Werner Menges
12 September 2008
A LAWYER whose law firm was in effect closed down by the Law Society of Namibia last year is now facing an even bigger threat to his career, with the Legal Practitioners Disciplinary Committee wanting him struck from the roll of legal practitioners in Namibia.
Lawyer Werner Janse van Rensburg was running his own law firm at Swakopmund and Oshakati until the Law Society on July 27 last year obtained a court order to suspend him from practising as a legal practitioner for 30 days, while an investigation into his firm's handling of clients' money was being conducted.
Van Rensburg's firm closed down after that blow to the practice.
Van Rensburg, who was admitted as a legal practitioner in Namibia on June 23 2000, has since joined another law firm, Neves Legal Practitioners, where he is continuing with his career.
A case in which the Legal Practitioners Disciplinary Committee is asking the High Court to order that Van Rensburg should be struck from the roll of legal practitioners, that he should surrender his certificate of enrolment as legal practitioner to the Registrar of the High Court, and that he should be removed from a host of positions he might be occupying in his capacity as an admitted lawyer in Namibia made a first appearance on the High Court roll on Friday last week.
With Van Rensburg having indicated that he plans to fight the case, the matter was postponed to a date that has to be arranged with the Registrar.
Van Rensburg appeared before the Disciplinary Committee on May 23 this year to answer to nine charges.
In these charges he was accused of having failed to adhere to Law Society rules and that he was guilty of unprofessional, dishonourable or unworthy conduct in terms of the Legal Practitioners Act of 1995, it is stated in a ruling of the Disciplinary Committee that has been filed with the court.
Van Rensburg at first offered to plead guilty to seven of the charges, with his plea based on an admission that he had been negligent in his running of his law firm.
When the Disciplinary Committee refused to accept this plea, he again offered to plead guilty to seven charges, but this time confirmed that the plea was based on an admission of recklessness.
The Committee, which was chaired by senior counsel Theo Frank, then found him guilty on seven charges and acquitted him on the remaining two.
The charges were based on allegations that between March 2006 and the end of July 2007, various transfers had been made from his firm's trust bank account - which is where money belonging to clients of the firm was supposed to be kept - to Van Rensburg's business and personal bank accounts without Van Rensburg having ensured that the money transferred to his own and his business account was in fact due to him or the firm.
It was charged that Van Rensburg had unlawfully taken some of the money that was in his trust account, thereby creating a shortfall of N$218 443,89 in that account.
Van Rensburg however claimed this amount was closer to about N$100 000.
According to Van Rensburg, he entrusted the bookkeeping at his firm to his wife.
She is now his former wife.
Van Rensburg informed the Committee that because he still trusted her, his former wife continued to do the bookkeeping at his firm after their marital relationship ran into trouble.
When his bank manager on occasion contacted him to tell him that his personal bank account was overdrawn to the limit, Van Rensburg claimed he made enquiries with his wife on whether there were trust funds available to transfer to his personal account, and she would indicate that there were and would pay round amounts from the trust to his personal accounts, the Committee recounted Van Rensburg's version in its ruling.
After the Law Society picked up problems with his accounts, he terminated the services of his wife.
Van Rensburg "admitted that he had to keep up appearances as a legal practitioner and this contributed to the fact that he did not scrutinise the transactions and conduct of his wife as he should have done," the Committee related Van Rensburg's claims in his own defence.
The Committee however also commented on the fact that round amounts were transferred to his personal account without Van Rensburg querying this: " (I)n our view (Van Rensburg) did not query this because he did not want to query this fully realising the problems should he uncover the true position.
There is simply no way (Van Rensburg) could not have realised, with the amounts transferred by his wife, that something was amiss."
Taking Van Rensburg's explanation and specifically the fact that his wife was his bookkeeper into account, "the Committee was still of the view that his conduct was such as to render him unfit to be a legal practitioner," the Committee stated.
In an affidavit filed with the court, Frank stated that Van Rensburg's "conduct was such as to recklessly allow transfers of money from trust accounts for what was in essence his own benefit so as to always ensure sufficient funds in his own personal account".
Frank stated: "The whole basis of trust that he was supposed to uphold between himself and his clients was disregarded for personal gain."
The concept of trust between a lawyer and client is "absolutely essential" to the relationship between the two, Frank remarked.
He stated: "Where it is clear that the lawyer is prepared to breach such trust for personal benefit such lawyer does not appreciate an essential element of being a lawyer and hence is not a fit and proper person to be a lawyer."
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