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[2010] ZAGPPHC 161
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Law Society of the Northern Provinces v Peete and Another (36282/05) [2010] ZAGPPHC 161 (18 October 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
No: 36282/05
DATE:
18/10/2010
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
............................................................................................
Applicant
vs
JOSEPH
PAPI
PEETE
...........................................................................
First
Respondent
MONTY
MICHAEL MAKENA
MALEBYE
...........................................
Second
Respondent
JUDGEMENT
SAPIRE,
A J:
It
appears from the heading of the Notice of Motion that there were two
respondents in the present application. We were informed
that the
Applicant was no longer proceeding against the Second Respondent with
whom an arrangement had been made which would dispense
with the need
for the relief claimed against him.
The
application is now for the striking off of the First Respondent from
the role of attorneys of this court. The Applicant also
seeks
ancillary relief which is normally granted to enable the Applicant to
wind up the professional affairs of the First Respondent.
The grounds
of the application are that the First Respondent is not a fit and
proper person to practise as an attorney.
The
Notice of Motion and supporting affidavits were served on the First
Respondent who gave notice of intention to oppose the application.
The First Respondent has not filed any Affidavits and did not appear
to oppose the application when the matter came before the
court. The
Notice of Set Down for the hearing of this application was properly
served upon the First Respondent.
The
First Respondent was admitted and enrolled to practise as an attorney
on the 19
lh
of
December 2006. It is a matter of regret that the present application
is made only four years after his admission.
The
First Respondent initially practised in partnership with the Second
Respondent but latterly has practised for his own account
and is
presently still on the Roll of Practising Attorneys.
The
Applicant has drawn the following to the attention of the court:
(a)
Complaints have been made by the following persons: Makakaba, Choma.
Maroga, Mogola, Masehia, Malete, Sefoka and Baloyi (The
First
Complainants).
The
complaints of these individuals relate to their relationship with the
First Respondent as clients of his. The complaints are
of a similar
nature and together indicate a serious unprofessionalism by the First
Respondent in the conduct of his practise.
These
clients all lodged complaints with the Applicant that they had
instructed the First Respondent to act for each of them but
that the
First Respondent had failed to report to them or to respond to
queries raised by them. It is alleged that he also failed
to account
to these complaints. In the cases of Masehia and Sefoka the First
Respondent failed to account for or to refund deposits
accepted by
him in respect of fees.
(b)
The First Respondent acted for one Phyllis Boshielo in a matter
against the Road Accident Fund (RAF). The First Respondent failed
to
report to Boshielo or to respond to her queries. Boshielo ascertained
that the Fund had paid an amount of R73 883,11 to the
First
Respondent in settlement of her claim. First Respondent has to date
not paid any amount to Boshielo or accounted to her.
(c)
The Sheriff of Groblersdal complained that the First Respondent
failed to pay the Sheriff the amount of his account or services
rendered and has not remedied this default to date.
(d)
The First Respondent has practised on his own account without a
Fidelity Fund Certificate since January 2004. He has failed
to pay
any subscription since that time nor has he submitted Accountant
Certificates for periods since February 2003.
(e)
The First Respondent was called upon to appear before a disciplinary
hearing of the Applicant on the 5
th
of October 2004 and again on the 7
lh
of December 2004. The First Respondent failed to attend either
hearing.
(f)
The First Respondent changed his address of his practise and failed
to notify the Applicant as he is required to do in terms
of the
Applicant's Rules. He also failed to so notify his clients.
(g)
The First Respondent failed to co-operate with A T van Rooyen, a
management consultant and Forensic investigator who had been
appointed by the Applicant to investigate the First Respondent's
practise and in particular the First Respondent's accounting records.
Van Rooyen made a number of attempts to obtain co-operation but no
such co-operation was forthcoming from the First Respondent
so that
Van Rooyen could not complete his investigation.
(h)
The RAF lodged a complaint with the Applicant to the effect that the
First Respondent had failed to repay to the Fund an amount
of R13
587,89 which represented an amount overpaid by the Fund to the First
Respondent in error. The error was drawn to the attention
of the
First Respondent. When the First Respondent failed to repay the
overpayment the Fund sued the First Respondent. The action
was
settled at the trial but the Respondent failed to pay the amount of
the settlement to the Fund. Execution on the judgement
proved
fruitless. These circumstances demonstrate not only dishonesty on the
part of the First Respondent but are indicative that
there must have
been a shortage in his Trust account.
The
allegations which have been outlined in the preceding sub-paragraphs
establish a strong prima facie case that the First Respondent
has
conducted his practise in a dishonest and unprofessional manner. This
in turn demonstrates that he is no longer a fit and proper
person to
be on the Roll of Attorneys.
The
very fact that the First Respondent has failed to file an Affidavit
contesting any of the allegations and has not appeared at
the hearing
of this application demonstrates that the First Respondent is unable
to controvert the Applicant's case. It would seem
that he has little
interest in the outcome.
There
will therefore be an order in terms of the Draft which was submitted
at the clo
se
of argument.
SAPIRE,AJ
I
Agree
EBERSOHN,AJ
Applicant
's
Attorneys
STEGMANNS
INCORPORATED
1
st
FLOOR,
CELTIS PLAZA
SOUTH
BLOCK
1085
SCHOEMAN STREET
HATFIELD
PRETORIA
TEL:
012-342 6430
REF:
MR D J STEYN/EP/P3S68/05
Respondent's
Attorneys
MAS
HIKE
ATTORNEYS
c/o
MAODI
ATTORNEYS TEL:
012-321
8918
REF:
MR PEETE
2
nd
FLOOR. SUITE 208
SAVELKOUS
BUILDING
CNR
PRETORIUS AND PAUL KRUGER STREETS