THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

REPORTABLE
Case No: 507/2013

In the matter between:

THOMAS WALTER ROTHWELL
HEPPLE                                                                 FIRST APPELLANT

CHRISTIAAN HENDRIK EARLE               SECOND APPELLANT

HEPPLE ATTORNEYS
INCORPORATED                                               THIRD APPELLANT

and

THE LAW SOCIETY OF THE
NORTHERN PROVINCES                                           RESPONDENT

Neutral citation: Hepple v Law Society of the Northern Provinces
(507/2013) [2014] ZASCA 75 (29 May 2014)

Coram:
Mthiyane DP, Ponnan, Saldulker JJA, Hancke and
Mathopo AJJA

Heard:
12 May 2014
Delivered:
29 May 2014

Summary: Attorneys ─ Misconduct ─ Misappropriating trust funds ─ Attorneys in an
incorporated practice carrying on investment activities ─ paying interest to investors out
of trust funds ─ resulting in trust deficits ─ Manipulating bank reconciliation statements
to conceal trust deficits ─ Misconduct justifying removal of both from the roll ─
Obligation to keep proper books of account resting on both ─ Approach to striking off
restated.

_____________________________________________________________________

ORDER

On appeal from: North Gauteng High Court, Pretoria (Wright AJ and
Makhubele AJ sitting as court of first instance):

1 The appeal is dismissed.
2 The costs are to be paid jointly and severally by the appellants and are
to be taxed by the first and second appellants on the scale as between
attorney and client.
___________________________________________________________

JUDGMENT

Mthiyane DP (Ponnan, Saldulker JJA, Hancke and Mathopo AJJA
concurring):

[1] This is an appeal against an order of the North Gauteng High Court
(Wright AJ and Makhubele AJ), removing the names of the first and
second appellants from the roll of attorneys and granting other ancillary
relief. The ancillary relief included an order prohibiting the appellants
from handling or operating trust accounts and the appointing of a curator
to administer and control the appellants‟s trust accounts, to protect the
interests of their trust creditors. The appeal is with the leave of the high
court.

[2] The first appellant, Mr Thomas Walter Hepple (Hepple), was
admitted as an attorney by the Free State High Court on 19 February
1998 and enrolled as an attorney in Gauteng on 17 November 1999. His

co-director, the second appellant, Mr Christiaan Hendrik Earle (Earle),
was admitted by the Free State High Court on 30 October 1980 and was
enrolled as an attorney in Gauteng on 23 February 2006. They both
practised in Centurion, Pretoria in an incorporated practice under the
name:  Hepple Attorneys Incorporated, the third appellant (the firm).
There were two other directors of the firm, Mr Gerhard Barnard and Mr
Micheal Johnson both of whom are not the subject of the application for
removal from the roll of attorneys.

[3] In terms of s 22(1)(d) of the Attorneys Act 53 of 1979 (the Act), an
attorney may „on the application by the society concerned be struck off
the roll or suspended from practice by the court within the jurisdiction of
which he [or she] practises─
. . .
(a) If he [or she], in the discretion of the court, is not a fit and proper
person to continue to practise as an attorney‟.

[4] The nature of the enquiry we are concerned with in this case,
namely a determination of the question whether the attorneys concerned
are not fit and proper persons to continue to practise and how a court
should exercise its discretion in that regard, including the issue of the
appropriate sanction as provided in s 22(1)(d) of the Act, was reiterated
by Brand JA in Summerley v Law Society, Northern Provinces1 as
follows:
„It has now become settled law that the application of s 22(1)(d) involves a threefold
enquiry (see eg Jasat v Natal Law Society 2000 (3) SA 44 (SCA) in para [10] at 51C-I
and Law Society of the Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA) in para
[2] at 13I-14B). The first enquiry is aimed at determining whether the law society has

1 Summerley v Law Society, Northern Provinces 2006 (5) SA 613 (SCA) at 615B-F.

established the offending conduct upon which it relies, on a balance of probabilities.
The second question is whether, in the light of the misconduct thus established, the
attorney concerned is not a “fit and proper person to continue to practise as an
attorney”. Although this has not always been the position, s 22(1) (d) now expressly
provides that the determination of the second issue requires an exercise of its
discretion by the Court (see eg A v Law Society of the Cape of Good Hope 1989 (1)
SA 849 (A) at 851C-E). As was pointed out by Scott JA in Jasat (at 51E-F), the
exercise of the discretion at the second stage “involves, in reality, a weighing up of
the conduct complained of against the conduct expected of an attorney, and, to this
extent, a value judgment” (see also, eg, Budricks (supra) at 14A). The third enquiry
again requires the Court to exercise discretion. At this stage the Court must decide, in
the exercise of its discretion, whether the person who has been found not to be a fit
and proper person to practise as an attorney deserves the ultimate penalty of being
struck from the roll or whether an order of suspension from practice will suffice.‟

[5] The offending conduct which prompted the respondent, the Law
Society for the Northern Provinces (the law society) to bring the
application to remove Hepple and Earle from the roll of attorneys is
sketched in the founding affidavit deposed to by its President, Mr
Stephens Anthony Thobane (Thobane), and supported by three reports of
an investigation into the accounting and financial records of the firm.
These uncovered a number of irregularities amounting to contraventions
of the certain provisions of the Act and the Rules of the law society (the
Rules). These included the existence of substantial trust deficits in their
books of account; misappropriation of trust funds; failure to account to
the law society for interest generated from the trust banking accounts as
required by s 78(3) of the Act,2 failure to keep copies of bank
reconciliation statements; manipulation of bank reconciliation statements

2 „78 Trust Accounts. . .
(3) The interest if any, on money deposited in terms of subsection (1) and the interest on money
invested in terms of subsection (2) shall be paid over to the fund by the practitioner concerned at the
prescribed time and in the manner prescribed.‟

to conceal trust deficits; failure to submit (or submit timeously) the Rule
70 auditor‟s report for the period ending 30 June 2009 to the society;
obtaining a qualified Rule 70 auditor‟s report; conducting an investment
practice in which interest  was paid to investors out of the trust account,
thus creating a trust deficit over many years; failure to keep proper
accounting records in contravention of the Act and the Rules.

[6] The investigation was conducted by Mr Vincent John Faris (Faris)
a senior accountant and auditor who is described in the papers as
someone with a wide knowledge of attorneys‟ accounting records and
who has many years‟ experience in auditing the accounting records of
practising attorneys. He is considered to be an expert in the field.

[7] Faris‟ investigation was initially directed at the period July 2009
until the end of May 2010. But what he uncovered in his initial
investigation led him to expand its scope to include an examination of the
trust positions and the firm‟s accounting activities to as far back as 2005.
That exercise yielded a number of disturbing irregularities and
contraventions of the Act and the Rules. They are documented in three
reports, dated 5 July 2010, 31 January 2011 and 11 April 2011, which
Faris submitted to the law society. The first two reports deal with and
include his actual investigation, the interviews he had with Hepple and
Earle and other relevant persons, his findings and conclusions. The third
report deals with the responses by Hepple and Earle to his findings and
conclusions.

[8] The investigation uncovered the following:
(a) Interest on the overdraft as well as other charges levied on the
business banking account were debited to the trust account. The firm kept

two trust accounts at the First National Bank; there was a main trust bank
account and a second bank account which was used to accumulate the
trust bank account interest and charges transferred from the main trust
bank account. On scrutinising the business bank account Faris discovered
that interest on the overdraft (which should have been for the firm‟s
business account) was debited to the trust account. The effect thereof was
that the amounts due to the law society were not accounted for at all or
within the time and in a manner prescribed by s 78(3) of the Act. The
trust liability resulting from the omission to pay interest in the trust bank
account to the law society amounted to (at the time of the first report)
R82 985.10. Mr van der Westhuizen, the firm‟s bookkeeper undertook to
get the firm to reimburse the trust bank account by the end of June 2010.
The failure on the part of the firm to pay these amounts resulted in
continuing trust deficits over the period July 2005 through to May 2010.
(b) The accounting records indicated the existence of a trust suspense
account of R19 375.05 in debit but the amount was treated by the firm as
trust funds available. There was however no evidence to support the
existence of funds and this amount was therefore treated by Faris as an
additional deficit.
(c) The firm conducted an investment practice whereby funds were
borrowed from investors. Further, the investments made did not generate
the necessary cash flow to repay the capital and the trust account was
used irregularly to make interest payments. These investment activities
had been ongoing for a number of years and at the year end irregular
withdrawals were reimbursed into the trust account to conceal the true
positions from the auditors. Interest to investors was paid out of the Trust
account. According to a schedule drawn by Faris a total of R268 479.64
was paid to investors between 24 July 2009 to 3 June 2010. The payment
was made from the Trust account thus creating a deficit in the trust

account in that amount. It is important to note that the carrying on of an
investment practice is not proscribed, but strict rules are laid down in
Rule 77A of the Rules relating to the conduct of an investment practice.3
The disturbing aspect of the investment activities concerned in this case is
the lack of candour on the part of Hepple and Earle in respect of
transactions in which they were involved. In the high court mention is
made of a summary of an account headed „Consolidated Summary of
Urban Blue Print Property Holdings (Pty) Ltd‟. The court noted that this
was a client of the firm. The account shows a receipt of R1, 5 million and
trust interest accrued of just over R6 000. It also shows payments and
debits almost extinguishing the total, leaving the account in credit in an
amount of just over R9 000. The account also shows payments to Earle of
R20 275 and R20 000 to Hepple, who are both described as clients.
Nowhere are these transactions explained in the papers. During argument
in the appeal before us Mr Davis, for Hepple, submitted that this payment
was authorised by the client. There is no further explanation of what this
payment was for. There are further similar examples of activities which
also involved the deposit of certain amounts to the firm and payments
made to the point where the funds were depleted. I do not however
consider it necessary to deal with all of them.
(d) The investigation also uncovered discrepancies in the firm‟s bank
reconciliation. It was discovered that cashbook balances were
substantially in excess of the bank statement balances. Faris noted that
under normal circumstances this would indicate the existence of
outstanding deposits, that is, deposits made into the bank account and as
such captured into the accounting system but not yet reflected on the bank

3 Under Rule77A.1.1 of the rules of the Law Society, a firm shall for the purpose or the rule be deemed
to be carrying on the business of an investment practice if it invest funds on behalf of a client or clients
or if it controls or manages, whether directly or indirectly, such investment by the collection of interest
or capital redemption payments on behalf of investment clients.

statement. Faris found these excesses questionable as it would be
expected that there would be outstanding cheques, which are cheques not
yet presented to the bank for payment, as opposed to outstanding
deposits.  When questioned about this discrepancy the firm‟s bookkeeper,
Mr van der Westhuizen, was unable to offer any explanation but
undertook to look into the matter and revert to Faris in due course.
Subsequently Mr van der Westhuizen furnished Faris with bank
reconciliation statements for the years ended June 2007 through to 2010.
He told Faris that the bank reconciliation statements had not been
prepared or had not properly been prepared and that he had been obliged
to re-perform the bank reconciliation statements from August 2005 to
June 2006, and then from July 2006 up to the date of his appointment at
the firm in 2007. From the documents furnished it was clear that bank
reconciliation statements were manipulated at year end to conceal the
existence of trust deficits. The manipulation was not limited to the year
ended June 2010 but had occurred from as far back as June 2007. Faris
concluded that the firm was aware of the position and that the bank
reconciliation statements were manipulated in such a way as to conceal
the existence of trust deficits. Faris furnished the law society with a
summary of trust bank reconciliations from July 2006 to June 2010. In
each of these years, with the exception of the period March 2009 to June
2009, there was a discrepancy between the trust bank balance and the
accounting records of the firm indicating the existence of trust deficits.
(e) Faris also investigated two complaints against the firm: one by a firm
of attorneys Hatting Basson Archary & Ndzabandzaba Inc. on behalf of
MBM Technical Services (Pty) Ltd and the other by a Mr van Rooyen. In
regard to the first complaint the firm had received R1, 5 million from a
firm, Quantum Business Development Limited. The money had been paid
into the firm‟s Trust account. The transaction involved a loan agreement

between Quantum and a private company Urban Blueprint Property
Holdings (Pty) Ltd (Urban). In terms of the agreement between the two
corporate entities, Earle was given certain powers by the trust Mandate
agreement between the parties. The deponent for the law society
Thobane, says that payments were in fact made, according to Earle, with
the full knowledge and approval of all the relevant parties. Faris provided
a consolidated summary of how the funds were appropriated and
concluded that if Earle‟s explanations are to be accepted, „there will be no
impact on the firm‟s trust positions‟. Faris does not appear to have taken
this complaint any further.
(f) As to the complaint relating to Van Rooyen, Faris noted in his report
dated 5 July 2010 that R50 000 was paid to Van Rooyen from the Urban
account. I have not been able to find anything either from the founding
affidavit filed by the law society or from any of the reports submitted by
Faris to suggest that this payment had any impact on the firm‟s trust
position. In any event Earle gave a full explanation, in particular that Mr
Van Rooyen was not his client; he was not holding any trust funds for
Van Rooyen and had no mandate from his client to make any further
payment to Van Rooyen, other than the amount of R50 000 already paid
to him. The two complaints had nothing to do with Hepple. The
complaint involved matters which were handled by Earle.
(g) According to Thobane‟s affidavit Earle had informed Faris of a trust
deficit of R400 000 as at July 2009 and that he was in the process of
arranging finance to reimburse the trust banking account. The shortfall is
also admitted by Earle in his answering affidavit (he has described it as a
„replying affidavit‟) but Hepple does not deal with the allegation at all in
his responding affidavit (which is also described as a „Replying
affidavit‟).

(h) There were other irregularities relating to payments from the trust
accounts, some of which came to light in the discussions Faris had with
Ms Deverani Moonsamy, an erstwhile employee of the firm.

[9] In considering whether a case has been made out against an
attorney sought to be struck from the roll it is necessary to bear in mind
that the evidence presented by the law society is not to be treated as
though one was dealing with „a criminal case‟ or „an ordinary civil case‟.
The proceedings in applications to strike the name of attorneys from the
roll are not ordinary civil proceedings. They are proceedings of a
disciplinary nature and are sui generis.4 It follows therefore that where
allegations and evidence are presented against an attorney they cannot be
met with mere denials by the attorney concerned. If allegations are made
by the law society and underlying documents are provided which form
the basis of the allegations, they cannot simply be brushed aside; the
attorneys are expected to respond meaningfully to them and to furnish a
proper explanation of the financial discrepancies as their failure to do so
may count against them. In this regard the remarks of Harms ADP in
Malan v The Law Society of the Northern Provinces5 are apposite:
„If one turns to the bookkeeping charges, the position is simply that there is no
allegation of a realisation of the seriousness of the offences. They are brushed off on
the basis that the society failed to prove a trust shortage that the bookkeeper had
erred, that they did not know the rules, that their auditors had erred, or simply by not
dealing with the pertinent allegations. Furthermore, instead of dealing with the merits
of the allegations, the appellants conducted a paper war and they attacked the Society
and its officers, they attacked the Fidelity Fund and they attacked the attorneys who
had to take over the files ─ in short, their approach on the papers was obstructionist. .
. . These factors are “aggravating” and not extenuating because they manifest

4 Cirota & another v Law Society Transvaal 1979 (1) SA 172 (A) at 173A.
5 Malan & another v Law Society, Northern Provinces 2009 (1) SA 216 (SCA) para 27-28.

character defects, a lack of integrity, a lack of judgment and a lack of insight.‟ (My
emphasis.)

[10] In my view the offending conduct on the part of Hepple and Earle
was clearly established if one has regard to the cumulative evidence of
the contraventions of the Act and the law society rules catalogued above.
Hepple and Earle do not deny that interest on the trust bank overdraft and
other bank charges were being debited against the trust banking account
each month and that they failed to account properly to the law society for
the trust interest and bank charges which gave rise to a trust deficit of
R82 484.90, as at the time of investigation. The explanation that this was
as a result of an error by the bank is far from convincing, even though it
is backed by a letter to the bank by van der Westhuizen requesting the
bank to stop the practice.

[11] There was also the existence of a suspense trust account which
showed a continuous trust debit of R19 375.05, which Hepple and Earle
had to rectify by reimbursing the trust account. The trust deficit had
continued for some time. The trust deficit was not denied by Earle. He,
however, tried to explain it away by reference to a change that was
introduced to the firm‟s accounting system. He explained that the
suspense account was created when the firm changed from what he
referred to as the „AJS system‟ of accounting to the „Legal Suite System‟.
He pointed out that all the AJS files were created on the suspense account
and were then transferred to the legal suite system. When this was done
there was a balance left. The attorneys were not aware until the first audit
was done after the exercise. They say everybody accepted that it was an
administrative fault and that it reflected a credit not a debit. According to
them Faris was the first person to point out that it reflected a trust debit.

Although Hepple and Earle were still not convinced that this was the case
they, however, reimbursed the „shortage‟.

[12] There is also the question of the late submission of Rule 70
auditor‟s report for the period 30 June 2009 and the fact that it was
qualified. The first qualification related to interest on the overdraft and
the other bank charges on the business bank account which were debited
to the firm‟s trust banking account. The second qualification related to the
interest on the s 78(2)(A) trust investments. Faris also noted that the Rule
78 auditor‟s report should have been submitted on or before 31 December
2009. It was only submitted on 8 February 2010. The late submission of
the report was in contravention by the attorneys of the provisions of Rule
70.3.6 Neither of the two attorneys dealt with this complaint satisfactorily.
Earle says that he had dealt with it in his previous response. Hepple on
the other hand says he thought that Rule 70 dealt with investment
practices. This transgression, too, was sufficiently established by the law
society.

[13] Of greatest concern is the transgression relating to the investment
practice. In this regard Hepple and Earle were engaged in investment
activities outside the firm, whereby funds were borrowed from investors.
The investments made had not generated the necessary cash flow to repay
the capital and consequently the trust funds were used irregularly to make
interest payments. I have already alluded to the fact that a summary of the
schedule prepared by Faris showed that a total amount of R268 479.64 in
interest to investors was paid from the trust account between 24 July 2009

6 „70.3 Firm‟s duty to ensure report issued
A firm shall ensure that the report to be furnished by an accountant in terms of Rule 70.4 is so
furnished within or at the required time; provided that the council may in its discretion and on such
conditions as it may stipulate, on written application by a firm relating to a particular report, condone a
failure by that firm to comply with this requirement.‟

and 3 June 2010. The said payment resulted in a trust deficit which would
have endured for at least a year. Earle admitted that the firm borrowed
money from investors. He however claimed that he was in charge of this
and that this was done at that stage without the knowledge of the other
directors. He alleged that the other shortages were caused by bona fide
administrative mistakes and that they were also reimbursed. He also did
not deny Faris‟s statement during the interview on 15 September 2010
that the trust account had been in deficit in the sum of approximately
R400 000 since July 2009. He also did not deny that at the first
investigation he had not disclosed the existence of this trust deficit. Earle
also stated that all the shortages arising from interest payments from the
trust account had been reimbursed in full out of his own pockets. He took
the blame and sought to absolve the other directors. He also indicated that
he no longer wished to practice as an attorney.

[14] In his defence Hepple sought to fall in line with Earle‟s response of
attempting to absolve the other directors. He stated that at a meeting of
directors held on 8 December 2008 it was resolved that he was to be
released from all administrative duties and that the said duties would be
shared amongst the other directors, though in fact it appears that from that
date it was Earle who took on the sole responsibility of the financial
management of the firm. But that of course does not mean that the other
directors of the corporate practice were relieved of their legal
responsibility in respect of the trust account. It was decided that Hepple
would from then on focus on commercial civil litigation to generate
income for the practice which was at that stage undergoing a downturn.
According to Hepple the investment practice should have ceased in 2008
and he denied any knowledge of the interest or other payments that gave
rise to the trust deficits.

[15] He denied any involvement with the investment practice. He did
not offer any explanation about the transactions which gave rise to Faris‟
suspicion. The high court found that Hepple benefited financially from
the investment practice in that, at an absolute minimum, on at least one
occasion he received a payment of R20 000. I have already alluded to the
fact that other than a statement from the bar by Mr Davis that the
payment was authorised by a client, nowhere in the papers is there an
explanation concerning this transaction. Instead he blames Earle, and, to a
greater extent Moonsamy, for some of the firm‟s woes. He accused
Moonsamy of having stolen R900 000 from the firm (over the period
September 2007 to August 2010) by making fraudulent transfers out of
the trust and business accounts.

[16] Hepple‟ s response that the financial administration of the firm was
left entirely to Earle from as far back as December 2008 even though it is
backed up by minutes of a director‟s meeting held on 8 December 2008
raises more questions than answers. Faris noted that this created the
impression that the directors did meet from time to time, however
irregular that may have been, and nowhere in his response is any
reference made to any other directors‟ meetings held subsequent to that
meeting. Faris further noted in this regard that one would have expected
that, given the size of the practice and the nature of its activities, meetings
would have been held and that the financial performance and the state of
the trust account would have been placed on the agenda for discussion,
more so if separate management functions had been allocated to each of
the directors.

[17] There is yet a further reason why his version is difficult to sustain.
Faris refers to a meeting he had with Hepple at which Hepple told Faris

that all the directors were fully informed of all business activities. This
was in response to an allegation by the other directors Barnard and
Johnson that they had not been informed of some of the activities of the
firm. If this was the case then there is no reason why any financial
problems concerning the trust accounts would not have been placed on
the agenda for discussion.

[18] Earle is in an even worse position than Hepple. He accepts full
responsibility for the overall state of the accounting records, the fact that
bank reconciliation statements were manipulated and the existence of the
deficits. Significantly both Hepple and Earle do not offer any comment
on the findings by Faris that irregular interest payments and the
manipulation of the bank reconciliation statements were not restricted to
the year ended 30 June 2010 and that they date back to previous years,
which would include the period between 2005 to 2008, when Hepple was
still involved with the financial management of the firm.

[19] In my view one is dealing here, not with trust deficits arising from
simple accounting errors. The books of account of the two attorneys
reveal a continuous pattern of concealing trust deficits which
demonstrates an element of deceit, inimical to the honour associated with
the profession of an attorney. The attorney‟s‟ profession demands of its
members „complete honesty, reliability and integrity‟.7

[20] In the appeal before us Earle admitted his wrong-doing but pleaded
for a lesser sanction. Not so with Hepple. He maintained that he was not
involved in the financial shenanigans of Earle and gives two reasons
therefor. First, in terms of a resolution taken by the board in December

7 Vassen v Law Society of the Cape of Good Hope 1998 (4) SA 532 (SCA) at 538G.

2008 he alleges that he was relieved of the financial management of the
firm. Secondly, he claims that when he discovered that Earle was
conducting an investment practice, he had asked him to stop.

[21] As to the first point, there is the difficulty that he is unable to
explain the trust deficits that had occurred from 2005 to 2008, whilst he
was involved with the financial management of the firm. Moreover, that
he was not involved with the financial management of the firm, is no
defence at all. The duty to comply with the provisions of the Act and the
Rules is imposed upon every practising attorney, whether practising in
partnership or not, and no attorney can therefore be heard to say that
under an arrangement between him and his partner, the latter was not
responsible for the keeping of the books and control and administration of
the trust account, and that he was therefore not negligent is his failure to
ensure compliance with the provisions of the Act and the Rules.8 As to
the second point ─ knowing that his co-director had engaged in serious
misconduct Hepple simply asked him to stop. One would have thought
that such a discovery would have caused him to be more vigilant and not
to simply continue with his unquestioning behaviour.

[22] In the high court Earle also accepted some responsibility. He
admitted being responsible for the trust account deficits. The high court
however rejected his statement that the other directors knew nothing
about his conduct as unconvincing especially insofar as Hepple was
concerned. The high court held that if Earle knew more than Hepple of
the unlawful activities being perpetrated it was not very much more and
was certainly insufficient to attract a different sanction. I do not consider

8 Incorporated Law Society (O.F.S.) v V 1960 (3) SA 887 (O) at 891G-H; Incorporated Law Society,
Transvaal v K & others 1959 (2) SA 387 (T); Incorporated Law Society, Transvaal v Visser 1958 (4)
SA 115 (T); Incorporated Law Society, Cape v Koch 1985 (4) SA 379 (C).

that the high court misdirected itself in its assessment of the evidence in
relation to the question whether the offending conduct had been
established on a balance of probabilities against Earle and Hepple. I am
satisfied that there was overwhelming evidence based on the investigation
by Faris to justify the conclusion that the offending conduct had been
established on a balance of probabilities.

[23] I turn to the question whether in the light of misconduct ─ which I
have found to have been established in respect of both Hepple and Earle
─ they are therefore not fit and proper persons to continue to practise as
attorneys. In the high court this question was answered in favour of the
law society and against the two attorneys. In so doing the court exercised
a „discretion‟ in the strict sense, which this court would only be entitled to
interfere with if we are convinced that the high court „failed to bring an
unbiased judgement to bear one the issue; did not act for substantial
reasons; exercised its discretion capriciously, or exercised its discretion
upon a wrong principle or as a result of a material misdirection.‟9

[24] The high court found that both attorneys were not fit to continue to
practise as attorneys. It found that Earle‟s conduct was dishonest and at
the minimum potentially prejudicial to trust creditors. It held that the law
society had succeeded in showing on a balance of probabilities that
Hepple was as involved in the wrong-doing as Earle. It found that
Hepple‟s moral culpability was not any less than Earle‟s. The high court
said that, even assuming that he was presently practising as an attorney
employed at a firm other than Hepple Attorneys Incorporated and was not
handling trust money, it was not satisfied that he could be trusted to
practise at all as an attorney. The overwhelming body of evidence to

9 See Malan (above) para 13.

which I have alluded above is supportive of the conclusion reached by the
high court. The court also noted that the fact that Earle has decided not to
practise any longer was not a factor to be weighed in his favour when
deciding whether or not to strike his name from the roll. I agree. There is
no basis whatsoever to interfere with that conclusion.

[25] This brings me to the third leg of the enquiry, namely whether
Hepple and Earle should be removed from the roll of attorneys or whether
an order suspending them from practise would be an appropriate sanction.
It is never easy to impose the ultimate sanction on an attorney as it has
the effect of terminating his or her means of livelihood, with adverse
consequences to himself/herself and his/her family. Before imposing such
a sanction a court should be satisfied that the lesser stricture of
suspension from practise will not achieve the court‟s supervisory powers
over the conduct of attorneys. These objectives have been described as
twofold: first, to discipline and punish errand attorneys and, secondly, to
protect the public, particularly where Trust funds are involved.10

[26] The high court meticulously considered the guidance offered in
Summerley11 as to the imposition of sanction. The court noted that Hepple
nowhere accepts responsibility for the wrongdoing perpetrated at this
firm. He failed to deal convincingly with the serious allegations which
called for a detailed and convincing response. There was nothing before
the high court to indicate that in the future he would act as the court, the
law society and the public at large are entitled to expect of him. There
was no evidence to suggest that he had seen the error of his ways and
taken steps to tread a more careful path. The court was not satisfied that

10 See Summerley at para 19.
11 Para 19 et seq.

he is capable of dealing responsibly with trust money. The court also
alluded to the vague and wholly unacceptable way in which Hepple dealt
with the allegations and relied for this proposition on the decision of this
court in Botha v Law Society, Northern Provinces.12

[27] As to Earle the court noted that he had accepted some
responsibility for trust deficits. It rejected his statement that other
directors knew nothing and found it unconvincing particularly insofar as
Hepple was concerned. It found that Earle knew more about the unlawful
activities being perpetrated but concluded that it was not very much more
and was certainly insufficient to attract a different sanction. The court
said that the conduct of Hepple and Earle was such as to leave a mere
suspension from practice as an unsatisfactory sanction.

[28] The court found Earle‟s conduct to be dishonest and at a minimum
potentially prejudicial to trust creditors. Hepple was, the court found, as
involved in the wrongdoing as Earle. Hepple‟s moral culpability is no
less. Hepple is currently practising ─ not on his own account ─ but as an
employee at another firm of attorneys and is not handling trust money. In
the light of his involvement in the misconduct as described above the
high court considered that he cannot at all be allowed to continue to
practise as an attorney. He and Earle failed to take the court into their
confidence. It has been said that a court of appeal has limited powers to
interfere with the decision of a court of first instance.

[29] In Malan13 it was said: „if the court finds dishonesty the
circumstances must be exceptional before a court will order a suspension

12 2009 (1) SA 227 (SCA) para 10.
13 para 10; See also Malan (supra) at 221 D-F.

instead of a removal.‟ Neither counsel drew our attention to any factors in
this case which constitute exceptional circumstances, such as those for
example which Brand JA found in Summerley.

[30] In the result the following order is made.
1. The appeal is dismissed with costs.
2. The costs are to be paid jointly and severally by the appellants and are
to be taxed by the first and second appellants on the scale as between
attorney and client.

K K Mthiyane
Deputy President

Appearances

For Appellant:
N Davis SC (with him C van der Merwe)

Instructed by:
Van Zyl‟s Attorneys, Pretoria
Bezuidenhouts Incorporated, Bloemfontein

For Respondent:

J Leotlela
Instructed by:
Rooth & Wessels Attorneys, Pretoria
Phatshoane Henney Attorneys, Bloemfontein