not registering to pay VAT. Mr Geach was
liable to charge VAT. He did not claim VAT from his clients over and above his
fees. His fees were accordingly VAT inclusive, a matter specifically drawn to the
attention of his counsel. As a matter of law he collected VAT as part of his fees
and should have accounted to SARS for that VAT. The effect of his non-
registration was to avoid the payment of VAT to SARS. Whichever way one looks
at Mr Geach’s behaviour it was dishonest and involved a loss to the fiscus.

[147] Mr Geach does not say that he was unaware of his obligations in regard to
registration, collection and payment of VAT, and no senior counsel could be heard
to claim ignorance of these matters. His conduct was deliberate. Whichever way
one looks at the matter he was obliged to collect and pay VAT to SARS and did
not do so. That involved a loss to the fiscus over nearly 20 years. On the fees that
he was earning the amounts must have been considerable. This is misconduct of
the most serious kind and was dishonest.

69Estate Agency Affairs Board v McLaggan & another 2005 (4) SA 531 (SCA) paras 21-24.
70Section 64(1) of the VAT Act.

[148] The dishonesty was compounded by Mr Geach’s response to this charge.
The founding affidavit on behalf of the Pretoria Bar recited his failure and said that
his conduct must have been intentional and that he had no defence. His response to
these serious allegations was to say that he disclosed his non-registration to the Bar
and prior to that had made application for registration. He went on to say:
‘I was lax and careless rather than intentional in this regard.’
Earlier in his response to the Pretoria Bar on this issue he said:
‘My nalate om te registreer was eerder die gevolg van agterlosigheid aan my kant as ŉ
doelbewuste poging om belasting te ontduik.’71
That response displays breathtaking insouciance on his part in regard to a matter of
this gravity. It cannot possibly be truthful. VAT was introduced in South Africa in
September 1991. Mr Geach has been a successful advocate through most if not all
of that period. He could not possibly claim to have been unaware of its existence or
the fact that advocates are obliged, like other vendors, to register for VAT purposes
and collect and pay over the tax collected.72 A tax system dependent upon self-
assessment and regular payment of the tax by vendors is undermined if vendors do
not fulfil their obligations and, hence, a failure by them to do so is a serious
offence. For an advocate to be guilty of not registering and failing to pay VAT for
many years in substantial sums and then to dismiss his failure to do so as an act of
administrative carelessness demonstrates a complete lack of probity. Taken on its
own, in my view, it would probably justify the conclusion that he was not a fit and
proper person to practise as an advocate. When taken together with his other

71‘My failure to register was the result of carelessness on my part rather than a deliberate attempt to avoid tax.’ (My
translation)
72The full scope of a vendor’s obligations and the importance of complying with them is spelled out by Kriegler J in
Metcash Trading Ltd v Commissioner, South African Revenue Service & another 2001 (1) SA 1109 (CC) paras 13-
17.

misconduct it demonstrates a complete lack of the integrity demanded of an
advocate.

[149] It is then relevant to consider how this was dealt with in the reported
judgment. Regrettably the answer is that it was not. The issue of VAT is mentioned
under the general heading of ‘additional’ in the schedule in para 4 of the reported
judgment. It is not mentioned again, either in the general part of the judgment or in
dealing with Mr Geach individually.

[150] The high court was aware of the VAT issue in relation to Mr Geach because
it listed it as additional misconduct. It then did not revert to it. There are two
possible explanations. The one is that it overlooked it. The other is that it did not
regard it as particularly serious and accepted Mr Geach’s explanation for it.
Whichever of those is correct, it was an error in regard to the relevant facts. This
was extremely serious misconduct and it should not have been overlooked or
disregarded. Accordingly, insofar as he is concerned, the factual basis upon which
the high court dealt with him was wrong. That requires the court to look afresh at
the consequences of that misconduct.

Fit and proper persons to practice as advocates
[151] Although the high court did not deal expressly with this question (the second
in the enquiry on which it was engaged) one infers from various passages in the
reported judgment that they regarded these advocates as not being fit and proper

persons to continue in practice as advocates.73 That conclusion must have been
reached notwithstanding their protestations that as a result of the sanctions imposed
by the Pretoria Bar they had learned their lesson and would never again contravene
the rules regarding the charging of fees. By way of example, Mr Geach said:
‘I have certainly learned my lesson and I will not double brief nor charge incorrectly in future.’
Mr Güldenpfennig said:
‘I am remorseful of my actions and will ensure that I will not breach the Rules of the Applicant
or the Advocates’ Profession in the future.’
Similar expressions of remorse and contrition are to be found in the initial
affidavits filed by each of the twelve advocates in response to the Pretoria Bar’s
applications against them.

[152] These statements were invoked before the high court in support of the
contention that the advocates had reformed and would not be guilty of similar
conduct in the future, so that no additional sanction should be imposed on them.
That was a claim that they were, at that stage, fit and proper persons to be
permitted to continue to practise as advocates. That pertinently raised an issue that
does not appear to have been expressly dealt with in any previous case, namely, at
what date the court, faced with an application in terms of s 7(1)(d) of the Act, must
consider whether the advocate is a fit and proper person to continue practice as an
advocate. Is it the date of the conduct that gives rise to the application, the date of

73In particular the fourth bullet point in para 59 of the reported judgment. I assume that the statement in regard to Mr
Williams at 475G-H of the reported judgment that ‘it cannot be said that he is not a fit and proper person to continue
practising’ and the similar statement in respect of Mr Seima at 483C-D were made in error. There was never a
suggestion that this was a case such as Law Society of the Cape of Good Hope v C 1986 (1) SA 616 (A) at 638I -
639E where the court exercised disciplinary powers of suspension from practice in the absence of a finding that the
attorney was not a fit and proper person to continue to practice as such.

commencement of the proceedings or the date on which the court decides the
application?

[153] In my view the answer is that the correct date is the date at which the court
hears and decides the application. That is the construction of s 7(1)(d) that is most
consistent with the language used, which is couched in the present tense and
speaks to the immediate future, when it requires the court to satisfy itself whether
the advocate ‘is a fit and proper person to continue practice as an advocate’.74 It is
also the construction that best accords with the main function of the court in
exercising the disciplinary power conferred by the section. Our courts have
repeatedly said that the primary purpose of the provisions empowering courts to
remove legal practitioners from the roll is not punitive, but the protection of the
public.75 If the advocate has reformed and remedied his or her failures and
shortcomings before the application comes to court, there may be no further need
for any disciplinary sanction to be imposed, because the advocate is, once again, a
fit and proper person to continue to practise as such. I say ‘may be’ deliberately,
because there are cases where the conduct is so serious that, by its very character, it
renders the advocate unfit to remain in practice and may even exclude the prospect
of rehabilitation.76 The need to protect the good name of the profession, which is
central to the enquiry whether a person is a fit and proper person to practise as an
advocate, may sometimes lead to the conclusion that a person is not such, even
though there is evidence indicating that it is unlikely that they will repeat their
previous misconduct.

74This appears to have been the approach in Society of Advocates of South Africa (Witwatersrand Division) v Cigler
1976 (4) SA 350 (T) at 358D-G.
75Van den Berg v General Council of the Bar of South Africa [2007] 2 All SA 499 (SCA) para 50
76Ex parte Knox supra; Algemene Balieraad van Suid-Afrika v Burger en 'n ander 1993 (4) SA 510 (T) at 526H-
527A.

[154] It follows from this that, in sitting on appeal from the high court, we are
concerned with the situation that confronted the high court when it heard the case.
Subsequent events and conduct, unless placed before this court by way of an
application to lead further evidence on appeal, cannot be considered in determining
the answer to the question of fitness and propriety to be an advocate or the
appropriate sanction. If this court holds that the high court has erred in regard to
sanction, its task is to impose the sanction that the high court should have imposed.
That is pertinent to our weighing certain submissions about the conduct of the
advocates after the high court’s judgment.

[155] Reverting to the reported judgment the inference to be drawn from it is that
the high court regarded the misconduct of the advocates, and the dishonesty that
permeated that misconduct, justified the conclusion that they were none of them at
that time fit and proper persons to remain in practise as advocates. The further
necessary inference is that it did not regard the sanctions imposed by the Pretoria
Bar as having sufficed to reform the character defect of dishonesty. No doubt it
bore in mind that throughout the proceedings before it the advocates persisted in
the stance that their conduct was not dishonest; that with one or two exceptions
they denied having been motivated by greed; that they claimed that their
misconduct was largely of a technical character; and that they blamed the RAF for
creating the situation of which they had taken advantage. I agree that they were
shown not to be fit and proper persons to remain on the roll of advocates and find it
unnecessary in those circumstances to canvass the situation of each advocate
personally. I turn then to deal with the issue of sanction, bearing in mind the
constraints on an appeal court in addressing that issue.

Sanction
Background, Bezuidenhout and Pillay
[156] The high court approached the question of sanction on the footing that as it
had found dishonesty on the part of the advocates it was necessary for exceptional
circumstances to be present if they were to avoid removal from the roll.77 It did so
on the strength of a statement to that effect in Malan’s case.78 That statement was
made in the context of the conduct of an attorney’s practice where the firm had
engaged in widespread touting and virtually every rule governing the operation of
attorney’s books of account had been broken. In the context of an advocate who
has been shown to be dishonest and lacking integrity, what is called for is evidence
showing that the character flaw of dishonesty has been overcome, or will be
overcome, if a sanction less than striking off, is imposed. As the character flaw in
these cases was manifested by improper and dishonest charging of fees the court
needed to be satisfied, if the advocates were to avoid striking off, that they would
not be guilty of irregularities in charging fees in the future.

[157] The names of six advocates were struck from the roll of advocates and seven
were suspended from practice for periods set out in the order and further suspended
the operation of all or part of those suspensions on certain conditions. In the case
of Mr Bezuidenhout his conduct was so egregious and his defence of it, even in
this court, so misplaced, that his striking off was undoubtedly warranted. Similarly
with Mr Pillay, albeit that his involvement in double briefing and over-reaching
was at the bottom of the scale, his conduct giving rise to the complaint by

77Reported judgment para 12, item 1.
78Fn 14 supra.

Mojapelo DJP, and his dishonesty in dealing with that complaint, was such as
inevitably to lead to an order for striking off the roll. I need say nothing more about
these two.

Geach
[158] It is appropriate to deal next with Mr Geach. For the reasons set out in paras
145 to 153 of this judgment I am satisfied that this court must address the question
of sanction in his case on a factual basis different from that of the high court. He
was guilty of serious misconduct in regard to both his double briefing and over-
reaching as well as in relation to his failure to register for and pay VAT collected
on his fees. These offences were committed over a protracted period and involved
dishonesty in relation to large sums of money. The principal targets of his
misconduct were the Fund, which derives its revenues from road users and
taxpayers, and SARS, which is responsible for collecting tax on behalf of the
community to pay for public services. His motivation in over-reaching was clearly
greed. In regard to the double briefing and over-reaching he denied dishonesty and
in regard to VAT he tried to dismiss it as a trivial administrative oversight. Such
conduct by an advocate must not only be deprecated, but also dealt with
appropriately. The proper starting point is that, in the absence of some compelling
or exceptional circumstance, because he has failed to display the honesty and
integrity required of an advocate and brought the name of the profession into
disrepute, he should be struck from the roll.

[159] Mr Geach’s position was the following. He was the most senior advocate in
terms of call, having been at the Bar for 33 years. He had held silk for five years.

He was in a position of leadership where he should have set an example for others.
The example he set was a bad one. His misconduct was extensive and clearly
comparable with that of those who were struck off. The statement by the high court
that ‘his offences were not on the scale of the majority of other respondents’79 was
factually incorrect. He had the sixth highest number of contraventions and was the
fifth highest beneficiary in financial terms. There were 82 counts spread over 47
days (out of a possible 140 days). The High Court calculated his gain at R984 000.
His earnings over and above this were substantial. That emerges from a set of 34
charges, not already discussed in this judgment, of reducing his fees without
obtaining the consent of the Bar Council. In 34 cases between February and
August 2009 he reduced his marked fees. Globally the reduction was from some
R2.25 million to about R950 000. (There was a further breach of the Bar rules in
that he reduced his fee to what was allowed on taxation, which is impermissible.)

[160] The high court held that there were certain exceptional circumstances
present in relation to all of the advocates in regard to the double briefing and over-
reaching. It said that these consisted in the fact that the sentences imposed by the
Pretoria Bar had been served; in the fact that the practice was widespread and both
judges and fellow advocates turned a blind eye to it; and that the advocates had
practised after serving their suspensions in a professional fashion. It added to these
in relation to Mr Geach that he had paid a hefty fine and been unable to practise for
three months; that he was 59 years of age, married with a family that he supported,
and had been in practise for 33 years without prior complaints of misconduct; that
he appeared not to have been actuated by greed; that the chairman of the
disciplinary committee concluded that there were ‘extensive extenuating

79Reported judgment 464F-G item 9.

circumstances’; and that he claimed that no client had had to pay any part of the
award from the Fund to him in respect of fees.

[161] There are difficulties with some of these findings. The court had already
held that the advocates had been motivated by greed and no other plausible reason
emerges for Geach to have behaved as he did. His maturity, experience at the Bar
and the fact that he had held silk for five years were all factors that had been
present when he engaged in this misconduct and had not deterred him. There is
also nothing to indicate that he would have desisted from this misconduct or
regularised his tax position had the Pretoria Bar not instituted its enquiries. The
court had already correctly held that the approach of the De Vos committee to its
task had been defective – a view shared in both the main judgment and here – and
in those circumstances the view of the chair of the disciplinary committee as to the
presence of extenuation was irrelevant.

[162] What weight should be given to the misconduct in regard to VAT? This is a
novel issue in South Africa so far as professional misconduct is concerned.
However, I have found helpful the approach to this question adopted in a number
of decisions in Australia the effect of which is gathered together in the judgment of
Mason P in New South Wales Bar Association v Hamman.80 First it is important to
note that the approach of those courts to professional misconduct is similar to our
own. That much emerges from paras 73 to 79 of that judgment where the duty of
the barrister and the role of the court in exercising its disciplinary functions are set

80New South Wales Bar Association v Hamman (1999) 217 ALR 553 (NSWCA); [1999] NSWCA 404. See also
Legal Services Commissioner v Hewlett [2008] QLPT 3 and the cases cited in para 13.

out in language so similar to that used by our courts that it is unnecessary to quote
it in full. One passage is however worth repeating. It reads:
‘Giles AJA described the basis of the Court's jurisdiction … [and] referred to the protective
function of general deterrence in the following terms (at 471):
But the object of protection of the public also includes deterring the legal practitioner in
question from repeating the misconduct, and deterring others who might be tempted to fall short
of the high standards required of them. And the public, and professional colleagues who practise
in the public interest, must be able to repose confidence in legal practitioners, so an element in
deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners
will not be passed over or lightly put aside, but will be appropriately dealt with.
These references to the public's perception of the Court's reaction to the professional misconduct
do not make the Court hostage to the public's assumed sense of anger at the misconduct
uncovered. The Court must be satisfied that its enunciated views give proper weight to widely
and reasonably held public attitudes to practitioners in the context of the administration of justice
generally and in the particular case.’

[163] Turning to the specific issue of failure to make returns of and to pay income
tax Mason P held that this was clearly dishonest and went on as follows:
‘85
I emphatically dispute the proposition that defrauding "the Revenue" for personal gain is
of lesser seriousness than defrauding a client, a member of the public or a corporation. The
demonstrated unfitness to be trusted in serious matters is identical. Each category of "victim" is a
juristic person whose rights to receive property are protected by law, including the criminal law
in the case of dishonest interception. "The Revenue" may not have a human face, but neither does
a corporation. But behind each (in the final analysis) are human faces who are ultimately worse
off in consequence of fraud. Dishonest non-disclosure of income also increases the burden on
taxpayers generally because rates of tax inevitably reflect effective collection levels. That
explains why there is no legal or moral distinction between defrauding an individual and

defrauding "the Revenue". Indeed, the latter involves an additional element indicative of
unfitness to practise. As Sheller JA pointed out in the Court of Criminal Appeal (par 59 above):
... the Australian system of tax collection depends upon the honesty of taxpayers and, in
particular, upon their fully declaring in each year of income what their gross income is. In a free
society, such as Australia, the tax collector cannot check that every taxpayer has done so.
I agree with the following opinion of Justice Traynor, speaking for the Supreme Court of
California in In re Hallinan 272 P 2d 768, 771 (1954):
The fraudulent acquisition of another's property is but another form of theft in this state. We see
no moral distinction between defrauding an individual and defrauding the government, and an
attorney, whose standard of conduct should be one of complete honesty, who is convicted of
either offence is not worthy of the trust and confidence of his clients, the courts, or the public,
and must be disbarred, since his conviction of such a crime would necessarily involve moral
turpitude.’

[164] Those statements are apposite to the seriousness with which we should view
Mr Geach’s conduct in regard to VAT. That does not mean that his name must
necessarily be struck from the roll of advocates for such conduct. As that case and
many others from that jurisdiction81 show, the seriousness of his conduct, the
reasons for it and his response once it is discovered are all important features. In
the present case these must be weighed together with the other misconduct he
committed. What is highly relevant is that this was protracted conduct over many

81There is a compendious collection of cases in Legal Services Commissioner v Stirling [2012] VCAT 347 paras 85
to 140 that concludes with the following helpful summary:
‘It is evident from the above cases that the failure to file income tax returns and pay tax for an extended period:
(a) demonstrates a lack of integrity that the public has a right to expect from a barrister;
(b) reflects hypocrisy and inconsistency in purporting to practice in and uphold the law, while at the same time
committing serious breaches of the taxation law;
(c) constitutes complete defiance of his civic responsibilities, while taking advantage of the full range of public
services made available by taxation, not least in the provision of the Court system in which he earned his income;
(d) places a taxation burden upon his fellow citizens while he earned a high income;
(e) must be evaluated in the context of the underlying reason or motivation for the offending conduct; and
(f) is more serious conduct than failing to pay tax when assessed.’

years (VAT was introduced in 1992) and caused substantial losses to the public
purse. Although he said that he had now registered, there was no evidence that he
has paid all the arrear taxes and any penalties or made any attempt to do so. (We
were told from the Bar that with the agreement of SARS he had regularised his tax
affairs from 2006 to the present.) He did not avoid paying VAT because he was
under either personal or financial stress and the only possible explanation was
personal financial advantage. His response to this, in attributing it to an
administrative oversight, was dishonest. There was no recognition of the
seriousness of his misconduct. At the least what was required was a full and frank
disclosure to the court of his position with regard to the payment of VAT and the
arrangements he made with SARS to remedy his position. That was not
forthcoming. When that is taken together with his other misconduct and the
absence of any exceptional circumstances either mitigating that misconduct or
demonstrating reform, in my view the only possible sanction is that his name
should be removed from the roll of advocates.

Upton, Jordaan and Seima
[165] I do not propose to deal with these three at length because, notwithstanding
my view, set out below, that the general approach of the high court to sanction was
flawed, I do not, after weighing the evidence, reach a different conclusion to the
high court. They were all correctly viewed as minor participants in this conduct.
That is evidenced by the limited number of counts of double briefing; the limited
amount of their improper gains and the relatively few occasions (12, 20 and 27
respectively) when they had been guilty of misconduct. Each was a middle junior
having been at the Bar for periods ranging between seven and thirteen years. Their
offences lay in taking one or two extra briefs on a relatively sporadic basis, in

circumstances where other more senior colleagues were engaged in an ongoing
practice of double briefing on a large scale. In those circumstances their
explanations that they fell into the practice have some weight. In comparison with
the others the extent of their enrichment was not great, between R90 000 and
R160 000, and they have all repaid these amounts to the Fund, albeit in terms of
orders that in my view should not have been made. That does at least demonstrate
a willingness on their part to do what the high court regarded as necessary to
demonstrate their remorse. In addition they paid the fines that the Bar Council
imposed on them and also served brief periods of suspension. In Upton’s case he
reported himself, not having been part of the original enquiry. They have since
practised without further complaint although one would expect nothing less if they
wish to remain on the roll of advocates. The high court did not think it necessary to
impose a further direct suspension, and they have not challenged the suspended
suspension order imposed upon them.

[166] Against that, none of them can, or do, claim to be young and naïve. Nor did
they claim that they were unaware of the Bar rules. Their offence, although limited
in extent, was serious and dishonest. I do not think that there was sufficient
material before the high court to satisfy it, in the face of such serious misconduct,
that they were fit and proper persons to continue to practise as advocates at the
time of the hearing below. However, there was in my opinion enough evidence to
justify the conclusion that the imposition, of a further period of suspension, itself
suspended,82 when taken in conjunction with the indications of remorse that they

82I entertain doubts about the appropriateness of a suspended suspension for the reasons set out in Nugent JA’s
judgment in Law Society of the Cape of Good Hope v Peter 2009 (2) SA 18 (SCA) paras 28 to 34. See also
Algemene Balieraad van Suid-Afrika v Burger en 'n ander, supra, at 527B-C; Law Society of the Cape of Good Hope
v Budricks 2003 (2) SA 11 (SCA) para 7; Botha & others v Law Society, Northern Provinces 2009 (3) SA 329
(SCA) paras 21 to 23; Malan & another v Law Society, Northern Provinces, supra, para 2. However, this court has

had already given, rendered any further similar transgression after resuming
practice improbable. In view of the more limited scope of their transgressions
permitting them to remain on the roll of advocates would not cause harm to the
reputation of the profession. I accordingly agree with the main judgment that the
GCB’s appeals against the orders suspending them from practice should be
dismissed.

Williams, Güldenpfennig and Van Onselen
[167] That brings me to the three remaining advocates who were not struck from
the roll. In dealing with their cases and indeed the question of sanction generally
there is disagreement between my judgment and the main judgment. That
disagreement revolves around three issues. Two are of a general nature that affect
all the decisions in relation to sanction, and relate to the need for parity of
treatment among all the advocates and the orders the high court made for
repayment to the RAF. The third, which I will address first, relates to the approach
of the high court to these three individuals specifically. I start by rehearsing the
misconduct of which they and the four who were struck off were guilty. I do so
because the approach of the high court to their cases is central to the general point
regarding parity of treatment.

[168] The major charges of misconduct against all seven were in content and form
the same. They all were guilty of the same dishonesty; they all pleaded guilty to

on at least one occasion accepted such a suspension (Botha v Law Society, Northern Provinces 2009 (1) SA 227
(SCA)) and the majority in Peter’s case attached a condition to a suspension from practice that effectively meant
that the attorney’s restoration to practice was not unqualified. See also Summerley v Law Society, Northern
Provinces 2006 (5) SA 613 (SCA). The GCB submitted that such an order is illogical and impermissible but the
propriety of such an order was not debated in detail before us and accordingly this is not the occasion to consider
whether my reservations are justified.

the charges of double briefing and over-reaching; they all relied in defence of their
conduct on the Fund’s conduct of litigation and the state of the court rolls in North
Gauteng; they all paid substantial fines and served periods of suspension from
practice in terms of the Bar’s decisions; they all returned to practice after their
initial suspension without further complaints being made against them; they had
varying but significant levels of seniority; they had not previously been found
guilty of misconduct; and they all undertook to abide by the Bar rules in the future.
When the GCB intervened and alleged dishonesty they all denied that allegation.

[169] Turning to the seriousness of their conduct, that must be judged against two
criteria, namely the number of occasions on which they engaged in double briefing
and over-reaching and the extent of their improper gains from this practice. If one
does that their circumstances are largely indistinguishable. Mr de Klerk appears to
have profited less from his transgressions than the others as his gains were assessed
at R310 800, but that arose from 74 counts of double briefing on some 50
occasions, sometimes involving his taking multiple briefs. As for the remainder
their gains ranged from a low of R864 000 (Messrs Williams and Güldenpfennig)
to a high of R1 916 800 (Mr Mogagabe). The number of counts ranged from 60
(Mr Williams) to 461 (Mr Mogagabe). There is no significant difference between
the different cases insofar as the nature or seriousness of the misconduct is
concerned. They all involved the advocates enriching themselves with very large
sums of public money. There is no convenient or appropriate line of demarcation
between the lowest of these figures and the highest.

[170] The high court correctly started from the perspective that, in the light of the
dishonesty of their conduct, an order for their removal from the roll of advocates

would be appropriate in the absence of exceptional circumstances justifying the
lesser sanction of suspension from practice. I have inferred83 that it did so on the
basis that it was satisfied, at the time that these applications came before it, that
these seven individuals were not fit and proper persons to be permitted to remain in
practice as advocates. In considering a suspension in any particular case it must
therefore have had in mind that, in the light of the exceptional circumstances
relating to that individual, a further suspension from practice would have the effect
of remedying the defect in character that had led to their misconduct and result in
their being fit and proper persons to practise as advocates. It is rare that this will be
the case. As Harms ADP said in Malan:84
‘It is seldom, if ever, that a mere suspension from practice for a given period in itself will
transform a person who is unfit to practise into one who is fit to practise. Accordingly, as was
noted in A v Law Society of the Cape of Good Hope 1989 (1) SA 849 (A) at 852E - G, it is
implicit in the Act that any order of suspension must be conditional upon the cause of unfitness
being removed. For example, if an attorney is found to be unfit of continuing to practise because
of an inability to keep proper books, the conditions of suspension must be such as to deal with
the inability. Otherwise the unfit person will return to practice after the period of suspension with
the same inability or disability.’

[171] The GCB’s argument was that the high court had not identified any
circumstances in relation to Messrs Williams, Güldenpfennig and Van Onselen that
could properly be regarded as of such an exceptional character that they warranted
a suspension from practice rather than an order for their removal from the roll of
advocates. I respectfully disagree with the main judgment’s  characterisation of its
submissions as ‘no more than a challenge to the weight (or lack of it) that the court

83Para 31 ante.
84Para 8. See also Law Society of the Cape of Good Hope v Peter 2009 (2) SA 18 (SCA) paras 21 and 34.

below accorded to the various factors it placed in the scale’.85 The submissions
were expressly made on the basis that the high court had misdirected itself. The
GCB argued that the factors identified by the high court as exceptional could not
properly be described as such, nor did they mitigate the seriousness of the
misconduct, or justify an inference that there was no likelihood of a repetition of
this misconduct in the future. It also submitted that the failure to treat the
advocates’ refusal to admit to having committed the same misconduct in the period
prior to that under investigation, or the failure to give details of its extent where
such prior misconduct was admitted, constituted a material misdirection, because it
failed to give any weight to the advocates’ failure to comply with their duty
(referred to in the reported judgment) to co-operate fully with and make a full
disclosure to the Bar Council and the court in the investigation of their misconduct.

[172] In order to advance these submissions the GCB needed to examine and make
submissions on the reasons given by the high court for its conclusion. It could only
do so by having regard to the terms in which the high court couched its judgment.
The main judgment rightly says that one does not read a judgment as if it were a
statute, nor does one harp upon the omission of reference to some or other factual
detail of less importance. (A failure to mention and deal with a factor of great and
obvious weight, such as Mr Geach’s misconduct in regard to the payment of VAT,
stands on a different footing.). However, as Corbett CJ pointed out in a much-cited
address to judges published in the South African Law Journal,86 not only do
litigants want to know why they have won or lost but ‘should the matter be taken
on appeal, the Court of appeal has a similar interest in knowing why the Judge who

85Para 75 of the main judgment.
86MM Corbett 'Writing a Judgment' in (1998) 115 SALJ 116 at 117, echoing his judgment in this court in Botes v
Nedbank Ltd en ŉ ander 1983 (3) SA 27 (A) at 28A.

heard the matter made the order which he did’. In these appeals the GCB engaged
with the judgment of the high court and submitted that it had erred in the exercise
of its discretion. That it could only do by dealing with what the high court said in
giving its reasons. Equally, in giving our judgment in this appeal we need to
engage with those reasons. That task cannot be avoided.

[173] The language in which the high court expressed itself referred to
‘aggravating’ and ‘mitigating’ circumstances’. That language is more appropriate
to a criminal court and its use in this context has been held by this court to amount
to a misdirection.87 However, like the main judgment,88 I will approach the matter
on the footing that this was merely an unfortunate choice of language that did not
divert the court from considering the true issue, which was whether there were
circumstances present that warranted the exceptional inference, when an advocate
has behaved dishonestly, that, after serving a further period of suspension, this
conduct would not recur.

[174] I turn then to consider what the high court said in regard to these three
individuals. It said they had engaged in misconduct that demonstrated a lack of
honesty and integrity that would ordinarily result in their names being removed
from the roll of advocates. As a result of that misconduct they had enriched
themselves out of public funds to the tune of R864 000 in the cases of Mr Williams
and Mr Güldenpfennig and R967 800 in respect of Mr van Onselen. I am in no
doubt that in the eyes of the public this would be regarded as entirely unworthy of
those who have the privilege of appearing in our courts. The importance of that

87Law Society of the Cape of Good Hope v Peter supra para 29.
88Main judgment para 73, where the reported judgment is described as ‘no model of linguistic exactness or
elegance’.

right, and the responsibilities attaching to it, cannot be understated in our
constitutional democracy. It has frequently been pointed out that courts cannot
fulfil their important role in our society without a strong, independent and, I would
add, entirely trustworthy legal profession. Accordingly in examining the high
court’s judgment I bear in mind the passage quoted in para 41 above, that:
‘The Court must be satisfied that its enunciated views give proper weight to widely and
reasonably held public attitudes to practitioners in the context of the administration of justice
generally and in the particular case.’

[175] The high court identified four general factors that it regarded as
exceptional.89 These would, of course, being general, apply to all the advocates and
are therefore equally applicable to the cases of those who were struck off. They
were that the advocates had served the suspensions and paid the fines imposed by
the Pretoria Bar; that the misconduct at least insofar as double briefing was
concerned was apparent to the judges of the North Gauteng court and to other
advocates yet nothing was done about it; that the advocates had all been practising
for a substantial time since their suspension; and that their uncontradicted evidence
was that they had done so professionally.

[176] I agree with the GCB’s submission that the fact that the misconduct was
blatant and public, and that judges and advocates who should have taken steps to
put a stop to it did not do so, was incapable of making the misconduct less serious
or indicate that it would not be repeated. The high court erred in treating this as an
exceptional circumstance favouring a sanction other than removal from the roll of
advocates. It did not explain why it thought this an exceptional circumstance and I

89Reported judgment para 54.

can discern no basis for that finding. It is therefore a misdirection. In regard to
dishonesty, a matter that initially gave me pause was that, not only was there no
intervention by the Bench and other advocates, but neither the senior counsel, who
conducted the investigation on behalf of the Bar Council and acted as pro forma
prosecutor, nor the initial disciplinary committee regarded this conduct as
dishonest. The main judgment rightly expresses astonishment at this.90 It details91
the conclusions of the De Vos committee. One of the members of that committee
said at the very first enquiry – that of Mr Williams – that he had been honest in
difficult circumstances and that was a theme that recurred throughout the
proceedings before that committee. There are a number of places in the records of
these enquiries where a member of the committee expressed concern at the severity
of the sanctions the committee would recommend; stated that there was no
indication of dishonesty, and indicated that the advocates had been struggling
manfully to deal with a difficult situation caused by the Fund. Indeed some of the
advocates specifically relied upon these statements in rejecting the GCB’s claim
that they had been dishonest.

[177] On reflection, however, I have concluded that this did not affect or mitigate
the finding of dishonesty because such dishonesty was obvious. The Vorster
committee had no difficulty in seeing that this conduct was dishonest and it said so
unequivocally. It also rejected the notion that the circumstances of the Fund and
the congestion of the trial rolls constituted any excuse. As Mr Vorster SC said in
the course of Mr Botha’s disciplinary enquiry:

90Main judgment in paras 40.
91Main judgment para 39.

‘But is the short point not this, that the system which you have now adequately described, at best
gave rise to counsel doing things which they knew from the start were wrong, but still they did it,
because the system was there and it was easy to exploit it.’
After the event the ranks of the Pretoria Bar were divided, but there was a body of
opinion that regarded this conduct as warranting a striking off application. The
GCB, which represents virtually all the practising advocates in South Africa,
clearly and unequivocally recognised that this was dishonest and that the state of
the court rolls and the behaviour of the Fund did not alter or mitigate their conduct.
That view was unquestionably correct. The high court rejected a contention that
because what occurred had taken place in the public eye this meant that it was not
dishonest.92 By parity of reasoning, inaction on the part of the Bench and other
advocates did not create an exceptional circumstance in favour of the advocates. It
should not have been taken as a factor counting in favour of a lesser sanction.

[178] As regards the other two factors the court found, as I have inferred, that the
advocates remained not fit to remain on the roll of advocates after complying with
the sanctions imposed by their professional body. That they did comply is some
indication of a willingness to submit to its discipline, but they had little choice but
to do so if they wished to continue to practise as members of the Pretoria Bar or
any other constituent member of the GCB. As regards the second, two comments
are apposite. The first is to heed what Hefer JA said in Kekana that ‘what happens
between legal representatives and their clients or witnesses is not a matter for
public scrutiny’.93 Accordingly misconduct is hard to detect so that the absence of
any contradiction is understandable. The second is that, on the assumption that this

92In para 45 of the reported judgment it rejected this with the colourful metaphor: ‘ A daylight robber can hardly be
called an honest person.’
93In the passage quoted in para 8 ante.

was so, there was little else that the advocates could do if they wished to resist the
applications for their removal from the roll.

[179] Those two factors alone were clearly not sufficient for these three to avoid a
striking off order. Had they been, the other four would not have been struck off. It
is accordingly necessary to examine what factors it bore in mind in dealing with
the individuals. The following are summaries of its findings in relation to each of
these three advocates.

[180] In the case of Mr Williams the court noted his background and personal
circumstances. He had been in practice for 22 years, a silk for seven and a half
years and served on the Bar Council as an advocacy trainer and as an acting judge.
In other words he had served his profession. Seven of his senior colleagues wrote
letters in his support testifying to his work ethic, his contribution to the Pretoria
Bar and the fact that they had never found him to act unethically. When the Bar’s
enquiry commenced he immediately made a full disclosure to the pro forma
prosecutor of his conduct and before the disciplinary committee he freely accepted
that greed had been a significant motivation for this misconduct. His affidavit in
opposition to the GCB’s application, whilst describing the charges of over-
reaching as ‘technical’, made no attempt to excuse his conduct. He explained the
context in which it had occurred but did not suggest that this made it right to
exploit that situation. He expressed remorse for his conduct. Over and above this
when the enquiry disclosed that he had also been guilty of a contravention of the
Bar rules by not reporting to the Bar’s office manager a number of cases in which
he had charged a contingency fee, he repaid the whole of the fees so charged
(R868 850) without being required to do so. That is at least some indication of a

wish to wipe the slate clean and start afresh, as it appears that in most of those
cases if he had made the required report it would have been permissible for him to
charge and recover a contingency fee.

[181] Against that the court placed the fact that the misconduct occurred whilst Mr
Williams was a senior and experienced member of the Pretoria Bar and one to
whom others could look for an example. His actions were entirely deliberate. In the
telling expression he used to the disciplinary committee, ‘As dit pap reën, moet jy
skep.’ (If it rains porridge, you must help yourself.). The high court took into
account that the disciplinary committee held that there were ‘very very extensive
extenuating circumstances’. It expressed its conclusions as follows:
‘We nevertheless feel that in the light of the special circumstances outlined in the main judgment
(para [47]94) together with the circumstances personal to Williams, particularly the fact that he
for more than 20 years practised without transgressing, that it cannot be said that he is not a fit
and proper person to continue practising. He has shown remorse and has furthermore undertaken
to repay to the RAF the amount that he gained from his contravention of the rules (R864 000). In
monetary terms his conduct has therefore cost him R1 732 825.To this must be added the loss of
income suffered during his six months’ suspension and the future loss he will suffer as a result of
being suspended from practice.’95

[182] In the case of Mr Güldenpfennig, the high court took note of the fact that he
had been at the Bar for 26 years and there had been no prior instances of
misconduct. It accepted his claim that he had not been motivated by greed in the
light of his statement that he had declined numerous other briefs where he judged
that there was a possibility of prejudice to the client if he accepted them. He also

94This appears to be a reference to para 54 of the reported judgment.
95Reported judgment at 475G-I item 8.

said, and this was accepted, that he restricted his fees and limited the hours he
charged for, as he was dealing with social legislation. In all cases he limited his
fees to what was recoverable on taxation. The court said that his offences were not
on the scale of the majority of other respondents and that he did not continue after
his books were called for and did not charge for work not done. It concluded that
he was a man of mature years with years of practice behind him and that it did not
consider that there was any prospect of his again breaching the rules of the Bar.
For those reasons it thought a suspension from practice appropriate.

[183] In regard to Mr van Onselen the high court took note that he had been at the
Bar for 14 years without prior complaints of misconduct. He had on occasions
assisted at court in settling cases without charging a fee and had co-operated with
the enquiry and the pro forma prosecutor and apologised for his conduct. He said
that he had just got caught up in the events and the pressures from attorneys. It was
accepted that his actions had not prejudiced any litigant. The court concluded:
‘Van Onselen will have learnt his lesson after the suspension which we impose, if he has not
already done so. We do not consider that there is any prospect of him again breaching the Rules
of the Bar. The public interest does not require that he be removed from practice permanently.’96

[184] In my judgment the high court misdirected itself in reaching its conclusions
in respect of these three. Some of the factors were neither exculpatory, in the sense
of reducing the seriousness of their conduct, nor any indication that the character
flaws demonstrated by the misconduct would not manifest themselves again in the
future. In other respects they were based upon factual statements that were

96Reported judgment at 494D-E item 11.

inconsistent with earlier findings or simply erroneous. I identify these in the
following sub-paragraphs:
(a)
First, it held that the fact that the judges and other advocates knew of
double briefing and took no steps to report it or put a stop to it was an
exceptional circumstance. I have explained why in my view it was not. It
does not count in favour of the advocates that they could have been
stopped earlier had other people intervened. The important point is that
they exploited the situation for their own advantage. In addition it is clear
that they would have continued to do so but for the belated intervention
of the Bar council. That is what put an end to the exploitation of the
Fund.
(b)
Second, it took into account in favour of these three advocates their years
of membership of the Bar and the absence of prior misconduct.
However, when they committed their misconduct, they had nearly the
same levels of seniority and clean disciplinary records, yet this did not
serve to restrain them. In Mr Williams’ case he was in silk and had
standing as a member of the Bar Council. Like Caesar’s wife, one would
have expected his conduct to be beyond reproach. Yet none of this acted
as a restraint to misconduct fuelled by greed.   It is unclear then why it
would make a difference in the future. In addition, in relation to
colleagues with similar years of experience and equally unsullied
disciplinary records, these factors were not taken into account in their
favour.
(c)
Third, in respect of both Mr Güldenpfennig and Mr van Onselen, it
concluded that they were not motivated by greed. That was inconsistent
with its own finding at the commencement of its judgment that counsel

had ‘mounted the steed of greed’. In fact Güldenpfennig’s explanation
was that he could have been greedier if he had been willing to run greater
risks. In addition, the finding in his favour, that his offences were not on
the scale of the majority of the other respondents, does not stand up to
scrutiny. He ranked sixth in number of counts and only five others had
gains that markedly exceeded his.
(d)
Fourth, in respect of Mr Williams the high court took into account in his
favour the view of the De Vos committee that there were substantial
extenuating circumstances. However, not only did that committee not
explain what those circumstances were, but it is apparent from reading
the transcript of the disciplinary proceedings that it was under the
misconception that there was no dishonesty and that the advocates were
assisting the court and endeavouring to resolve a difficult situation
created by the Fund. That view was rightly rejected by the high court
when it said that the De Vos committee had ‘closed its eyes to the
obvious’.97
(e)
Fifth, the high court held that Mr Williams would suffer monetary loss as
a result of repaying the R864 000 he was held to have charged
improperly. That is plainly wrong. One cannot suffer monetary loss by
having to repay money improperly obtained.
(f)
Sixth, in relation to Mr Güldenpfennig the high court held that it counted
in his favour that he had confined his fees to those recoverable by his
attorney on taxation and would, where necessary, reduce his fees to this
level. Apart from the fact that this was also a breach of the Bar rules, all
that this demonstrated was that his intention was to target the Fund,
which would be responsible for his fees after taxation.

97Reported judgment para 45.

(g)
Lastly, the inspection by the Bar Council of Mr van Onselen’s books
revealed four days on which there was a duplication of hours involving
21 different cases and claims to have worked for 16 and 17 hours in a
day.98 Thus on 2 February he charged the same periods of time (from
2pm to 4.30pm in one case and from 2 pm to 5pm in three cases) to four
different clients. There were even more considerable duplications on
three other days. His explanation was that this was due to administrative
error rather than dishonesty on his part and that he had worked the hours
in question. The high court simply said that this could not be refuted. In
my view, it should not have been accepted, for the same reason that
similar explanations were not accepted in relation to Messrs Leopeng,
Botha and Mogagabe, whose books revealed similar practices. Like them
there was no attempt by Van Onselen to show by reference to the actual
cases, his diary and information obtained from his attorneys, that he had
in truth done the work but made administrative errors. If, as he claims,
his notes of time worked were deficient that does not explain how he
could send out detailed fee notes, consecutively numbered, in different
cases reflecting detailed hours worked. The sample invoice in the record
shows that he set out the times spent on reading documents and other
preparation quite specifically eg ; ‘08h00 – 08h45’ on a specific day. If
his notes were inadequate these times and dates were simply invented for
the purposes of the fee note and bore no relation to reality. His bland
explanation, like those of his colleagues, should not have been accepted.

98Reported judgment at 493I-494C item 9.

[185] I next deal with the general point of parity of treatment. It is a fundamental
principle of justice, well established in a number of fields dealing with sanction,
that in general like cases should be treated alike.99 That principle was applicable
here as Kekana demonstrates. As pointed out in paras 47 and 48 above, all of the
advocates were guilty of the same conduct and there was no material difference
between them in regard to the nature and extent of their transgressions or of their
response to the charges being levelled against them; their approach to the sanctions
imposed by the Bar or their attitude in the present proceedings. As all of them had
been found guilty of substantially the same misconduct and had responded to it in
substantially the same way an immediate question that arises is on what basis the
high court differentiated between the two groups.

[186] The only passage in the reported judgment that deals with that issue is the
following:
‘In the case of contraventions after the notice of 26 October 2009, unexplained fiddling with
hours, mendacious explanations to the court and exorbitant numbers of transgressions the scale
swung to striking off.’100
As I understand it the high court viewed this additional misconduct as indicating
that the advocates concerned had thereby placed themselves beyond the pale of
rehabilitation, so that it was inappropriate to sanction them by way of an additional
suspension from practice subject to conditions.

99In criminal cases it applies to sentence. See S v Giannoulis 1975 (4) SA 867 (A) at 870H and 873E-H; S v Marx
1989 (1) SA 222 (A) at 225B-D. In labour matters it is a central principle of the assessment of sanctions for
misconduct in the workplace. See the note by Brenda Grant and Asheelia Behari ‘The application of consistency of
treatment in dismissals for misconduct’ (2012) 33 Obiter 145.
100Reported judgment para 59 at 462F-G.

[187] Mr de Klerk is the person whose additional misconduct involved him
continuing to engage in double briefing and over-reaching after the Pretoria bar
instituted its enquiry and informed him that he was under investigation. He did so
for nine days. That was described by the high court as ‘contemptuous’. Bearing in
mind that he, like all the others at that stage, took the view that what he was doing
was not a breach of the rules or improper, and that the letter did not instruct him to
desist from any specific conduct, that was unjustified. The high court also said that
the scale on which he contravened the rules, and the period of time over which he
did so, was an aggravating factor. That was also unjustified. Even when the
additional nine days were taken into account he had fewer contraventions than any
of the other six,101 save Mr Williams. More importantly the extent of his
enrichment was considerably less at R310 800. The reported judgment sets out in
some detail his response to the charges and his view that he had not been guilty of
over-reaching, save in a technical sense, arising from the interpretation the Bar
Council placed on the relevant rules. However, in saying that, denying dishonesty
and averring that the Fund suffered no loss arising from his conduct, he did no
more than those who were not subjected to the sanction of striking off. It will be
recalled that all of them denied dishonesty, attributed their misconduct to the
situation brought about by the Fund and said in their affidavits that the Fund had
not suffered financially from their misconduct. He said that he accepted briefs
conditionally on the basis that his attorneys knew that if one case had to be tried he
would be unable to attend to the other matters in which he held briefs. But that was
effectively the position of all of the advocates, as they all said that their attorneys
and clients were well aware of their position. All in all his position was not
significantly different from the three who were not struck off.

101And fewer than Mr Geach whose offences the high court described as ‘not on the scale of the majority’.

[188] I agree with the high court that the conduct it described as ‘unexplained
fiddling with hours’ involving Messrs Botha, Leopeng and Mogagabe, amounted
to further misconduct that weighed against a conclusion that suspension from
practice on terms would be an appropriate sanction.102 As Mr van Onselen was
guilty of the same misconduct the same should apply in his case. When an
advocate does work in chambers unsupervised by the presence of client or attorney
only their honesty and integrity prevents them from padding their hours of work
and claiming additional fees. That is the dangerous aspect of charging fees on an
hourly basis. Once an advocate has been found guilty of padding their hours of
work they cannot be trusted to charge fees honestly in the future and must be
removed from the roll. That was the high court’s conclusion in respect of Messrs
Botha, Leopeng and Mogagabe and had it not erroneously accepted Mr van
Onselen’s explanation, no doubt it would have been its conclusion in respect of
him as well.

[189] The other factor that was held to have swung the balance in favour of
striking off as opposed to suspension was described as exorbitant numbers of
transgressions. However, it is difficult to discern where the line was drawn in this
regard. Mr de Klerk was condemned for 74 contraventions involving R310 800,
while Mr van Onselen’s 133 contraventions involving R 967 800 escaped the same
criticism. If one ignores Mr de Klerk, the line appears to run between those 133
cases and Mr Botha’s 170 cases and between that sum of R967 800 and Mr
Leopeng’s R1 323 000. However, in the absence of any reasoned explanation for
this distinction, I am unable to accept that it is justified. The heart of this case lies

102Similar misconduct occurred in Algemene Balieraad van Suid-Afrika v Burger en 'n ander supra 522g-525F.

with the charges of over-reaching and the enrichment of the advocates at the
expense of the Fund. Whilst that was greater in the case of Messrs Botha, Leopeng
and Mogagabe, than in the cases of Messrs Williams, Güldenpfennig and van
Onselen, the fact remains that in the case of the latter their undue benefit was close
to a million rand. To distinguish Messrs Botha, Leopeng and Mogagabe on the
basis that they gained more than a million rand was not in my view justified. In
addition if one bears in mind that the greater amounts in respect of the latter two
arose from a far greater number of cases, then it is apparent that the extent to which
they were over-reaching in each case was considerably less than the other four.103

[190] Apart from these matters there is an inconsistency in the high court’s
treatment of the same factor in respect of different individuals. I confine myself to
mentioning the most significant of these. The court said that Mr Botha had been
dishonest in saying that ‘these were not really trial briefs at all’. This counted
against him. However, Mr Geach had said the same thing,104 yet it was not taken
into account against him. The other advocates said that because cases were
expected to settle there was little chance of clients being prejudiced. In effect they
were saying that the briefs were not real trial briefs,105 yet this was not held against
them. Again in respect of Mr Botha it was said that ‘his reluctance to furnish the
details of his earlier transgressions negates any suggestion that he is contrite’. Yet
the high court had said earlier in its judgment106 that it would not hold this against
the advocates ‘in view of the limitation of the ambit of the enquiry’. Other than

103For Messrs Leopeng, Mogagabe and de Klerk they profited to the tune of about R4 000 per case. In the case of the
others it was in round figures R7 000 (Mr van Onselen); R10 000 (Messrs Botha and Güldenpfennig); R12 000 (Mr
Geach) and R14 000 (Mr Williams).
104‘These were not real trial briefs at all. It was not necessary to proceed on the basis that they would proceed to trial
if not settled. In truth, in my case, they were virtually all briefs purely on settlement …’
105That this was the situation appears to be accepted in the main judgment paras 20 and 21.
106Para 55 of the reported judgment.

Messrs Upton, van Onselen and Seima, the others likewise refused to deal with
prior misconduct.

[191] Mr Botha was also condemned for not reporting his unprofessional conduct
to the Bar Council,107 something that only Mr Upton did. His protestations of
remorse and contrition were rejected on the basis that he blamed his actions on
how the Fund conducted litigation,108 but that was the consistent refrain of the
others. In addition it had formed the foundation for the De Vos committee saying
that the advocates had acted honestly in trying circumstances and that there were
considerable extenuating circumstances surrounding their behaviour. Those
findings by the initial disciplinary committee were cited as favouring Messrs
Geach, Upton, Williams and Seima. Yet the identical findings in respect of Messrs
Leopeng and Mogagabe, were not mentioned. The latter two testified to being
placed under considerable pressure to accept work from the Fund. That was
entirely plausible in view of the Fund’s practice of trying to brief counsel from
previously disadvantaged backgrounds. Yet that pressure was not taken into
account in their favour, whilst similar pressure on Mr Jordaan, a previous
employee of the Fund, counted in his favour.109

[192] In my opinion the disparities of approach that emerge from the matters
described in paras 188 to 194 justify the conclusion that the high court did not give
appropriate consideration to the need for parity of treatment in determining the
sanctions in these cases. It is not a factor that it mentioned as relevant to its

107Para 9(f) at 479 of the reported judgment.
108Para 9(g) at 479 of the reported judgment.
109Reported judgment at 491 item 6.

decision. In that respect also it misdirected itself and means that this court must
consider that question afresh in relation to all of these seven advocates.

[193] For the sake of completeness, and lest silence on the topic were to be taken
as assent, it is also my view that the high court erred in law in making orders for
the repayment of amounts to the Fund. This clearly influenced its approach to
sanction and it said as much110 in setting out its general approach to sanction in the
individual cases, where it said ‘must include an order for restitution’. That too, in
my opinion, amounted to a misdirection in regard to sanction.

[194] As noted in the main judgment111 the GCB did not support these orders
insofar as the struck off advocates were concerned.112 That was wise. However, I
think it necessary to explain in greater detail my reasons for that conclusion, as I
do not share the view in the main judgment that this was because the disciplinary
power was exhausted by the striking off orders. The GCB asked the court to
exercise its powers under s 7(1)(d) of the Act to strike the names of the advocates
from the roll of advocates. The only alternative under the statute would be an order
suspending them from practice. The high court recognised this and turned to the
common law and the inherent powers of the court to control and discipline legal
practitioners as a source of its authority to make such orders.113 That power is not
excluded by the terms of the Act.114 The high court gave four examples as
illustrating this inherent power. The first, the power to make a declaratory order in

110Reported judgment para 59.
111Para 98.
112The GCB did not ask that such orders be made and they were raised by the high court mero motu.
113De Villiers & another v McIntyre NO 1921 AD 425 at 428; Society of Advocates of South Africa (Witwatersrand
Division) v Edeling 1998 (2) SA 852 (W) at 860B-G.
114A v Law Society of the Cape of Good Hope 1989 (1) SA 849 (A).

regard to the conduct expected of a legal practitioner, is a corollary of the court’s
power to suspend a practitioner or strike them from the roll, and provides no
support for the notion that the court may make compensatory orders. The second,
the power to make an adverse order for costs against counsel, is no different in
form from that often exercised in respect of attorneys or others responsible for
wasteful expenditure or unnecessarily incurring costs in litigation. The third was
that courts may find an advocate guilty of contempt. Whilst true that does not arise
from the status of an advocate. Contempt is a common law crime that can be
pursued against anyone. Finally the court referred to the fact that in Roman times,
confiscation and perpetual exile were permissible, and in Roman Dutch times
deportation for ten years could be meted out as punishment to legal practitioners.
The court did not identify the conduct that would attract such condign punishments
and I can only say that we no longer live in Roman or Roman Dutch times. Such
punishments have no bearing on whether a South African court in the 21st century
can grant orders that advocates, who it is going to strike from the roll of advocates,
make financial amends for their wrongdoing.

[195] At the end of the day the high court concluded that ‘there is no reason why
this Court should not be empowered to order an advocate who has overreached to
return the ill-gotten spoils’ and that to hold otherwise ‘would be laughable in the
eyes of the public’. The true question was not whether there was no reason for the
court not to have that power, but whether the court did indeed have the power to
make that order. Courts as much as, if not more than, other constitutional
institutions are bound by the principle of legality that requires that the exercise of
public powers be authorised by law. The power in question is not authorised by
law and does not arise from an inherent disciplinary power that courts may

exercise over legal practitioners. These orders should not have been made. As
regards the concern that it would be laughable in the public eye for it to hold
otherwise, the law provides appropriate and adequate remedies to a party that has
been overreached to recover the extent of its losses from the party responsible and
the Fund had already instructed attorneys to pursue its remedies in this regard.

[196] The high court thought that the orders for repayment that it made against
those whom it suspended from practice fell in a different category, on the grounds
that they could be made the subject of conditions of the order and, in that way,
compliance could be secured. That approach is shared in the main judgment. The
GCB’s submission, while addressed to the appeals against these orders, was that
such orders were in general impermissible. I agree. Either it was permissible for
the court to make such orders or it was not. It could not remedy the absence of a
power to order repayment to the Fund, by making payment in terms of such order a
condition of a suspension from practice.115 The practical problem with such an
order is that it does not address, as these orders did not address, what is to happen
if the advocate did not or could not pay or stopped paying when some, but not all
of the amount had been paid. Execution could not be levied by the Fund against the
assets of the advocate. Non-payment would not entitle the court to reconsider its
order of suspension from practice. In essence the court took it upon itself in
disciplinary proceedings concerning these advocates to enter upon and determine
potential civil claims against them by the Fund. In my respectful opinion it was not

115The power to attach an order for compensation to a suspended sentence in criminal proceedings is a statutory
power. See s 297(1)(b) of the Criminal Procedure Act 51 of 1977.

entitled to do so and it could not overcome its lack of a power to do so by attaching
it as a condition to a suspension from practice.116

[197] For the reasons set out in para 67, in my judgment the high court misdirected
itself in regard to sanction in respect of Messrs Williams, Güldenpfennig and van
Onselen. For the reasons set out in paras 68 to 79 it also in my judgment
misdirected itself on two general matters relevant to sanction that materially
influenced its judgment. That requires us to reconsider the sanctions imposed in all
seven cases.

Conclusion in regard to sanction
[198] The most significant factor in determining the appropriate sanction must be
the nature and scale of the primary misconduct. It was dishonesty fuelled by greed.
It involved very large amounts of public money plundered from the Fund, which
exists to compensate the victims of road accidents for the damages they have
suffered. There were clear and deliberate breaches of the bar rules that exist, in
part, to prevent such misconduct and abuse. There was no question of ignorance.
The circular issued in November 2006 made it plain that this was misconduct. The
wrongdoing occurred over a lengthy period and on a substantial scale. In all cases
save Mr de Klerk it involved amounts in the region of, or greater than, R1 million.
All of the advocates were fairly senior, ranging from 13 to 32 years in practice. Mr
Williams was in silk. None of the advocates accepted that they had been dishonest
until the hearing in this court. All tried to mitigate what they had done by relying
on the state of the court rolls and the Fund’s deficient approach to litigation and its

116There may be circumstances in which a court could order an advocate to repay money in his or her possession, but
that is not the situation in these cases.

responsibilities. Their conduct undoubtedly brought the profession into disrepute.
There is a genuine public concern about legal costs and the level of legal fees, most
recently expressed by the Constitutional Court in Camps Bay Ratepayers’ and
Residents’ Association & another v Harrison & another.117 That concern is
exacerbated when advocates seek to enrich themselves out of public funds.

[199]  In regard to all of the advocates I would not attach weight to their failure
when first brought before the De Vos committee to concede dishonesty, as it is
clear that the members of the committee did not think that they were dishonest.
Nor would I attach weight to their failure to recognise from the outset that the
major problem lay not with the double briefing charges, but with their charging full
trial fees in every case. Again that reflected the view of the members of the De Vos
Committee. Those factors should not count against them. However, I would attach
weight to their failure, once confronted with the Vorster committee report and the
intervention of the GCB, with its clear allegations of dishonesty, not to reconsider
their stance and recognise the error of their ways. Their protestations throughout
the proceedings before the high court that they had not been dishonest showed a
lack of recognition of the nature of their misconduct. It also undermined their
contention that they had learned their lesson as a result of the sanctions imposed by
the Pretoria bar.

[200] I do consider it to count in their favour that during lengthy careers at the Bar
none of them had previously been guilty of misconduct. I also accept that their
conduct does not appear to have prejudiced any plaintiff client. Had it done so one

117Camps Bay Ratepayers’ and Residents’ Association & another v Harrison & another [2012] ZACC 17 paras 10
and 11.

would have expected, given the time that has passed, that a complaint would have
surfaced. I do not, however, accept the argument that there was no prejudice to the
Fund, because if they had not engaged in double briefing other counsel would have
had to be briefed in their stead and they would have been entitled to claim a full
trial fee. I do not do so because it is not clear to me that counsel, behaving
ethically, would not have accepted briefs on settlement only and charged
appropriately. The argument presupposes that other counsel would have over-
charged and I do not accept that.

[201] Two arguments were pressed upon us in relation to the GCB’s appeal. They
were that the advocates had, in compliance with the high court’s orders, made the
payments they had been directed to make to the Fund and served the suspensions
where those had not been further suspended. I do not think that can affect matters.
Insofar as the payments were made pursuant to the high court’s orders they may
well be recoverable under one of the condictiones.118  That would follow from the
fact that the payments were made in terms of court orders, and if those orders are
set aside the basis on which they were made has fallen away, leading to a right to
claim restitution. It would not appear to be an answer to such a claim for the Fund
to say that the advocates overreached it and there is accordingly no enrichment.
The defence of non-enrichment is not advanced on that basis. It exists where the
recipient of the payment can show that if the payment had not taken place it would
have been in no worse position than it was as a result of the payment.119 However,

118Kudu Granite Operations (Pty) Ltd v Caterna Ltd 2003 (5) SA 193 (SCA) paras 15 to 17 would suggest that the
appropriate niche is either the condictio ob causam finitam or the condictio causa data causa non secuta. In
Besselaar v Registrar, Durban and Coast Local Division & others 2002 (1) SA 191 (D) it was suggested that the
condictio indebiti or the condictio sine causa is the appropriate remedy. In both cases it was said that the precise
juristic niche was immaterial.
119African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 (3) SA 699 (A) at 713G-I where the
test was set out as follows:

if that is not so, the advocates cannot complain about their having been deprived of
amounts to which they were not entitled in the first place.

[202] As regards the fact that the advocates have served a period of suspension, if
they had been struck from the roll, which is the issue in this appeal, they would not
have been entitled to practise at all. Accordingly the fact that they have been
permitted to do so, as a result of the high court erroneously failing to strike them
from the roll, cannot redound to their advantage. To the extent that any who should
have been removed from the roll have continued practising, that was a benefit to
which they were not entitled arising from an erroneous judgment by the high court.
In my opinion neither of these factors is relevant to the outcome of these appeals. I
turn then to consider the individual cases

[203] In the cases of Messrs van Onselen, Leopeng, Mogagabe and Botha there
was the seriously aggravating circumstance that they charged for hours that they
could not have worked and gave a false explanation for doing so. That undermined
their professions of contrition. In addition that type of over-reaching of clients is
almost impossible to detect. The client is absolutely dependent on the advocate’s
honesty when saying that work was done at a particular time for a specified period.
There is no explanation in any of these cases for the attorneys accepting these
charges, some of which they must have known were unjustified, but that does not
seem to me to be relevant. When advocates have been found to charge for work
that could not have been performed at the time and for the period stated, an

‘Die las om 'n wegval of vermindering van verryking te bewys, rus op die verweerder. As die verweerder met
inagneming van al die omstandighede, tog nie beter daaraan toe is as wat hy sou gewees het indien die ontvangs van
die geld nie plaasgevind het nie, kan hy nie as verryk beskou word nie en is hy nie meer aanspreeklik nie. As hy
slegs gedeeltelik beter daaraan toe is, is sy aanspreeklikheid dienooreenkomstig verminder.’

assurance from them that they will not do it again cannot be taken at face value. A
denial that they did it and a false explanation compounds the dishonesty. For those
reasons I agree that the decision to strike Messrs Botha, Leopeng and Mogagabe
from the roll was correct. The same decision should have been made in respect of
Mr van Onselen, whose misconduct was in every way on a par with theirs. As I
regard this factor as decisive it is unnecessary to consider other factors counting
against these four.

[204] In the case of Mr Williams I take into account to his credit that he has tried
over the years to make a contribution to his profession by serving on professional
bodies and assisting with the training of pupil advocates. It is also to his credit that
a number of his senior colleagues, like him in silk, were prepared to speak on his
behalf and to say that they had never encountered any hint of unprofessional
behaviour on his part. He was described as being a scrupulously honest opponent.
That counts strongly in his favour. Every experienced advocate knows which of
their colleagues can be trusted to fulfil their undertakings meticulously; not to
misrepresent their case; and to abide by the rules governing litigation. Equally,
every experienced advocate knows which of their colleagues is likely, in the
vernacular, to try to ‘pull a fast one’; or seek to take unfair advantage of an
opponent. It counts strongly in Mr Williams favour that a number of his senior
colleagues speak so highly of him. It is also to his credit that he was the person
who immediately and openly admitted that greed lay behind his behaviour; that he
recognised that the double briefing in which he engaged involved some risk that
clients might have been prejudiced, although he says none were; and that, of his
own accord, he repaid the amounts paid to him in terms of contingency fee
agreements that were not reported to the Pretoria Bar as required by its rules. His

professions of regret and remorse ring true. In addition three senior and
experienced judges – all of them having held office in either their domestic bars or
the GCB or both – believed that allowing him to remain in practice would not harm
the good name of the profession or pose a risk to the public. My colleagues Nugent
and Ponnan share that view. Although I am deeply concerned at the scale of his
misconduct in the light of his seniority, after careful reflection, I have come to the
conclusion that, although it is a borderline case, theirs is a view from which I
should not differ.

[205] Can the same be said for Mr Güldenpfennig? In his case there is virtually
none of the evidence that is available in respect of Mr Williams. There were
however letters from four firms of attorneys who regularly briefed him in Fund
matters and spoke highly of his skill and integrity. He had been in practice at the
Bar for longer than Mr Williams, although he had not taken silk. He had a greater
number of contraventions and the same financial benefit. He pleaded guilty to 90
counts of double briefing and 90 counts of over-reaching. In response to the GCB’s
application he denied dishonesty and denied that he had behaved disgracefully. He
‘categorically’ denied that he had been motivated by greed and said that if he had
been he could have accepted far more briefs than he did. I am not impressed by this
statement. It merely demonstrates that he knew what he was doing was wrong and
limited his misconduct accordingly. He charged fees on the basis of what would be
allowed on taxation and indicated to attorneys that if any amount was taxed off he
would reduce his fees accordingly. These too involved a breach of the Bar rules.
He accepted that he had contravened the rules in the period prior to that under
enquiry but, save to say that the opportunity to do so was less at that time, he gave
no details of the extent to which he did this.

[206] Before the high court Mr Güldenpfennig maintained his stance that he had
not been dishonest and was one of those who contended that the Pretoria Bar’s
attitude was more stringent than that of the Johannesburg Bar Council. This
argument was characterised by the high court as one of ‘audacious ingenuity’ to
which the court listened ‘with amazement’.120 It concluded, correctly in my view,
that this showed a lack of remorse.121 In regard to dishonesty his counsel said in
argument that he has accepted this without reservation ‘since the judgment’ in the
high court. When all this is weighed the position seems to be that Mr
Güldenpfennig accepted that he had been in breach of the Bar rules but did not
accept at any stage that he had behaved disgracefully and dishonestly. The belated
acceptance made on his behalf in argument in this court does not take the matter
further. In those circumstances I do not think that there is evidence from which to
draw the inference that he has insight into the true nature of what he did wrong.
That being so one cannot draw the inference that he will not err again. In my
judgment, taking into account the nature and seriousness of the misconduct and the
terms of the response to it, the GCB’s appeal in respect of Mr Güldenpfennig
should succeed.

[207] That brings me finally to the appeal by Mr de Klerk. His misconduct was of
the same character as that of the others, but the extent of it was less in terms of the
gains he made from it. That was so even though he carried on accepting double
briefs and engaging in concomitant over-reaching for nine days after learning of
the Bar’s investigation. That is not surprising as his attitude up until the

120Reported judgment paras 24 and 25.
121Reported judgment para 29.

disciplinary hearing before the Vorster committee was that he had not breached the
rules at all. He made it clear in a letter addressed to the investigating committee
that he could find no rule that precluded double briefing and that in his view he had
never charged excessive fees and was not guilty. The only prohibition he had
found on double briefing was in the form of the circular sent to members of the
Pretoria Bar on 1 November 2006. He alleged, without any substantiation, that a
number of other members of the Pretoria Bar should be investigated for the same
offence and in a letter dated 26 March 2010 tendered his resignation from the
Pretoria Bar and vacated his chambers. If that was not accepted then he asked for
his disciplinary hearing to be expedited and that he be expelled from the Pretoria
Bar. When a disciplinary hearing was initially convened he indicated that he would
plead not guilty. That resulted in the Vorster committee being convened on 24 May
2010. He then sought a postponement on the basis of a lack of time to prepare. In
the course of argument his counsel made it clear that he challenged the correctness
of the Bar’s rulings regarding double briefing and over-reaching. A postponement
was granted to the following day. At the resumed hearing he pleaded guilty to 74
counts of double briefing and 74 counts of over-reaching. Having done so he asked
that he be expelled from the Pretoria Bar. He indicated that he intended to try and
build up a practice afresh outside the ambit of the Pretoria Bar.

[208] It is proper to draw the inference that Mr de Klerk at no stage accepted that
he had been guilty of wrongdoing, but wished to end the disciplinary proceedings
and then return to practice outside membership of the formal Bar. The Vorster
committee recommended that an application be made for his name to be removed
from the roll of advocates. Instead the Bar Council imposed a sanction formulated
similarly to that of the other advocates and applied to the high court for the noting

of that sanction. De Klerk filed a detailed affidavit in response to this in which he
in substance repeated his contentions that he had not been guilty of any
misconduct, save technical breaches of the Bar rules arising from the interpretation
given by the Pretoria Bar to those rules.

[209] When the GCB intervened in the proceedings De Klerk filed a further
affidavit. It said little more than before. He denied dishonesty and relied on the
circular from the Johannesburg Bar. He reiterated that he had undertaken this work
for the Fund under pressure from claims handlers at the Fund’s prescribed tariff
and said that if he had charged his ‘normal’ fee in a single case that would have
exceeded the total fees he was earning in a day as result of double briefing.
However, there is a problem with this claim. At his disciplinary hearing his counsel
placed on record that ‘He only had an RAF practice for the defendant’ and that
since the commencement of the disciplinary proceedings he did not have a practice
at all. There was accordingly no question of a ‘normal’ fee other than the tariff fees
he was charging the Fund. He also refused to deal with any contraventions prior to
the period of the Pretoria Bar’s enquiry.

[210] What weighs in Mr de Klerk’s favour is that his misconduct caused less
harm to the Fund financially than that of most of his other colleagues. What counts
against him is his persistent failure to accept that his misconduct involved
dishonesty and was more serious than his characterisation of it as a technical
breach of Bar rules based on the Pretoria Bar’s interpretation of the rules, with
which he did not agree. His desire to remove himself from disciplinary oversight
and his reliance on the Johannesburg Bar circular compounded this. In argument in
this court he persisted in his contention that his conduct in accepting multiple

briefs was permissible because he accepted them conditionally to the knowledge of
his instructing attorney. His counsel was however hard-pressed to explain how that
conditionality worked in practice. My conclusion is that he lacked, and continued
throughout the proceedings to lack, any insight into the nature and seriousness of
his misconduct. That being so it cannot be inferred that after a further suspension
from practice he would not again stray from the path of rectitude. His appeal must
therefore fail.

Disposition of the appeals
[211] In my judgment the GCB’s appeals in respect of Messrs Geach,
Güldenpfennig and van Onselen should succeed. The orders made by the high
court should be set aside and replaced by orders striking their names from the roll
of advocates. The GCB’s appeals in relation to Messrs Upton, Jordaan, Seima and
Williams should be dismissed. The appeals by Messrs Bezuidenhout, Pillay, Botha,
De Klerk, Leopeng and Mogagabe should succeed to the extent that the orders that
they repay amounts to the Fund are set aside, but their appeals should otherwise be
dismissed.

[212] That leaves the question of costs. In my view there is no reason to burden
Messrs Upton, Jordaan and Seima with further adverse orders for costs. The GCB
appeals in relation to them should be dismissed with each party to pay his or its
own costs. Mr Williams tendered to pay the GCB’s costs on the attorney and client
scale and effect should be given to that tender. As the appellants and respondents
in the other cases have failed in their opposition to the GCB’s contentions, they
should be ordered to pay the GCB’s costs on the scale as between attorney and

client, such costs to include the costs of two junior counsel and the out of pocket
expenses of Mr Epstein SC and Mr Bester, who appeared without charging fees in
accordance with the best traditions of the Bar.

___________________
M J D WALLIS
JUDGE OF APPEAL

APPEARANCES:

On behalf of the General Council of the Bar:

H Epstein SC, A Bester, C Malema, R Wilson

Instructed by:

Rooth &Wessels Inc, Pretoria

Naudes, Bloemfontein

On behalf of the Pretoria Society of Advocates:

Q Pelser SC, L E Vilakazi

Instructed by:

Bernhard van der Hoven, Pretoria

Rosendorff Reitz Barry, Bloemfontein

Counsel for appellants:
M J Botha:
Puckrin SC, C Harms
M C C de Klerk:
P P Delport SC
T Pillay:
A Bava SC, K Pillay, H Vermaak
P M Leopeng:
M Khoza, A Cajee
D P Mogagabe:
E M Coetzee SC, H J de Wet
L F Bezuidenhout:
A de Vos SC

On behalf of Geach, Güldenpfennig, Upton, Williams, Seima, Jordaan, Van
Onselen, Pillay & Leopeng:

B P Geach:
S Rosenberg SC, A Katz SC, M Ioannou
JS M Güldenpfennig: E Botha
M Upton:
J F Mullins SC, R Kzyingo
J O'D Williams:
J H Ströh SC
E Seima:
J F Mullins SC, R Kzyingo
C G Jordaan:
B C vd Heever SC, W W Geyser

C R van Onselen:
B C vd Heever SC, W W Geyser

Instructed by:

N Geach Attorneys, Pretoria

Honey Attorneys, Bloemfontein

On behalf of Botha:

Puckrin SC, C Harms

Instructed by:

Klagsbrun de Vries Attorneys, Pretoria

Honey Attorneys, Bloemfontein

On behalf of De Klerk & Bezuidenhout:

P P Delport SC, A de Vos SC

Instructed by:

Snyman de Jager Attorneys, Pretoria

Honey Attorneys, Bloemfontein

On behalf of Mogagabe:

E M Coetzee SC, H J de Wet

Instructed by:

Izak J Croukamp Attorneys, Pretoria

Honey Attorneys, Bloemfontein