EXCLUSIVE: Advocates who fleeced RAF get go-ahead to reapply for admission to Bar

2017-11-06 10:14
North Gauteng High Court. (Schalk van Zuydam, AP)

North Gauteng High Court. (Schalk van Zuydam, AP)

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Johannesburg – The Pretoria Bar was split during a recent vote to readmit four advocates who were disbarred in 2011 after being found guilty of fleecing millions from the Road Accident Fund.

The chairperson of the Bar had to cast the final vote at a resolution meeting in October, at which the Bar Council voted not to oppose the applications by Marthinus de Klerk, Makgotshe Leopeng, Daniel Poli Mogagabe, and Thillay Pillay.

The four were part of a group of 13 advocates that faced sanctions for accepting multiple cases on the same day (double briefing) and charging a full day's fee for each case (overreaching).

De Klerk, Leopeng, Mogagabe, Pillay, French Bezuidenhout and Theunis Botha were struck from the roll of advocates in 2011.

The General Council of the Bar approached the Supreme Court of Appeal in 2012 to ensure that all 13 be disbarred. That appeal was dismissed.

The SCA also dismissed the appeal of the six to be re-instated.

The court, however, said in a damning judgment that the advocates had "mounted the steed of greed".

"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," the SCA said. 

"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 fees charged by advocates of comparable seniority and ability for similar work."

'A valuable, yet painful lesson'

In 2011, Leopeng pleaded guilty to 315 counts of double briefing and overreaching. He was fined R157 500 and ordered to repay R1.3m to the RAF.

Mogagabe pleaded guilty to 461 counts of double briefing and overreaching and was fined R230 000 and ordered to repay nearly R2m to the RAF.

Pillay pleaded guilty to 28 counts of double briefing and overreaching and was fined R28 000 and ordered to repay R268 800 to the RAF, while De Klerk was found guilty on 74 counts of overreaching and double briefing and was fined R74 000 and ordered to repay R310 800.

Minutes of the resolution in October's meeting shows a vote was taken and it was evenly split, with the chairperson casting the final vote. This meant the Pretoria Bar voted not to oppose the application to readmit the advocates.

Further, it was recommended that the Judge President and Deputy Judge President of the North Gauteng High Court be informed about the outcome of the meeting and vote.

In Leopeng's re-admission application, he wrote that the period of his removal felt like "a lifetime".

"The removal of my name from the roll of advocates taught me a valuable, yet painful lesson to adhere to honesty and to always uphold the prestige of the Society to which I was a member," Leopeng's admission reads.

In De Klerk's application, he argues he drastically changed his life, with the "only indulgence" in his life being a game of golf a week.

"Since my striking [off the roll], I have drastically changed my lifestyle and I live frugally. I, for example, do not go on holiday, do my own maintenance, seldom eat out," he said.

"I humbly submit that I am a changed and reformed person who has insight into my wrongdoings and the effect and enormity thereof. I further humbly submit that I am a genuinely, totally and wholly reformed person," he argues.

'Court has the last say'

Advocate Moses Mphaga, chairperson of the Pretoria Bar, said the body did not have the power to allow or disallow them back.

"They are officers of the court. It is the court that has the last say whether they are fit and proper or not," he said.

"They are no longer our members, because they are no longer advocates. They have made an application to court for re-admission, saying they are fit and proper to be re-admitted… The last say will be at the court," Mphaga said.

He said whoever decided to object to their re-admission, the court would take that into consideration.

"There were members who felt we should oppose, and there were members who felt we shouldn’t oppose," he said.

He said the court still had the discretion to call the Bar and ask what their views were, and that the advocates applying to be re-admitted still had to approach the court for a date.

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