COEN VAN WYK B.Sc., B.Sc. (Hons.), B.Iuris

Transcription

1 COEN VAN WYK B.Sc., B.Sc. (Hons.), B.Iuris Tel: P.O. Box NEW HANOVER Website: coenvanwyk.mysite.com By . The Director, The Law Society of the Northern Provinces, Pretoria. Mr Grobler, 23 May 2007 Criminal Offences of Botha Attorneys and Mrs Paulina Hendrina Terblanche The following index is for your convenience: Index 1. A brief summary of the crimes and mischief of Samuel Jacobus Botha, Charl Botha, and Paulina Hendrina Terblanche. 2. The web page that incriminates Samuel Botha, Charl Botha, and Paulina Terblanche. 3. The letterhead that incriminates Samuel Botha, Charl Botha, and Paulina Terblanche. 4. Exposed: The mischief and criminal conduct of Samuel Jacobus Botha, Charl Botha, and Paulina Hendrina Terblanche. A - Count 1 Contravention of section 23 of the Attorneys Act B - Count 2 Contravention of section 83(1) of the Attorneys Act C - Count 3 Contravention of section 83(6) of the Attorneys Act 5. A further dire consequence of the section 23(1)(b) mischief of Samuel Botha, Charl Botha and Paulina Terblanche. 6. Conclusion.

2 ANNEXURE A The web page that incriminates Samuel Botha, Charl Botha, and Paulina Terblanche ANNEXURE B The letterhead that incriminates Samuel Botha, Charl Botha, and Paulina Terblanche 1. A brief summary of the crimes and mischief of Samuel Jacobus Botha, Charl Botha, and Paulina Hendrina Terblanche. (a) (b) (c) (d) (e) (f) The Attorneys Act makes provision for a law practice to be conducted by a private company that has the provisions of section 53(b) of the Companies Act included in its memorandum of association. The name of such a company should end with the word, Incorporated, or the abbreviation, Inc., or the Afrikaans versions of the last-mentioned, and it is referred to as a professional company. Samuel Botha, Charl Botha and Paulina Terblanche promoted, on the Internet, the company, CD Terblanche Inc., as a professional company, of which the three mentioned individuals are alleged to be members In the case of a company having a share capital, the terms, member and shareholder refer to the same person. Section 23(1)(b) of the Attorneys Act stipulates that only natural persons, who are practitioners and who are in possession of current fidelity fund certificates, are entitled to be members or shareholders of a professional company, A practitioner is defined as any attorney, notary or conveyancer. Samuel Botha and Charl Botha are practitioners but Paulina Terblanche is not. Terblanche s membership of the professional company that bears her surname, is therefore prohibited by law, and blatantly illegal in terms of the Attorneys Act. The Bothas, and Terblanche, are therefore in serious violation of the mentioned section 23(1)(b) of the Attorneys Act. The letterhead of the professional company, of which Samuel Botha, Charl Botha and Paulina Terblanche are alleged to be members (and that happens to contain the surname of Terblanche in its name) reflects, ostensibly as directors, the names of Samuel Botha, Charl Botha, and Paulina Terblanche. Apart from the names of the last-mentioned three individuals, there is no other indication, whatsoever, of directorship to be found on the mentioned letterhead.

3 (g) (h) (i) In the process of holding Terblanche out as a member of the professional company, the Bothas also hold Terblanche out as a practitioner. In doing so the three mentioned individuals commit criminal offences in terms of the Attorneys Act. But the fact that Samuel Botha and Charl Botha share membership of a professional company with Paulina Terblanche, also causes them to share with her a portion of their professional fees. And the upshot of that is that the Bothas commit a further criminal offence in terms of the Attorneys Act. A further dire consequence of the section 23(1)(b) mischief of Samuel Botha, Charl Botha and Paulina Terblanche, is that the Treblanche company shall not be recognized in law as a practitioner. It should therefore cease, forthwith, to operate as a law practice, and the fact that it has operated illegally, for quite some time, as a professional company, should appropriately be dealt with by the Law Society. 2. The web page that incriminates Samuel Botha, Charl Botha, and Paulina Terblanche I annex by way of ANNEXURE A a web page that has been circulated on the Internet and in which Mrs Paulina Hendrina Terblanche is listed as an attorney in the entry depicted here below. The entry reflects her name under the caption, Members. CD Terblanche Inc - Firm Profile Description: None available Members: Samuel Jacobus Botha, Bproc; Charl Botha (Administration Manager: Paulina Hendrina Terblanche) Speciality: Speciality not Specified 3. The letterhead that incriminates Samuel Botha, Charl Botha, and Paulina Terblanche I now refer you to the letterhead depicted in ANNEXURE B hereto, and concerning a law practice that is identified as PROKUREURS - C.D. TERBLANCHE ING. ATTORNEYS. I record the following:

4 (a) (b) The word, ING., is clearly indicative of the fact that the business is a company. The letterhead does not identify the names of the directors of the company, as required by section 171 of the Companies Act of 1973 ( Act ), albeit that it contains the names of the following individuals: S.J. BOTHA CHARL BOTHA PAULINA HENDRINA TERBLANCHE (c) Sec 171 stipulates the following: A company shall not issue or send to any person in the Republic any trade catalogue, trade circular or business letter bearing the company s name unless there is stated theron in respect of every director... his present forenames, or the initials thereof, and present surname... The quoted words of the section therefore makes no mention of the requirement that the word, director, or directors, needs to appear on inter alia a company letter. It merely requires the names of the directors to be stated. The directors of PROKUREURS - C.D. TERBLANCHE ING. ATTORNEYS are therefore, S.J. BOTHA, CHARL BOTHA, and PAULINA HENDRINA TERBLANCHE. There is no other indication, whatsoever, of directorship of the company to be found on its letterhead. BOTHA-COMPLAINTS RE NAME CRIMES PEPETRATED UNDER THE COMPANIES ACT BY THE WITFIELD BOTHA BUNCH (d) I now revert to ANNEXURE A in which it is stated that the members of CD Terblanche Inc are Samuel Jacobus Botha, Charl Botha, and Paulina Hendrina Terblanche. It is clear that the two companies referred to in annexures A and B, although identified by different names in the annexures, are indeed the same company. In that regard it should be borne in mind that the Bothas are not accurate and consistent. That would become clear to you if you should refer to my complaint of even date under the caption, BOTHA-COMPLAINTS RE NAME-CRIMES PEPETRATED UNDER THE COMPANIES ACT BY THE WITFIELD BOTHA BUNCH, you would then notice that they (the Bothas) lack the ability to be accurate and consistent, even when it concerns the name under which they perpetrate their deeds on a daily basis. They refer to themselves as; (i) (ii) (iii) S J BOTHA PROKUREUR ATTORNEY; and S J Botha ATTORNEYS INC; and PROKUREURS SJ BOTHA ATTORNEYS.

5 So, for the Bothas to refer to their Germiston business as, PROKUREURS - C.D. TERBLANCHE ING. ATTORNEYS and also as CD Terblanche Inc, is typical Botha; style, and accuracy, and consistency (I should actually say: lack thereof). In order to avoid confusion I will therefore refer to the particular company as the Terblanche company. 4. Exposed: The mischief and criminal conduct of Samuel Jacobus Botha, Charl Botha, and Paulina Hendrina Terblanche A - Count 1 Contravention of section 23 of the Attorneys Act If you should now refer back to paragraphs 1 and 2 supra, you would notice that at this juncture we have the following: (a) (b) The letterhead of the Terblanche company reflecting Paulina Hendrina Terblanche as a director of the company. The Internet document depicted in ANNEXURE A, reflecting Paulina Hendrina Terblanche as a member of the Terblanche company. But, you may ask: What is a member of a company? And the answer is to be found in the following: (i) Section 23(1) of the Attorneys Act stipulates the following: A private company may, notwithstanding anything to the contrary contained in this Act, conduct a practice if... such company is incorporated and registered as a private company under the Companies Act, 1973 (Act 61 of 1973), with a share capital, and its memorandum of association provides that all present and past directors of the company shall be liable jointly and severally with the company for the debts and liabilities of the company contracted during their periods of office; (ii) (iii) The Attorneys Act states, professional company' means a company referred to in section 23. Section 53 of the Companies Act ( Act ) provides for the last-mentioned requirement that all present and past directors of the company shall be liable jointly and severally with the company for the debts and liabilities of the company contracted during their periods of office ; and section 49(4) of the Act requires that a company that contains the provision referred to in section 53(b) shall include the word Incorporated, as the last word in its

6 name. However, in terms of section 50(1)(c)(i) of the Act the abbreviation Inc. may be used for the word, Incorporated. (iv) The professional company, CD Terblanche Inc., as promoted on the Internet, and of which Paulina Hendrina Terblanche is alleged to be a member, is therefore the type of company referred to in section 23(1) of the Attorneys Act, being a company... incorporated and registered as a private company under the Companies Act, 1973 (Act 61 of 1973), with a share capital Now back to the question: What is a member of a company? The simple answer is to be found in the following quotation from the Practitioners Edition of Cilliers and Benade s, Company Law: In the case of a company having a share capital... the terms member and shareholder refer to the same person... I have established from the Law Society that Paulina Hendrina Terblanche is not an attorney. The question that now arises is: How kosher is it that Paulina Hendrina Terblanche is a member of a professional company? The answer to the question is to be found in the following words of the section 23(1)(b) of the Attorneys Act: only natural persons who are practitioners and who are in possession of current fidelity fund certificates are members or shareholders of the company or persons having any interest in the shares of the company... It is therefore quite clear that the criminal shenanigans of Terblanche, and her partners in crime, Samuel Jacobus Botha and Charl Botha, are not kosher to the slightest extent, and in fact constitutes blatant criminal conduct. B - Count 2 Contravention of section 83(1) of the Attorneys Act Apart from the fact that Terblanche and her co-perpetrators, Samuel and Charl Botha, violates the stipulation that only natural persons who are practitioners and who are in possession of a current fidelity fund certificates are members or shareholders of the company or persons having any interest in the shares of the company..., they also criminally transgress section 83 of the Attorneys Act, the relevant contents of which reads as follows: Offences (1) No person other than a practitioner shall practise or hold himself out as a practitioner or pretend to be, or make use of any name, title or addition or description implying or creating the impression that he is a practitioner or is recognized by law as such or perform any act which he is in terms of any regulations made under section 81 (1) (g) prohibited from performing. The last-mentioned act defines 'practitioner' to mean any attorney, notary or conveyancer The fact that Terblanche and the mentioned Botha individuals refer to Terblanche as a member of the Terblanche company in their promotional material, is clearly to hold her out as a practitioner since the Attorneys Act clearly stipulates that only natural persons who are practitioners and who are in possession of current fidelity fund certificates are

7 members. So, if they say that she is a member of the professional company, CD Terblanche Inc., then they say, by implication, that she is a practitioner and in possession of current fidelity fund certificates. It is therefore clear from the following quoted words of section 83(7) of the Attorneys Act that, due to their mentioned contravention of section 83(1) of the Attorneys Act, Paulina Terblanche, Samuel Botha, and Charl Botha are also on the wrong side of the following provisions of the Attorneys Act: A person who contravenes any of the provisions of subsections (1) to (6) or of section 13A shall be guilty of an offence and on conviction liable to a fine not exceeding R2 000 in respect of each offence. C - Count 3 Contravention of section 83(6) of the Attorneys Act Given the fact that Paulina Terblanche was alleged to be a member of the Terblanche company, it stands to reason that she shares in the spoils of the criminal activities of a company that should never have practiced as a professional company. In the process of receiving part of the plunder from Samuel Botha and Charl Botha, Paulina Terblanche and the Bothas commit crimes in terms of the following stipulations of sections 83(6) and 83(7), respectively, of the Attorneys Act: A practitioner shall not make over to or share or divide with any person other than a practitioner in, or a legal practitioner outside, the Republic, either by way of partnership, commission or allowance or in any other manner any portion of his professional fees. And A person who contravenes any of the provisions of subsections (1) to (6) or of section 13A shall be guilty of an offence and on conviction liable to a fine not exceeding R2 000 in respect of each offence. 5. A further dire consequence of the section 23(1)(b) mischief of Samuel Botha, Charl Botha and Paulina Terblanche Apart from criminal prosecutions, that should follow if the Law Society is at all serious about the notion of eradicating criminal conduct perpetrated by attorneys, a further consequences of the criminal conduct of Paulina Terblanche, Samuel Botha, and Charl Botha, is that the Terblanche company shall... not be recognized in law as a practitioner. The cogency of what I have stated appears clearly from the following words of section 23(8) of the Attorneys Act: If the company ceases to conform to any requirement of subsection (1), it shall forthwith cease to practise, and shall, as from the date on which it ceases so to conform, not be recognized in law as a practitioner...

8 So, if the Law Society were at all serious about the notion that the Attorneys Act needs to be complied with, then it you would take immediate steps to ensure that the Terblanche company stops functioning forthwith as a practitioner. I record the following: 6. Conclusion (a) (b) (c) I trust that you would do something proactive about this complaint. I suggest that that you do a search in the offices of the Registrar of Companies concerning CD Terblanche Inc. I suggest that you do an inspection of the accounting records of CD Terblanche Inc. in order to procure hard evidence of the fact that Terblanche obviously shares in the ill-gotten gains derived from the illegal endeavours of her company, and that she does so in contravention of the following (previously mention) stipulations: A practitioner shall not make over to or share or divide with any person other than a practitioner in, or a legal practitioner outside, the Republic, either by way of partnership, commission or allowance or in any other manner any portion of his professional fees. (d) (e) It is obvious that you need to stop, forthwith, the activities of the Terblanche company that, even as I pen these words, functions as a professional company despite the fact that, due to its non-compliance with section 23(1)(b) of the Attorneys Act, it shall forthwith cease to practise... and shall... not be recognized in law as a practitioner. It is obvious that the Law Society needs to prefer criminal charges against all the three mentioned individuals. I therefore hereby do the following: (i) (ii) (iii) (iv) I lodge a complaint against the three individuals mentioned herein. I pray (silently) that the complaint would not suffer the same dreadful fate of my numerous complaints that I have lodges with the Society. I await your reply with bated breath. I thank you in advance for your kind co-operation, which I hope and trust would be forthcoming. Regards,

9 Coen van Wyk. ANNEXURE A The web page that incriminates Samuel Botha, Charl Botha, and Paulina Terblanche CD Terblanche Inc - Firm Profile Description: None available Members: Samuel Jacobus Botha, BProc; Charl Botha (Administration Manager: Paulina Hendrina Terblanche Speciality: Speciality not Specified Contact Details Telehone: /4/5/6/7 Fax: cdterblancheatt@mweb.co.za Website: Information Policy None available Physical Address Firm's Specialities Physical Address: Gauteng Old Mutual Building 98 Postal Address: Gauteng PO Box 448 Partners & Staff No Information Loaded

10 Terms & Conditions - Disclaimer - ECT Act of South Africa Advertise with Us - Contact Webmaster Terms & Conditions - Disclaimer - ECT Act of South Africa Advertise with Us - Contact Webmaster ANNEXURE B The letterhead that incriminates Samuel Botha, Charl Botha, and Paulina Terblanche PROKUREURS - C.D. TERBLANCHE ING. ATTORNE No. 1999/023751/21 In Assosiasie met / In Association with S J Botha S.J. BOTHA (B. PROC) CHARL BOTHA (B PROC. / CONVEYANCER) PAULINA HENDRINA TERBLANCHE (Algemene Bestuurder/ General Manager) Old Mutual Gebou / Building Grondvloer / Ground Floor 98 President St. 98 Germiston 1401 Gauteng Ons Verw / Our Ref: Mrs Terblanche/daleen U verw / Your ref : Coen van Wyk Posbus / P Ger Telefoon (011) Docex 1 Fax No. (011 INDIENIN LODGEME daleen@cdterb 17 November 2006 Mr Coen van Wyk NEW HANOVER BY Dear Sir

11 re : ASSOCIATION WITH S J BOTHA ATTORNEYS In reply to your letter dated the 16 November 2006 I choose to ignore the contents thereof. With regard to the two questions of your said letter I would like to answer as follows: I am not aware of any monkey business of the Bothas. I do not associate myself and I certainly do distance myself from the deplorable conduct of the Bothas as suggested by yourself. Yours faithfully C D TERBLANCHE per: