The strange case of a father, his son and a forged deal
The Appeal Court has ruled, but nothing can save the shattered relationships and careers the dispute leaves in its wake
A contentious situation of a father suing his son, further complicated by a candidate attorney who forged a settlement deal, was finally resolved in court last month.
The Supreme Court of Appeal in Bloemfontein ruled a forged settlement agreement by a lawyer for one of the parties cannot be accepted as a binding document.
The court case centred around money. Daryl Bannister, owner of D & A Calendars in Johannesburg, owed his father Sonny Bannister for repayments of a loan and work done.
The business has since closed down and Daryl has moved to England.
“The whole case was that my son owed us R2.5-million for work I had done for him and then he [had] taken over a loan for about R1-million with Rand Merchant Bank,” Sonny Bannister claimed in an interview.
“We agreed on a settlement – we would write off the R2.5-million and he would pick up the Rand Merchant Bank loan.” This offer was made in the documents later found to be forged.Daryl initially told his dad he wanted to take over the loan because he wanted to buy another company with the surplus money available.
“He asked should I sign (for the loan) and his mother said: ‘No, you're our son we trust you’,” Sonny said.
It was only when RMB later approached Sonny and his wife for the money that he realised no payments had been made, Sonny said. That is when he went to court.
This is where the story took an unexpected turn.
Marc Lieberthal was a promising candidate attorney at Ian Levitt Attorneys in 2011 when he was handed the job of representing Daryl Bannister.
According to the court papers, Lieberthal sent the settlement to Daryl to review. According to the judgment, when Lieberthal told Daryl his father was willing to withdraw the claim for the money owed, he was astonished.
Daryl said in his court submission that Lieberthal sounded frantic and requested the signed settlement be sent back immediately.
Daryl deleted sections that said he owed Sonny R846,626 plus interest and, should he fail to pay that within 30 days of the date of the agreement, the full total of R2,390,707 claimed by Sonny would be due. He sent this revised version back to Lieberthal.
A month later Daryl was confused when he received a court order that he must pay the full outstanding amount. After some investigating he found that Lieberthal had copied his initials on each page of the settlement document still containing the deleted section. Only the first and last page of the revised agreement – with Daryl’s own signature – was used.
The revised settlement papers that Daryl had signed was eventually found hidden behind a cupboard in the office, after Lieberthal had been dismissed.Daryl applied for an order declaring the agreement to have been fraudulently created and therefore null and void. Sonny opposed the application and said while it may have been obtained fraudulently, Lieberthal had the authority to conclude the agreement and is authorised to act on Daryl’s behalf.
The Supreme Court of Appeal eventually ruled in Daryl’s favour.
Sonny has now been left with the cost of the case and will appear in court later this year for the unpaid loan to RMB.
“My printing business is rocky now,” he said.
He’s unsure what the cost from the judgment will be, but “lawyers and advocate fees have already amounted to R1-million”.
He no longer speaks to Daryl, who sold everything and moved to England.
“Life teaches you some harsh lessons,” Sonny said.
Lieberthal sent Ian Levitt, owner of the firm, an apology via e-mail shortly after he was dismissed. He blamed his behaviour on a psychiatric disorder, for which he had since sought treatment.
Lieberthal is the son of the infamous late orthopaedic surgeon Wynne Lieberthal, also known as “The Rosebank Butcher”, who was found guilty by the Health Practitioners Council of South Africa for unprofessional conduct, including performing unnecessary surgeries, in 2004.
Levitt said: “When he applied for the position he mentioned he would have no chance in normal society to get a job being Wynne Leiberthal’s son. He believed he was unemployable.
“Out of this sense I employed him because I didn’t believe the sins of the father should fall upon him. He gave me his law board exam results which were brilliant.”
He was aware that, although Lieberthal had completed his articles, he had not been admitted as an attorney because his previous employer refused to sign a certificate of good conduct.
“He had told me that he had a fight with his previous attorney because he had made him work nonstop for a couple of weeks, 20 hours a day. He become so exhausted and asked if he could take a break and the attorney refused. He ended up having a physical altercation. I didn’t consider that an ethical problem.”
But before the incident Levitt said he was a brilliant employee who came in early and would work 15 hours a day.
Austin Mabunda, filing clerk at the Law Society of the Northern Provinces, confirmed Lieberthal was registered only as a candidate attorney. He also said Lieberthal was no longer practising.
Repeated attempts to get comment from Lieberthal were unsuccessful.