An advocate disbarred for cheating is forgiven because of `extraordinary circumstances’ in the closing days of apartheid.Mungo Soggot reports
THE Pretoria advocate who was disbarred for cheating former defence minister Magnus Malan by charging him exorbitant legal fees has been reinstated by a trio of Pretoria judges including Transvaal Judge President Frikkie Eloff – the man responsible for expelling the advocate in the first place.
Schalk Burger billed Malan for work he did not do while representing Malan and the former South African Defence Force (SADF) in a civil claim in 1991. The claim had been lodged by disgruntled members of the Civilian Co-operation Bureau, the covert death squad, who said they had not been paid.
After the Pretoria Bar Council determined that Burger had defrauded Malan to the tune of hundreds of thousands of rand, it refused to take the matter to court. Then- Bar Council chairman Brian Southwood, SC – now a judge – was subsequently ousted, and the General Council of the Bar stepped in to take the case to court.
Eloff ruled that a mere suspension was too light a punishment for Burger, who had not only overcharged Malan and the SADF but had also accused the General Council of the Bar of pursuing a vendetta against him. Burger was found to be guilty of “unprofessional behaviour” that included an “element of dishonesty and fraud”.
During the inquiry, Burger sought to justify his behaviour by saying he had been privy to information that could rock the government and bring about Malan’s downfall.
The Pretoria Supreme Court’s judgment last December, which was made available only this week, exonerates Burger by arguing he has now paid the price for his errant behaviour, and by claiming his behaviour was influenced by the “extraordinary circumstances” of the time – apparently a reference to the paranoia that gripped South Africa in the closing days of apartheid.
Malcolm Wallis, chairman of the General Council of the Bar, which opposed Burger’s readmission, said it would be inappropriate to comment on the court’s decision as the Bar was involved: “After careful debate, we have decided not to pursue the matter any further.” Some in legal circles have expressed surprise that the full Bench of the Pretoria court which heard the case did not include any judges from Johannesburg.
The judgment was delivered by Transvaal Deputy Judge President Piet van der Walt, and backed by both Eloff and Judge van Dyk. Van der Walt said Burger was forced off the straight and narrow by a “combination of circumstances in an extraordinary time in our land’s history … I think he has learned his lesson.”
He said Burger suffered no permanent character defect and understood how he had erred. When assessing why Burger did not apologise spontaneously to the General Council of the Bar and to those colleagues in-volved in the investigation, the judge said he sympathised with Burger’s explanation that he had been “ashamed”.
He said shame was a feeling that is well understood, and that if someone
caused offence and understood the damage he had done to himself and the profession it was understandable he would be ashamed to look his accusers in the eye. “It is an honest answer,” the judge said. “A person is a complex thing, a personality is a complex thing.”
The General Council’s advocate, Jeremy Gauntlett, SC, told the court Burger had libelled his colleagues involved in the probe. The council contended it was not convinced of Burger’s rehabilitation.
Burger’s advocate, Sam Maritz, SC, said his client had “suffered enough”.
Van der Walt said it appeared Burger had developed a “big head” working for a client like Malan, which helped explain his “mistake”. Burger was “overly impressed by the fact he had clients such as Malan and he was their confidant”. The court cited the fact that Burger had even installed a fax machine in his house, to remain close to his treasured client.
The court was sure the public would be protected against such an offence if the applicant was allowed back to Bar, Van der Walt said.
In order to be readmitted, Burger relinquished his senior counsel status.