Cape Law Society v Gihwala (14154/17) [2019] ZAWCHC 1; [2019] 2 All SA 84 (WCC) (29 January 2019)

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[2019] ZAWCHC 1
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Cape Law Society v Gihwala (14154/17) [2019] ZAWCHC 1; [2019] 2 All SA 84 (WCC) (29 January 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
Case
no. 14154/17
In
the matter between:
THE
CAPE LAW
SOCIETY
Applicant
(formerly
the
LAW SOCIETY OF
THE CAPE OF GOOD HOPE
)
and
DINES
CHANDRA MANILALA
GIHWALA
Respondent
JUDGMENT DELIVERED ON
29 JANUARY 2019
SHER,
J (BOQWANA J concurring):
Introduction
1.
We have the unenviable task of sitting in judgment of the respondent,
a senior practitioner who was admitted as an attorney in
1978, some
40 years ago, and who retired from active practice in 2011 due to
ill-health, after a long and distinguished career.
His
curriculum
vitae
makes for impressive reading and it is worth quoting from
it, as it will illustrate the startling disparity between the heights

to which he soared in his professional life and the depths to which
he has fallen.  Unfortunately, as in the case of many
before him
he seems to have been lured from the path of righteousness by the
attraction of big and easy money, and the Cape Law
Society has
brought an application that he be struck from the roll on the grounds
that he has made himself guilty of unprofessional
and dishonourable
conduct.
2. The respondent
attained a B.Proc degree in 1977, after studying part-time while
completing his articles, and following upon his
admission became
managing partner of Wilkinson, Van Der Ross & Joshua, a law firm
well-known at the time for its selfless service
to local communities
at the height of the
apartheid
struggle. In this regard the
respondent made his own valuable contribution as a founder member of
the National Association of Democratic
Lawyers (NADEL).  In 1986
he became an executive member of the organization and later also
served as its treasurer.
3.
In 1988 he obtained a post-graduate diploma in company law from the
University of Cape Town and in 1997 he was awarded a higher
diploma
in tax practice by the (then) Rand Afrikaans University.
4.
Over the course of time the respondent rendered many hours of service
to the profession. He regularly served as an examiner for
the
attorneys’ admission examinations and was a member of the
Taxing Committee of the Law Society and the Association of
Law
Societies’ Committee in Continuing Legal Education. In 1996 he
was appointed to the Standing Advisory Committee on Company
Law. In
1997 he served as an acting judge of the Free State and Western Cape
divisions.
5.
His service to the public was not confined to the legal profession.
In 1998 he was appointed to represent the Minister of Agriculture
and
Land Affairs on the Perishable Products Export Control Board. In 2001
he was appointed as Vice-Chair of the Council of the
University of
the Free State, and co-curator of the Medicover medical aid scheme.
In 2003 he served as the Chair of the disciplinary
committee of the
Public Accountants’ and Auditors Board, and he subsequently
also served as Chair of its successor Board,
the Independent
Regulatory Board for Auditors. In 2007 he was appointed as one of the
curators of the Fidentia group of companies,
after their
well-publicised multi-million rand collapse at the hands of their
flamboyant founder, one Arthur J Brown, who was convicted
of the
wholesale criminal plundering of pension funds monies belonging to
beneficiaries, including widows and orphans, which he
used to finance
his enterprise.
6. Between 1978 and 2011
the respondent served as managing partner or chairman of many
prominent legal firms: from Wilkinson, Van
Der Ross & Joshua,
which later became Wilkinson, Joshua & Gihwala and then Gihwala
Abercrombie (after it merged with Abercrombie
& Sonn), to
Hofmeyr, Herbstein and Gihwala which for the sake of convenience will
be referred to as ‘HHG’ (after
the merger between Hofmeyr
Van Der Merwe in Johannesburg, Hersteins in Cape Town and Gihwala
Abercrombie in Cape Town), and then
finally Cliffe Dekker Hofmeyr
(after the merger of DLA Cliffe Dekker and HHG), currently one of the
largest and most well-known
and respected law firms in South Africa.
The
factual background
7.
The current application follows a number of complaints of alleged
professional misconduct which were lodged against the respondent
in
2009 and 2011 by one Karim Mawjii, the Chief Executive Officer of
Montague Goldsmith AG
[1]
(hereinafter ‘MG’), a Swiss asset management company
based in Zurich. Mawjii was introduced to the respondent in 2001
by a
long-standing friend of his, one Anil Narotam, who was employed as
MG’s Chief Operating Officer. MG acted as investment
advisor
and agent of Grancy Property Limited (‘Grancy’), an
investment company (incorporated under the laws of the
British Virgin
Islands), which traded principally out of Lichtenstein, and which was
used by Mawjii and Narotam as a vehicle to
take up two investments
which the respondent introduced them to in 2005.
8.
The first of these was known as the ‘Spearhead’
investment. It concerned an offer to subscribe for so-called ‘linked’

units (ie shares linked to debentures) in Spearhead Property Holdings
Ltd a commercial property loan stock company which was listed
on the
Johannesburg Securities Exchanges. The offer was part of a ‘BEE’
(Black Economic Empowerment) opportunity, as
Spearhead was desirous
of attracting black investors and wished to raise additional capital.
In order to take up this opportunity
the respondent proposed making
use of a ‘black empowerment company’ Ngatana Property
Investments (Pty) Ltd, which had
been conceived by a business partner
of his, one Lancelot Manala. Manala and the respondent together held
a 58% shareholding in
Ngatana, and Prescient Real Estate (Pty) Ltd a
real estate and asset management company, held the balance.
9.
The proposal which was put forward by the respondent was that Grancy,
the Dines Gihwala Family Trust (‘DGFT’) and
Manala would
jointly subscribe via Ngatana for 58% of 3.5 mil Spearhead linked
units, which were available at a price of R15.50
per unit, a
significant discount to the prevailing market price at the time which
was in the region of around R20 per unit. As
Standard Bank was
prepared to finance 75% of the price, ie approximately R12.75 per
unit the investors in the scheme needed to
finance the balance of
approximately R2.75 per unit, and the costs of the transaction.
10.
In order to effect the investment it was proposed that use be made of
another entity which had been specially set up for this
purpose,
Seena Mareena Investments (Pty) Ltd (‘SMI’), in which
Manala and the respondent each held a 50% shareholding.
It was
envisaged that Manala and the respondent would forgo a third of each
of their respective shares in SMI, in favour of Grancy,
the idea
being that each of the three participants would then have a third
shareholding in SMI. In return for Grancy’s shareholding
in SMI
Mawjii was to provide loan funding in an estimated amount of R3.5
mil, which would be used by SMI to acquire a 58% stake
in Ngatana. In
addition, as Manala apparently did not have the necessary financial
means to meet the cost of his one-third contribution
to the venture,
it was proposed that Grancy and the respondent would each lend him
half of the cost thereof.
11.
Although one would have expected that as experienced asset managers
Mawjii and Narotam would have ensured that the necessary
written
contracts which would give effect to the parties’ understanding
(including a shareholders agreement) were prepared
beforehand by the
respondent, who had offered to have this done via HHG, the law firm
of which he was Chairman at the time, surprisingly
the deal was done
on the basis of a simple handshake in a hotel room in Johannesburg on
3 February 2005, as Mawjii was led to believe
that time was of the
essence. And as will become apparent, funds were subsequently
transferred by MG/Grancy to HHG in anticipation
of both investments
being realized, without such contracts being in place. Mawjii said
that he went ahead because the respondent
held out that he was a
member of an honourable profession, which subscribed to a code of
ethics which would make it ‘unthinkable’
for him to act
in an unprofessional, let alone a wrongful or fraudulent manner. He
said he derived his assurance of this by virtue
of the fact that at
the time the respondent was Chairman of one of South Africa’s
largest and most well-known law firms,
which had an unblemished
reputation.
12.
The second investment opportunity to which the respondent introduced
Mawjii and Narotam was a BEE investment in Scharrig Mining
Ltd, a
local mining company which was also listed on the JSE. Mawjii and
Narotam had initially been interested in investing in
Scharrig via
Interactive Capital, a company of which the respondent was the
Chairman. It was part of a consortium of investors
which had an
opportunity to acquire 22.2 mil shares at a discounted price of R2.25
per share, for a total consideration of R49.95
mil, with an option to
thereafter acquire a further 34.38 mil shares. Discussions were held
in Zurich on 11 March 2005 between
Narotam and a representative of
Interactive Capital but Mawjii had reservations about certain terms
of the proposed deal, which
would require MG/Grancy to make a
significant capital contribution and would result in it not having
sufficient control over its
share of the investment, so it declined
the offer. However, a month later the respondent approached Narotam
with his own proposal,
which was attractive, as it was simpler in its
structure and required a relatively minor capital investment of only
R1 mil.  The
respondent indicated that there would be a further
option to acquire more shares at the same price in due course. Mawjii
and Narotam
consequently arrived at an agreement with the respondent
in terms of which Grancy and the respondent, via the DGFT, would each
put in R1 mil to acquire a proportionate holding of Scharrig shares.
The reason why the investment was to be facilitated via the
DGFT was
because MG/Grancy’s involvement was not to be disclosed,
presumably because of its earlier failed negotiations via
Interactive
Capital.
13.
Pursuant to the agreements which were arrived at in respect of the
two investment opportunities, MG/Grancy made a number of
payments.
14.
In the first place, in respect of the Spearhead transaction on 9
February 2005 it transferred an amount of R3.5 mil into HHG’s

trust account, based on an estimate which was provided by the
respondent. One would have thought that this amount would have been

credited in HHG’s ledgers to SMI, as it was the entity to whom
MG/Grancy was advancing the funds, in the form of a loan,
for the
purposes of the investment, and it was to be the entity in which it
would have a one-third shareholding. However, instead
of this at the
instance of the respondent the monies were credited to a loan account
of Manala in SMI, which account would otherwise
have been in debit.
This later allowed Manala to draw considerable sums of money out, via
his loan account.
15.
On 21 February 2005 the respondent sent an email to Narotam in which
he acknowledged receipt of the R3.5 mil and confirmed details
of the
proposed transaction including the number of units which were to be
acquired and the price, together with a calculation
of the estimated
cost thereof. Because of the importance of this email it is necessary
to quote briefly from it. For the sake of
later reference I have
highlighted certain passages.
“
We
have acquired 58% of the 3.5 M units. Accordingly a rough financial
assessment is as follows: 58% x 3.5 million x R2 .75 x R
600k = R5
930 500.
Each
of us ie Montgold (MG), Lance (LM) and I (DG) is responsible for R1
976 833.33
. MG and
DG will lend LM his share by contributing R988 416.66 each on the
basis aforesaid.…
I
propose drafting an agreement in due course whereby LM and DG will
acknowledge your one third share in our holding company which
is
Seena Mareena Property investments (Pty) Ltd
(SM). SM has incurred costs of R225k approximately in setting up this
deal. MG is accordingly liable for R75k.
MG’s
financial position is therefore as follows:
Amount
remitted R3.5m
Less-
R1 976833.33 (your share)
-R988416.66
(loan to LM)
-R75,000
(costs).
Balance
R459 750.01.
Please
check these calculations and let me have any comments which may be
relevant. Please also let me know what you require me
to do with the
balance. You may want me to keep this in trust for the next deal
which LM is working on.
Warm
regards
Dines
Gihwala
Chairman
Hofmeyr
Herbstein & Gihwala Inc.
16.
On 14 May 2005 respondent sent Narotam an email in which he confirmed
their discussions as to the R1 mil which MG/Grancy was
to contribute
in respect of the Scharrig investment, and confirmed details of the
Spearhead transaction and that each of the parties
would have a third
share therein. To this end the proposed contribution which was to be
made by each party for the Spearhead deal
was in the order of R3 040
250, being R2 965 250 in respect of the cost of the units and R75 000
in lieu of transaction costs.
The respondent pointed out that as it
had been agreed that he would be utilising R1 mil of the R3.5 mil
which HHG was holding (as
an advance on the Spearhead transaction),
for the Scharrig deal, an amount of R540 250 was required in order
‘to balance
the books’. On 16 May 2005 MG/Grancy duly
paid over this further amount into HHG’s trust account.
17.
As it turned out therefore, of the total of R4 040 250 mil which
MG/Grancy paid over R3 040 250 was utilised in respect of the

Spearhead transaction, and the balance of R1 mil was utilized in the
Scharrig deal. On 14 April HHG drew a cheque for R1 mil in
favour of
the DGFT for the Scharrig investment. This was done pursuant to an
email which Narotam had sent to the respondent, authorising
him to
utilize R1 mil from the available funds which were being held on
MG/Grancy’s behalf.
18.
In the meantime, respondent offered MG/Grancy a further opportunity
to take up more Scharrig shares, and in anticipation of
this on 20
June 2005 an amount of R10 mil was transferred by MG c/o Taurin
Management, Zurich into HHG’s trust account. On
28 June Narotam
similarly confirmed via an email that these funds could be used by
the DGFT for the acquisition of Scharrig shares
at R2.25 per share.
However, he instructed that in the event that the transaction could
not be concluded by 25 July the funds were
to be returned
immediately.
19.
On 22 June 2005 respondent caused the R10 mil to be transferred from
HHG’s trust account to an interest-bearing investment
account
which HHG had opened
[2]
with
People’s Bank. Once again, although one would have expected
that the account would have been opened in the name, and
held for the
credit of MG/Grancy as investor, as the monies were being held on its
behalf (or at the very least in the name of
the DGFT through which
the Scharrig investment was to be placed), it was instead opened in
the name of SMI, the corporate entity
in respect of which the
respondent and Manala were still the only, joint shareholders and in
respect of which they were directors.
As such, the funds resorted
under their immediate control and were theirs to do with as they
pleased.
20.
For reasons which are not pertinent to this judgment the acquisition
of the additional tranche of Scharrig shares did not take
place. It
seems as if the parties were no longer of one mind and cracks had
started to appear in their relationships.
21.
On 3 August 2005 Narotam asked the respondent to provide details of
any borrowings made on the strength of their original acquisition
of
2.263 mil Scharrig shares for R1 mil, and he gave notice that
MG/Grancy wished to exit the Scharrig investment at the earliest

available opportunity. The respondent was therefore requested to
provide an ‘update’ (sic) on the return of the R10
mil,
together with the interest earned thereon. On the same day Narotam
sent an email to the respondent reminding him to arrange
for
registration of ‘ownership of one third’ of SMI in the
name of MG, and reminding him to prepare the necessary loan
agreement
with Manala, in respect of the advancement of his contribution of the
Spearhead investment.
22.
On 8 August the respondent caused the funds which were held with the
People’s Bank to be repatriated to HHG, together
with the
interest which had been earned thereon, which came to R78 256.58. Two
days later he duly arranged for the capital amount
to be refunded to
MG (via Taurin), but despite repeated requests in this regard he did
not refund the interest. Understandably,
as far as MG was concerned
it was entitled to the interest, as it had been earned on monies
which belonged to it and which were
transferred and held on its
behalf in a South African bank, pending a possible investment in the
acquisition of Scharrig shares,
which never materialized.
23.
MG claimed that the interest which had been earned was exempt from
tax in South Africa, as neither it nor Taurin carried out
any
business in the country. The respondent, on the other hand, claimed
that it was subject to tax as it was interest earned on
funds which
were to be used by DGFT to acquire Scharrig shares on a local stock
exchange. But the respondent did not take any steps
to obtain a tax
directive in this regard from SARS or pay over any tax and in fact
immediately when the interest was received by
HHG on 8 June he caused
it to be disbursed, in two payments: R21 073.92 was paid to the
University of Stellenbosch, in settlement
of certain university fees
which were due in respect of his daughter (a beneficiary of the
DGFT), and the balance of R57 182.66
was paid over to the DGFT. In
effect therefore, the respondent appropriated the interest which had
been earned on funds which belonged
to MG, for the DGFT, an entity in
which he and his family had an interest. The propriety of his actions
in this regard is considered
later. In April 2006, almost a year
after MG had paid over the capital sum of R10 mil the DGFT paid R50
000 over to SMI in lieu
of the interest which had been earned, which
in turn paid it over to Grancy.
24.
As far as its return on the capital sum of R1 mil which MG had
invested is concerned, an amount of R2 764 118 was paid over
to it by
SMI on 29 March 2006 (after this amount had in turn been paid to it
by the DGFT).
25.
In the meantime, it appears that MG/Grancy had become dissatisfied
with how certain aspects of the Spearhead transaction had
been
effected via SMI and Ngatana. For the purposes of this matter it is
not necessary to go into any detail in this regard, and
it will
suffice to say that on 27 June 2006 a decision was taken to exit this
investment as well. Narotam consequently informed
the respondent of
this and invited him to make a proposal in regard to the acquisition
of MG’s share of the investment, or
alternatively, to bring in
a third party which would buy it out. From the responses which
followed it is apparent that the respondent
was  annoyed by
this. In his view the investment needed to be held and only realized
at a later stage, as there were further
lucrative investment
opportunities which could be leveraged off it, in due course. In an
angry email which he fired off on 28 June
he pointed out that
MG/Grancy had not initiated the transaction, and had been given an
opportunity to invest in it via Manala.
Consequently, he suggested
that Narotam should let him have MG’s ‘exit proposal’,
which Narotam duly did, but
nothing came of it.
26.
Early in September 2006 Narotam sent the respondent an email in which
he reiterated what the principal terms of the agreement
between the
parties in relation to the Spearhead investment had been and pointed
out that notwithstanding his undertaking to draft
an agreement
acknowledging MG’s one third shareholding in SMI, no such
agreement had yet been concluded or executed. Consequently,
he
requested that the necessary shareholders’ and loan agreements
be prepared as soon as possible. He pointed out that MG’s

investment had been made ‘at very short notice on good faith’
and on the understanding that the requisite formal agreements
(as
promised in the respondent’s email of 21 February of the
previous year), would be prepared shortly thereafter. As this
had not
happened yet he asked that the matter be ‘regularised
immediately’.
27.
Once again, this email resulted in an angry response from the
respondent. On 11 September 2006 he wrote as follows (only the

portions relevant for this judgment have been referred to, and I have
highlighted certain passages which are important for what
follows
later):
“
Dear
Anil
I
refer to our several discussions in the above regard.
You
were never to be a shareholder in our company.
You came in behind us for 630K units. It was always so that you would
be subject to the decisions of SMI. You were certainly not
an
independent party as you now try to suggest. When you make
investments you expect priority interest on your capital. Why should

I bind my credit and take risk for no reward? The position is
unnecessarily complicated by your unilateral decision to realise
this
investment and above all on your terms and conditions. I am afraid it
will not happen in this instance.
I
shall conduct the affairs of SMI as I deem fit. You have no say in
its affairs. You are NOT a shareholder. You were never intended
to be
one. You will never be one
……….
I drafted an agreement some time ago and asked my secretary to
forward it to you. If she has not done
so I can only assume that she
wanted me to check it before dispatching same. I will ask her to send
it off immediately even though
I have not had a chance to check it.
The idea of a
shareholders’ agreement is a little disingenuous and deployed
to obtain a position of advantage you are not
entitled to
.
Do you think I could not have personally funded the amount of money
you put in or raise it from family and friends et cetera?
The
current situation has developed because for reasons you are well
aware of and which require no repetition it was your choice
to want
to realise your investment. I then thought it proper to make an offer
based on current yields rather than the trading price.
That offer is
now hereby formally withdrawn………….
I have
no intention of dealing with your letter under reply in any more
detail. I reserve the right to do so if and when it may
become
necessary. My failure to do so now should therefore not be
interpreted as an acknowledgement of the correctness or otherwise

thereof. You should soon be in possession of the agreement I drafted
some time ago. You are at liberty to sign such agreement or
not. I
shall nevertheless act in accordance with that agreement. I can
assure you that the realisation of the SMI investment in
Ngatana is
not imminent unless something dramatic or spectacular happens.
Rest
assured you will receive a proper accounting
for the 630K units or its equivalent… I reserve the right to
charge a fee for my services I have rendered and continue to
render
for SMI. You are liable for a portion of those and other operating
expenses based on your 630K units. If and when I need
your share I
shall call for it and expect you to make payment promptly. This
matter is now closed as far as I am concerned. “
The
litigation
28.
A mind-boggling plethora of law suits and expansive and costly
litigation ensued between the parties, over many years, following
the
termination of their business relationship. As will be apparent, most
of this was totally unnecessary and could probably have
been avoided
had the respondent been transparent and co-operative at the outset
instead of obdurate and unhelpful in relation to
the record of the
transactions involved in both investments, and had he not played
loose and fast with certain loan repayments
which were made by
Ngatana to SMI as the sizeable return on the Spearhead investment
flowed in, utilising these monies to repay
himself and Manala in
respect of their portion of the investment in Spearhead without doing
the same in respect of MG/Grancy (appropriating
its share for an
unauthorised and speculative investment
[3]
in which the DGFT and his wife had an interest), and paying himself
and Manala unwarranted and extragavant fees and other monies
instead
of using the funds for the payment of dividends to all
‘shareholders’, including MG/Grancy.
29.
For the purposes of this judgment it is not necessary to set out
chapter and verse of each of the various legal proceedings
which took
place, and a brief conspectus of the salient aspects thereof will do.
30.
On 31 January 2007 Webber Wentzel Bowens attorneys addressed a letter
to the respondent on behalf of MG/Grancy in which his
attention was
drawn to the undertaking which he gave in February 2005 to account
fully for the monies which had been deposited
into HHG’s trust
account, in respect of the Spearhead investment. The attorneys
demanded that in accordance with his legal
obligations he should
accordingly furnish full details ‘of the purposes and
endeavours’ (sic) for which MG/Grancy’s
funds had been
utilised. In addition, as Spearhead had been taken over by the
Redefine Property Income Fund, he was asked to provide
full details
of any monetary benefits which might have accrued to Spearhead
unitholders and in particular the number of Redefine
linked units
which were exchanged for Spearhead linked units, as well as the
nature and extent of SMI’s and Ngatana’s
resultant
holdings in Spearhead and Redefine. It should be mentioned that at
the time the respondent was Chairman of the Board
of Redefine.
31.
This letter was followed a few days later by a similar letter of
demand in respect of MG/Grancy’s investment in Scharrig,
in
which a comprehensive accounting was requested, including copies of
all documents pertaining to any transactions or investments
which
were concluded as well as an explanation for why the further Scharrig
share options were not taken up, and details of when
and to whom
portions of any holdings of Scharrig shares were onsold and what
profits were made as a result of such transactions.
32.
One would have expected common sense and reason to have dictated
that, as a co-investor at least, and in the light of the undertakings

he had given in February 2005 and September 2006, the respondent
would accede to the requests for an accounting in respect of the

fairly substantial funds which had been received by HHG, and with
which he had dealt on MG/Grancy’s behalf. But this was
not to
be, and contrary to his later assertions that he always ‘faithfully,
accurately and timeously’
[4]
accounted for all monies which came into his possession the
respondent adopted the stance that MG/Grancy had no right to ask him

to account in any way. Consequently, on 14 February 2007 HHG
responded to the letters of demand on his behalf by stating that it

was ‘not clear’ on what legal basis MG/Grancy demanded
information and records pertaining to the investments and requesting

clarification in this regard, in order that the demand might receive
‘proper consideration’.
33.
In response, on 20 February MG’s attorneys pointed out that
throughout the course of his dealings the respondent had acted
as a
partner of HHG and as an agent of MG/Grancy in relation to the
investment of the funds, and in his own correspondence in February

2005 had confirmed his ‘legal, professional and relational
duties’ (sic) to account. There was no response to this
email,
and a further entreaty was met with a response from HHG on 26 April
2007 to the effect that the respondent had never acted
in his
professional capacity in his dealings with MG/Grancy and had not
rendered any professional services to them, either on his
own or as a
director of the firm. Consequently, the request for information and
an accounting was declined, and the respondent
contended that he had
already accounted to the extent that he was legally obliged to do so.
34. On
11 May 2007 MG and Grancy launched an application out of this
court
[5]
(the ‘Spearhead
application’) in which they sought an order declaring that
Grancy was entitled to a direct equity shareholding
in SMI, as per
their ‘one-third’ share agreed upon in 2005, and
directing the respondent, Manala, HHG and the trustees
of the DGFT to
account to them comprehensively in respect of their investment in the
Spearhead deal, and compelling them to debate
the account after
rendering it. In addition, the applicants sought an order directing
the respondents to make payment to them of
any amount which might be
owing to them, after debatement.
[6]
The respondents opposed the application and resisted the relief which
was sought for almost two years, until 9 March 2009, the
day before
the matter was due to be heard, when they capitulated and agreed to
an Order declaring that Grancy was entitled to a
31% shareholding and
directing them to render a ‘full and proper’ statement of
account to the applicants, together
with supporting documents and
vouchers, which account would thereafter be debated.
[7]
35.
Subsequent to the grant of the Order the respondent rendered a
perfunctory one-page so-called statement of account, which contained

a four-line calculation, together with some brief notes in respect
thereof. To say that it added nothing to the information which
was
already common knowledge, would be charitable. Predictably, this
resulted in a further application being made in June 2009
to compel
the respondents to render a proper account, which was similarly
opposed.
36.
In the meantime, in July 2008 MG and Grancy lodged a similar
application
[8]
(the ‘Scharrig
application’) for an accounting in regard to the Scharrig
investment, which was also opposed.
37.
On 15 April 2010 Binns-Ward J found that there was merit in the
complaint that the  accounting which had been rendered
in
relation to Spearhead was little more than ‘a bald and
insufficiently narrated recital’ of payments made by the

applicants and little effort had been made to set out how these
payments were allocated and appropriated between SMI, Ngatana and

Spearhead, nor had a proper breakdown been given of how the
transaction costs had been computed. As a result, he ordered the
respondents
to render an improved account.
38.
A few months later Dlodlo J came to a similar conclusion in regard to
the Scharrig application. He too found that the 2 page
account which
had been rendered was inadequate and ordered the respondents to
provide a revised account.
39.
In response to the Orders made in the two applications the
respondents rendered further accounts in respect of the Spearhead
and
Scharrig investments, in May and July 2010 respectively, which they
insisted should then be debated. As far as MG and Grancy
were
concerned these accounts were still deficient and inadequate in
numerous respects. They were of the view that only once an
adequate
account had been rendered could the parties proceed to debate the
accuracy thereof. In their view the debatement process
had to take
place in two stages: first a debatement had to occur in relation to
the sufficiency of the account which had been supplied,
and only once
this process had been satisfactorily completed could the parties then
proceed to debate the accuracy thereof. In
the absence of any
concession to what was clearly a sensible way of dealing with the
matter a further application for a declarator
had to be brought,
which went against MG and Grancy a
quo,
but which succeeded on appeal to the SCA
[9]
which ordered that the debatement should take place in two stages,
and after making certain directions as to how this was to be
done by
way of evidentiary examination, referred the matter back for
rehearing as to the adequacy of the accounts which had been
rendered.
40.
This resulted in a hearing before Traverso DJP at which the
respondent and other witnesses were examined at some length in regard

to the accounts that had been furnished. In her judgment which was
handed down on 29 February 2016 she was critical of the evidence

given by the respondent and held that the explanations he had given
were unsatisfactory, and the accounts which he had rendered
were
still deficient in a number of material respects. She found that his
assertions of ‘helplessness and inability to account’
did
not accord with the facts. She accordingly granted an Order directing
the respondent to render a further detailed accounting
in respect of
both investments, which included a full reconciliation and breakdown
of, as well as an explanation for, a number
of transfers and
transactions and particulars as to costs allegedly incurred, and
ordered the respondent to provide a range of
supporting
documentation. We were informed from the bar that the respondent has
complied with this Order and the further Order
for disclosure of
certain financial records which was made by the SCA on 24 March
2016
[10]
and consequently the
second stage of the debatement process is due to take place sometime
this year.
41.
In January 2010 and June 2011 MG and Grancy launched two separate
actions in this Court which were subsequently consolidated
[11]
and in which they claimed repayment of 31% of various amounts which
allegedly comprised unauthorised and wrongful payments which
were
made by the respondent via SMI between 2005 and 2009, including
amounts paid as ‘promotional’ fees (R225 000),
directors
and ‘suretyship’ fees (of approximately R4.64 mil), and
monies paid as ‘loans’ (R1 976 533) to
Manala. They also
claimed payment of an amount of R2 051 833 which constituted Grancy’s
31% share of an amount of R6 637
673 which had been repaid by Ngatana
to SMI in March 2007, as a return on its Spearhead investment, and
which had allegedly been
appropriated by the respondent for a
speculative investment in an entity known as Scarlet Ibis Investments
(Pty) Ltd in which his
wife and the DGFT had an interest, and which
investment had subsequently failed. In addition, they sought an Order
directing that
a further and better account be rendered as well as an
Order
[12]
declaring both the
respondent and Manala to be delinquent directors.
42.
The applicants were substantially successful in their claims. After a
lengthy trial in which only Mawjii and an accounting expert
testified
and the respondent elected not to give evidence Fourie J (as he then
was) held
[13]
that the
respondent and Manala had breached the agreements which they had
entered into with MG and Grancy, in numerous respects,
and had
grossly abused their position as directors and he consequently made
an Order awarding the applicants almost all the relief
sought,
including their principal monetary claims and the declaration of
delinquency, together with costs on a punitive attorney-client
scale.
43. He
found that the respondent had made unfair use of information and
opportunities which became available to him in his position
as
director, in order to gain personal advantage at the expense of
Grancy, to whom he owed a fiduciary duty, and his conduct constituted

the repeated, wrongful misappropriation of substantial sums of
money.
[14]
What aggravated
matters, in his view, was that the respondent had steadfastly refused
to allow access to financial records and
documentation pertaining to
his management and control of the Spearhead investment and the
affairs of SMI.
[15]
44.
Save in certain minor respects, the SCA
[16]
confirmed the findings and judgment of Fourie J and upheld both the
declaration of delinquency as well as most of the monetary
claims
which he awarded. In doing so it confirmed that the respondent had
not only breached the agreement he had with MG and Grancy
but also
the fiduciary duty he owed them, and had acted improperly, in
numerous respects. In total, the aggregate capital value
of the
amounts which the SCA confirmed the respondent was obligated to pay
came to approximately R5.7 mil, together with interest
thereon.
45.
In his answering affidavit the respondent states that he
unequivocally accepts the findings of the SCA and of the various High

Courts, in the decisions I have referred to. Given this admission, it
is necessary to refer to some of the findings of the SCA
in
particular, inasmuch as they impact materially on our assessment of
the respondent’s misconduct and character, and his
fitness to
continue to serve as an officer of this Court.
46.
The SCA found
[17]
that from
the ‘very start’ there were ‘wholesale’
breaches of the agreement the respondent had concluded
with Mawjii
and Narotam. Foremost of these was a (dogged and deliberately)
persistent refusal by him to acknowledge that Grancy
had a right to a
one third shareholding in SMI, despite his clear acceptance and
understanding thereof at the time when the agreement
was concluded,
as is evidenced by the emails he sent Narotam on 21 February and 14
May 2005. He adopted this attitude belligerently,
well-knowing that
it was not justified, for a period of about 4 years, until he was
forced to capitulate on the doors of the Court
in March 2009.
47.
The respondent’s obdurate refusal to recognise and implement
the terms of the agreement was accompanied by an ‘equally

obdurate’ refusal to allow Grancy and MG access to the books
and records of SMI. In my view the obvious reason for this was
that
if he did so it would have allowed them to ascertain what the inner
transactional workings of the deals were, and how the
monies which
they had invested had been used by him, to profiteer at their
expense. In the case of this breach too, the respondent
fought tooth
and nail against any disclosure or accounting, dragging the
applicants through the Courts time and again. It is no
surprise that
the SCA was of the view that the respondent adopted every possible
stratagem to avoid discharging his fiduciary obligation
to account
properly to Grancy for its investment in SMI.
[18]
48.
The SCA found that there were significant breaches of the agreement
in relation to the investments and payments which were made
by
Ngatana. In October 2005 the respondent caused it to acquire an
additional 2 mil Spearhead units, without the knowledge or consent
of
Grancy or MG, thereby significantly increasing Ngatana’s
indebtedness from an original amount of R38.5 mil to R93.6 mil.
This
exposed Grancy to a significantly greater risk, but it was never
consulted about this beforehand, as a co-investor. It was
also never
consulted in relation to the decision which was taken that Ngatana
should accede to the offer by Redefine to acquire
linked units in
Spearhead, nor was it consulted over the subsequent decisions to
acquire another 20 million Redefine units and
thereafter to dispose
of them. As co-investors Grancy and MG were thereby excluded from the
significant profits which were made
from these transactions, which
they should ordinarily have shared in. The SCA described the failure
to consult them in relation
to these transactions as an egregious
breach of the investment agreement which resulted in Grancy being
engaged in an entirely
different investment to the one which it had
initially agreed to, without its knowledge. This constituted a
‘fundamental
breach of the principles of trust and good faith’
on which the agreement rested.
[19]
In October 2008 Ngatana paid a dividend of R5 272 727 to SMI which
respondent caused to be immediately paid out as a dividend in
equal
shares to Manala and the DGFT. Once again, Grancy did not share in
the bounty. The SCA was of the view that the respondent’s

attitude in this regard was clearly that Grancy only had an indirect
interest in the dealings of SMI and Ngatana and the Spearhead
units
it had acquired and until the overall investment had been realized
only the DGFT and Manala were to benefit and Grancy was
‘not
entitled to anything at all’.
[20]
The SCA concluded that the respondent had exploited his position as
the person in control of the affairs of SMI in order
to prefer
himself and Manala over Grancy.
[21]
49.
From the outset, the respondent used SMI to advantage and enrich
himself and Manala at the expense of Grancy. This commenced
already
in 2005 when Grancy made its first payment of R3 .5 million to HHG.
These monies were lent to SMI for the purposes of the
Spearhead
investment and should have been reflected as such in HHG’s
ledgers. But instead, the monies were credited to a
loan account for
Manala. This loan account was also credited at various stages with
director’s fees in an amount of R2.75
mil and R750 000 and
‘promotion’ and so-called ‘surety’ fees in an
amount of R225 000 and R1 114 539 respectively.
Of course, the
respondent also credited himself with the selfsame fees. The ‘surety’
fees were contrived fees raised
as ‘compensation’ for the
suretyships which Manala and the respondent had been required to
provide to Standard Bank.
As the SCA pointed out
[22]
these fees were ‘utterly unjustifiable’. During argument
counsel for the applicant drew our attention to the contents
of an
email which the respondent sent to Manala on 13 March 2009, at the
time when he raised the directors ‘fees’ of
R2.75 mil, in
which he said he thought he had found a solution which ‘claws
back our loss’ (sic). At about the same
time a decision was
also taken by Ngatana to pay a ‘management’ fee of R1.5
mil to Prescient as a ‘reward’
for their efforts in
setting up the Spearhead transaction, without including Grancy,
thereby also prejudicing it financially. On
the face of it, the
raising of directors’ fees in March 2009 was nothing more than
a cynical attempt to recover the financial
loss the respondent and
Manala were to incur, as a result of the Order which was made on 9
March 2009, which included an Order
that they were to pay over R3 mil
to the applicants.  On 24 June 2009, a few months after the
Order had been granted, the
respondent caused a further amount of R2
mil to be credited to Manala’s loan account in SMI. It was said
that this amount
was a ‘loan’ which was made by SMI to
Manala, although the resolution which was passed in this regard by
the respondent
and Manala as directors stated that it was a payment
to be made in reduction of Manala’s loan account. As the SCA
pointed
out, by crediting Manala’s loan account (which would
otherwise have been in debit) with these considerable amounts, Manala

was able to withdraw some R9 million from SMI between 2007 and 2009,
to which he was not entitled. The award of this ‘loan’

also depleted the reserves which would have been available in SMI,
for the payment of dividends to shareholders. The SCA came to
the
‘inescapable’ conclusion that in the light of these
payments and credits, as a result of the respondent’s

connivance Manala was permitted to treat SMI as a ‘personal
piggybank’.
[23]
50.
A further, gross breach of the investment agreement occurred when
Ngatana repaid the original loan it had received from SMI
in March
2007, which together with the profit which was made came to a
sizeable return of R6 637 673. The respondent then appropriated
this
money by utilising it to repay the loan portion of his and Manala’s
contribution towards the investment, without doing
the same in
respect of Grancy, to whom an amount of R2 057 678 should similarly
have been refunded in respect of its portion of
the investment.
Instead the respondent took R2 million of the money which was due to
it and, without its knowledge or consent,
invested it in a
speculative property investment in Scarlet Ibis Investments (Pty) Ltd
in which his wife and the DGFT had an interest.
This investment
failed and the money was lost. The SCA was of the view that the
respondent’s actions similarly constituted
a flagrant breach of
the agreement, which had correctly been described by Fourie J as a
misappropriation.
[24]
51.
Finally, to add insult to injury, it appears from the judgment of the
SCA
[25]
that the respondent
caused certain bills for personal legal services which had been
rendered to him and the DGFT in 2009 and 2010
(in relation to the
ongoing legal proceedings between the parties), to be paid by SMI.
This too was improper and prejudiced Grancy,
which succeeded in
reclaiming 31% of the sum which was paid.
52.
Aside from its damning findings in relation to the respondent’s
gross violation of the investment agreement, the SCA also
made a
number of other equally serious findings of misconduct in relation to
the respondent’s delinquency as a director.
53. It
pointed out that not only had the respondent refused to register
Grancy as a shareholder for 4 years but had also failed
to ensure
that SMI kept proper accounting records as required by law, and even
after Grancy was duly registered the respondent
produced ‘hopelessly
inaccurate and incomplete’ annual financial statements which he
represented as fairly reflecting
the company’s financial
position.
[26]
54.
The SCA held that the failure to properly reflect Grancy’s loan
in the company’s ledgers and instead to credit the
R3.5 million
which was received, to Manala’s loan account, could only have
occurred as a result of false information which
the respondent
deliberately and knowingly gave.
[27]
Furthermore, the two additional ‘loans’ which were
granted to Manala were not only unlawful but resulted in a loss
to
SMI because it was not able subsequently to recover these amounts
from Manala. The SCA was of the view that the loss which had
occurred
in this regard was undoubtedly due to gross negligence on the part of
both the respondent and Manala. As a businessman
and attorney who was
chairman of one of South Africa’s largest legal firms as well
as chairman of one of the largest property
loan stock companies
(Redefine) listed on the JSE, the respondent’s failure to
comply with the provisions of the Companies
Act
[28]
was also considered to be ‘inexcusable’.
[29]
55.
Lastly, the SCA was of the view that in enriching themselves the
behaviour of the respondent and Manala constituted wilful misconduct,

as it was ‘entirely intentional’ and committed with clear
knowledge of the obligations they owed Grancy, and in relation
to the
performance of their duties as directors at the very least it
constituted gross negligence akin to recklessness, and a breach
of
trust which was ‘entirely inexcusable and ongoing’.
[30]
Consequently, in the SCA’s view the declaration of delinquency
had been entirely justified.
[31]
56.
As will be apparent from what is set out below, the respondent’s
corporate shenanigans extended far beyond what is set
out in the
judgment of the SCA. Amongst other things, during 2010 and 2011 he
made various attempts to have the wrongful and irregular
payments of
the directors’, promotional and ‘surety’ fees
condoned and ratified at various general meetings of
the company.
57.
Before turning to discuss the complaints that ultimately led to this
application being brought it may be mentioned that although
Manala
and the respondent resigned as directors of SMI in February and
September 2011 respectively, from which time SMI was left
rudderless,
they refused to agree to an eminently sensible request by Grancy for
the appointment of 2 independent directors in
their place. This
necessitated a further application having to be brought by Grancy,
which predictably was opposed. Although it
lost the application a
quo,
on appeal the SCA
[32]
granted
the Order sought in May 2013.
The
complaints and the disciplinary enquiry: a long and winding road
58.
As previously pointed out in the introductory paragraphs above,
Mawjii first lodged a complaint against the respondent with
the
applicant in September 2009. It was in the form of an unattested
affidavit. The respondent provided a response thereto in November

2009, and Mawjii provided an amplified and properly attested
affidavit in February 2010 to which the respondent provided a formal

response on 31 March 2010, which was followed up by further
submissions on 12 April 2010, in which he contended
inter
alia
that he had rendered a proper accounting in respect of the Spearhead
investment.
59.
On 19 April 2010 Mawjii’s attorneys forwarded the applicant a
copy of the judgment of Binns-Ward J which had been handed
down a few
days earlier, in which he found that the Spearhead accounting had
been inadequate. They followed this up on 22 June
2010 with a copy of
the judgment which had been handed down by Dlodlo J, in which he had
come to a similar conclusion in regard
to the Scharrig investment.
60.
On 28 June 2010 the applicant’s council resolved that the
complaints should be referred to a disciplinary enquiry committee

(‘DEC’) for a formal enquiry to be held. However, on 22
November 2010 it resolved to postpone the enquiry pending the
outcome
of the civil action which had been launched in January 2010.
61.
Mawjii was dissatisfied with this decision and took it on review. On
21 September 2012 this Court
[33]
set aside the postponement and directed the applicant to proceed with
the disciplinary enquiry without delay. Pursuant to this
a summons
and charge-sheet were prepared and served upon the respondent and the
enquiry was set down for hearing on 19 August 2013.
However, it could
not proceed on that date as Mawjii had in the meantime brought a
further review of certain interlocutory decisions
which had been
taken by the DEC. These were to not allow legal representation for
the complainants and to direct that Mawjii would
not be permitted to
testify from London by way of video link instead of
vivo
voce,
and that a transcript of the proceedings of the enquiry would not be
furnished to the complainants.
62.
In the meantime, in March 2011 Mawjii supplemented his original
complaint by way of a further affidavit. For reasons which are
not
apparent from the papers it appears that the applicant only called
upon the respondent to respond thereto two years later,
in March
2013. The respondent duly furnished his response some two months
after this. After a further exchange of correspondence
between the
parties, on 14 April 2014 the applicant’s council resolved that
the supplementary complaints should also go to
a formal enquiry.
63.
On 5 November 2014 the complainants succeeded in having all of the
interlocutory decisions made against them by the DEC, set
aside. A
fresh summons which incorporated a supplementary charge-sheet was
served upon the respondent and the enquiry was rescheduled
for
hearing between 15 and 25 September 2015.
64.
After Mawjii had given evidence for 3 days (from 15 to 17 September
2015) the video link malfunctioned and the matter was accordingly

postponed for further evidence to be given
vivo voce
in Cape
Town on 26 July 2016. However, in the light of the findings and
judgments of Traverso DJP in February 2016 and of the SCA
on 24 March
2016, in May 2016 applicant’s council resolved to abandon the
disciplinary proceedings and accordingly postponed
them
sine die
pending the outcome of an application to strike the respondent from
the roll. For reasons which are not apparent from the papers
the
instant application was only launched more than a year later, on 10
August 2017.
65.
In his original complaint in 2009 Mawjii alleged that the respondent
had, in breach of his fiduciary duties and the Rules of
the Law
Society of the Cape of Good Hope and the relevant provisions of the
Attorneys Act, failed:
65.1
To properly account to his co-investors, Grancy and MG, in respect of
the Spearhead and Scharrig investments;
[34]
65.2
To keep the co-investors’ monies which had been entrusted to
him, in a trust account in their name and for their benefit;
[35]
65.3
To account for the interest which was earned on co-investors’
monies which had been entrusted to him;
[36]
65.5
To use co-investors’ monies which had been entrusted to him,
only in furtherance of the investment agreements which had
been
entered into and solely for the business and purposes of such
investments;
[37]
65.6
To ensure that the balance of the monies held at any one time in the
HHG trust account did not go into debit ie was not less
than the
total amount    which stood to the credit of the
co-investors;
[38]
and finally
65.7
To ensure that the trust bank account was used only for the
investment purposes of the co-investors and not as a personal bank

account.
[39]
66.
Mawjii supplemented his complaint in March 2011, as a result of
developments in 2010. He pointed out that on 25 October 2010

respondent had given notice to the shareholders that the annual
general meeting of SMI would be held on 29 November 2010 and had

forwarded a copy of the draft annual financial statements (‘AFS’)
for February 2010 which it was proposed were to be
adopted at the
meeting. On considering these statements it became apparent that the
respondent and Manala had received payment
of various irregular loans
and directors, ‘promotion’ and ‘surety’ fees
which were referred to earlier
in this judgment, which had come to
light as a result of the further accounting which they had been
forced to make, pursuant to
the judgments of Binns-Ward and Dlodlo
JJ. Mawjii pointed out that between 2006 and 2009 neither the
respondent nor Manala had
drawn any remuneration in respect of their
directorships of SMI, because it was a special purpose vehicle whose
sole purpose and
business was to passively hold a shareholding in
Ngatana, for the Spearhead investment. Consequently, the award in
2010 of some
R5.5 mil in total to the respondent and Manala by way of
these extraordinary ‘fees’ was seen as nothing more than
a
deliberate attempt on their part to misappropriate funds which
would otherwise have been distributed to the shareholders by way
of
dividends.
67.
When Mawjii’s attorneys queried these payments and challenged
the contents of the draft AFS in regard to these perceived

irregularities, on the basis
inter
alia
that a number of these payments were excessive and had been made
unlawfully (in breach of the company’s articles of
association
[40]
which provided
that directors fees and extraordinary remuneration could only be paid
subsequent to approval thereof by the company
in meeting), HHG
notified him that the AGM was to be postponed as there were ‘certain
errors’ in the draft AFS which
might need to be ‘revised’.
When Grancy then formally called for an extraordinary general meeting
to be held on 22
December 2010
[41]
it received no response. Instead on 20 November 2010 the respondent
repaid the ‘surety’ and directors’ fees which
he
had taken.
[42]
68.
On 20 January 2011 the directors of SMI gave notice afresh that the
AGM would be held on 14 February and submitted a set of
amended
financial statements from which it was apparent that they still
intended obtaining approval at the AGM, by way of
ex post facto
ratification, for the irregular payments which had been made to them.
Mawjii’s attorneys objected once again to the proposed
meeting
and pointed to the unlawfulness of seeking to adopt, ratify and
approve various items listed in the amended AFS. The directors
of SMI
were not dissuaded by the objection and indicated that the meeting
would go ahead regardless. At the commencement thereof
on 14 February
2011 the respondent sought to introduce a further amended set of
financials, which save for certain minor changes
nonetheless sought
to obtain approval for the various payments and ‘loans’
which had been made irregularly to him and
Manala. The meeting was
then adjourned. It appears that some two years later, on 8 April 2013
Grancy was given notice that Manala
had called for a general meeting
to be held in order to pass a resolution approving and ratifying the
directors and ‘surety’
fees which had been paid. Despite
a further complaint that the meeting was out of order it went ahead
on 30 April 2013, at which
time the necessary approval and
ratification of the irregular directors and ‘surety’ fees
was rammed through by simple
majority, notwithstanding Grancy’s
objections. Grancy alleged that although the meeting had been called
by Manala it was
effectively set up with the ‘connivance’
of the respondent, who had deliberately abstained from exercising a
vote on
behalf of the DGFT in order that the resolution could be
passed, as Grancy was a minority shareholder.
69.
Aside from its additional objections in relation to the irregular
‘loans’ and payment of directors and surety fees,
in its
supplementary complaint Grancy also raised a number of alleged
irregularities which had taken place in relation to respondent’s

failure as a director to properly discharge certain statutory duties.
In this regard it alleged, amongst other things, that the
respondent
and Manala had failed to appoint an audit committee for each
financial year, as required
[43]
and had improperly appointed Bruk Munkes as the company’s
auditors, when they were legally disqualified
[44]
from serving as such, as they had performed secretarial work for the
company.
The
charges before the disciplinary enquiry
70.
In its initial charge-sheet dated 8 March 2013 the applicant charged
the respondent with 10 counts of alleged unprofessional
and
dishonourable or unworthy conduct. By way of summary, the gist of
these charges was that the respondent had a) caused or permitted:
70.1
The amounts of R3.5 mil, R540 250 and R10 mil which had been paid
over to HHG by MG/Grancy, and which should
have been
credited to a trust account in the name of MG/Grancy, to be
wrongfully credited to and held in a trust account in the
name of SMI
instead;
[45]
70.2
The aforesaid amount of R10 mil to be wrongfully invested in an
account in the People’s Bank
[46]
(and to be credited to a trust investment account in HHG’s
books), in the name and for the benefit of SMI, without the consent

of MG/Grancy, instead of in the name of MG/Grancy;
[47]
70.3
The proceeds of redemption of the monies so held in the aforesaid
account at People’s Bank, including the interest thereon,
to be
credited to a trust account in HHG which was in the name of SMI,
without the consent of MG/Grancy, instead of in the name
of
MG/Grancy;
[48]
70.4
The amounts of R2 764 118 and R50 000, which had been paid into HHG’s
trust account by DGFT (to cover equivalent transfers
to Taurin for
the credit of MG/Grancy), and which represented the return, with
profit, of a R1 mil investment by MG/Grancy and
interest which
accrued on the further amount of R10 mil (in respect of the Scharrig
investment), to be wrongfully credited to and
held in a trust account
in HHG in the name of SMI, instead of in the name of MG/Grancy;
[49]
70.5
An amount of R1.8 mil of the aforesaid amount of R3.5 mill earmarked
for the Spearhead investment, to be paid to Ngatana, without

authority from MG/Grancy (at a time when MG/Grancy had no actual or
prospective liability to Ngatana and such amount was also not
owing
to Ngatana by SMI and was substantially in excess of MG/Grancy’s
proportionate share of the contemplated first
tranche of
funding of Ngatana by SMI), thereby wrongfully misappropriating funds
of MG/Grancy;
[50]
70.6
Interest of R 78,256.58 which had accrued on investment of the
aforesaid amount of R10 mil to be utilised for payments of R21,073

and R57 182 to the Stellenbosch University and the DGFT respectively,
without authority from MG/Grancy, thereby misappropriating
its
funds;
[51]
70.7
The HHG trust account held in the name of SMI, to be used for
‘private purposes’;
[52]
and in addition, it was alleged that the respondent had b) failed:
70.8
To cause payment to be made to MG/Grancy in full of the interest
which had accrued on investment of the aforesaid amount of
R10 mil
and only   caused R 50,000 of such interest to be paid over,
leaving the balance of R28 256.58 thereof unpaid:
[53]
70.9
To furnish MG/Grancy with a proper accounting in respect of the
investment by MG/Grancy in Spearhead, as demanded, and as directed
by
Binns-Ward J and Traverso DJP in case no.   15757/07, in breach
of his common-law fiduciary duties to MG/Grancy, and contrary
to the
Rules;
[54]
70.10
To furnish MG/Grancy with a proper accounting in respect of the
investment by MG/Grancy in Scharrig, as demanded, and
as directed by
Dlodlo J, in breach of his common-law fiduciary duties to MG/Grancy,
and contrary to the Rules.
[55]
71.
In its final supplementary charge-sheet dated 9 June 2015
[56]
the applicant added an additional 15 charges. These were aimed at
covering the further complaints which Mawjii had raised subsequent
to
developments in 2010.
72. It
was averred in the supplementary charges that the respondent had made
himself guilty of further unprofessional and dishonourable
or
unworthy conduct, in that he had a) unlawfully misappropriated the
amounts of R750 000, R2.5 mil and R1 114 539 ostensibly as
directors
or ‘administrative/surety’ fees, and the further amount
of R2 mil as a ‘loan’ for Manala, which
amounts would
otherwise have been available for distribution as a dividend for
shareholders, and b) had wrongfully failed to appoint
an audit
committee for SMI for each financial year from Feb 2008 to date, had
permitted Bruk Munkes to act as auditor when it was
disqualified from
doing so, and had allegedly caused SMI to make payment of ‘excessive’
remuneration to Bruk Munkes.
In addition, it was further averred that
c) the respondent had wrongfully
[57]
failed to call a general meeting of SMI subsequent to a formal
request from Grancy as a shareholder and d) had failed to provide
or
furnish documentation or accounts contrary to his fiduciary duties;
and e) had improperly caused annual general meetings of
SMI to be
called for 29 November 2010 and 14 February 2011, and had connived at
the holding of an annual general meeting for 30
April 2013, for the
purposes of the approval and ratification of directors fees or
remuneration which had been paid unlawfully.
73. The respondent
furnished a number of written responses in respect of the initial, as
well as the supplementary charges, over
a number of years. Aside from
his initial ‘report’ in November 2009, he furnished
further detailed responses and submissions
in March 2010, March 2014
and September 2015. He attached to the  September 2015
submission a number of annexures,  comprising
a detailed tabular
response to the material facts set out in the original charge-sheet
(annexure DG1), a response to the original
10 charges (annexure DG2
which adopted the format of a plea to the allegations made in the
charges),  a tabular response to
the material facts set out in
the supplementary charge-sheet (annexure DG3), and finally, a
response to the further charges (annexure
DG4 which similarly adopted
the format of a plea to the allegations made therein).
The
law
74.
In
General
Council of the Bar of SA v Geach
[58]
Ponnan JA pointed out
that as members of a ‘distinguished and venerable’
profession lawyers occupy a very important
place in our society. As
officers of the Courts they play a vital role in upholding the
Constitution and ensuring that our justice
system is efficient and
effective, and as a result ‘absolute personal integrity and
scrupulous honesty’ are required
of them.
[59]
In addition, the law expects the ‘highest possible degree of
good faith’ from practitioners in their dealings with
those for
whom they act, and in their dealings with the Courts.
[60]
75.
Without these fundamental qualities neither members of the public to
whom they turn for help and advice in times of need, nor
the Courts
before whom they appear to plead their cases, can trust and therefor
rely on them, and in such circumstances the edifice
on which the
system is built may come tumbling down. Because of this, the Courts
must be vigilant in seeking to uphold these values.
76.
Although many practitioners often lose sight of this in the
hurly-burly of professional practise and the pursuit of their careers

and financial well-being, ultimately their single most important and
only real asset-in-trade is their personal reputation. A lawyer
who
is willing to sacrifice the values of integrity and honesty at the
altar of personal enrichment will often find that he has
lost his
reputation in the process, and has thereby lost the only currency he
had.
77.
In
terms of the Attorneys Act
[61]
an attorney may, at the instance of the law society of which he is a
member, be struck from the roll or suspended from practice
if the
Court in the exercise of its discretion considers him not to be a fit
and proper person to continue to practise.
78.
It is trite
that
an application to strike an attorney is a
sui
generis
proceeding
[62]
which is
neither criminal nor civil in nature.
[63]
As such, the purpose thereof is not to punish the alleged
transgressor. As a voluntary association which was responsible at the

time for regulating the professional conduct of its members the
applicant has brought the matter before the Court in the interests,

and for the protection of, the public and the profession.
[64]
The objective of these proceedings is to maintain the integrity,
dignity and respect the public must have for officers of the
court.
[65]
79.
It is trite that the adjudication of an application such as this
involves a threefold enquiry.
[66]
In the first place the Court must determine, on a balance of
probabilities, whether the law society has established the misconduct

upon which it seeks to rely
.
Thereafter, it must determine whether the attorney is a ‘fit
and proper’ person to continue to practise. This requires
the
Court to weigh up the conduct complained of against the conduct
expected and, to this extent, it involves a value judgment.
[67]
Finally, the Court must decide whether the misconduct warrants the
ultimate sanction of being struck from the roll or whether an
order
of suspension from practice will suffice. The exercise of discretion
is thus concerned with the second and third parts of
the enquiry, not
the first.
80.
When considering a matter such as this we are required to evaluate
all the material circumstances including the respondent’s

personal circumstances, the nature of the conduct complained of and
the extent to which it reflects upon the respondent’s
character
or shows him to be unworthy to remain in the ranks of an honourable
profession, the likelihood or otherwise of a repetition
of such
conduct and the need to protect the public.
[68]
The
law applied
81.
In the answering affidavit which he filed, the respondent adopted a
curious and somewhat ambivalent stance. On the one hand
he said that
he accepted without reservation the various findings of the High
Court and the SCA and acknowledged the wrongdoing
he had committed as
set out in the judgments of those courts, for which he ‘sincerely
and humbly’ apologised. He said
that to the extent that the
High Court and the SCA had made findings that were inconsistent with
the written responses he had filed,
he accepted those findings.
However, when it came to answering, paragraph by paragraph, to the
averments contained in the founding
affidavit he said, without
providing any particularity (save in respect of charges 6, 7, and
11-14), that whilst he admitted that
he was guilty of ‘certain’
of the charges which had been preferred against him, he denied that
he was guilty of ‘all’.
He averred that the facts which
were traversed in the founding affidavit and the judgments of the
High Court and the SCA did not
address ‘many of’ the
charges listed in the charge-sheet, particularly those pertaining to
his alleged misuse of trust
funds, and these aspects had not been
dealt with in the hearings which had taken place before Fourie J and
Traverso DJP. He said
that these aspects were supposed to have been
ventilated during the disciplinary enquiry, but it was abandoned
without ‘all’
the evidence being presented on them.
82.
Similarly, he said that the matters contemplated in charge 6 (the
alleged failure to appoint an audit committee), charge 7 (permitting

Bruk Munkes to act as auditors even though they were statutorily
disqualified), charge 11 (the refusal/ failure to call a general

meeting when requested to do so) and charge 12 (calling a general
meeting for an improper purpose), as well as charges 13 and 14
(the
alleged failure to provide sufficient responses to requests for
documentation and an accounting) were not addressed in any

‘meaningful manner’ (sic) in the proceedings before
Fourie J and had not been the subject of any judicial pronouncement.

However, whilst it is indeed so that the matters contemplated in the
charges referred to (save for those pertaining to charges
13 and 14,
on which certain findings against him were in fact made) were not
addressed in the proceedings before Fourie J, which
were largely
concerned with events which occurred before 2010, this does not mean
that they can be ignored, or that they have not
been established by
the applicant in these proceedings on a balance of probabilities. In
support of the charges pertaining to these
matters, and the remaining
charges, the applicant attached to its founding affidavit a
voluminous bundle of supporting documents
which are not in dispute,
including copies of various judgments, correspondence between the
parties, annual financial statements,
notices or letters in respect
of the calling of annual general meetings for SMI, Mawjii’s
detailed complaints and the respondent’s
very detailed
responses thereto, going back over many years. And if one examines
the respondent’s own responses it is abundantly
clear that he
unequivocally admitted to having done what was alleged in respect of
charges 6, 7, 11 (and even 12, insofar as it
related to the approval
and ratification of fees which had been wrongfully paid to him and
Manala at his instance, without being
authorised by the company in
general meeting, as was required by SMI’s articles of
association).
83.
In certain instances, the respondent’s attempt at trying to
suggest that any matters which were not dealt with by the
SCA should
be ignored or treated as if they were genuinely in dispute, is
disingenuous, if not misleading. In this regard his averment
[69]
that neither the High Court nor the SCA made any finding that
‘inadequacies’ in respect of the accounts which had been

furnished warranted a ‘conclusion’ of wilful
non-disclosure on his part, is incorrect. As was pointed out in
paragraph
47 above,
the
SCA was of the view that the respondent adopted every possible
stratagem to avoid discharging his fiduciary obligation to account

properly to Grancy for its investment in SMI. It also found that
demands for access to company records were ‘rebuffed’
[70]
and various attempts by Grancy to obtain information from the
respondent were rejected on the grounds that it was not entitled
to
it.
[71]
What else was
this, other than a deliberate and sustained effort at non-disclosure?
This much is also clear if one reads
the judgments of Binns-Ward J,
Dlodlo J, Fourie J and Traverso DJP. The very fact that Grancy was
compelled time and again to make
application for an Order extracting
a better and improved accounting, illustrates a deliberate
unwillingness to properly disclose
what was required.
84.
In like vein, the averment that the judgments of Fourie J and the SCA
did not address the misuse of trust funds, is startling
and also
incorrect, unless one adopts a narrow and formalistic interpretation
of what constitutes trust monies. In this regard
although it is so
that this is not a case where the respondent stole monies which were
being held in a trust account in a typical
attorney and client
relationship, I set out in some detail above how the SCA found that
monies which had been ‘entrusted’
to the respondent and
in respect of which he stood in a fiduciary position were abused in
numerous respects: by crediting them
to SMI instead of to Grancy or
MG, by using them for the respondent’s own personal investments
in Ngatana and Spearhead or
those of his wife and the family trust,
by misappropriating them for speculative investments for the family
trust (Scarlet Ibis
Investments (Pty) Ltd) or for personal expenses
(his daughter’s university fees), or for the purpose of
unauthorised and
unjustified ‘loans’ and (directors and
surety) fees for himself and Manala. To achieve these purposes, a
trust account
of HHG at which the respondent was Chairman was used
improperly and the respondent simply regarded it as an oversight and
refused
to fully take responsibility, and merely offered an
‘apology’.
85.
When one examines the respondent’s answering affidavit it is
very apparent that he does not engage or deal with any of
the charges
(save for those I have referred to in paragraph 81), in any
substantive way, and in fact in his own various responses
he admits
almost all of them, save for a few exceptions. As I read the contents
of his various responses and his answering affidavit,
he either
admits or does not dispute the charges referred to in paragraphs
70.1-70.4 and 70.6 above, as well as the supplementary
charges which
I summarised in paragraph 72(a)-(e), save for the allegation that he
caused or allowed Bruk Munkes to be remunerated
excessively. Save in
certain limited respects he does not seek to provide any explanation
or justification for his involvement
in any of the charges, and where
he does so he does not take responsibility for what happened and
seeks to blame others. In many
instances his attempts at justifying
what happened are disingenuous to say the least, and show that he
still fails to own up and
to take responsibility for his actions.
86.
So, he says that any misconduct he is guilty of is an exception to
his otherwise unblemished career, and took place in the context
of an
‘angry and acrimonious’ break-down of a relationship
between friends. Whilst it may be so that there was a fall-out

between him and Mawjii in 2005, this can hardly serve as an excuse
for the  egregious abuse of his position in relation to
their
business dealings, his wholesale breach of the investment agreement
they had, and his gross misconduct thereafter, over a
period of
almost 10 years, if one includes the period between 2005 when Mawjii
and Narotam gave notice of termination of their
investments, and the
judgment of Traverso DJP in 2016. And from the correspondence to hand
the break-down in the relationship came
about because of his
high-handed attitude that he could do as he liked with Grancy’s
money, and if there was anger and acrimony
it seems to have been on
his side, and not on the side of Mawjii and Narotam. In my view the
respondent’s comments are reflective
of a continued failure to
accept responsibility for his actions, and an attempt to blame others
for a bloody-minded course of action
he chose to adopt, for many
years.
87.
Similarly, he blames his staff at HHG for incorrectly crediting the
R10 mil in funds which were received from Grancy and which
were
earmarked for the Scharrig investment, to an account in the name of
SMI, and for doing the same when the funds and the interest
earned
thereon were repatriated to HHG, from the People’s Bank. He
said he held these funds initially as a co-investor and
they fell
under his control to do with ‘as he saw fit’ in relation
to the Scharrig investment. It was thus fortuitous
that he decided
that the funds should be kept in trust (because he wanted to keep his
co-investors’ monies separate), when
they did not need to be.
He claimed that he only realized the ‘error’ that had
been made by the accounting dept of
HHG in relation to the trust
account in which the funds were held, when the funds and interest
were repatriated, and as far as
he was concerned there was no need to
remit the interest which Grancy claimed because it had not been
earned in its name, but in
the name of SMI. He was of the view that,
in any event, if the funds needed to be kept in trust then this
should have been in the
name of the DGFT, because the Scharrig
investment was going to be effected via the trust and Grancy had
given permission for the
funds to be transferred from the HHG trust
account to DGFT. And as far as his appropriation of the interest
which had been earned
on the funds was concerned he justified his
actions on the basis that Mawjii and Narotam had agreed that he could
take 25% of any
return which was made on investment, as
‘compensation’ for the loan which he had agreed to extend
in respect of Manala’s
portion of the Spearhead investment.
88.
As Mawjii pointed out in his response to these explanations, the R10
mil was transferred into HHG’s trust account pending
a possible
investment in Scharrig. At the time the respondent held himself out
as a responsible attorney and Chairman of a major
law firm. He
instructed his co-investors to pay over into HHG’s trust
account on the assurance that their monies were safe
and
‘ringfenced’, and without any indication that by doing so
ownership thereof would be lost, or would vest in any
other party.
The funds were only to be disbursed if the opportunity to take up the
share options actually materialized. Pending
the conclusion of a
transaction in this regard it was understood that they would be held
and kept in trust, for the benefit of
Grancy, and not for anyone
else. And as far as respondent’s claim that he was entitled to
25% of the interest is concerned,
Mawjii pointed out that the
arrangement was only applicable to the Spearhead investment, because
it was only in relation to this
investment that there had been a loan
to Manala. In any event the interest earned was not a return proper
(ie a profit which was
earned on an investment which took place)
because no investment occurred. It was interest which would have
accrued to Grancy anyway,
had it kept its money in any bank account,
awaiting the green light for an investment. As such, it was not
intended to be subject
to any deduction at the capricious whim of the
respondent.
89. The respondent’s
attempts at justifying what happened in relation to the Scharrig
funds, and the interest earned thereon,
do not wash, and I agree with
the submission which was made by applicant’s counsel that his
actions, at least insofar as
the interest is concerned, amount to
nothing short of a further blatant misappropriation. He took the
entire interest amount (R78
256) and appropriated it immediately for
the benefit of himself and his family: R21 073 went towards settling
his daughter’s
university fees and the balance of R57 182 went
to his family trust. To borrow the description used by the SCA, his
conduct was
inexcusable. He did not think of discussing or asking
permission for what he planned to do with the interest which had been
earned,
and which was clearly not his, with either Mawjii or Narotam,
who had been asking him to return the capital they had advanced (and

which he had only held for little over two months), together with the
interest.  He simply took the entire amount as if he
was
entitled to it and then when confronted, instead of repaying it in
full, claimed that it could not be paid over because it
was subject
to tax. To add insult to injury, when he finally did decide to return
it he still kept R28 256 for himself, which represents
36% (and not
25%) of what was earned, and which gives the lie to his 25%
profit-share justification.
90.
The only real dispute of fact which emerges from a reading of the
affidavits is in relation to the additional complaints which
were set
out by the applicant
[72]
which
did not form part of the subject matter either of the original and
supplementary charges, or of the findings and judgment
of the SCA, in
the appeal from the judgment of Fourie J. These complaints pertain to
the alleged acquisition of additional Scharrig
option shares by the
respondent personally, via a short-term loan which was allegedly
granted by the Medicover Medical Scheme (an
entity of which he was
co-curator whilst it was in curatorship from 2001 to 2006), to an
entity known as ‘Rosedene’.
The applicant alleged that at
the time when the respondent acquired these shares by means of a loan
from Medicover he would have
had a conflict of interest, and he
therefore abused his position as curator to obtain an unfair
advantage and to unfairly enrich
himself, or his family trust, at
Grancy’s expense, and without disclosing these facts to it. The
respondent denies these
allegations. He says that he is unaware of
any loan being provided by Medicover to Rosedene, and he denies that
he received or
acquired any additional Scharrig shares and claims
that this is clearly apparent from a further accounting which he has
rendered
in pending action proceedings which have been instituted
against him by Grancy. He avers that the relevant share registers and
financial statements, as well as his tax returns, will reflect that
he did not acquire the alleged shareholding. In the circumstances,

there appears to be a genuine dispute of fact in relation to this
complaint which cannot be resolved on the papers, and in the

circumstances we have left it out of consideration.
91.
Save for this, in my view the applicant has clearly established that
the respondent has made himself guilty of numerous acts
of serious
misconduct, committed over a period of many years, including acts
which amount to misappropriations, abuse of funds
or monies which
belonged, or which had accrued, to co-investors (and which were
entrusted to him or which fell under his control)
in order to enrich
himself and his co-director Manala at their expense, a persistent and
deliberate refusal to account to co-investors,
and various acts of
dishonesty. breach of integrity and of his fiduciary duties, as well
as of the professional Rules of the applicant
society of which he is
a member, as reflected in the various findings of the SCA and the
charges which I have referred to.
92.
By way of summary, these acts were as follows:
92.1
He unfairly and improperly made use of information and opportunities
which came his way (by virtue of his position as director/chairman
of
SMI, Ngatana, Spearhead, Redefine and Interactive Capital amongst
others) in order to gain personal advantage and to enrich
himself at
the expense of Grancy and MG, co-investors to whom he owed a
fiduciary duty;
92.2
He persistently and unjustifiably refused, for a period of 4 years
between 2005 and 2009, to acknowledge that Grancy had a
right to a
one third shareholding in SMI, despite the agreement which he
concluded in this regard in February 2005 and his clear
acceptance
and understanding thereof at the time;
92.3
He persistently and improperly refused (for some 10 years from date
of the initial refusal to date of compliance with the Orders
of
Traverso DJP and of the SCA),
[73]
to render a proper accounting in   the Spearhead and Scharrig
investments to Grancy and MG, and to allow them access to the
books
of account, the records of SMI and the underlying transactions
pertaining to these investments;
92.4
He set about significantly increasing Ngatana’s indebtedness
and thereby exposed Grancy to a significantly greater risk,
by
acquiring millions of additional Spearhead units for Ngatana without
the knowledge or consent of Grancy, as co-investor;
92.5
He failed to consult Grancy in relation to a decision that Ngatana
should accede to an offer by Redefine to acquire linked
units in
Spearhead, and failed to consult it in regard to subsequent decisions
to acquire millions of additional Redefine units
and thereafter to
dispose of them, thereby excluding Grancy as co-investor from
significant profits which were made from these
transactions, which it
would ordinarily have shared in;
92.6
He misappropriated a dividend of R5.27 mil which he caused Ngatana to
pay to SMI, by paying the amount out as a dividend in
equal shares to
Manala and the DGFT and excluding Grancy from its share thereof;
92.7
He improperly allowed R3.5 mil (which was advanced by Grancy for the
purposes of the Spearhead investment and which should
have been held
as such in trust for it in HHG’s trust account), to be credited
to a loan account for Manala, and also improperly
caused this account
to be credited at various stages with a further R2 mil ‘loan’
and exorbitant and unjustified director’s
fees in amounts of
R2.75 mil and R750 000, and ‘promotion’ and so-called
‘surety’ fees in amounts of R225
000 and R1 114 539
respectively, allowing Manala to thereby draw out approximately R9
mil to which he was not entitled, from this
account, over a number of
years;
92.8
He improperly paid himself exorbitant and unjustified (director’s,
‘promotional’ and ‘surety’)
fees in an amount
of approximately R4.8 mil;
92.9
He misappropriated an amount of R6 637 673 (which Ngatana repaid to
SMI as return on the capital loan it had received from
SMI together
with the profit which was made), by utilising it without
Grancy’s consent to repay the loan portion of
his and Manala’s
contribution towards the investment, without doing the same in
respect of Grancy, to whom an amount of R2
057 678 should have been
refunded in respect of its portion of the investment, and
misappropriated R2 mil of this money by investing
it without Grancy’s
knowledge or consent in a speculative property investment in Scarlet
Ibis Investments (Pty) Ltd, in which
his wife and the DGFT had an
interest, which investment failed;
92.10
He misappropriated interest which had been earned on funds belonging
to Grancy, for personal benefit, in an amount of
R78 256 (by
utilising R21 073 for his daughter’s university fees and the
balance of R57 182 for his family trust);
92.11
He improperly caused personal legal fees (in respect of legal
services which had been rendered to him and the DGFT in
relation to
ongoing legal proceedings between the parties), to be paid by SMI,
without the knowledge and consent of Grancy, thereby
misappropriating
monies which would otherwise have been available for distribution as
dividends to shareholders, including Grancy;
92.12
He improperly failed to call a general meeting of SMI subsequent to a
formal request from Grancy as a shareholder, and
improperly caused
annual general meetings of SMI to be called for the purposes of
approving and ratifying loans, directors, ‘surety’
and
‘promotional’ fees or remuneration which had been paid
unlawfully;
92.13
He failed to ensure that SMI kept proper accounting records, and
produced inaccurate and incomplete annual financial
statements which
he represented as fairly reflecting the company’s financial
position, failed to appoint an audit
committee for SMI, and appointed
a firm of auditors who were disqualified from serving in that
capacity;
92.14
He breached the professional Rules of the law society of which he
was a member, as well as provisions of the
Attorneys Act,
[74]
in relation to the investment and holding in trust, of monies which
were paid over to him.
93.
In his answering affidavit the respondent claims that his acts of
misconduct pertain ‘exclusively’ to the break-down
in the
personal and business relationship which he had with Mawjii, and are
not a reflection of his behaviour or character in general.
He points
out that in his dealings he did not act as Mawjii’s attorney,
or as attorney for the entities which he represented.
94.
Firstly, whilst it is so that the misconduct did not occur in the
context of an attorney-client relationship, the fact that
the
respondent was a prominent, senior practitioner of a major law firm
played a very important role in this matter. Mawjii said
that the
respondent held out that by virtue of his position as a senior member
of a profession which had a strong ethical code
and as Chairman of
one of the largest and most well-known law firms in the country, he
could be trusted, and he consequently believed
it would be safe to do
business with him as it would be ‘unthinkable’ that he
would engage in any unprofessional or
wrongful conduct. As is
apparent from one of the very first emails which the respondent sent
to Mawjii in February 2005,
[75]
when he set out the terms of their agreement and assured Mawjii that
he would be drafting the necessary written contracts which
would
incorporate such terms, the respondent signed off his email in his
capacity as Chairman of HHG, and not in his personal capacity.
95.
As far as he was concerned therefore the position which he occupied
as an attorney was of importance to his dealings with Mawjii
and
Narotam. In addition, the investments in which he participated
together with Mawjii and Grancy were effected by utilizing his
firm’s
trust account facilities, and its legal capacity and resources. As
such, it was common cause that any monies paid
over to his firm
became subject to the professional Rules of the applicant society and
the relevant provisions of the Attorneys
Act. It may be mentioned
that his firm also acted on his behalf in the various legal
proceedings which were instituted against
him, subsequent to the
termination of his relationship with Mawjii. In the circumstances the
respondent quite correctly conceded
that he was not exempt from the
disciplinary jurisdiction of the applicant simply because his
misconduct took place in the context
of a business rather than a
professional relationship. The respondent also conceded that inasmuch
as his actions may reflect upon
his professional reputation and the
question of his continued fitness to be an enrolled attorney they are
not immune from scrutiny
by this Court either, especially as he
acknowledges that the High Court and SCA have made findings that
reflect adversely on both
his integrity as well as his honesty. In
fact, he accepts
[76]
ultimately that his conduct warrants a finding by this Court that he
is guilty of unprofessional, dishonourable and unworthy conduct,
for
which he should be sanctioned. The only real issue that he has with
the proceedings is in regard to the ‘sanction’
which is
sought. In this regard he submits that striking him from the roll of
practitioners would be a disproportionately severe
‘penalty’
in the ‘exceptional’ circumstances of his case, and an
order of indefinite suspension from practice
would be the appropriate
‘sanction’ to impose.
96.
In support of the averment that there are ‘exceptional’
circumstances present which warrant a ‘sanction’
of
suspension instead of a striking off the respondent says that he has
already been ‘severely sanctioned’ for the
conduct which
has given rise to this application. He points out that as a result of
the terms of the Order which was handed down
by the SCA he was
required to pay the sum of R12.87 mil odd, which represents the
capital and interest which was awarded, which
he paid in full on 12
April 2016. In addition, he was also held liable (jointly and
severally with Manala and the DGFT), for Grancy’s
costs of
suit, which untaxed, he says are currently sitting at approximately
R21 mil. And, because he was declared a delinquent
director he has
had to resign various directorships, and will only be eligible to
apply for a suspension of the delinquency, after
a period of 3 years
from the date of the declaration thereof. In the result, he says he
has paid a heavy price, professionally,
reputationally and
financially. Finally, he points out that he retired from practice in
2011 as a result of ill-health, and is
currently aged 65 and has no
intention of practising again. He submits that in the circumstances
the imposition of a striking off
would serve no purpose as such is
intended to protect the public, who would be at no risk, due to him
having retired.
97.
In my view, the respondent’s submissions in this regard are
misplaced. In the first place, it has been repeatedly emphasised
that
proceedings such as these are not about imposing a sanction or
punishment on an offender.
[77]
As was said in
Van
Der Berg
[78]
the enquiry before a
Court which is called to exercise its disciplinary powers over a
practitioner is not about what constitutes
an ‘appropriate
punishment for a past transgression but rather what is required for
the protection of the public in the future’.
98.
In any event, the Order which was made by the SCA (which confirmed
its findings that the respondent and his family trust had
entered
into an investment agreement with Grancy and MG which he had breached
in material respects and that as a result he was
liable to Grancy for
damages in various amounts), which came to approximately R5.7 mil in
the aggregate, plus interest, does not
qualify as a sanction. Neither
does the Order holding him liable for costs. These Orders were made
in consequence of the respondent’s
breach of agreement, and the
monetary consequences thereof were merely directed at making good the
financial harm which had been
suffered by Grancy and MG, as a result
of the aforesaid breach. Similarly, the Order that was made declaring
the respondent to
be a delinquent director was not directed at
sanctioning him, but at protecting the corporate world from him.
99. In
the second place, given that a material portion of the misconduct of
which he made himself guilty was sustained and persistent
misconduct
which occurred over a number of years (despite many fruitless
attempts to call him to order by means of repeated litigation
and
ample opportunity for him to come to his senses), we are not dealing
with a single, isolated fall from grace, or a so-called
once off
‘moral lapse’, but rather with an apparent serious flaw
in character and a fundamental lack of integrity.
In my view, the
fact that the respondent adopted the attitude that Grancy was not to
be registered as a shareholder in SMI shortly
after, and contrary to,
the conclusion of an agreement with Mawjii and Narotam to this
effect, and that he persisted with this
unconscionably for a period
of  4 years well-knowing it not to be true (given that he had
clearly confirmed in his own email
of 21 February 2005 that Grancy
was to be a one third shareholder), is a materially aggravating
feature and reflects very badly
on his honesty. Furthermore, the SCA
found
[79]
that the respondent
was also grossly dishonest when he deliberately and knowingly
informed the bookkeepers who were responsible
for SMI’s
accounts and financial statements, that the R3.5 mil which had been
paid over by Grancy was a loan to Manala and
as such could be
credited to his loan account (instead of crediting it to SMI as a
loan to it from Grancy, as was actually the
case). In effect, by
doing so he set the stage for Manala to later misappropriate money
which belonged to Grancy. And, the respondent’s
egregious abuse
of the business relationship he had with Mawjii and Narotam, his
wholesale and flagrant breach of their investment
agreement and
deliberate refusal to recognize Grancy’s shareholding, and
multiple misappropriations and abuse of monies entrusted
to him by
Mawjii, Narotam and Grancy all attest to a complete lack of
integrity.
100.
As was previously pointed out
[80]
honesty and integrity are fundamental qualities for every
practitioner. Where a senior attorney who is involved in a
professional
or business relationship with a third party, falsely
adopts and thereafter repeatedly and deliberately asserts a position
which
he knows is untrue (and contrary to the very terms of an
agreement he has with the third party), over a number of years, both
privately
in his dealings with the third party as well as publicly in
litigation which ensues between them, and egregiously abuses their
business relationship as indicated in the preceding paragraph, he
makes himself guilty of gross professional misconduct, as he shows
he
lacks these qualities.
101.
In
Malan
the SCA held
[81]
that if a
Court finds dishonesty to have been present in any misconduct by a
practitioner, the circumstances must be exceptional
before the Court
will impose a suspension, instead of striking off. This dictum was
subsequently held
[82]
not to
mean that there is an inviolate rule in this regard, which must be
applied mercilessly and without regard for the other
circumstances
which must factored in to the weighing up process, for the Court is
supposed to be exercising a discretion. What
it means is simply that
when the practitioner concerned has been shown to have been dishonest
a Court will need to be satisfied
that the circumstances before it
are such that the inference that the dishonesty is likely to recur,
which would ordinarily follow
upon such a finding, need not be drawn,
and in that sense the misconduct before it constitutes an exception
to what would ordinarily
be expected.
[83]
102.
In my view, rather than leaning towards the drawing of an inference
that a recurrence of dishonesty and a lack of integrity
on the part
of the respondent in the future is unlikely or improbable, the facts
of this matter show that it is most likely that
it will recur,
because it appears to be an ingrained and inherent part of the
respondent’s character. Despite his assertion
that he does not
intend to return to practice, nothing would prevent the respondent
from doing so should circumstances allow. As
I have pointed out
previously, and at the risk of repeating myself
ad
nauseam
,
right from the outset the respondent dishonestly adopted the attitude
that Grancy was not entitled to be registered as a shareholder
in
SMI, and then deliberately continued to adopt this stance, both
privately as between himself and Mawjii and Narotam, as well
as
publicly in the resultant litigation which took place, and he only
recanted when he was forced to do so 4 years later in March
2009, on
the eve of the hearing of the matter in which such relief was sought.
By doing what he did the respondent demonstrated
that he was quite
prepared to be untruthful and dishonest not only towards a
co-investor, but also towards the Court, and consequently
he
exhibited a lack of integrity in this respect as well. And when
called upon over a number of years to provide explanations for
his
misconduct, in his various responses he averred that he had
consistently maintained the ‘highest’ standards of

honesty and integrity,
[84]
had
‘faithfully, accurately and timeously’ accounted for all
monies he had been entrusted with
[85]
and in his dealings with Grancy and Mawjii had never done anything
‘which could or might bring the attorneys’ profession

into disrepute’.
[86]
103.
By maintaining consistently over many years that he had adhered to
the requisite standards of probity and had never acted
inappropriately or improperly towards Grancy and Mawjii, he similarly
demonstrated a singular lack of honesty and insight. It was
only in
these proceedings that he finally admitted, albeit partially, to
having wronged his co-investors and to having acted improperly.
The
impression which one is left with is that he had to make these
admissions, given the wide-ranging findings which were made
against
him by the SCA. In my view, had such findings not been made there is
little chance that the respondent would ever have
owned up to his
wrongdoing. That in itself also demonstrates that he lacks the
integrity and moral fibre which is required of a
senior practitioner,
occupying the position which he did. Until the decision of the SCA he
was quite content to carry on regardless
of his ethical duties and
responsibility as an attorney, and to make Grancy and Mawjii jump
through each and every hoop in their
quest for justice. Furthermore,
the respondent still did not show any contrition by providing a full
explanation for his actions,
and taking into account that he did not
proffer a version in the action proceedings (which he was entitled to
do), we are still
at a loss as to why he did what he did. Acceptance
of the damning findings made by the Courts can hardly, in this case,
be regarded
as a sign of genuine remorse.
104.
As far as directing that he be suspended ‘indefinitely’
rather than being struck off, we were not able to find
a single
reported or unreported decision in which an Order was made in such
terms, nor were counsel able to refer us to one. In
A
v Law Society of the Cape of Good Hope
[87]
the Appellate Division held
[88]
obiter
that any Order of suspension must ‘implicitly’ ie by its
very nature be conditional, and as the wording of the statutory

provision in question
[89]
imposes no restriction on the form any condition of suspension may
take, it will thus be permissible to make an Order of suspension

which is conditional upon the cause of unfitness being removed, and
which in that sense may be indefinite, in effect. In that matter
the
practitioner concerned had harassed his ex-wife’s former
advocate
[90]
because he was
suffering from a personality disorder. Because, according to the
opinion of a psychiatrist, it was a treatable condition
and the
prospects were good that he would recover, and because it was further
the opinion of the psychiatrist that in the event
that the respondent
were to be removed from the roll of attorneys on a permanent basis it
might retard his rehabilitation and cause
him further depression and
‘retardation’ (sic), on appeal an Order striking him was
substituted for an Order suspending
him from practice ‘until
such time’ as he satisfied the Court that he was a fit and
proper person to resume practice.
[91]
In this matter there is no suggestion that the respondent’s
actions over the course of the many years and the many proceedings

which have been traversed, were in any way brought about by any
medical or psychological ailment or disorder. Nor was it suggested

that the respondent’s misconduct was occasioned by financial
need. As such, this is not a matter where the practitioner can
say
that there are reasonable prospects that he may recover from his
deficits, and that there is every chance that he may be
rehabilitated.
We point out that in this matter the respondent’s
misconduct was sustained over a number of years, after he had already
been
in practice as a senior practitioner for more than 20 years, and
he was not a young and immature practitioner who unfortunately
fell
off the path he was supposed to tread, in the early stage of his
professional life.
105.
Ordinarily, an Order suspending a practitioner will be appropriate
where the circumstances show that the misconduct concerned
was
relatively minor or it occurred because of a single ‘moral
lapse’ and the practitioner is unlikely to repeat it
in the
future. In essence, such an Order is a corrective measure which is
appropriate in the case of a practitioner who, although
fallible, has
a reasonable  prospect of being rehabilitated. It is not
appropriate for the seeming incorrigibles. As such,
it has usually
been imposed in the case of practitioners who have slipped and fallen
because they have strayed into temptation,
but who are essentially
capable of redemption, after a certain period, as they have the basic
qualities needed to be upstanding
lawyers. Thus, for example, it has
been imposed in cases where practitioners have made themselves guilty
of irregularities in the
keeping of their books of account
[92]
and where a young attorney in her first year of practice who was
struggling to make ends meet and  was in a desperate financial

predicament, misappropriated monies which were held in trust in order
to pay her practice and living expenses.
[93]
The SCA was of the view that her misconduct had been brought about by
a ‘moral lapse’ and not by a defect of character,
and it
consequently upheld an Order which had been granted suspending her
from practice for a year.
106.
In my view, for the reasons I have already set out above, an Order
suspending the respondent from practice, even for an indefinite

period, would be wholly inappropriate. Not only is there no
suggestion that he intends one day to resume practice (the respondent

says that he retired due to a condition known as
myathenia gravis
,
a progressive, chronic autoimmune disorder which affects his
neuromuscular functioning), and such an Order would thus make little

sense from a corrective or rehabilitative point of view, but the
protracted misconduct which he committed is of a very serious
nature
and shows that the respondent has a fundamental lack of honesty and
integrity which he has exhibited for a considerable
period of time,
and which would in the ordinary course have rendered him wholly unfit
to continue to practice, had he not retired.
107.
In addition, in my view the most important factor militating against
the imposition of such an Order is that it would send
out the
completely wrong message to the profession, and members of the
public. The Court is supposed to be the defender of the
profession
and the values it espouses and the proceedings before us are aimed at
maintaining the integrity, dignity and respect
the public must have
for officers of the Court.
[94]
An Order of suspension would make a mockery of these objectives and
degrade what is often referred to as a noble profession, which
cannot
continue to describe itself as such if it tolerates members who lack
honesty and integrity. The Order which the Court is
to make should
consequently serve as a warning and a deterrent to other members of
the profession, who may be minded to forsake
the fundamental values
of honesty and integrity which they are required to uphold, and to
engage in similar conduct to that in
which the respondent engaged, in
the blind pursuit of profit and self-enrichment. We live in times and
in a society where many
persons who are required to observe these
fundamental values have succumbed. It is up to the Court to remind
practitioners that
the privileged position they occupy comes with
ethical responsibilities, and in order to protect and sustain the
profession we
cannot countenance those who fundamentally lack these
qualities.
Conclusion
108.
The respondent rightly accepts that whatever the Order of the Court,
he is liable for the costs of these proceedings, and that
these
should be on the scale of attorney and client. This is in accordance
with the well-established principle in this regard.
[95]
But, in addition to such costs the applicant also seeks an Order
directing the respondent to pay the costs of the disciplinary

enquiry, which was abandoned. The respondent disputes liability for
those costs. He says that not only did the disciplinary enquiry
not
proceed to find him guilty on any of the charges which he was facing,
but in terms of the Attorneys Act he could only have
been ordered to
pay such costs by the tribunal in the event that he was found guilty,
and this Court is only empowered to make
an Order in respect of the
proceedings before it, and is not at liberty to make an Order for the
costs of proceedings in another
matter.
109.
S 72(1) of the Attorneys Act provides that where an attorney is found
guilty of unprofessional, dishonourable or unworthy conduct
before a
disciplinary enquiry of a law society, it may impose a limited range
of sanctions on him, which include a fine
[96]
or a reprimand, and may in such event also recover the costs which
were incurred in connection with the enquiry. (As the relevant
Rule
read at the time, such costs would include the costs pertaining to
the obtaining of a record of the proceedings, as well as
the
reasonable costs of employing a
pro
forma
prosecutor, and costs in relation to the attendance of members of the
enquiry.) In terms of the Act a society does not have the
power to
suspend an attorney from practice, or to remove him from the roll.
Such powers are reserved for the Court.
110.
In my view, the provisions of s 72 should not serve as a bar to this
Court making an Order in respect of the costs of the disciplinary

proceedings. In this regard I note that s 72(5) provides that the
provisions of s 72 shall not affect the power of a society to
apply
for the suspension from practice or the striking from the roll, of
any practitioner against whom an enquiry is being, or
has been,
conducted. In the circumstances the Act clearly envisages situations
where a society may decide that the evidence before
a partially
completed enquiry is of such a conclusive or overwhelming nature in
respect of acts of serious misconduct, that it
would not only be a
waste of time to proceed with it to completion but in fact the
interests of justice demand that application
should be made
immediately to a Court for an Order striking or suspending the
practitioner concerned, as the misconduct does not
merely warrant the
imposition of a minor sanction such as a fine or a reprimand. It
could hardly have been intended by the legislature
that in such
instances, where a society will inevitably have to proceed to Court
for an Order striking or suspending a practitioner,
it will have to
forsake the costs it has incurred in a partially completed
disciplinary enquiry.  But of course, each matter
will have to
be decided on its own facts and particular circumstances.
111.
On the respondent’s construction of s 72 the only way a law
society could ever recover the costs of a disciplinary enquiry
would
be for it to proceed with it to completion, even if it was thereafter
obliged in any event to make application to a Court
for an Order
suspending or striking the practitioner from the roll. Such a
construction would not be sensible, or in the interests
of justice,
and would in fact severely prejudice the practitioner, who would not
only have to face having to go through a disciplinary
enquiry and
thereafter an application for his removal or suspension based on the
same grounds, simply so that the costs of both
proceedings would be
recoverable from him, but would thereby unfairly be exposed to double
costs, or costs which could have been
avoided. Of course, this does
not mean that a regulatory authority can simply charge a practitioner
before a disciplinary enquiry
without properly investigating the
circumstances concerned and without establishing the nature of the
misconduct which he has committed
beforehand, and it also does not
mean that it can abuse the provisions of the Act or the disciplinary
process it envisages, by
launching disciplinary enquiries instead of
applications to strike or suspend, where these are clearly warranted.
In my view, given
the evidence which was before the DEC at the time
including the responses provided by the respondent, in which he
essentially admitted
to most of the complaints and charges, he would
inevitably have been found guilty of the majority of the charges. In
the result,
the fact that the proceedings in the disciplinary enquiry
did not proceed to completion therefore should not serve to prevent
this
Court from making an Order in regard to the costs thereof, and
in fairness he should be ordered to pay those costs.
112.
As far as the lengthy delay is concerned it is apparent, from the
circumstances of this matter, that the complaints which were
lodged
by Mawjii in 2009 and 2011 concerned fairly complex transactions
which involved intricate commercial schemes of investment,
which
required some investigation and consideration beyond what would
normally be the case. What complicated matters is that the
respondent
adopted an obfuscatory approach to Mawjii/Grancy’s queries and
requests for information and a proper accounting,
and consequently
the parties became embroiled in a number of legal skirmishes, which
were conducted at every level of the courts,
and which took some time
to be resolved. To add to the delay the DEC itself also made a number
of unfortunate, interlocutory decisions
which were wrong, and which
needed to be set aside on review. However, it seems that it was only
when the judgments of the SCA
and Traverso DJP were handed down that
the full extent of the respondent’s misconduct was made plain
for all to see, at which
point instead of continuing with the
disciplinary enquiry and thereafter with a striking off application,
the applicant quite properly
discontinued proceedings before the DEC
and proceeded to launch this application. Although there was an
unexplained delay in getting
the papers out, there is no indication
that this was accompanied by any additional or unnecessary costs, nor
any suggestion that
it prejudiced the respondent in any way.
The
Order
113.
In the result, we make the following Order:
113.1
The respondent’s name is struck off the roll of attorneys of
this Court;
113.2
The respondent shall surrender and deliver to the Registrar of this
Court his certificate of enrolment as an attorney
within 10 days from
date hereof, failing which the Sheriff of the district in which such
certificate of enrolment may be found
is authorised and directed to
take possession thereof and to deliver same to the Registrar;
113.3
The respondent shall be liable for the costs of the application
(which costs shall include the costs of counsel), on
the scale as
between attorney and client, as taxed or agreed;
113.4
The respondent shall be liable for the costs incurred by the
applicant in connection with, as well as the costs of,
the
disciplinary enquiry which was conducted by it (in respect of
complaints lodged by Karim Mawjii/Grancy Property Ltd and/or
Montague
Goldsmith AG against the applicant), which costs shall be calculated
in accordance with the non-litigious tariff of the
applicant, as
taxed or agreed, and which shall include the following:
113.4.1
The costs of recording, transcribing and preparing transcripts and
copies of the record of the enquiry;
113.4.2
The costs incurred in the employment of a
pro
forma
prosecutor
and the reasonable allowances payable to members of the disciplinary
enquiry, arising out of the absence of such members
from their
offices during the hearing of the enquiry.
_________
ML
SHER
Judge
of the High Court
I concur
.
_____________
NP
BOQWANA
Judge
of the High Court
Attendances
:
Applicant’s
counsel: Adv J Rogers
Applicant’s
attorneys: Abrahams Kiewitz Inc.
Respondent’s
counsel: Adv L Rose-Innes SC and Adv G Quixley
Respondent’s
attorneys: Adriaans Attorneys
[1]
I
n
liquidation since 2009.
[2]
I
n
terms of s 78(2A) of the Attorneys Act 53 of 1979.
[3]
In an entity known as Scarlet Ibis Investments (Pty) Ltd.
[4]
Para [12.5] of the respondent’s answering affidavit.
[5]
Under case no 15757/07.
[6]
In
addition, they also sought payment of an amount of R988 416.66 plus
interest thereon from 11 February 2005, as well as payment
of
a
further amount equivalent to 25% of the amount by which the price of
the 700 000 Spearhead units which were held indirectly
by Manala
exceeded a value of R18 per unit. The latter amount was allegedly
due in terms of an agreement which they parties arrived
at in
respect of compensation for the loan of Manala’s half-share of
the investment.
[7]
They also agreed to an order directing them to make payment of the
two amounts referred to in n 6.
[8]
Under case no. 10547/08.
[9]
Reported
sub nom Grancy
Property Limited & Ano v Seena Marena Investments (Pty) Ltd &
Ors
[2014] 3 All SA 123
(SCA).
[10]
In
Gihwala & Ors v
Grancy Property Ltd & Ors
[2016] 2 All SA 649 (SCA).
[11]
U
nder
case no. 1961/10.
[12]
In terms of
s 162(5)(c)
of the
Companies Act 71 of 2008
.
[13]
The matter is reported as
Grancy
Property Ltd & Ano v Gihwala & Ors; In re: Grancy Property
Ltd & Ano v Gihwala & Ors
[2014]
ZAWCHC 97.
[14]
Id
paras [203] and [205].
[15]
Id
para [204].
[16]
Note 10.
[17]
Id,
at para [62].
[18]
At para
[130].
[19]
At para
[64].
[20]
At para
[67].
[21]
At para
[68].
[22]
At para
[70].
[23]
A
t
para [69].
[24]
A
t
para [66].
[25]
At para [86].
[26]
At para [134].
[27]
At para [135].
[28]
S 226
of Act 61 of 1973.
[29]
At para 136].
[30]
At para [139].
[31]
Id
.
[32]
Grancy Property Ltd v
Manala & Ors
2015 (3)
SA 313 (SCA).
[33]
Per Olivier AJ in case no. 1786611 (reported
sub
nom Grancy Property Ltd & Ano v Law Society of the Cape of Good
Hope & Ors
[2012]
ZAWCHC 174.
[34]
Contrary to Rules 14.3.1 and 14.3.7.
[35]
Contrary to Rules 13.5; 14.3.1; 14.3.4; 14.3.7; 14.3.14 and s 78 of
the Act.
[36]
Id
.
[37]
Contrary to Rules 13.5; 13.3.3; 13.3.4; 13.13.7; 14.3.1; 14.3.4;
14.3.7 and 14.3.14.
[38]
Contrary to
Rules 13.5; 13.13.3.
[39]
Contrary to Rules 13.5; 13.7; 13.13.3; 13.13.4; 13.13.7; 14.3.1;
14.3.4; 14.3.7, 14.3.14 and s 78 of the Act
[40]
Art 107.
[41]
In terms of s 181 of the Companies’ Act of 1973.
[42]
As we understand it Manala never repaid these fees. It was averred
that these were set off and deducted against his share of
a dividend
which was later declared.
[43]
In terms of s 269A of the Companies Act.
[44]
In terms of s 275(1)(b) of the Companies Act.
[45]
Contrary to s 78(4) of the Attorneys Act and Rules 13.5, 14.3.1;
14.3.4; 14.3.7 and 14.3.14.
[46]
In terms of s 78(4) of the Attorneys Act.
[47]
Id.
[48]
Id.
[49]
Id.
[50]
Contrary to
s 78 (1) of the Attorneys Act and Rules 13.13.7, 14.3.1, 14.3.4 and
14.3.14.
[51]
Contrary to
s 78 (1) of the Attorneys Act and Rules 13.12, 13.13.7, 14.3.1,
14.3.4 and 14.3.14.
[52]
Contrary to
s 78 (1) of the Attorneys Act and Rules 13.5, 13.7, 13.13.7, 14.3.1,
14.3.4,  14.3.7 and 14.3.14.
[53]
Contrary to
s 78 (1) of the Attorneys Act and Rules 13.12, 14.3.1, 14.3.4,
14.3.7 and 14.3.14.
[54]
Contrary to
Rules 13.11, 14.3.1, 14.3.4, 14.3.7 and 14.3.14.
[55]
Id
.
[56]
By means of
which it made certain
cosmetic and typographical amendments to its original charge-sheet
and added further charges.
[57]
Contra
s 181(1) of the Companies Act of 1973.
[58]
2013 (2) SA 52
SCA at para [87].
[59]
Id,
and
Kekana v Society of
Advocates of South Africa
[1998] ZASCA 54
;
1998
(4) SA 649
(SCA) at 656B.
[60]
The
Law
Society of the Northern Provinces v Oosthuizen
[2018] ZAGPPHC 848 at para [32].
[61]
Note 2,
s
22(1)(d),
[62]
Cirota & Ano v Law
Society, Tvl
1979 (1) SA
172
(AD) at 187H.
[63]
Hassim v Incorporated Law
Society of Natal
1977 (2)
SA 757 (AD).
[64]
Incorporated
Law Society Natal v Roux
1972 (3) SA (NPD).
[65]
Law
Society v Du Toit
1938
OPD 103
, at 104.
[66]
Summerley v Law Society of
the Northern Provinces
2006 (5) SA 613
(SCA) at para [2],
Jasat
v Natal Law Society
2000
(3) SA 44
(SCA);
Law
Society of the Cape of Good Hope v Budricks
2003
(2) SA 11 (SCA).
[67]
Jasat
n 61 at 51E-F;
A v
Law Society of the Cape of Good Hope
1989
(1) SA 849
(A) at 851C-E.
[68]
Malan
&
Ano v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) at par
[5]
;
Geach
n 58 at para [74].
[69]
In para 91 of the answering affidavit.
[70]
Gihwala v Grancy
n 10 at para [26].
[71]
Id
at
para [27].
[72]
At paras 57-70 of the founding affidavit.
[73]
This period does not have regard for the fact the second phase of
the debatement must still take place later this year.
[74]
Note 2.
[75]
Vide
para [15].
[76]
At para [119] of his answering affidavit.
[77]
Incorporated Law Society
Natal v Roux
n 64 at 151A;
Geach
n 58 at para [67].
[78]
Van Der Berg v GCB of SA
[2007] 2 All SA 499
(SCA) at para [50].
[79]
Note 10, at para [135].
[80]
Per the SCA
in
Geach
n 58 at p
ara [87].
[81]
Note 68, at para [10].
[82]
In
Geach
n 58 at para [69].
[83]
Id
.
[84]
Paras [3] and [58] of his initial response dated 9 November 2009.
[85]
Para [12.5] of his response dated 31 March 2010.
[86]
Id
at para [12.6].
[87]
Note 67
.
[88]
Per Kumleben JA at 852E-F.
[89]
Which, as
in this matter was s 22(1) of the Attorneys Act 53 of 1979.
[90]
Mrs Traverso, who later became the Deputy Judge-President of this
Division.
[91]
I
n
Law Society Northern
Provinces v Oosthuizen
n
60 an attorney who was found guilty of a number of irregularities in
regard to the keeping of trust accounts, as a result of
a
post-traumatic stress disorder he developed after being subjected to
an armed robbery, which caused him to neglect his practice
and to
cut corners with his book-keeping and his trust accounts,, was
suspended from practice for a period of 1 year, as the
Court had
before it a report from a psychologist who was of the view that he
was unlikely to repeat his misconduct and with continued

psycho-therapy and medication would make a full recovery.
[92]
Transvaal Incorporated Law
Society v K
1950 (4) SA
449
(TPD);
Summerle
y
n 66;
Botha v Law Society,
Northern Provinces
[2008] ZASCA 106
;
2009
(1) SA 227
(SCA);
Law
Society, Northern Provinces v Mogami
2010
(1) SA 186 (SCA).
[93]
Law Society of the Cape of
Good Hope v Peter
2009 (2)
SA 18 (SCA).
[94]
Law Society v Du Toit
n 65 at 104.
[95]
Botha
n
92 at para [20].
[96]
In terms of
s
72(1)(a)(i), which
fine may be suspended (s 72(2)(b)).