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[2011] ZAGPPHC 82
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Ex parte: Lechaba (1236/2011) [2011] ZAGPPHC 82 (1 June 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 1236/2011
DATE:01/06/2011
In
the ex parte application of
TLAWENG
JACOB
LECHABA
.....................................................................................
Applicant
JUDGMENT
MAKGOKA,
J:
[1]
This is an application in terms of section 15 of the Attorney Act, 53
of 1979, for the admission of the applicant as an attorney
of this
court. It is not opposed by the Law Society of the Northern Provinces
(the Law Society). The application came before me
during recess on 7
April 2011. I removed the matter from the roll as I doubted the
applicant's fitness to be admitted as an attorney.
I undertook to
give directives as to the further handling of the matter.
[2]
The applicant has satisfied all the formal requirements for admission
as an attorney. He has served articles of clerkship under
three
various principals, namely Messrs. Nathan Sher, Gurwantrai Laxman
Bhika and Stanton Roy Bregman. It is during his service
under Mr.
Bhika that problems arose concerning the applicant's fitness. The
facts are simple. Mr Bhika lodged a written complaint
with the Law
Society on 14 March 2006 as follows:
"2.
On 14Th January 2006, (Mr. Lechaba) having written and passed his
Board Exams, save for the exam relating to accountancy,
we understand
that he was to write said accountancy exam in March 2006. With his
Articles having expired, Mr Lechaba left our employ
on 31st January
2006.
3.
Subsequently, we have been approached by a client of this practice,
Zebediela Long Distance Association's Chairperson, Mr Lesley
Makgabo,
on the 21st February 2006, with allegations of payments being made to
Mr Lechaba with promises made for action to be instituted
by this
practice and also other payments made regarding outstanding fees,
which we had been attempting to recover from said client.
4.
We then requested evidence of said payments, including proof
thereof. Copies
of
an Acknowledgement of Debt dated 2nd December 2005 together with two
deposit slips dated 2nd December 2005 and 5th December 2005
confirming deposit of payment into Mr Lechaba's account were
received, which are attached for your records.
5.
We were finally able to consult with client on 24,h February 2006
whereat
the
following came to pass:
5.1
In the action under case No. 2005/24226 in the High Court, WLD, being
an Application instituted by this practice, of a total
fee of R35
000.00 quoted, the practice received a sum of R15 000.00. We are
advised, a further sum of R20 000.00 was paid, to Mr
Lechaba
personally, but not received by the practice.
5.2
As evidenced by the acknowledgement of Debt and deposit slips, Mr
Lechaba received some R65 000.00 which funds were to be held
as
security for a Kombi/taxi attached by the Respondent in the first
action, allegedly, in order that the Kombi could be released.
Client
loaned the funds from Ms. Motsorwane Veronicca Mogatlane, and as per
the deposit slips it appears Mr Lechaba received said
funs in his
personal account, but did not take action, nor hand over the funds to
this practice or follow through on the mandate.
5.3
Mr Lechaba subsequently received initially a sum of R15000.00 and
further sum of R9000.00 from a Mr. Samuel Sebothoma, who
is a
Respondent in the action instituted by the Respondent in the first
matter under case no 2005/27602 in the High Court, WLD.
The funds
allegedly were received to defend the action and stop the removal of
the Kombi/taxi. It appears that the second and the
third cases are
linked.
6.
In all of the above matters, neither the writer not the practice had
any knowledge of these arrangements, which only came to
light on 24
th
February 2006, and Mr Lechaba has no mandate or authority to received
funds from client into his personal account.
7.
It also appears that Mr Lechaba had consulted on behalf of the
client, with Advocate M. Nteleki on 3rd October 2005, but had
reported to the practice that since Advocate Nteleki was not
available to assist, there would be no fee payable to her and in the
circumstances, the account is not payable. Based on that, we have
been arguing with Advocate Nteleki that the account is not payable,
and only on the 24,h February 2006, were able to establish that this
is not correct and that in fact consultations were held with
Advocate
Nteleki and that the amount is payable. Arrangements have been made
with the Advocate in this regard.
8.
As a result of the consultation and advice from clients, we
immediately contacted Mr Lechaba and had a meeting with him whereat
he acknowledged receipt of the funds together with a further sum of
R500.00 loaned from a member of our staff. In order to assist
clients, and on clients instructions, we undertook to hold over
reporting of the matter to yourselves, pending settlement of the
amounts owing. To this end, we concluded an Acknowledgement of Debt,
which Mr Lechaba signed on 24th February 2006. A copy thereof
is
attached for your records.
9.
In terms of said Acknowledgement of Debt, Mr Lechaba acknowledged
misappropriation
and theft of funds and acknowledged and agreed to pay said funds to
the practice in the total sum of R106 500,
which amount is computed
as follows:
9.1
Paid by ZELDTA for fees due to Bhikha Inc
..........
R20
000.00
9.2
Received from Ms M.V Mogotlane
….......................
65
000.00
9.3
Received from Mr S Sebothoma*
..............................
15
000.00
9.4
Loan due to Bhikha Incorporated
................................
6
000.00
9.5
Payable to C. Calvert, member of
staf
f..........................
500.00
…
.......................................................
TOTAL
.............
R106 500.00
Note:
At a subsequent meeting, namely on 6th March 2006, it was established
that Mr Sebothoma had paid a further sum of R9 000.00
to Mr Lechaba
as 'tracker fee" after his vehicle was removed.
10.
In the circumstances, I regret to have to advise and report
unprofessional conduct, theft and /or misappropriation of funds
as
committed by a Candidate Attorney, during his employ with us. We
believe that as a practice, we are not liable, nor responsible,
but
have agreed to take such action as may be necessary to assist clients
in the recovery of their funds...."
(My
emphasis)
[3]
In his founding affidavit, the applicant classifies the above
complaint as a "misunderstanding" between himself and
Mr
Bhika "which has been amicable (sic) resolved quite some time
ago....". He gives the following explanation for receiving
the
monies into his personal account: Her aunt wished to loan money to
the taxi association, but she wished that a loan agreement
be signed
first for repayment of the money. He was then requested by his family
to act as a "family representative" (not
legal
representative) and that the money be deposited into his personal
account until an acknowledgement of debt was signed.
[4]
He further states that the funds were deposited into his personal
account, upon the understanding that he would approach Bhika
to
represent the taxi association and that the funds would then be
transferred into the trust account of Bhika Inc. once the loan
agreement had been signed by the association. The funds were not paid
to him for his personal use or benefit and that the arrangement
was
purely a matter of convenience. Members of the taxi association
neglected to sign the loan agreement or acknowledgement of
debt and
accordingly, he could not release the funds to Bhika Inc. In
paragraph 11.16 of his founding affidavit, the applicant
states the
following:
"As
stated above I left the employ of Mr Bhikha at the end of January and
commenced my articles with Mr Bregman and as a result
I had little
contact with Mr Bhikha. In mid February 2006 Mr Bhikha was approached
by another member of the Association who showed
him the deposit
slips, relating to the deposits which my aunt made, and contended
that the money was meant for Bhikha to proceed
with legal work. This
apparently led Mr Bhikha to believe that I was withholding the money
without legitimate reason. I was approached
by a furious Mr Bhikha
who made accusations that I had improperly obtained funds which was
supposed to have been paid into his
trust account. As a result
thereof Mr Bhikha laid a complaint at the Law Society and presented
me with an acknowledgement of debt
which creates the impression that
I conceded having unlawfully taken possession and even stolen the
amount. I was so flabbergasted
by Mr Bhikha's reaction that I didn't
think twice in signing the acknowledgement of debt and I now realise
that that was clearly
ill-considered and a mistake. I never stole
any, monies and 1 never acted improperly. The complaint, which was
withdrawn, should
be seen in the light of all the facts.
[5]
It appears that this complaint was not investigated by the Law
Society at all. A letter dated 26 June 2006 from the Law Society
to
Mr. Bhika notes that the parties were attempting to "resolve"
the matter and that the Law Society's file would "pend"
its
file. That is about the end of the Law Society's involvement in the
matter, on the facts placed before the court.
[6]
Upon reading the papers, I formed a prima facie view that the
complaint by Mr. Bhika rendered the applicant unfit to be admitted
as
an attorney, despite that the Law Society has not investigated it. I
had a very strong disposition to dismiss the application
on that
basis. Ultimately I decided against that, for the mere reason that I
sat alone as it was during recess (normally these
applications are
heard by a bench of two Judges), considering that my prima facie view
could be wrong. As a result I removed the
matter from the roll
instead of dismissing it.
[7]
It totally escapes me how such serious allegations were not
investigated by the Law Society. It does not matter that there could
have been a "settlement" between the parties. The Law
Society, as a custos morum of the attorneys' profession, bears
a duty
to investigate all complaints of misconduct by its members, including
candidate attorneys. It is clearly an abdication of
such duty to let
go uninvestigated, serious allegations of theft and misappropriation
of what, clearly, were trust funds by the
applicant.
[8]
Another aspect warrants attention. The Law Society has pointed out
that the applicant has not been exposed to the practise of
law since
21 December 2006. (It should be 31 January 2007, in my view - the
applicant completed his articles of clerkship on 31
January 2007). He
attended the practical legal training for the purposes of section 15
(i) (b) (ivA) of the Act, in 2005. It is
not entirely his fault that
the application is only considered now. The Law Society has to
express a firm view in this regard,
should it recommend that the
applicant is a fit and proper person for admission as an attorney. It
would then be for the court,
if it finds the applicant to be so fit
and proper, to give direction whether the applicant should serve a
further period of articles
or attend a further practical legal
training course.
[13]
Having considered the totality of the issues, I make the following
order:
1.
The Registrar of this court is directed to bring this judgment to the
attention of the Director: Professional Affairs, Law Society
of the
Northern Provinces;
2.
The Director: Professional Affairs, Law Society of the Northern
Provinces is directed to cause the complaint by attorney GL Bhika
dated 14 March 2006, to be fully investigated with a view to
recommend to this court, on the fitness or otherwise, of the
applicant
to be admitted as an attorney of this court.
3.
The application shall not be re-enrolled until the investigation
referred in paragraph 2 of this order has been completed and
a
recommendation consequent thereto, has been made.
T
M MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 7 APRIL 2011
JUDGMENT
DELIVERED : 1 JUNE 2011
FOR
THE PLAINTIFF : ADV R J GROENEWALD
INSTRUCTED
BY : FRIEDLAND HART SOLOMON
NICHOLSON,
PRETORIA.
NO
APPEARANCE FOR THE LAW SOCIETY.