Judging High Court Judges

Dear Judges everywhere,

         First we had advocates judging advocates (see Honesty-a headache for Judge to be).What a farce! All it proved was what a bad idea this is.

If it hadn’t been for the fact that two factions of the Pretoria Bar Council could not agree on what honesty is – something that is elementary even in kindergarten – 13 crooked advocates who ripped off the South Africa Government’s Road Accident Fund might well have got away with token punishments while being allowed to keep their wages of sin totalling millions.

When the ball was thrown into the court of Judges Kees Van Dijkhorst, Piet Combrinck and William de Villiers they listed their qualifications for the job as our long experience as advocates and on the Bench. Modesty prevented them from mentioning that two of them (Van Dijkhost and De Villiers) were previous Chairmen of the Pretoria Bar.

Excuse me Your Honours, but shouldn’t that part about having been advocates be a disqualification rather than a reference? If you were picking a jury wouldn’t you object if three of them had this kind of relationship to the accused?

You were in effect being asked to judge family and there is something terribly wrong with a system that puts you in that position.

And I’m sorry Your Honours but I think you blew you own argument in your judgment when you decided to allow seven of them to go on practicing when all 13 had agreed that they had been dishonest.

From legal history you quoted what was expected of an advocate as defined by South Africa’s Supreme Court of Appeal and you can’t go much higher than that. 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.

Did you miss that bit about absolute personal integrity and scrupulous honesty? According to my humble interpretation this leaves no room for dishonest advocates who should all be kicked out of the profession.

Yet you stated that this involved weighing up the conduct complained of against the conduct expected of an advocated and this was a value judgment.

Well it’s beyond me how your value judgment complied with what the Supreme Court of Appeal had to say on the matter.

You effectively turned the English language upside down by telling us there are degrees of dishonesty that can still comply with absolute personal integrity and scrupulous honesty.

You muddied the waters still further by quoting from decided cases. Your first example was that even when an advocated had been found to be dishonest he could escape being struck off if there were exceptional circumstances. But you also said that these decided cases were not binding on a court’s discretion so what was the point of mentioning them.

If one goes on your judgment Your Honours it seems that just being an advocate, especially a Senior Counsel qualifies as an exceptional circumstance. As a layman I would have thought that instead of putting the two Senior Counsel, who were in this rogues’ gallery, into the group that should be allowed to go on with their job, you should have given them an even heavier penalty than the ordinary advocates.

And that’s ignoring the fact that all of them should have been sent packing.

Some of your other references to decided cases indicate how the law pussy foots around when it comes to dealing with its own.

 It is apparently considered unbecoming and disgraceful for those who profess to have knowledge of the law to be ignorant of the laws of the land.

No really. Do you need a court to spell that out? No wonder some advocates have such a problem defining honesty.

And the systematic breaking of the rules to which an advocate subscribes may indicate a lack of responsibility and integrity which is characteristic of an advocate. What only MAY?  And if this case of the 13 is a yardstick Your Honours it is far fetched to describe integrity as being characteristic of an advocate.

It now looks as though the Supreme Court of Appeal is going to be asked to do the job all over again because the General Council of the Bar, the umbrella body for the Pretoria Bar and the other Bars in the country, is taking the matter to this court to have the remaining Magnificent Seven struck from the roll.

Honestly the law’s an ass or is the legal term arse?

Yours faithfully,

Jon, a Barman of repute. 

P.S. Pictured is Senior Counsel Brenton Geach hiding his identity outside court as poorly as he hid his thieving ways. 

Defining 'HONESTY' - a headache for Judge to be

Dear Lovers of the Truth,

Honestly this it the truth, the Gospel truth, and nothing but the truth, according to my advocate.

          It looks as though the honesty bar has been set far too high for South Africa’s judges and lawyers; a recent court case has shown.

          What is even more sickening is that there are people in the advocates profession charged with upholding ethics who rally round rotten colleagues in an effort to let them off as lightly as possible. There are Judges too, who watch the show in court, and remain silent. 

          Three High Court judges were asked to decide whether 13 advocates, who they picturesquely described as having mounted the steed of greed, should be allowed to continue riding to bank their ill gotten gains.

         They had ripped off the Government’s Road Accident Fund (RAF) for millions by taking two or more briefs a day and charging a day’s fee for each one.

         The judgment makes fascinating reading.  It revealed that there is such an insidious rot in the justice system that advocates in high places can’t even agree on what is honest.

          Before the judges were asked to make a decision the men were dealt with by the disciplinary committees of their regional Bar Council in Pretoria. That’s when the word honest became such a thorny issue.

          The first hearing dealt with 10 of the men. It was headed by Hennie de Vos, a Senior Council no less, who is now a Judge. It decided that they all acted honestly, admirably and in the interests of the public and the furtherance of the administration of justice in helping to clear the congested court roll. Their breaches of the rules were not to be condoned but were not dishonest.

          With pals like that you can’t go wrong. How could anybody possible think that it was dishonest to charge for hours not worked and to overcharge as well. Billing for a day as long as 49 hours is nothing more than dedication it seems, if you are being judged by your friendly peers.

          Two more appeared at the next hearing headed by Louis Vorster SC who is now an Acting Judge, and it took a diametrically opposite view on the same facts. It decided, what the first tribunal should have done, that these advocates had been dishonest and that a Court should order them to be struck off the roll.

Their user friendly Bar Council then galloped to their aid. It sided with the first honest definition and refused to accept the second one. It imposed sanctions similar to the ones given to the initial 10.

All of them were fined between R16 000 and R230 000 and as the judges observed, It strikes one as odd that the Bar Council did not required them to make amends by returning the ill-gotten gains.

You can say that again Your Honours considering the amounts involved ranged between R94 000 and R1.9-million. The Bar Council evidently believed that enterprise on this scale should be rewarded.

It did give them a token, additional penalty by suspending them for between one and six months. Hardly a hardship when you are a millionaire.

        More importantly everybody could go on kidding themselves that advocates were like George Washington, who could never tell a lie, and were as honest as any client could possibly want.

          Unfortunately for these virtuous gentlemen the three judges ruled in favour of the second definition of honesty saying that the De Vos hearing had closed its eyes to the obvious and that sanctimonious statements that they were doing this to help the Court to combat the congested roll do not wash.

But they too showed a soft spot for their fellow legal practitioners. Having said that if dishonesty was involved only exceptional circumstances would prevent somebody from being removed from the roll Your Honours only struck off six of the offenders.

It was hard to believe that more than 50% of these dishonest advocates, who had been at the Bar for up to 32 years and had all pleaded guilty, could be classified as exceptions for reasons like, appears not to have been actuated by greed(he filched R984 000, but luckily he was not greedy) ; expressed regret; blew the whistle on himself; felt ashamed and so on.

          The judges ordered all of them to return their wages of sin to the RAF. The other penalties that the Bar Council had imposed remained. It’s hardly a great imposition to have to refund money that you have had the use of, interest free for ages. To cushion the blow some were allowed to repay it in 12 monthly instalments.

         Four even had the gall to ask for the repayments to be reduced by 33% to account for income tax which they might not be able to recover from the Receiver of Revenue.

          It would be interest to know how much of the loot had been reflected in the tax returns of these pillars of the legal fraternity.

         The judges asked, Why did the Bar Council fiddle while Rome burnt? The evidence showed that the problem had been going on for years because there was a widely held fallacy that without a specific complaint no action could be taken. This was like a fire brigade that sees a fire but fails to deal with it because there has been no complaint.

         In 2007 Sam Maritz SC, convenor of the Professional and Ethics Committee, countered suggestions that nothing was being done saying that the problem had virtually disappeared and helpfully he flatly refused to become a policeman.

         No wonder the fires blazed on.

          And it was not surprising that Maritz’s name should pop up again as a member of the De Vos panel that found there was no dishonesty involved.

         Most disturbing of all was what the beaks had to say about their fellow judges. They shut their eyes to this insidious practice of double briefing and even commended some advocates for their help in combating the congestion of the trial roll.

         Then there were all those attorneys who instructed these advocates knowing perfectly well what was going on, who must also share the blame.

         So that’s how bad it has got. In 2006 a warning circular was ignored. And as what the judges dealt with only concerned the year 2009, nobody knows who got away with what.

It’s debatable whether any more thieves will be caught with their hands in the till when there are so many people whose legal expertise extends to sweeping the muck under the carpet.

What happened to number 13 you are probably asking? He was by far the worst of this Millionaire’s Club, yet his disciplinary hearing had not been completed. But at the request of the Pretoria Bar, of which he had been a member for 25 years, the judges struck him off and ordered him to repay the R5.9-million he received in just eight months.

Inexplicably he got away without a fine.

Of course run of the mill crooks, who are not in the sheltered employment of the legal profession, would not only lose their jobs but be sent to jail for doing what these advocates have done.

So isn’t it time that the law treated everybody equally?

An outraged,

Jon 

P.S. I have cancelled my application to operate an honesty bar at the advocate’s club and the picture (top right) is not of the Klu Klux Klan, but a proud member of the Millionaires Club leaving court.

Buy my book ‘Where have all the children gone?’ on Amazon Kindle It’s a thriller with an underlying love story that defied generations of prejudice.