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[2015] ZASCA 109
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Law Society of the Northern Provinces v Mabaso (20252/14) [2015] ZASCA 109 (21 August 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 20252/14
In
the matter
between:
THE
LAW SOCIETY OF THE NORTHERN PROVINCES
Appellant
and
CHRISTOPHER
MABASO
Respondent
Neutral
citation:
Law
Society of the Northern Provinces v Mabaso
(20252/14)
[2015] ZASCA 109
(21 August 2015)
Coram:
Mpati
P, Cachalia, Mhlantla and Leach JJA and Dambuza AJA
Heard:
4
May 2015
Delivered:
21
August 2015
Summary:
Attorney
– Misconduct – Appropriate Sanction –
Misappropriation of trust moneys – Whether warranting
suspension
or removal – Three-stage enquiry for removal of
attorneys from roll restated – Attorney guilty of dishonesty -
Attorney
having failed to take responsibility in initial responses –
Sanction of suspension not suitable – Errant attorney struck
off.
ORDER
On
appeal from
:
Gauteng
Division, Pretoria (Twala AJ and Mabuse J, sitting as a court of
first instance):
1
The appeal is upheld, with costs, to be paid on the scale as between
attorney and client.
2.
The
order of the court a quo is set aside and replaced with the
following:
‘
(a)
The respondent’s name is struck from the roll of attorneys of
this court and the respondent is ordered to pay the costs
of the
application on the scale as between attorney and client.
(b)
The respondent is ordered to deliver and hand over his certificate of
enrolment as an attorney to the Registrar of this court.
(c)
In the event of the respondent failing to comply with the terms of
the order in sub-paragraph (b) within two (2) weeks from
the date of
this order, the sheriff of the district in which the certificate is
kept, is authorised and directed to take possession
thereof and to
hand it to the Registrar of this court.
(d)
There will further be an order in terms of prayers 4 to 12 inclusive
of the notice of motion, that relief being contained in
annexure “A”
hereto.’
JUDGMENT
Mpati
P (Cachalia, Mhlantla and Leach JJA and Dambuza AJA concurring):
[
1]
The respondent is an admitted attorney practising as such in
Lebowakgomo, Limpopo. During October 2010 the appellant (the Law
Society) instituted motion proceedings against him, seeking an order,
inter alia, that his name be struck from the roll of attorneys.
The
Gauteng Division of the High Court, Pretoria (Twala AJ, Mabuse J
concurring), however, declined to issue a striking off order
and,
instead, made the following order:
‘
I.
That the respondent be and is hereby suspended for a period of one
(1) year from the date of this order;
II.
That the respondent is precluded from practising as an attorney for
his own account, either as a principal or in partnership
or in
association or as a director of a private company for a period of two
years from the expiry of the suspension in (I) above;
IV.
Should the respondent elect to practise in the manner set out in
paragraph (II), after the expiry of the period of two years,
he shall
satisfy this Court that he should be permitted to practise for his
own account;
.
. . .
’
Further
ancillary orders were granted relating to the appointment of a
curator
bonis
to
take control of the respondent’s accounting records, files and
documents, etcetera and to administer his trust account.
The
respondent was also ordered to pay the costs of the application on
the scale as between attorney and client. This appeal is
against that
order with leave of the court below.
[2]
It is now settled that an application for the removal from the roll,
or suspension from practice, of an attorney involves a
three-stage
enquiry. First, the court has to determine whether the alleged
offending conduct has been established on a balance
of probabilities.
Second, consideration must be given to the question whether, in the
discretion of the court, the person concerned
is not ‘a fit and
proper person to continue to practise as an attorney’.
[1]
Third, the court is required to consider whether, in all the
circumstances, the name of the attorney concerned should be removed
from the roll of attorneys or whether an order suspending him or her
from practice would suffice. (See
Summerley
v Law Society, Northern Provinces
[2006] ZASCA 59
;
2006 (5) SA 613
(SCA) para 2 and the cases there
cited.)
[3]
As to the first stage of the enquiry, namely the offending conduct,
the facts have largely become common cause although, initially,
some
were disputed by the respondent, an aspect to which I shall return
later in this judgment. After it had received a complaint
against the
respondent relating to his alleged failure to account in respect of
trust funds held in his trust account, the Law
Society instructed an
internal auditor, Ms Phossina Mapfumo, to investigate, to inspect the
accounting records of the respondent
and to identify and report on
any contraventions by the respondent of the provisions of the
Attorneys Act 53 of 1979 (the Act)
and the Law Society’s rules
(the Rules). Having conducted the investigation and inspection, Ms
Mapfumo reported to the Law
Society on 14 May 2010. Her report was
annexed to the Law Society’s founding affidavit deposed to by
its president, Mr Carel
Pieter Fourie.
[4]
The complaint mentioned above was lodged by Mr B S Kekana during
October 2009. He had instructed the respondent to institute
a third
party claim in respect of injuries sustained by his son. Upon making
enquiries from the Road Accident Fund during September
2009 he was
informed that an amount of R76 500 had been paid into the
respondent’s trust banking account on 23 March
2008. On 19
October 2009 Mr Kekana received a cheque from the respondent in the
sum of R10 000. These facts are thus far common
cause. Ms
Mapfumo’s report reveals that upon inspection the trust banking
account of the respondent’s firm had a credit
balance of only
R87,07 whilst the trust creditors’ balance was R30 000,
which meant that there was a shortage of R29 912,93.
The
existence of a deficit in the trust banking account constituted a
contravention of the provisions of s 78(1) of the Act, read
with rule
69 of the Rules, in that the firm did not ensure that the total
amount of money in its trust banking account, trust investment
account and trust cash was not, at any date, less than the total
amount of the credit balances of the firm’s trust creditors.
[5]
With regard to the complaint lodged by Mr Kekana, it is common cause
that on 27 March 2008 the respondent transferred a sum
of R26 000
from the firm’s trust account to its business account. On 4
April 2009 an amount of R50 000 was paid
out of the trust
account. In both his answering and supplementary answering affidavits
the respondent averred that the last-mentioned
amount was transferred
from the trust account to the business account. He explained that the
first transfer of R26 000 was
made up of a 25% contingency fee
of R19 125 and the rest (R6 875) as part of the attorney
and client fees due to the
firm totalling R7 375. As to the
second transfer of R50 000 he said:
‘
The
R50 000,00 . . . was used to hire a secretary, purchasing of
office furniture and equipment, advance rental payment and
assisting
in personal financing of funeral expenses of relatives who passed
away as in that time there was no one to assist and
the Respondent as
an attorney and a breadwinner was expected to assist in this regard
.’
The
respondent, therefore, admitted the allegation made in the founding
affidavit that he misappropriated trust funds, but said
this was an
error on his part and that ‘the said mistake was rectified . .
. ’.
In
this regard the Law Society seemed to have accepted the respondent’s
assertions to Ms Mapfumo that on 27 November 2009
(after the first
payment on 19 October 2009) he made a payment in cash to Mr Kekana in
the sum of R10 000 and that during
December 2009 and on 21 May
2010 he made further cash payments of R5000 and R25 000
respectively.
[2]
The respondent,
however, admitted that he failed to keep Mr Kekana’s moneys
available in the firm’s trust account and
that he failed to
account to Mr Kekana and delayed the payment of trust funds. He also
admitted that he contravened certain rules
relating to transfers and
withdrawals of trust moneys
[6]
There were two other complaints against the respondent. The first was
lodged by Etha Smit Attorneys of Kempton Park, who alleged
in a
letter to the Law Society dated 1 July 2010, that the respondent had
failed to account to them in respect of moneys collected
pursuant to
instructions to act as their correspondent. The respondent had
failed, so it was further alleged, to respond to five
letters
addressed to him
[3]
and to
return four calls made to, and messages left for, him.
[4]
He had also failed to honour an undertaking given on 15 April 2010 to
respond to them in writing. The Law Society submitted that
the
respondent’s conduct in this regard constituted a contravention
of the provisions of rule 89.23. The respondent’s
response to
these allegations was that the complaint was brought prematurely
before the court below as he had never been given
an opportunity to
reply thereto. In any event, he said, he had personally resolved the
matter. He attached to the answering affidavit
a copy of a letter
from Etha Smit Attorneys dated 4 October 2010, addressed to the
Disciplinary Department of the Law Society,
in which it was stated
that the respondent had returned their file and that they regarded
the matter ‘as settled’.
In his supplementary answering
affidavit the respondent merely stated that despite acknowledging
receipt of a payment (from his
firm) of an amount of R1 100 in
their letter of 29 July 2009 and of receipt of a facsimile (from his
firm) in the subsequent
letter dated 15 September 2009, Etha Smit
Attorneys ‘still insist and/or act as if they have never
received any response
from the respondent . . . ’. As to his
failure to respond to messages his explanation was that ‘they
did not come to
his attention as his handset was stolen by then’.
[7]
The second of the two further complaints was lodged by Mr and Ms T E
Tseoga who had instructed the respondent to act for them
in a matter
in the Polokwane Magistrates’ Court in which they were
defendants. They complained that they had eventually discovered
that
judgment had been entered against them after the respondent had
withdrawn as their attorney of record without having either
consulted
them or given them reason to do so. The Law Society referred the
complaint to the respondent on 20 September 2010 for
his comment, but
as at the date of signature of the founding affidavit, it had not
received any response from him. The respondent’s
answer to the
allegation that he had failed to respond to the complaint referred to
him by the Law Society was that, on 23 August
2010, he had received
the Tseoga complaint from the Limpopo Law Society and had responded
thereto by letter dated 15 September
2010. The Law Society’s
allegation that they had not received any response from him,
therefore, surprised him. As to his
withdrawal as the complainants’
attorney of record, the respondent stated in his answering affidavit
that he had done so
because the complainants had been disrespectful
to him. In his supplementary answering affidavit he elaborated and
averred that
Mr Tseoga had scolded him and accused him of being a
crook in that he had arranged with the Magistrate in Polokwane to
steal his
money.
[8]
The Law Society alleged in its replying affidavit that by failing to
respond to its referral relating to the Tseoga complaint
and to Etha
Smit Attorneys’ letters the respondent had contravened the
provisions of rules 89.23 and 89.25 and was therefore
guilty of
unprofessional, dishonourable and unworthy conduct. And when it
addressed a letter to an attorney, it said, the latter
is obliged to
reply. The fact that the respondent had replied to the Limpopo Law
Society was, therefore, no excuse for his failure
to reply to its
letter. I agree. In the unreported judgment in
The Law
Society of the Northern Provinces v Tiego Moseneke
, Case no
15588/2000 (delivered on 7 June 2006), Leach J (McLaren J concurring)
said the following:
‘
The
importance of an attorney co-operating and dealing with complaints of
professional misconduct hardly needs to be stated, and
failures to do
so are viewed seriously by the courts. Thus, for example, in both the
Human
case and
Prokureursorde
van die Noordelike Provinsies v Grové
,
an attorney’s failure to reply to correspondence from the Law
Society about complaints it had received, was taken into account
as a
material consideration justifying striking off
.’
[5]
(Footnote omitted)
In
its judgment the court below referred to the respondent’s
failure ‘to answer correspondence from colleagues and that
of
the Law Society’ as facts that are common cause. In his heads
of argument, to which I shall refer later, the respondent
confirmed
the finding or statement relating to common cause facts. It follows
that the Law Society proved the contraventions by
the respondent of
rules 89.23 and 89.25.
[9]
Other transgressions by the respondent found by the court below to be
common cause were that he had not maintained any trust
creditors’
ledger accounts in contravention of rules 68.1 and 68.2; that lists
of trust creditors were not available as the
respondent had not
prepared them (a contravention of rule 69.7.1); and that the
respondent had neglected to give proper attention
to the affairs of
his clients in contravention of rule 89.15. The last-mentioned
transgression related to a finding of the Investigating
Committee of
the Law Society’s Council, which investigated Mr Kekana’s
complaint, that his minor son had been seriously
injured and that the
settlement amount of R76 500 was ‘insufficient by far’.
[10]
Lastly, the court below found it to be common cause that the
respondent ‘failed to attend disciplinary proceedings of
the
committees of the council’ of the Law Society. After it had
received and considered Mr Kekana’s complaint, the
Law Society
referred it to the Investigating Committee, which notified the
respondent to appear before it on 15 April 2010. On
7 April 2010, the
respondent requested a postponement, which was refused because the
Investigating Committee was not satisfied
with the basis of his
request, namely, that he was not feeling well. But the respondent
failed to attend the proceedings on the
scheduled date and, shortly
before the commencement of the proceedings, furnished the Committee
with a letter in which he requested
to be excused as he was returning
from a consultation in Venda. However, in his answering affidavit the
respondent alleged that
he could not attend the proceedings because
he had been involved in an accident and was in pain. The situation,
he said, was beyond
his control. The respondent failed to explain the
contradictory reasons he had given for his failure to attend the
proceedings
before the Investigating Committee of the Law Society in
his supplementary answering affidavit despite his attention having
been
drawn thereto in the Law Society’s replying affidavit. It
seems to me that the second explanation, namely, that he failed
to
attend the enquiry because he had been involved in an accident was
clearly an afterthought as it was brought up for the first
time in
the answering affidavit. This clearly evidences not only a lack of
co-operation with the Law Society on the part of the
respondent but,
importantly, a lack of candour with the court.
[11]
In light of all these transgressions, though not fully set out in its
judgment, the court below concluded, with regard to the
second
enquiry, that the respondent ‘is not a “fit and proper
person” to practise as an attorney of this Court’.
I
agree with that conclusion and shall now proceed to consider the
third enquiry, namely, whether, as argued on behalf of the Law
Society, the respondent’s transgressions are such that they
should be visited with an order striking his name off the roll
or
whether the order of the court below suspending him from practice for
a period of one year suffices. As was said in
Jasat
v Natal Law Society
[2000] ZASCA 14
;
2000 (3) SA 44
(SCA), the appropriate order ‘will
depend upon such factors as the nature of the conduct complained of,
the extent to which
it reflects upon the person’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’.
[6]
[12]
When the matter was called in this court the respondent was neither
present nor represented. The registrar’s office was
directed to
enquire from the local correspondents of the respondent’s
attorneys (J M Mampora Attorneys of Lebowakgomo) whether
the
respondent had received the notice of the date of the appeal hearing.
It was reported to us that the local attorneys, N W Phalatsi
&
Partners, had assured the registrar that the notice of set-down was
forwarded
to J M Mampora Attorneys, but that the latter had intimated that the
respondent could not be traced. The hearing of the
appeal therefore
proceeded in the absence of the respondent. However, upon the request
of the court, the Law Society’s Pretoria
attorneys, Rooth &
Wessels, were able to trace him through J M Mampora Attorneys. In an
affidavit filed on 7 May 2015, Mr Pieter
Johannes Smith of the firm
Rooth & Wessels testified that on 5 May 2015 he had personally
spoken to the respondent, who confirmed
that he had been unaware that
the appeal had been set down for hearing on 4 May 2015. The
respondent was then invited, through
the registrar’s office, to
file heads of argument, if he so wished, which he did. The Law
Society decided not to file further
heads of argument in response.
[13]
In arriving at the sanction ultimately imposed, namely, a suspension
from practice, the court below reasoned thus:
‘
I
have no doubt in my mind that the transgressions of the respondent
are serious when viewed in totality. The court has now to decide
whether they were serious enough to warrant the extreme penalty of
striking off. In my view the respondent was not found guilty
of
dishonesty and therefore the penalty of striking off is rather too
severe in this particular case. This is so because, on the
respondent’s version, he did not have exposure to the
administration of the trust account since his first admission as an
attorney in 2001. He only started operating a trust account after he
started practising on his own account
.’
[7]
The
Law Society took issue with the finding that the respondent ‘was
not found guilty of dishonesty’. It was submitted
on its behalf
that the respondent’s admitted misappropriation of trust funds
and the manner in which he responded to the
allegations (of
misappropriation of trust funds) involved dishonesty. A further
submission was that the court below should have
found that by
deducting a total fee of R26 000 from the settlement amount of
R76 500, the respondent overreached his
client. With regard to
the last-mentioned submission, and as recorded above (para 5), the
fees of R26 000 included a contingency
fee of R19 125.
However, no document was attached to the respondent’s
affidavits to prove that a contingency fee agreement
had indeed been
concluded between the respondent and Mr Kekana. In view of the
failure to attach a copy of the agreement to the
respondent’s
answering or supplementary answering affidavit, it is doubtful
whether such an agreement was ever concluded.
In the view I take of
the matter, however, it is unnecessary to pursue the issue further.
[14]
In exercising its function in respect of the third enquiry, namely,
considering what sanction should be visited on the respondent,
the
court below was called upon to exercise a discretion. This court, on
appeal, therefore, has a limited power to interfere. It
can only do
so where the court below is found to have ‘exercised its
discretion capriciously, or upon a wrong principle,
or where it has
not brought its unbiased mind to bear on the question or where it has
not acted for substantial reasons’
(
Vassen
v Law Society of the Cape of Good Hope
[1998]
ZASCA 47
;
1998 (4) SA 532
(SCA) at 537F-G).
[15]
Dealing with the complaint lodged by Mr Kekana, the court below said
the following:
‘
Due
to financial problems and having to meet his operating expenses, [the
respondent] transferred R50 000 into his business
account hoping
that his other clients would pay him in time so that he could pay Mr
Kekana
.’
[8]
There
is no allegation in the respondent’s answering and
supplementary answering affidavits that at the time he made the
transfer he had been hoping that other clients would pay him in time
so that he could pay Mr Kekana. The respondent merely stated,
in his
supplementary answering affidavit, that the delay in accounting to Mr
Kekana ‘was due to the fact that the respondent
failed to raise
the client’s amount transferred to the business account’.
The source from which the money was hoped
to be raised was never
mentioned. There was no evidence that, at the time he misappropriated
the trust money that had been due
to Mr Kekana, the respondent had
another client, or other clients, who owed him fees that would cover
the misappropriated amount.
The court below, therefore, misdirected
itself on the facts.
[16]
Moreover, it is difficult to understand the basis for the court’s
comment or finding that the respondent ‘was not
found guilty of
dishonesty’. The common cause facts are that the respondent
kept the money due to Mr Kekana for a period
of more than a year
before he transferred the sum of R50 000 from his trust account
to the business account, which he subsequently
misappropriated. He
made payment to Mr Kekana of only R10 000 after a period of more
than 18 months following the settlement
of the claim and payment of
the settlement amount to his firm. In his answering affidavit the
respondent stated that the money
(R50 000) ‘was
erroneously transferred’ into his business account; that he
informed Mr Kekana thereof and that
they ‘agreed that the
amount . . . will be paid’. Thus, on his own version the
respondent appropriated the money without
the consent of Mr Kekana.
This amounted to theft and the fact that the stolen money may have
been repaid does not detract from
the seriousness of that offence.
(Compare
Vassen
at
537G-H.) The respondent therefore acted dishonestly and the court
below should have found accordingly. Its failure to do so amounted
to
a misdirection. This court is thus at large to interfere with the
exercise, by the court below, of its discretion.
[17]
As to the other transgressions, the court below characterised them as
‘administrative in nature’, but observed
later that it
had no doubt that they ‘are serious when viewed in totality’.
But, having found that the respondent ‘was
not found guilty of
dishonesty’, the court concluded that ‘the penalty of
striking off is rather too severe in this
particular case’. The
respondent’s version that he never had exposure to the
administration and management of a trust
account before he commenced
practice for his own account also played a part in persuading the
court below to arrive at the sanction
to which it did. What is of
grave concern, though, is the following observation made by the court
below:
‘
The
respondent appeared in person and did not strike me as a delinquent
person but as someone who is prepared to learn and continue
his
professional career. Given a chance, the respondent undertook to
attend the practise management course being offered by the
applicant
. . .
.’
[9]
First,
there is no indication in the record that the respondent gave
evidence before the court below. The undertaking must, therefore,
have been given from the bar and should not have been given as much
weight as the court appears to have done. Second, the observation
made by the court from the respondent’s appearance and its
conclusion that he did not strike it as a delinquent person was
irrelevant for purposes of considering a proper sanction. What
mattered was the conduct of the respondent complained of, his
responses
and attitude thereto, and whether from that it may be
concluded that he should remain in what is known as an honourable
profession
(
Vassen
at 538I–539A and
Summerley
para 21 ).
[18]
The fact that this court has now made the finding that the
respondent’s conduct in relation to Mr Kekana’s complaint
involved dishonesty does not necessarily mean that the more severe
sanction of striking off must be visited on him. As was said
in
Summerley
,
before imposing ‘this severe penalty’ a court should be
satisfied that ‘the lesser stricture of suspension from
practice will not achieve the objectives of the Court’s
supervisory powers over attorneys’.
[10]
In supporting the sanction imposed by the court below the respondent,
in his heads of argument, relied on this court’s decisions
in
Summerley
and
Law
Society of The Cape of Good Hope v Peter
[2006]
ZASCA 37
;
2009 (2) SA 18
(SCA). In each of those matters this court
ordered a suspension from practice rather than striking off. The
respondent submitted
that he made full disclosure to the Law Society
of the reason for his misappropriation of trust funds as well as for
his failure
to keep proper books of account and that, therefore, the
court below ‘gave a fair and reasonable judgment’ in
suspending
him from practice for a period.
[19]
In
Summerley
,
the appellant’s trust cheque for R30 558 made out to one
of his clients as payment for an amount due to the client
was
dishonoured on presentation, but was subsequently honoured,
approximately eight days later, after an amount of R50 000
had
been deposited into the account. The appellant in that case had thus
breached the Law Society’s rule that there should
never be a
shortfall in an attorney’s trust account. His explanation for
the shortfall was that he had written out ‘certain
cheques’
on the strength of an assurance from another client that he (the
client) had transferred an amount of R50 000
owing to the
appellant ‘at about that time’. He only realised that the
assurance given to him was not true when the
cheque was dishonoured.
There were other contraventions of the Rules by the appellant which
this court found to be ‘considerably
less serious’. With
regard to the transgression relating to the trust account, this court
held that the appellant could not
be said ‘to have
misappropriated trust money in the sense of dishonestly using it for
himself’.
[11]
That is
not the case in the instant matter, where the respondent dishonestly
used trust money for himself and his relatives.
[20]
In
Peter
,
the respondent, who had started practising with no capital after her
admission on 2 August 2002, transferred trust money from
her trust
account, which she had received during December 2002, to her business
account and used it to pay her outstanding practice
expenses. Further
amounts were subsequently debited to her trust account with the
result that at the end of March 2003 she only
held R2 272,22 in
trust when, on her own calculations, she should have been holding
R22 805,28. On 4 June 2003 the Law
Society of the Cape of Good
Hope (Cape Law Society) sent her a copy of a complaint lodged by one
of her clients that he had not
received a full accounting from her
regarding amounts she had received on his behalf. In her reply she
pleaded guilty to professional
misconduct and set out certain factors
to be considered by the Cape Law Society ‘in mitigation of
sentence’. The admission
was repeated in her answering
affidavit. In her case, the court of first instance found that there
were exceptional circumstances
not to order a striking off. What
counted in her favour was ‘her frank and full disclosure,
accepting responsibility for
her conduct, the short duration and
limited nature of her misconduct, her expression of contrition and
her willingness to effect
restitution . . .’.
[12]
On appeal this court held that she had ‘showed herself to be
naïve and immature, lacking in experience and insight’
and
that she was ‘not an inherently dishonest person’ (Para
23).
[21]
In my view, there are no exceptional circumstances present in the
instant matter. When the Law Society invited the respondent
to
comment on the report of the Investigating Committee, he claimed that
he had paid the amounts mentioned above (in para 5) and
had therefore
settled the matter with Mr Kekana. He blamed his former principal for
coercing Mr Kekana to report him so that he
could be struck off the
roll. The only admission contained in the answering affidavit was
that the money (R50 000) ‘was
erroneously transferred into
my business account’. There was no explanation as to what had
happened to the money. Indeed,
in respect of the improper transfer of
trust funds and certain other allegations relating to other
transgressions he called on
the Law Society to provide proof thereof.
With regard to Mr and Ms Tsheoga’s complaint the respondent
again blamed his former
principal who, he alleged, had instructed Mr
Tsheoga to lodge a complaint against him. He also accused Ms Mapfumo
of choosing ‘to
fabricate her own story’ in response to
an allegation in the founding affidavit that there was a trust
deficit in his bookkeeping.
The respondent thus failed to take
responsibility for his conduct and, instead, levied false accusations
against others in an attempt
to mislead the court. This, in itself,
was wholly inconsistent with his duties as an officer of the court
and must be viewed in
an extremely severe light (see
Reyneke
v Wetgenootskap van die Kaap die Goeie Hoop
[1993] ZASCA 161
;
1994 (1) SA 359
(A) at 370A).
[22]
It was only after the Law Society had referred, in its replying
affidavit, to the judgment of this court in
Law
Society of the Northern Provinces v Mogami
[2009] ZASCA 107; 2010 (1) SA 186 (SCA)
[13]
that the respondent deposed to a supplementary answering affidavit,
in which he admitted, inter alia, to having misappropriated
trust
funds and set out the circumstances under which the funds were
misappropriated. In
Mogami
,
this court issued a warning in these terms:
‘
It
has become a common occurrence for persons accused of a wrongdoing,
instead of confronting the allegation, to accuse the accuser
and seek
to break down the institution involved. This judgment must serve as a
warning to legal practitioners that courts cannot
countenance this
strategy. In itself it is unprofessional
.’
[14]
As
has been shown above, the respondent, instead of confronting the
allegations against him sought, in his answering affidavit,
to accuse
others and to call for proof of the allegations. To my mind the
respondent has exhibited a lack of insight into the wrongfulness
of
his actions and a complete disregard for the Law Society’s
rules relating to the protection of trust funds. Despite the
change
of stance in the supplementary answering affidavit, the respondent’s
initial responses and attitude to the allegations
against him
preclude me from concluding that a repetition of the transgressions
is unlikely in the future.
[23]
Although the respondent’s other transgressions, which the court
below described as being administrative in nature, were
serious, they
possibly might not, by themselves, have moved this court to find that
the respondent was not fit to continue to practise
– in the
same breath, I should mention that this court has held that the
failure to keep proper accounting records is a serious
offence
rendering an attorney liable to be struck off (see
Cirota v Law
Society, Transvaal
1979 (1) SA 172
(A) at 193C-G). However, the
misappropriation of trust funds, which he failed to acknowledge and
disclose until very late, taken
together with the unacceptably long
delay in accounting to Mr Kekana, were extremely serious. Dealing
with an argument advanced
on behalf of the appellant in
Summerley
that, as a general rule, striking off is reserved for attorneys who
have acted dishonestly, while transgressions not involving
dishonesty
are usually visited with the lesser penalty of suspension from
practice this court, acknowledging the distinction, said:
‘
The
attorney’s profession is an honourable profession, which
demands complete honesty and integrity from its members. In
consequence dishonesty is generally regarded as excluding the lesser
stricture of suspension from practice, while the same can usually
not
be said of contraventions of a different kind
.’
[15]
I
can find no reason for departing from the sanction generally imposed
in respect of transgressions involving dishonesty. Taking
that
dishonesty into account, together with the other features of this
case already mentioned, the respondent clearly should not
be allowed
to practise. The appeal must accordingly succeed.
[24]
In its notice of motion the appellant sought a number of detailed
prayers customarily made in matters of this nature, authorising
it to
take various steps to wind-up the respondent’s practice. To
avoid prolixity, the terms of that relief can be included
by
reference to the annexure to this judgment.
[25]
In the result, the following order shall issue:
1
The appeal is upheld, with costs, to be paid on the scale as between
attorney and client.
2
The order of the court a quo is set aside and replaced with the
following:
‘
(a)
The respondent’s name is struck from the roll of attorneys of
this court and the respondent is ordered to pay the costs
of the
application on the scale as between attorney and client.
(b)
The respondent is ordered to deliver and hand over his certificate of
enrolment as an attorney to the Registrar of this court.
(c)
In the event of the respondent failing to comply with the terms of
the order in sub-paragraph (b) within two (2) weeks from
the date of
this order, the sheriff of the district in which the certificate is
kept, is authorised and directed to take possession
thereof and to
hand it to the Registrar of this court.’
(d)
There will further be an order in terms of prayers 4 to 12 inclusive
of the notice of motion, that relief being contained in
annexure “A’’
hereto.’
_______________________
L Mpati
President
APPEARANCE
For
the Appellant:
P J Smith
Instructed by:
Rooth & Wessels
Inc, Pretoria
Phatsoane Henney,
Bloemfontein
For
the Respondent
No Appearance
Instructed by:
J M Rampora Attorneys c/o Sekati
Monyane Attorneys, Pretoria
N
W Phalatsi & Partners,
Bloemfontein
[1]
See s 22(1)(
d
)
of the Attorneys Act 53 of 1979.
[2]
Ms Mapfumo
reported that the respondent provided her with an affidavit (annexed
to the report) allegedly deposed to by Mr Kekana
on 28 May 2010
confirming the payments.
[3]
The letters were
dated 19 June 2009, 20 October 2009, 14 August 2009, 15 September
2009 and 23 October 2009.
[4]
The calls were
made and messages left on 17 Mach 2010, 19 March 2010, 29 March 2010
and 1 April 2010.
[5]
Para 172.
[6]
Para 10.
[7]
Para 14.
[8]
Para 7 of the
judgment.
[9]
Para 15 of the
judgment.
[10]
Para 19.
[11]
Para 20.
[12]
Quoted in para 13
of this court’s judgment.
[13]
A copy of the
judgment was attached to the replying affidavit.
[14]
Para 26.
[15]
Para 21. See also
Vassen
at 538G-H.