THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 1096/16

In the matter between:

WARRICK LESLEY VISSER HEPPELL
APPELLANT

and

THE LAW SOCIETY OF THE
NORTHERN PROVINCES

RESPONDENT

Neutral citation: Heppell v The Law Society of the Northern Provinces
(1096/16) [2017] ZASCA 119 (22 September 2017)

Coram:
Shongwe AP, Majiedt JA and Mokgohloa, Gorven and Ploos van
Amstel AJJA

Heard:
31 August 2017

Delivered: 22 September 2017

Summary: Attorney – whether fit and proper to practise notwithstanding being
sequestrated – whether suspension an appropriate sanction for an attorney guilty
of non-disclosure of critical information when applying for his sequestration –
no sound reason to interfere with the exercise of discretion.

ORDER
________________________________________________________________

On appeal from:  Gauteng Division of the High Court, Pretoria (De Vos J and
Mogotsi AJ sitting as court of first instance):
The appeal is dismissed with costs on the attorney and client scale.

JUDGMENT
________________________________________________________________

Shongwe AP (Mokgohloa, Gorven and Ploos van Amstel AJJA concurring)

[1] The appellant, an attorney by profession, was suspended from practising
as an attorney for a period of six months as from the date of the judgment of the
Gauteng Division of the High Court, Pretoria (De Vos J and Mogotsi AJ). He
now appeals against that judgment to this court with the leave of the court
below.

[2] As a result of the appellant’s successful application for the acceptance of
the voluntary surrender of his estate, the respondent, the Law Society of the
Northern Provinces (the Law Society) incorporated in terms of s 56 of the
Attorneys Act 53 of 1979 (the Act), commenced an investigation into the
appellant’s fitness to remain in practice. The Investigative Committee of the
Council of the Law Society of the Northern Provinces (the Council) concluded
that the appellant was guilty of unprofessional or dishonourable or unworthy
conduct and was no longer a fit and proper person to continue to practise as an
attorney. The Law Society brought an application before the court a quo to have
the appellant’s name struck from the roll of attorneys, alternatively that he be

suspended from practising as an attorney on such terms and conditions as the
court may deem appropriate.

[3] The appellant was admitted as an attorney on 7 May 1991 and thus
became a member of the Law Society. He ceased to practise as an attorney on
30 May 2007 but remained on the roll of attorneys as a non-practising attorney.
He ventured into business. He formed a close corporation, traded in liquor, and
became a property developer and signed a number of suretyships for the debts
of the close corporation. Due to the unstable economic climate the businesses
were not doing too well. He eventually sold all that he had at a loss and decided
to practise law again as an attorney from 1 September 2010. Because he could
not cope with all his financial responsibilities while in business, he decided to
approach the court with an application for the voluntary surrender of his estate
which order was granted on 11 January 2012.

[4] After the appellant had been sequestrated, the Law Society instructed Ms
Magda Geringer, a legal official in the employ of its Monitoring Unit, to
investigate the circumstances which led to the appellant’s sequestration. Ms
Geringer visited the appellant’s offices and presented a report to the Law
Society on 6 July 2012. She reported, inter alia, that the appellant did inform the
Law Society during August 2011 that he was contemplating applying for the
voluntary surrender of his estate. She concluded her report positively in favour
of the appellant. She mentioned that no complaints had been lodged against him
regarding trust funds and that there appeared to be no risks for the Fidelity
Fund, and finally that in her opinion the appellant was still a fit and proper
person to practise as an attorney.

[5] After considering Ms Geringer’s report, the disciplinary department of
the Law Society resolved to refer the matter to the investigation committee of
the Council to establish whether the appellant could be regarded as a fit and
proper person to remain on the roll of attorneys, notwithstanding the
sequestration of his estate. This was motivated by the provisions of s 22(1)(e) of
the Act which provides as follows:
‘22     Removal of attorneys from roll
(1)     Any person who has been admitted and enrolled as an attorney may on application by
the society concerned be struck off the roll or suspended from practice by the court within the
jurisdiction of which he or she practises ‐
. . .
(e)     if his or her estate has been finally sequestrated and he or she is unable to satisfy the
court that despite his or her sequestration he or she is still a fit and proper person to continue
to practise as an attorney.'

[6] After several consultations and a formal inquiry the committee
concluded that the appellant had been dishonest in his application for voluntary
surrender and failed to disclose material facts as he was obliged to do. It found
amongst others that he misrepresented his liabilities under oath to the court as
amounting to R146 000 whilst in actual fact, when the suretyships were
included, they amounted to about R20 million. He had also failed to disclose
that he was a practising attorney. He had misled the court concerning his
monthly income and failed to disclose his monthly expenses relating to his
practice. He had also failed to disclose the type of marriage he had entered into.
The appellant’s explanation for most of these discrepancies was that his
attorney had drafted the founding affidavit and that he signed it without
properly checking whether the content was correct or not.

[7] The committee resolved to refer the matter to the Council because it was
not convinced that the appellant could be regarded as fit and proper to remain
on the roll of attorneys. It expressed its disquiet on his failure to disclose all
relevant facts and his failure to be honest with the court. The Council concluded
that the appellant could not be regarded as a fit and proper person to practise as
an attorney and resolved to refer the matter to court, hence the application to
have his name struck from the roll of attorneys, alternatively to suspend him
from practising as an attorney.

[8] The court a quo concluded that the appellant was not a fit and proper
person to remain on the roll of practising attorneys ‘without any form of
sanction’. This conclusion was based on the proven facts that he failed to
disclose that he was a practising attorney when he applied for his estate to be
sequestrated, he failed to disclose properly the type of matrimonial regime he
had entered into, he failed to disclose all the facts relating to his income and
expenditure, he failed to disclose his suretyships accurately and he failed to
make a proper disclosure of the current amount of his liabilities. It concluded
that he was ‘at least grossly negligent in his failure to make a full and proper
disclosure to the court in his application for the surrender of his estate’.

[9] The appellant contended that he did not contravene any of the sections of
the Act or rules of the Society; that there was no complaint lodged against him
relating to his practice as an attorney; that he had no shortfall in his trust
account; and that he did not contravene any of the provisions of the Insolvency
Act 24 of 1936.  He stated that he was not an insolvency practitioner and
therefore not acquainted with applications for voluntary surrender and that he

relied on his attorney, Ms Esme King, as she was the expert in such
applications.  He denied that he was not a fit and proper person to practise as an
attorney. He conceded, though, that he did not disclose the fact that he was a
practising attorney but contended that he did not consider it relevant because the
genesis of his voluntary surrender application arose from his business activities.

[10] The Law Society, on the other hand, argued that voluntary surrender
applications required an even higher level of disclosure than the ‘so called’
friendly sequestration. This will place the courts in a better position to arrive at
a correct finding and exercise their discretion properly ‘especially in view of the
fact that these applications are brought on an ex parte basis’. It further
contended that some of the appellant’s allegations under oath concerning his
financial position were false. It submitted that he is therefore not a fit and
proper person.

[11] The issue before this court is in essence, whether the court below was
correct in finding that the appellant is not a fit and proper person to practise as
an attorney and, if so, whether the sanction imposed should be interfered with
on appeal. It is trite that this court must embark on a three-stage enquiry. (See
Jasat v Natal Law Society 2000 (3) SA 44 (SCA); [2000] 2 All SA 310 (A) para
10 and Malan v The Law Society of the Northern Provinces 2009 (1) SA 216
(SCA); [2009] 1 All SA 133 (SCA) para 4; Wilkinson v The Law Society of the
Northern Provinces [2017] ZASCA 69 at para 4.) For completeness I shall
restate the three-stage enquiry. First, the court must decide whether the alleged
offending conduct has been established on a balance of probabilities. It is a
factual inquiry. Second, consideration must be given to the question whether, in
the discretion of the court, the person concerned 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 is a value judgment. And third,
the court is required to consider whether, in light of all the circumstances, the
name of the attorney concerned should be removed from the roll of attorneys or
whether an order of suspension from practice would suffice. This is a matter for
the discretion of the court.

[12] The Law Society in its founding papers laid out certain general principles
as a prelude to what it alleged to be unprofessional misconduct. The appellant
admits these principles as part of what an attorney must observe at all times. For
example that 'the law exacts from an attorney uberrima fides – the highest
possible degree of good faith – in his dealings with his clients, which implies
that at all times his submissions and representations to his clients must be
accurate, honest and frank’. I may add that, the submissions and representations
should not only be honest and frank to his clients but, as an officer of the court,
when moving his application for voluntary surrender he should have informed
the court that he was an admitted attorney. He failed to disclose that he had
signed suretyships with his creditors. Instead of admitting the fact that he did
not disclose the suretyships he prevaricated and mounted a misconceived
defence of why he failed to do so. He avers that he relied on the advice of his
attorney Ms King, that the suretyships were contingent liabilities that had not
been called up either by demand or summons. In my view, it is irrelevant
whether the suretyships have been called up – their disclosure would certainly
have affected the benefit to creditors. These suretyships amounted to about R20
million. Such failure to disclose is a contravention of the general principles.

[13] The appellant was obliged to be frank and honest with the court and
disclose all relevant information. The failure to disclose these suretyships
amounted to a misrepresentation of his liabilities. Had they been so disclosed, it
is unlikely that the application for voluntary surrender would have succeeded.
He also failed to fully disclose his income and expenditure. An example of this
is that he indicated in his disciplinary hearing that he paid for his various
insurance policies from his attorney’s business account but did not disclose that
he was an attorney or this fact. He did not give details of his income and
expenditure from his practice, contenting himself with saying that his monthly
income was R5 000. That he failed to disclose his marital status is not so
weighty, as elsewhere in his papers he did mention that he was married out of
community of property, though he did not provide other minor details. The
appellant signed an affidavit wherein he confirmed the truthfulness of its
contents, however during the enquiry by the Law Society he made a volte face
by saying that he did not check or that he did not properly read the affidavit
prepared by his attorney, but went on to sign it. An attorney’s duty, amongst
others, is to advise his clients not to sign documents without reading and
understanding them. Here he does the opposite. His evidence is tantamount to
perjury.

[14] The gravamen of this case essentially is whether he is a fit and proper
person to remain on the roll of attorneys. In terms of s 22(1)(e) of the Act, the
appellant bears the onus of satisfying  the court that despite his sequestration he
is still a fit and proper person to continue to practise as an attorney. Counsel for
the appellant conceded during the hearing of this matter that, in this case it
cannot be said that the court below exercised its discretion capriciously nor that
it failed to bring an unbiased judgment to bear. Counsel attacked the exercise of
the court’s discretion on the basis that it exercised its discretion upon a wrong

principle or as a result of a material misdirection. It was unclear, from the
submission made, what that wrong principle was.

[15] It is now settled that an appeal court has limited powers to interfere with
the decision of the court below. See Malan v The Law Society of the Northern
Provinces (supra) para 12. This court has on numerous occasions decided that
this discretion is a strict discretion, meaning that a court of appeal will not
interfere if the discretion was exercised judicially. (See also Mabaso v Law
Society, Northern Provinces & another 2005 (2) SA 117 (CC) para 20 and
Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC) para 20.) In the
present case the facts speak for themselves. I am unable to conclude that the
court below exercised its discretion capriciously or that it based its judgment on
a wrong principle. Therefore, the court found, correctly so, that the appellant is
not a fit and proper person to practise as an attorney.

[16] I now turn to the question of whether the sanction of suspension is the
appropriate one in the circumstances of this case. This, too, is a matter for the
discretion of the court below. It has been consistently held by this court that the
main consideration, when dealing with the aspect of sanction, is the protection
of the public. I am of the view that not only is the protection of the public at
stake, but also the errant attorney needs to be disciplined for his/her acts of
misconduct. Of course, the court exercises its discretion depending on the
degree and severity of the misconduct. In the present case the court below found
that the appellant was ‘at least grossly negligent,’ however it acknowledged that
there was merit in the Law Society’s contention that the appellant was
dishonest. As I said earlier, this case deals with failing to fully and frankly
disclose critical information to the court dealing with an application for

voluntary surrender. I am unable to fault the court a quo on the sanction of
suspension. The court motivated the suspension on the basis that the appellant
should be given the opportunity to rehabilitate himself. In order to do so, it held
that he needs time to reconsider his unprofessional conduct while on
suspension. Although the appellant did not admit his wrongful conduct, he
justified his failure to disclose by blaming his attorney who prepared the papers
on his behalf. His failure to admit and show remorse is a danger to the public, as
he might continue to do it without realising it and accepting that it is
unprofessional and unlawful. The period of suspension will indeed be an
opportunity for him to reconsider and change his ways. It is hoped that, by
taking this opportunity, he will return to practise as a better attorney, more
attuned to his duty to the public and the court. His absence from practice will of
necessity protect the public more than punishing him, in as much as he will
think twice before committing the same act of misconduct.

[17] I therefore find that there is no basis to interfere with the exercise of the
discretion of the court below.

[18] The appeal is dismissed with costs on the attorney and client scale.

____________________

J B Z Shongwe
Acting President of the
Supreme Court of Appeal

Majiedt JA:
[19] I have read the well-reasoned judgment of my colleague, Shongwe AP.
While I agree with the outcome and the underlying reasons, I deem it necessary
to write separately on certain less than satisfactory aspects of the approach
adopted by the high court.

[20] My colleague has narrated the facts comprehensively and they need no
further elucidation, save to highlight and to add the detail which follows. It
bears repetition and special emphasis that in her detailed report, Ms Geringer
(referred to in para 4 above), made no negative findings whatsoever against the
appellant as far as his practice as an attorney is concerned. On the contrary, she
alluded to his unblemished professional record, in particular his handling of his
trust account. As Shongwe AP states, Ms Geringer opined that there was no risk
to the Attorney’s Fidelity Fund or to the public should the appellant continue to
practise. In addition, the curator of the appellant’s insolvent estate, Mr A P
Pretorius of Corporate Liquidators (Pty) Ltd, furnished the respondent with a
letter indicating that he had no objection against the appellant continuing to
practise as an attorney for his own account. Lastly, it was the appellant who had
informed the respondent of his sequestration.

[21] The high court rightly concluded that the offending conduct did not
warrant a striking off, but that some form of sanction was necessary. And it
bears emphasis that, as Shongwe AP points out, the crux of the high court’s
finding was that the appellant had been ‘at least grossly negligent in his failure
to make a full and proper disclosure to the Court in his application for the
surrender of his estate’. What must be borne in mind, therefore, is that on a
conspectus of all the facts and circumstances the appellant’s lapses related not

to his practice as an attorney, but to his failure to make full and proper
disclosure in his ex parte application for voluntary surrender. Both his
professional status as an attorney and the nature of his application required of
him to have acted with the utmost good faith, which he lamentably failed to do.
My concern relates to the approach adopted by the high court in deciding what
sanction to impose, ie the third stage of the enquiry alluded to in para 10 above.

[22] My colleague has, with respect, correctly observed (in para 16 above) that
the main consideration in respect of a suitable sanction is the protection of the
public. That well established approach is strikingly lacking in the high court’s
reasoning. Evidently it was concerned mainly with the aspect of penalising the
appellant. The high court held:
‘Applying the principles emanated by the Rules of the Law Society, the applicable Act and
the case law referred to above, I am of the opinion that the respondent is not a fit and proper
person to remain on the Roll of practising attorneys without any form of sanction. An order
sequestrating a debtor’s estate affects such a person’s status. The respondent had a duty to
make a proper disclosure under the present circumstances. Having said that I am of the view
that respondent can still be rehabilitated and should be granted an opportunity to rethink his
actions before being allowed to practise as an attorney. I therefore propose that Mr Warrick
Leslie Visser Heppell, the respondent in this matter, be suspended from practising as an
attorney for a period of six months as from the date of this Order.’

[23] The impermissible narrow approach adopted by the high court is
regrettable. In General Council of the Bar of South Africa v Geach and others
2013 (2) SA 52 (SCA), this court restated how such an enquiry is to be directed,
by referring to the following dictum in Van der Berg v General Council of the

Bar of South Africa [2007] 2 All SA 499 (SCA) at para 50 (reiterated in Malan
cited in para 10 above):
‘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’.
The same observation was also made by Nugent JA in Law Society of the Cape
of Good Hope v Peter 2009 (2) SA 18 (SCA) para 28. And, in Law Society of
the Cape of Good Hope v Budricks 2003 (2) SA 11 (SCA) at para 7, this court
said (albeit obiter):
‘Logically, a striking-off order or an order of suspension from practice should be suspended
only if the Court finds that the attorney concerned is a fit and proper person to continue to
practise but still wishes to penalise him’.

[24] The high court not only failed to enunciate and follow the correct
approach, but it also neglected to consider suspending the appellant’s
suspension from practice. Such an order of suspension could have been made
for a period of, say, three years on appropriate conditions (for example, on
condition that, during the period of suspension, the appellant not be found by a
court or by the Law Society to have failed to make a material disclosure (either
deliberately or negligently), whether on his own behalf or on behalf of a client
of his.) A sanction of that type was competent and would, in my view, arguably
have served to protect the public more than a suspension from practice for 6
months. But I am mindful of the very limited power of an appellate court to
interfere with the discretion of a trial court in matters such as these. The cases
cited in para 14 of my colleague’s judgment makes this point very clear (see
also: Geach at para 58 and Kekana v Society of Advocates of South Africa 1998
(4) SA 649 (SCA) at 654 E-H). A suspended suspension from practice on
appropriate conditions for a lengthy period could not, in my view, be regarded

as too lenient. I think it would have been of adequate severity to have penalised
the appellant for his reprehensible conduct and would simultaneously have
served to protect the public. But the test is not what sanction I would have
imposed – what requires determination is whether interference on appeal is
warranted.

[25] To conclude and in summary: while the high court’s underlying reasoning
for the sanction imposed and the sanction itself are rather unsatisfactory, there
are not sufficient grounds on which to interfere with the exercise of its
discretion.

______________________
S A Majiedt
Judge of Appeal

Appearances

For the Appellant:
N Davis SC with him M Coetzee

Instructed by:

Theron Jordaan & Smit Attorneys, Pretoria

Symington & De Kok Attorneys

For the Respondent:
H J L Vorster

Instructed by:

Rooth & Wessels Incorpotated, Pretoria

Peter Skein Attorneys, Bloemfontein