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[2021] ZAWCHC 25
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South African Legal Practice Council v Chetty (10029/2020) [2021] ZAWCHC 25 (12 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case No: 10029/2020
In
the matter between:
SOUTH
AFRICAN LEGAL PRACTICE COUNCIL
Applicant
and
KERITH
CHETTY
Respondent
Coram:
Justice E T Steyn
et
Justice J I Cloete
Matter
enrolled for hearing:
12 February 2021
Delivered
electronically:
12 February 2021
JUDGMENT
CLOETE
J (STEYN J concurring)
:
[1]
This is an application for the striking of
the respondent’s name off the roll of attorneys of this Court.
The application
was issued on 29 July 2020 and served on the
respondent on 6 November 2020. There is no opposition, and I deal
with this below.
[2]
The application was considered on the
papers and written submissions filed by the applicant’s
attorney without oral argument,
in accordance with paragraph 10.1
of the Directives dated 2 May 2020 issued by the Chief Justice
in terms of
s 8(3)(b)
of the
Superior Courts Act 10 of 2013
, as
read with Section D (1) of the Directives issued by the Judge
President of this Division on 26 January 2021 (effective
1
February 2021).
[3]
The respondent was admitted as an attorney
by this Court on 7 December 2012 and commenced practice for her
own account on 1 August
2013. The initial relief sought by the
applicant included other far-reaching orders such as the appointment
of a curator to take
control of the respondent’s practice and
to wind it up. However it has since been accepted by the applicant
that the respondent
ceased practice with effect from 1 November
2018 and simultaneously closed her firm’s trust account at
Nedbank. The
applicant thus only asks that the respondent’s
name be struck off the attorneys’ roll together with the
customary costs
order.
[4]
On 10 December 2020 the respondent
filed a “Notice of Consent” to the initial relief
claimed, together with an
explanatory affidavit. In essence, and
while seeking to excuse her conduct, she cannot dispute that during
the period May 2017
to January 2018 she unlawfully disbursed monies
held by her in trust on behalf of various trust creditors pertaining
to property
transactions, totalling some R2.25 million, none of
which has been repaid by her.
[5]
Despite the respondent
having consented to an order, it is nonetheless incumbent upon us to
exercise our discretion whether to strike
her name off the attorneys’
roll, given the settled legal position that applications such as
these are not ordinary civil
proceedings, but are rather
sui
generis
and of a
disciplinary nature. It is the Court which is the final repository of
disciplinary proceedings over attorneys. In
Solomon
v Law Society of the Cape of Good Hope
[1]
it was stated that ‘…
the
Law Society protects the interests of the public in its dealings with
attorneys. It does not institute any action or civil suit
against the
attorney. It merely submits to the Court facts which it contends
constitute unprofessional conduct and then leaves
the Court to
determine how it will deal with this officer…’.
[6]
The approach to the
exercise of the Court’s discretion in a matter such as this is
equally settled: see
inter
alia
Jasat
v Natal Law Society
[2]
;
Malan & Another
v Law Society Northern Provinces
[3]
.
It is a three-stage enquiry.
[7]
The first stage is whether the conduct
complained of has been established on a balance of probabilities.
This is a factual enquiry.
It is clearly established in the present
case.
[8]
The second stage, which is a discretionary
evaluation, necessarily calls for the conduct complained of to be
weighed against the
standard of the profession, which is partly value
judgment and party objective fact. The respondent is guilty of
substantial misappropriation
of trust funds over a protracted period.
This is regarded as one of the most serious forms of unprofessional
conduct. It renders
her unfit to practice as an attorney. What is
also disturbing is that in one of the annexures to her explanatory
affidavit the
respondent informed the applicant, when giving notice
of her intention to cease practice, that she intended remaining one
of its
non-practising members. Accordingly at that stage she had no
intention of consenting to the order sought by the applicant. She did
not attempt to deal with this in her explanatory affidavit.
[9]
The third and final stage of the enquiry is
whether the delinquent practitioner should be struck from the roll or
suspended. Again,
this involves the exercise of a discretion. Not
even the respondent suggests that she should be suspended for any
particular period.
In my view striking is the only appropriate
sanction in the circumstances.
[10]
Two other aspects require mention. The
first is that the respondent maintains she no longer has her
certificate of enrolment as
an attorney in her possession. In the
initial relief claimed an order was sought directing her to surrender
and deliver such certificate
to the Chief Registrar of this Court.
This has been established practice, and has been incorporated in
orders, for many years,
even though the Attorneys Act 53 of 1979 did
not contain this as a statutory requirement, and nor does the Legal
Practice Act 28
of 2014 (“LPA”).
[11]
The purpose of such an order is twofold.
First and foremost, it protects the public and secondly, it enables
the Chief Registrar
to maintain accurate records, since the applicant
invariably fails to mention the case number under which the
practitioner was
admitted in the first place.
[12]
The applicant has seemingly accepted the
respondent’s averment, since it no longer requests such
surrender nor any alternative
form of relief in relation thereto.
There is no other information at our disposal either.
[13]
Section 30(5) of the
LPA imposes an obligation on the registrar, immediately after issuing
an order that the name of a legal practitioner
be struck off the roll
or suspended from practice, to forward a certified copy thereof to
the applicant through its provincial
branch having jurisdiction. In
turn, s 30(3)(e) of the LPA requires the applicant to keep a
Roll of Legal Practitioners reflecting
the particulars of any such
order. After discussion with the Chief Registrar, she has obtained
confirmation from the applicant’s
Mr Frank Dorey that such
particulars also appear on its website (
info@lpc.org.za
)
which is easily accessible to the public. Accordingly, in the
particular circumstances of this matter, the public will be
safeguarded
even though the respondent will not be ordered to
surrender her certificate.
[14]
The second aspect is that the respondent
has tendered, in her explanatory affidavit, to make available to the
applicant, should
it be required, the accounting records and ledgers
up to the date of closure of her practice and trust account, all of
which she
states are still in her possession. In my view this should
also be incorporated in this Court’s order.
[15]
The following order is made:
1.
The respondent’s name is
struck off the roll of attorneys;
2.
The respondent shall make available
to the applicant, within 20 (twenty) days of written request,
all accounting records and
ledgers up to the date of closure of her
practice and trust account; and
3.
The respondent shall pay the
applicant’s costs of suit on the attorney and client scale.
_____________
J I CLOETE
I agree.
_____________
E T STEYN
[1]
1934 AD 401
at
409.
[2]
2000 (3) SA 44
(SCA).
[3]
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA).