Senior Cape Town advocate Johan van der Berg lost his bid in the Supreme Court of Appeal (SCA) on Thursday to stay on as a practising advocate at the Cape Bar.
The SCA dismissed Van der Berg’s appeal against a decision by two Cape High Court judges to strike his name from the roll of advocates.
The complaints against Van der Berg, SC, arose from the time he represented German national Jurgen Harksen, who was alleged to have defrauded various people.
Harksen arrived in South Africa in about 1993 to get away from his European creditors.
It was reported that these creditors had paid substantial sums of money to Harksen in the belief that the moneys would be invested with large returns.
However, one creditor eventually applied through the local courts for a sequestration order against Harksen in March 1995, which led to Van der Berg’s relationship with him.
The SCA held on Tuesday that in the course of the relationship with Harksen, Van der Berg acted in conflict with the duties of an advocate in various respects.
The court found that he had failed to disclose facts that were known to him to a court — facts that were material to the truth of evidence that he permitted to be placed before the court.
It was also found that he received fees other than through an attorney, which was a consequence of acting without proper instructions.
The SCA also held that he associated himself with a mandate relating to a fraudulent scheme that was detrimental to the reputation of the profession.
The unanimous judgement by a full bench of five appeal judges accepted that Van der Berg was not a knowing party to the fraudulent scheme and that he had no fraudulent intent when he made the false statements.
”[Nevertheless] the various transgressions, when viewed together, paint a picture of an advocate who is quite indifferent to the demands of his profession,” the judgement read.
”His initial responses to the GCB [General Council of the Bar of South Africa], and his affidavit that is now before this court, betray not the slightest appreciation of where he has fallen short, but instead reflect indignation that his conduct should be called into question at all.”
The appeal judges held that there was no doubt that Van der Berg was not fit to continue in practice and that the Cape High Court was correct in ordering his name to be struck from the roll.
Van der Berg has practised as an advocate at the Cape Bar for more than 30 years, the last 16 years as senior counsel. — Sapa