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[2010] ZAGPPHC 223
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Law Society of the Northern Provinces v Burgers (70383/2010) [2010] ZAGPPHC 223 (7 December 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 70383/2010
DATE:
07/12/2010
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
..................................
Applicant
And
BAREND
JACOBUS
BURGERS
....................................................................
….
Respondent
JUDGMENT
LEDWABA
J:
[1]
The applicant filed an urgent application against the respondent who
has been practicing as an attorney for his own account
since 1 July
1999. The order sought by the applicant is for the suspension of the
respondent from practicing pending the final
determination of the
application to remove his name from the roll of attorneys.
[2]
The respondent is opposing the application and has filed the opposing
affidavit.
[3]
The urgency in the matter is mainly based on the misappropriation of
trust monies which the respondent does not dispute. The
respondent's
counsel in court conceded that the matter warrants to be dealt with
in the urgent court despite the fact that in the
opposing affidavit
respondent made bare allegations that the applicant was irregular,
unreasonable and unjust. He further submitted
that the action
(application) instituted was premature as the internal process has
not been properly followed and his submission
was not considered.
[4]
I carefully read the contents of the respondent's opposing affidavit.
He does not deal with the contravention levelled against
him
pertinently. However, he admits that his trust account was not
correctly handled and that he contravened the rules of the Law
Society in that he, inter alia, failed to update his books regularly.
[5]
The report of Mr. van Rooyen shows that there was some
misappropriation of trust funds for the respondent's personal
activities.
[6]
What is of great concern is that the respondent submitted unqualified
auditors reports for the past four years. How that was
possible, in
the light of the information in Mr. van Rooyen's report, raises more
questions. This matter needs to be investigated
further by the
applicant. There is a great risk for the members of the public if the
order sought is not granted.
[7]
There have been some trust deficits in the respondent's trust account
since 2005.
[8]
I therefore, make the following order:
The
draft order marked "A" is made an order of this court.
A.
P. LEDWABA
JUDGE
OF THE HIGH COURT
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No: 70383/2010
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
..................................
Applicant
(Incorporated
as the Law Society of the Transvaal)
and
BAREND
JACOBUS
BURGERS
.........................................................................
Respondent
COURT
ORDER
Having
read the papers filed of record and having heard the attorney for the
Applicant,
IT
IS ORDERED
1.1
In respect of Part A:
1.2
That BAREND JACOBUS BURGERS (hereinafter referred to as the
Respondent) be suspended from practise as an attorney of the above
honourable court, pending the final determination of this
application;
1.3
That respondent hands and delivers his certificate of enrolment as an
attorney to the Registrar of this Honourable Court;
1.4
That in the event of the respondent failing to comply with the terms
of this order detailed in the previous paragraph within
two (2) weeks
from the date of this order, the sheriff of the district in which the
certificate is, be authorised and directed
to take possession of the
certificate and to hand it to the Registrar of this Honourable Court;
1.5
That respondent be prohibited from handling or operating on his trust
accounts as detailed in paragraph 1.6 hereof;
1.6
That Johan van Staden, the head: members affairs of applicant or any
person nominated by him, be appointed as curator bonis
(curator) to
administer and control the trust accounts of respondent, including
accounts relating to insolvent and deceased estates
and any deceased
estate and any estate under curatorship connected with respondent's
practice as an attorney and including, also,
the separate banking
accounts opened and kept by respondent at a bank in the Republic of
South Africa in terms of section 78(1)
of Act No 53 of 1979 and/or
any separate savings or interest-bearing accounts as contemplated by
section 78(2) and/or section 78
(2A) of Act No. 53 of 1979, in which
monies from such trust banking accounts have been invested by virtue
of the provisions of
the said sub-sections or in which monies in any
manner have been deposited or credited (the said accounts being
hereafter referred
to as the trust accounts), with the following
powers and duties:
1.6.1
immediately to take possession of respondent's accounting records,
records, files and documents as referred to in paragraph
1.7 and
subject to the approval of the board of control of the attorneys
fidelity fund (hereinafter referred to as the fund) to
sign all forms
and generally to operate upon the trust account(s), but only to such
extent and for such purpose as may be necessary
to bring to
completion current transactions in which respondent was acting at the
date of this order;
1.6.2
subject to the approval and control of the board of control of the
fund and where monies had been paid incorrectly and unlawfully
from
the undermentioned trust accounts, to recover and receive and, if
necessary in the interests of persons having lawful claims
upon the
trust account(s) and/or against respondent in respect of monies held,
received and/or invested by respondent in terms
of section 78(1)
and/or section 78(2) and/or section 78(2A) of Act No 53 of 1979
(hereinafter referred to as trust monies), to
take any legal
proceedings which may be necessary for the recovery of money which
may be due to such persons in respect of incomplete
transactions, if
any, in which respondent was and may still have been concerned and to
receive such monies and to pay the same
to the credit of the trust
account(s);
1.6.3
to ascertain from respondent's accounting records the names of all
persons on whose account respondent appears to hold or
to have
received trust monies (hereinafter referred to as trust creditors)
and to call upon respondent to furnish him, within 30
(thirty) days
of the date of service of this order or such further period as he may
agree to in writing, with the names, addresses
and amounts due to all
trust creditors;
1.6.4
to call upon such trust creditors to furnish such proof, information
and/or affidavits as he may require to enable him, acting
in
consultation with, and subject to the requirements of, the board of
control of the fund, to determine whether any such trust
creditor has
a claim in respect of monies in the trust account(s) of respondent
and, if so, the amount of such claim;
1.6.5
to admit or reject, in whole or in part, subject to the approval of
the board of control of the fund, the claims of any such
trust
creditor or creditors, without prejudice to such trust creditor's or
creditors' right of access to the civil courts;
1.6.6
having determined the amounts which he considers are lawfully due to
trust creditors, to pay such claims in full but subject
always to the
approval of the board of control of the fund;
1.6.7
in the event of there being any surplus in the trust account(s) of
respondent after payment of the admitted claims of all
trust
creditors in full, to utilise such surplus to settle or reduce (as
the case may be), firstly, any claim of the fund in terms
of section
78(3) of Act No 53 of 1979 in respect of any interest therein
referred to and, secondly, without prejudice to the rights
of the
creditors of respondent, the costs, fees and expenses referred to in
paragraph 1.3.1 of this order, or such portion thereof
as has not
already been separately paid by respondent to applicant, and, if
there is any balance left after payment in full of
all such claims,
costs, fees and expenses, to pay such balance, subject to the
approval of the board of control of the fund, to
respondent, if he is
solvent, or, if respondent is insolvent, to the trustee(s) of
respondent's insolvent estate;
1.6.8
in the event of there being insufficient trust monies in the trust
banking account(s) of respondent, in accordance with the
available
documentation and information, to pay in full the claims of trust
creditors who have lodged claims for repayment and
whose claims have
been approved, to distribute the credit balance(s) which may be
available in the trust banking account(s) amongst
the trust creditors
alternatively to pay the balance to the Attorneys Fidelity Fund;
1.6.9
subject to the approval of the chairman of the board of control of
the fund, to appoint nominees or representatives and/or
consult with
and/or engage the services of attorneys, counsel, accountants and/or
any other persons, where considered necessary,
to assist him in
carrying out his duties as curator; and
1.6.10
to render from time to time, as curator, returns to the board of
control of the fund showing how the trust account(s) of
respondent
has/have been dealt with, until such time as the board notifies him
that he may regard his duties as curator as terminated.
1.7
That respondent immediately delivers his accounting records, records,
files and documents containing particulars and information
relating
to:
1.7.1
any monies received, held or paid by respondent for or on account of
any person while practising as an attorney;
1.7.2
any monies invested by respondent in terms of section 78(2) and/or
section 78 (2A) of Act No 53 of 1979;
1.7.3
any interest on monies so invested which was paid over or credited to
respondent;
1.7.4
any estate of a deceased person or an insolvent estate or an estate
under curatorship administered by respondent, whether
as executor or
trustee or curator or on behalf of the executor, trustee or curator;
1.7.5
any insolvent estate administered by respondent as trustee or on
behalf of the trustee in terms of the
Insolvency Act, No 24 of 1936
;
1.7.6
any trust administered by respondent as trustee or on behalf of the
trustee in terms of the Trust Properties Control Act,
No 57 of 1988;
1.7.7
any company liquidated in terms of the Companies Act, No 61 of 1973,
administered by respondent as or on behalf of the liquidator;
1.7.8
any close corporation liquidated in terms of the
Close Corporations
Act, 69 of 1984
, administered by respondent as or on behalf of the
liquidator; and
1.7.9
respondent's practice as an attorney of this Honourable Court,
to
the curator appointed in terms of paragraph 1.6 hereof, provided
that, as far as such accounting records, records, files and
documents
are concerned, respondent shall be entitled to have reasonable access
to them but always subject to the supervision of
such curator or his
nominee.
1.8
That should respondent fail to comply with the provisions of the
preceding paragraph of this order on service thereof upon him
or
after a return by the person entrusted with the service thereof that
he has been unable to effect service thereof on respondent
(as the
case may be), the sheriff for the district in which such accounting
records, records, files and documents are, be empowered
and directed
to search for and to take possession thereof wherever they may be and
to deliver them to such curator.
1.9
That the curator shall be entitled to:
1.9.1
hand over to the persons entitled thereto all such records, files and
documents provided that a satisfactory written undertaking
has been
received from such persons to pay any amount, either determined on
taxation or by agreement, in respect of fees and disbursements
due to
the firm;
1.9.2
require from the persons referred to in paragraph 1.9.1 to provide
any such documentation or information which he may consider
relevant
in respect of a claim or possible or anticipated claim, against him
and/or respondent and/or respondent's clients and/or
fund in respect
of money and/or other property entrusted to respondent provided that
any person entitled thereto shall be granted
reasonable access
thereto and shall be permitted to make copies thereof;
1.10
That if there are any trust funds available the respondent shall
within 6 (six) months after having been requested to do so
by the
curator, or within such longer period as the curator may agree to in
writing, shall satisfy the curator, by means of the
submission of
taxed bills of costs or otherwise, of the amount of the fees and
disbursements due to him (respondent) in respect
of his former
practice, and should he fail to do so, he shall not be entitled to
recover such fees and disbursements from the curator
without
prejudice, however, to such rights (if any) as he may have against
the trust creditor(s) concerned for payment or recovery
thereof;
1.11
That a certificate issued by a director of the Attorneys Fidelity
Fund shall constitute prima facie proof of the curator's
costs and
that the Registrar be authorised to issue a writ of execution on the
strength of such certificate in order to collect
the curator's costs.
BY
ORDER OF THE COURT
REGISTRAR