8 November 2021
The Legal Practice Council (LPC) has been ordered to explain why it “twiddled its thumbs” for eight years in an application to strike from the roll an attorney who had committed serious breaches of professional rules over a period of 29 years.
Western Cape High Court judges Mark Sher and Lee Bozalek said even the most benevolent interpretation of the conduct of the LPC and its predecessor, the Law Society of the Cape of Good Hope (until November 2018), in its handling of Cape attorney Daniel Gerrit Smit van Wyk, could only be described as “woefully inadequate”.
“If practitioners who contravene the rules are not dealt with promptly and effectively … a culture of impunity is fostered and the profession is lowered in the eyes of the public.
“We hope the LPC will take this both as a warning and an opportunity to get its house in order.
“We are of the view that it is important that an attempt be made to establish why the systemic failures occurred,” they said, directing that the chairperson of the LPC report back within three months.
The LPC’s predecessor launched an urgent application against Van Wyk in March 2013, seeking his suspension from practice, pending an application to strike him from the roll.
Van Wyk opposed the application.
And then nothing happened until 2021 when the LPC revived the application, but this time seeking that he only be suspended from practice for an effective three-year period.
“That it has taken eight years for the matter to come before the court is because of a rank failure on the part of the regulatory bodies responsible for the control and governance of the profession to properly carry out their duties,” the judges said.
At the time of the initial application, Van Wyk, who is now 57, was practising in Bellville.
By then, he had “notched up a dismal record of disciplinary infractions which go back some 23 years”, and been found guilty of 42 acts of professional misconduct, each time being fined, the judges said.
Among the complaints were his failure to execute clients’ mandates or carry out their instructions, and the misappropriation of funds.
As these contraventions increased over the years, so the fines increased. But they had no deterrent effect.
“He was also found guilty of a number of separate instances for not attending to clients’ matters competently, diligently and timeously,” the judges said.
He was fined for failing to enter an appearance to defend a matter, failing to issue summons, and failing to hand over clients files when they terminated his mandate.
This had serious consequences for his clients: he failed to ensure that a woman in the process of getting divorced was receiving maintenance; he failed to register an antenuptial contract; and he failed to enter an appearance to defend an action, resulting in default judgment against his client.
The judges pointed out that it took the law society three years to take legal action against him for not submitting his annual audit report. And when he refused to obey the court order, “again the law society was in no hurry” and it took another 18 months before it obtained an order holding him in contempt.
When the matter came before the judges in April this year, they directed the LPC to file an affidavit explaining the eight-year delay and why the LPC was only seeking that Van Wyk be suspended from practice.
The judges said the LPC’s counsel had, in argument, conceded that Van Wyk should be removed from the roll and that its previous stance was “wrong and ill-advised”.
“The LPC had arrived at that decision on the basis of an incorrect understanding that removal was reserved for cases involving dishonesty … this was wrong. And they also clearly forgot that he had been guilty of a number of transgressions involving dishonesty … These were not isolated lapses or mistakes.
“Because of the failure of the law society and the LPC to prosecute this matter, he was not brought to book and was allowed to continue in practice at least until 2015, the last time when he was issued with a fidelity fund certificate.”
It was also alleged that they could not locate him.
But, said the judges, in March 2018 he had been traced to Gansbaai, yet no attempts were made to establish if he was still practising as an attorney at that time.
In August 2019, tracing agents discovered that he was, even though he did not have a fidelity fund certificate, putting his clients at risk.
“Despite this, the LPC failed to do what it was supposed to do. It only started taking steps to bring the matter to court at the end of the following year,” the judges said.
“As a result of this lackadaisical and haphazard fashion, when the matter came before us in April this year, it was not apparent whether he was still practising and we were compelled to direct that the necessary inquiries be made.”
In what the judges said was a “perfunctory attempt”, an official from the LPC contacted Van Wyk by telephone. He said he was practising as a “legal consultant”.
“What this entails is not clear … No attempt was made to visit him and check on his status,” said the judges. While Van Wyk might not be practising as an attorney, “we are of the view that to permit him to remain on the roll of attorneys would constitute a danger to the public and would be irresponsible”.
The chances of his re-offending were highly likely. His chances of rehabilitation were close to non-existent. His failure to take responsibility for his actions and own up to them demonstrated that he had no remorse or contrition.
The judges said while errant attorneys were usually ordered to pay the costs of the application, in this matter, because it had dragged on for so long, they ordered that Van Wyk only be responsible for the costs up to and including the filing of his intention to oppose in 2013.
“The unfortunate result of this is that the costs will be borne by the LPC and ultimately by those of his colleagues who abide by the rules. Unfortunate as this may be, perhaps this will result in law abiding members of the profession holding the office bearers to account,” the judges said.
Disclosure: GroundUp is litigating against the LPC and an attorney that the LPC failed to discipline. The LPC has not opposed our application but the attorney, Lesley Ramulifho, has. The case is expected to be in court next year.