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[2024] ZAFSHC 8
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South African Legal Practice Council v Mokhele (2433/2023) [2024] ZAFSHC 8; [2024] 2 All SA 272 (FB) (8 January 2024)
FLYNOTES:
PROFESSION – Attorney –
Removal
from roll
–
Misappropriated
trust monies entrusted to him – Acted recklessly –
Conduct in dealing with complaints indicative
of failure to admit
accountability and dishonesty – Wanted court to believe that
he outsourced financial aspect to
unqualified person –
Conduct fell short of two crucial elements of being a fit and
proper person to practice as an
attorney, which are honesty and
integrity – Appropriate sanction – Struck from roll.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NUMBER: 2433/2023
In
the matter between:
SOUTH
AFRICAN LEGAL PRACTICE COUNCIL
APPLICANT
and
LEBOHANG
MICHEAL MOKHELE
RESPONDENT
CORAM:
VAN ZYL, J et VELE, AJ
HEARD
ON:
07 SEPTEMBER 2023
JUDGMENT
BY:
VELE, AJ
DELIVERED
ON:
8 JANUARY 2024
[1]
The South African Legal Practice Council (“the LPC”,
alternatively “the
applicant”) approached this court for
the granting of the following orders against the Respondent:
(i)
That the Respondent be struck
off the roll of legal practitioners of the High Court of
South
Africa;
(ii)
That the Respondent be directed
to immediately surrender his certificate of admission
and enrolment
as a legal practitioner to the Registrar of the court within 10 court
days of the order of this court;
(iii)
That should the Respondent fail to comply with prayer 2 above, the
Sheriff of this court be authorised to take possession
of the said
certificate wherever and/or from whomever he or she may find it and
hand it over the Registrar of this Court;
(iv)
That Margarette Van Wyk and her successor(s) in-title be and is
appointed as Curator
Bonis
to the practice of the Respondent
as contemplated in section 90(1)(c) of the Legal Practice Council Act
28 of 2014, and shall retain
the powers and functions accorded to her
in the orders of this Court granted on 22 November 2022 (the rule
nisi
) and 20 April 2023 (confirmation of the rule
nisi
)
under case number: 5511/2022, which are attached hereto as annexure
“Y” and “X” respectively.
(v)
The Respondent be ordered to pay the costs of this application at the
scale of attorney and client;
(vi)
That such further and/or alternative relief, as this Court may deem
appropriate, be granted to the Applicant.
[2]
The Applicant is a body corporate established in terms of section 4
of the Legal Practice
Act 28 of 2014 (“the LPA”), having
jurisdiction over all the legal practitioners and candidate legal
practitioners
as contemplated in the LPA. The Respondent herein is Mr
Lebohang Michael Mokhele, an attorney practising under the name and
style
of LM Mokhele INC, in line with the provisions of sec 34(5) (a)
of the LPA, as the sole director thereof.
[3]
The background of the matter is that a rule
nisi
was granted
against the Respondent under case number 5511/2022 on 23 November
2022 in terms whereof,
inter alia,
he was suspended from the
practice of legal practitioners pending an application to have him
struck from the roll of legal practitioners.
The rule
nisi
was
confirmed on 20 April 2023. This followed the complaints by two of
his erstwhile clients Mr Xolile MacDonald Yawa (“Mr
Yawa”)
and Mrs Mathabo Emily Tau (“Mrs Tau”). Their complaints
were lodged independently regarding the manner
the Respondent was
executing their mandates. For convenience sake Mr Yawa’s matter
will be referred to as “the Yawa
complaint”, whilst Mrs
Tau’s matter as “the Tau complaint”.
[4]
The Yawa complaint was initially a complaint against the manner in
which the Respondent was dealing with the instructions
to file a
petition in the Supreme Court of Appeal against a decision of this
Court not to grant leave to appeal in a deceased estate
and customary
marriage dispute. Events took a different turn when the LPC’s
Investigation Committee was involved and uncovered
that the
Respondent has made some withdrawals from the money deposited into
his Trust account, without having done any work in
line with the
mandate.
[5]
The Tau complaint was in relation to the misappropriation
of funds deposited in an interest bearing trust account
of estate
Late Lehlohonolo Winston Tau, lodged by Mrs Tau, the deceased’s
widow and heir to the estate, following the Respondent`s
failure to
account for the monies he received on behalf of the estate. Once the
LPC’s Investigating Committee was involved,
it uncovered
unauthorised withdrawals of funds, in various transactions totalling
of over R1 million, but not paid to any of the
estate’s
creditors. The funds in the trust account were transferred without
the consent of the Master of the High Court of
the Free State or Mrs
Tau.
[6]
The crux of the matter in both the aforesaid complaints is that the
Respondent misappropriated
trust monies entrusted to him.
[7]
I deem it apposite to record the following applicable principles as
set out in the
judgment of South African Legal Practice Council v
Melato (1863/2020) [2021] ZAFSHC 305 (2 December 2021) at paragraphs
10 –
15:
“
[10] When
the court considers an application of this kind, it follows a
three-stage inquiry: see,
inter
alia
,
Jasat
v Natal Law Society
2000
(3) SA 44
(SCA);
Malan
& Another v Law Society of the Northern Provinces
[2008]
ZASCA 90
;
2009
(1) SA 216
(SCA).
[11]
Firstly, the court has to decide whether the alleged offending
conduct has been established on a preponderance
of probabilities. It
is a factual enquiry.
[12]
Secondly, the enquiry is whether the person concerned is, in the
discretion of the court, not a fit
and proper person to continue to
practice or should be suspended from practice. This requires the
court to exercise a discretion
that involves a weighing up of the
conduct complained of against the conduct expected of a legal
practitioner, and in this regard
it is partly value judgment and
partly objective fact.
[13]
Thirdly, the court enquires whether in all the circumstances of the
matter the person in question ought
to be removed from the roll of
practitioners or whether an order of suspension from practice for a
specified period might suffice.
Again, this involves the exercise of
a discretion as to whether the ultimate penalty is warranted in the
circumstances.
[14]
At this stage of the inquiry, the function of the court is primarily
to protect the public, rather
than punish the attorney. (See
Malan
and Another v Law Society of the Northern Provinces
[2008]
ZASCA 90
;
2009
(1) SA 216
(SCA) para 7.) That said, the Supreme Court of
Appeal endorses a conservative approach to standing and erosion of
professional
ethics rather than "a kid gloves approach."
[See
Malan,
supra,
para 11, and
Hewetson
v Law Society of the Free State
[2020]
3 All SA 15
(SCA) para 51.]
[15]
Each case depends on its own circumstances. The entire inquiry is of
a disciplinary nature, and how
the court conducts the inquiry depends
on the circumstances of the case. (See
Solomon
v Law Society of the Cape of Good Hope
,
1934
A.D. 401
at 412.)
[8]
In the Yawa complaint lodged with the LPC on 30
August 2021, the complainant instructed the Respondent in
December
2020 to file a petition to the Supreme Court of Appeal. The
Respondent invoiced him R165 000.00 for services allegedly
rendered, meanwhile nothing was done at that stage. Let it be said
that this was not a pro forma invoice, as there was no itemised
billing attached. Following Mr Yawa`s enquiry, the amount was reduced
to R45 000.00, which he paid on 26 February 2021. This
deposit
increased the Respondent’s trust account balance to R86 038.11.
On 27 February 2021, a transfer of R69 500.00
was made from the
trust account with reference “Fees February 15H00” to a
beneficiary in a matter unrelated to Mr Yawa’s
matter, bringing
the balance to R2 189.91, resulting in a trust deficit. The
Applicant addressed several correspondences to
the Respondent, which
he failed to respond to.
[9]
The LPC was forced to bring an application under case number
3312/2022, in relation to Mr Yawa and two other matters,
for an order
to suspend the Respondent from practice as a precautionary measure
pending the disciplinary hearing. The Respondent
opposed same, merely
denying making any transfers and failing to carry out the mandate of
Mr Yawa. This application served before
Mathebula, J and Mthimunye,
AJ who dismissed the application, as they found that there was no
factual basis to conclude that there
was offending conduct, as the
disciplinary hearings on this and two other matters were still
pending. That was “the first
application”.
[10]
The Court as per Mthimunye, AJ, in The Legal Practice Council v
Lebohang Michael Mokhele (3312/2022) delivered on 14/09/2022
referred
to the Supreme Court of Appeal decision in the Law Society of the
Northern Provinces v Morobadi (1151/2017)
[2019] ZASCA 185
, paragraph
25 thereof, but held at paragraph 26 of its judgment as follows:
“
This
court finds no factual basis to conclude that the offending conduct
has been established, given that the disciplinary proceedings
of the
applicant have not been finalised have not been finalised on the one
complaint and not been initiated on the other two.
The basis upon
which the applicant seeks a suspension order against the respondent
has not been established. Undoubtedly, the applicant
is agitated by
the flippant approach adopted by the respondent in their dealings
with each other. It raises eyebrows and respondent
must be reined in
to act in accordance with the prescripts of this noble profession.
These matters must be brought to finality.”
[11]
Though the application was unsuccessful, the court displayed
its displeasure at the manner the Respondent was conducting
himself.
The Applicant is relying on the Court’s remarks in the judgment
delivered in the first application at paragraph
19 thereof:
“…
The applicant has
intimated misappropriation of funds on the basis that the Respondent
would make transfers from the trust to the
business account without
issuing a statement of account. The Respondent when called upon to
proffer an explanation shies away from
the issues. He is less than
candid with the applicant and this court. The irresistible conclusion
is that there was such a trust.”
[12]
Subsequent to the dismissal of the first application, the LPC then
instituted disciplinary proceedings in respect of the Yawa
complaint
consisting of eight charges. The disciplinary hearing commenced on 25
October 2022 and concluded on 21 February 2023.
The charges were the
following:
Charge
1. Breach of provision 3.11 of the Code of Conduct for all
practitioners, in that he failed to file a petition for leave
to
appeal in the Supreme Court of Appeal, after being instructed to do
so and paid the amount of R45 000.00.
Charge
2. Breach of the provisions of Rule 54.12.3 and 54.12.4, as he failed
to provide Mr Yawa with a statement of account within
a reasonable
time after his mandate was terminated.
Charge
3. Breach of provision 18 of the Code of Conduct for all legal
practitioners, as he failed to issue Mr Yawa with a receipt
after
R45 000.00 was paid into his trust account on 26 February 2021;
alternatively; breach of
Rule 54.14.09
of the
Legal Practice Act
Rules
, on 26 to 27 February 2021, as the Respondent made various
payments to persons other than trust creditor Mr Yawa, causing a
trust
credit shortfall.
Charge
4. Breach of the provisions of Rule of 54.14.10, as he failed to
immediately report trust account shortfall to the Applicant;
alternatively, contravention of
Rule 54.14.11
in that the firm should
immediately report in writing to the Applicant once any account of a
trust creditor be in debit. The Respondent
received R45 000.00
into his trust account on 26 February 2021, made a transfer of
R69 500.00 termed “Fees February
15H00” to a
beneficiary that was no trust creditor of Mr Yawa, which left the
trust account in balance of R2 189.91, which
resulted in a trust
deficit.
Charge
5. Breach of provision 16.4 of the Code of Conduct for all
practitioners, as he hampered the Applicant from doing its work,
by
failing to provide statements of account and copies of his file,
requested in a letter dated 31 May 2022, sent to him on 01
June 2022.
Charge
6. Breach of provision 3.1 of the Code of Conduct for all
practitioners, in that he failed to maintain the highest standard
of
honesty and integrity, when he refunded Mr Yawa with another trust
creditor’s funds in March 2022 and misled Mr Yawa that
the LPC
informed him that Mr Yawa should enter into a settlement agreement in
which he was to withdraw his complaint against the
Respondent, as set
out in Mr Yawa’s affidavit dated 28 July 2022.
[13]
The Respondent’s explanation for transferring the
R45 000.00, was that he paid same to one Yossi Vissoker,
a
handwriting expert he commissioned to authenticate the signatures on
a relevant document, but Mr Vissoker failed to provide the
report, as
requested. He recovered the amount paid to Mr Vissoker and refunded
it to Mr Yawa in February or March 2022. However,
the Respondent was
unable to provide any invoice issued by Mr Vissoker, which was the
basis for transferring the funds, nor was
he in a position to show
proof of payment to Mr Vissoker.
[14]
Once all the evidence, including the Respondent’s was heard,
the Disciplinary Committee found the Respondent guilty
of all the
main charges against him and referred the matter to the LPC with the
recommendation to bring the application to strike
the Respondent off
the roll of legal practitioners.
[15]
The Tau complaint was next. Mrs Tau lodged a complaint against the
Respondent, as he failed to account to her as to how funds
deposited
into her late husband’s estate trust account were dealt with.
The Respondent prepared and lodged two liquidation
and distribution
accounts with the Master of the High Court, Free State, but failed to
reflect an amount of R1 million received
from FNB Life Insurance.
The LPC in reaction to Mrs Tau’s complaint, addressed a
letter, dated 27 July 2022, for his
attention, with the reply due by
26 August 2022. This Respondent did not reply. The position was the
same with a follow up letter
sent on 31 August 2022, for his reply on
14 September 2022.
[16]
The LPC’s Investigation Committee uncovered the following:
16.1
The Respondent was appointed as Executor in Estate Late Tau in April
2021 and opened an estate late bank account at Standard
Bank. During
the period 28 May 2021 to 18 June 2021, the total sum of R1
131 710.29 was deposited as follows: 28 May 2021,
R89 160.00
deposited from FNB Life Insurance; on 29 May 2021 an amount of
R42 550. 29 and on 18 June 2021 a lump sum
of R1 000 000.00
from FNB Life Insurance.
16.2
Subsequent to the deposits, various transfers took place from the
estate late account: The first transfer
being on 13 September 2021
with reference 2021256001/1 for the sum of R50 000.00; on even
date a further transfer of R100 000.00
with reference
2021256001/1 was made; on 07 October 2021 a transfer of R35 000.00
was made with reference E/L Tau Loan; on
15 October 2021 a transfer
of R54 000.00 was made with reference Tau Loan; on 29 October
2021 a transfer in the sum of R473 643.00
was made with
reference Loan; on 05 November 2021 a transfer of R30 000.00 was
made with reference Loan; on 30 November 2021
a transfer of
R170 000.00 was made with reference Loan; on 10 December
2021 a transfer of R100 000.00 was made
with reference
20211344001/1; on 29 December 2021 a transfer of R70 000.00 was
made with reference E/L Tau; on 10 January
2022 a transfer of
R7 000.00; on 22 January 2022 a transfer of R10 000.00 was
made with reference E/L Tau Loan and finally
on 31 January a transfer
of R40 000.00 was made with reference E/L Tau. The important
factor is that not one of the said transfers
were authorised by
either the Master or Mrs Tau, who was still to receive a payment, and
the payments preceded the lodging of the
first and second Liquidation
and Distribution accounts with the Master.
[17]
Mrs Tau flagged the Liquidation and Distribution account after
she noticed that the amount R1 000 000.00 was not
reflected
therein and sought the intervention of Ms Erna du Pisanie of the
Master’s Office. Ms Du Pisanie arranged a meeting,
during which
the Respondent confirmed that the amount of R1 000 000.00 was
omitted from the Liquidation and Distribution account
and amended
same prior to again filing it with the Master’s Office on 12
September 2022, long after the last transfer had
been made.
[18]
The Investigation Committee concluded that the Respondent contravened
provisions of the LPA, as well the Administration of
Estates Act, as
he failed to account for funds received on behalf of the deceased
estate, he failed to respond to communication,
he failed to deal with
Mrs Tau’s instruction and he misappropriated trust monies. Once
again, the Investigation Committee
recommended that the LPC initiate
urgent court proceedings in terms of section 43 of the LPA to obtain
interim relief and referred
the matter to the Disciplinary Committee
to conduct a hearing against the Respondent.
[19]
The Applicant approached the court under case 5511/2022 on 04
November 2022 and filed the affidavits of Mrs Tau, confirming
that
she received no pay - out, and Ms Du Pisanie, confirming that when
the transfers were made, they were not authorised by the
Master. The
LPC sought a rule
nisi
to suspend the Respondent from practice
pending an application to strike the Respondent from the roll of
legal practitioners. That
was the “second application”.
The Respondent opposed the application and denied that funds had been
transferred from
the estate late account to his business account. He
questioned the veracity of the bank statements and made a derogatory
statement
that the LPC fabricated the statements. The Respondent’s
affidavit contained certain glaring flaws, like the deponent’s
signature, which differed from the one appearing in his answering
affidavit in the first application, but the Respondent was adamant
that it was his signature.
[20]
On 23 November 2022, the second application was heard by Reinders, J
and Boonzaaier, AJ, who granted the rule
nisi
with concomitant
interim orders, suspending the Respond from practice of legal
practitioners with immediate effect, pending an
application to have
his name struck from the roll of legal practitioners.
[21]
On 05 December 2022, the Respondent lodged an application for
leave to appeal the interim order. In the meantime, he
addressed a
letter to the Applicant’s attorneys of record informing them of
his intention to continue practicing as a legal
practitioner, as,
according to the Respondent, the application for leave to appeal
suspended the order dated 23 November 2023 He
demanded the return of
all files uplifted by the LPC on 24 November 2022 by no later than
close of business on the same day. He
further demanded that the bar
placed against him applying for a 2023 Fidelity Fund Certificate be
removed. On 06 December 2022,
the LPC responded and raised concern
about his unrepentant and brazen non-compliance with the court order.
[22]
In defiance of the court order, he continued to practice, as he
appeared in this court on 06 December 2022 in the matter
of S v
Bakili, case number 38/2019, instead of appearing at his disciplinary
hearing scheduled for the same time. He again appeared
in this court
on 20 January 2023 in the matter of S v Mokhesi and 17 others under
case number 45/2021. This called for the LPC’s
urgent
intervention in protection of the rule of law, court integrity and
unassuming members of the public.
[23]
The LPC consequently launched an urgent application seeking that the
Respondent be declared to be in contempt of court. The
Respondent
filed an opposing affidavit in which he maintained his stance that
the interim order has been suspended by the filing
of his application
for leave to appeal. That was the “third application”.
[24]
The contempt application was heard by Daffue, J on 06 March 2023,
with the judgment handed down on 17 March 2023. He found
the
Respondent guilty of contempt of the order and imposed the sanction
of committal to imprisonment for a period of one month,
wholly
suspended on condition that the Respondent complies with the order.
[25]
The application for leave to appeal the interim order in the
second application was set down for hearing on 24 March
2023. On 23
March 2023, the Respondent filed a supplementary notice to the notice
to appeal, citing new circumstances in favour
of granting such an
application. He started singing in a different tune, as he indicated
for the first time since the commencement
of the matter that indeed,
all the transfers as stated in the affidavits filed in support of the
applicant’s case, had in
fact been made from the Estate Late
Tau’s account. He, however, stated that he has now repaid all
the funds into Mrs Tau’s
newly instructed attorneys’
trust account and therefor there is no more prejudice to or
impoverishment on Mrs Tau`s part.
[26]
His previous statement in the answering affidavit that bank
statements were fabricated by those in charge of the LPC changed,
like day to night.
This is dishonesty of the
highest order.
During the hearing of the application for leave
to appeal the interim order, in which application the Respondent
represented himself,
he spontaneously conceded during argument that
the interim order had correctly been granted and that Reinders, J and
Boonzaaier,
AJ did not misdirect themselves in granting same. In the
founding affidavit filed in the current application at para 127, the
Applicant
quoted the Respondent’s address at the aforesaid
leave to appeal proceedings, which reads as follows:
“
And,
my Lady, again, the fact that there are changed circumstances, it is
true that when the Honourable Court considered the initial
application, this changed circumstances were not, definitely not
before Court and I cannot ever falter the Honourable Court for
granting such an order and I am not even saying that the Honourable
Court made a mistake by such order, but I am duty bound to
bring any
changed circumstances to the fore of the Honourable Court to say that
when the initial application was considered, and
if these factors
were not placed before the Court and I am requesting the Honourable
Court to consider them when they hear an application
for leave to
appeal.”
[27]
This is an indication that at no stage did the Respondent act in good
faith when he stated that the court had erred or misdirected
itself
when granting the rule
nisi
. If anything, he was merely buying
time for himself to continue practicing. Even after the Respondent’s
aforesaid concession,
he persisted with his application for leave to
appeal based on the alleged “changed circumstances”.
Reinders, J and
Boonzaaier, AJ consequently refused the application
for leave to appeal in their judgment dated 27 March 2023 and the
rule
nisi
remained in place, returnable on 20 April 2023.
[28]
For purposes of the return date of the rule
nisi
issued
in the second application
,
the Respondent filed a further
supplementary affidavit stating that Mrs Tau was repaid in full on 10
January 2023, after they entered
into a settlement agreement for her
to withdraw the complaint. He gave an interesting explanation of how
the funds were “erroneously”
transferred by one of his
staff members, one Malik Van der Ross into his business account. He
submitted it exonerated him from
misappropriating the late estate
funds. The court rejected this explanation, on the basis that it was
devoid of the truth, since
he also failed to give reasons as to why
payments were made, prior to the finalisation of the administration
of the estate and
the Master’s authorisation. He stated at
paragraph 18 of his supplementary affidavit as follows:
“
The
transfer of such funds from estate account of the client was
mistakenly done by the firm’s estate administrator in that,
he
rendered under the mistaken impression that, the monies belonging to
the estate will be paid from business account, where the
money will
be ultimately deposited.”
[29]
On the return date, the matter was before Mhlambi, J and Berry,
AJ, who rejected this version. Mhlambi, J in his ex tempore
judgment,
saw through the alleged change of circumstances and dismissed it as a
ploy to circumvent the effect of the interim order.
He further found
both the answering and supplementary answering affidavits to be
lacking in as far as truth was concerned. The
Respondent’s
half-hearted challenge of the application was baseless, but an
attempt to avoid the unavoidable. Mhlambi, J
further found that the
alleged “changed circumstances” confirm that the
Respondent did not keep proper books of his
practice and
misappropriated funds. The rule
nisi
was then confirmed.
[30]
Let us take this for a moment to be correct, is it not against
the very reason why a clients’ funds are kept in
a trust
account, separate from an attorney`s business account, the latter
being funds he can deal with as he pleases? The only
logical
conclusion is that the funds were placed into the business account
for his sole benefit, as not a single creditor of Estate
Late Tau
benefited from the payments. Up to now, the Respondent has not
divulged as to how these funds were distributed and for
what reason
as we know for a fact that they were not and could not have been
“loans”. In any event, if these payments
had been made by
the firm`s estate administrator, Mr Van der Ross, it is a further
indication that the Respondent had abdicated
his responsibilities and
outsourced them to someone who lacked the basic understanding of how
a trust account operates, without
any form of supervision whatsoever.
[31]
Clearly, his conduct constituted gross negligence,
which amounted to recklessness. It is against the very
spirit of
operating a trust account, which is a safe environment for a third
party`s funds. Mr Van der Ross’ confirmatory
affidavit does
also not address this maze either, namely how trust funds can be
mistakenly confused for business account funds.
Interestingly enough
is the fact that some of those transactions were recorded as “loans”,
an indication that funds
were transferred with the intention to be
refunded, which is what took place here, as he repaid. However, the
fact that it had
been repaid, does not negate the fact that the
payments constituted unlawful and illegal payments. We should also
not forget that
this happened against the backdrop of his answering
affidavit in the second application, the rule
nisi
application,
in which he denied that any such transfers took place, insinuating
that the bank statements that were used in support
of the application
were fabricated by the LPC and did not constitute a true and correct
reflection of any of his accounts, without
any further explanation.
He therefore either hastily replied without any attempt whatsoever to
verify the true state of affairs
or he was concealing the truth.
[32]
With regard to the Yawa complaint, the Respondent informed the
Disciplinary Committee that he responded to the LPC’s
letters
as requested by them, but failed to provide any proof thereof, citing
the removal of files from his office by the Applicant
as his reason
for lack of proof. The Respondent was just misleading the proceedings
as even during the first application when all
his files were still in
his possession, he did not produce same. His lack of honesty
persisted.
[33]
He was not sure as to when the refund to Mr Yawa was done,
simply saying it was in February or March 2023. This is interesting
as the Respondent was expected to keep record of all funds coming in
and going out of his trust account and should be able to state
a
specific date of the said transaction. The bank statements reflect a
transfer of R69 500.00 into his business account as
fees. The
Respondent is well aware of the accounting practice requiring him to
show where funds are from and where they ended.
Strangely enough,
this was not raised in his answering affidavit filed in the first
application, which preceded the disciplinary
hearing, as all he did
was to deny the transfer of funds from his trust account. Perhaps an
afterthought?
[34]
In similar fashion to the Tau complaint, he changed his stance
from complete no knowledge of the transfer of the money
from the
trust account, to having an explanation as to what happened to the
funds after having being deposited into his trust account.
He
confirmed that the R45 000.00 was transferred into the account
of one Vissoker, a hand – writing expert, as fees.
The amount
was later transferred back into his trust account and refunded to the
complainant after they reached a settlement agreement,
that Mr Tau
will withdraw the complaint. Unfortunately, for him, there is no
paper trail for this so-called transaction. He has
no invoice nor
proof of transfer of the said amount. There is no correspondence
addressed to Mr Vissoker inquiring about the progress
of the
instructions, as all the blame was placed on his shoulders. The worst
thing for the Respondent is that he could not produce
any bank
statement reflecting Mr Vissoker having deposited the funds back into
the Respondent`s trust account and/or the date of
such deposit.
[35]
The Respondent was handling the trust account the
same way a street – hawker deals with his customers,
no paper
trail. All we know is the
funds were
transferred into his business account, as early as the day
after it was deposited into his trust account, with no work was done,
hence the full refunds. Another interesting point is how Mr Yawa was
actually pressurised to pay the said amount. He was informed
that the
funds were urgently needed for the filing of his application at the
Supreme Court of Appeal.
It started as an
invoice of R160 000.00 as a global figure, with no itemized
billing, which ended in a discounted amount of
R45 000.00, which
is just over a quarter thereof, still without providing the itemized
account.
[36]
This gave rise to charges 1 to 6 at his disciplinary hearing,
referred to earlier. He was rightly found guilty on the
said charges.
[37]
I will move to Mrs Tau’s complaint. The Respondent’s
conduct was more than brazen, as he first attempted
to conceal a
deposit of R1 000 000.00 by not reflecting it in the Liquidation
and Distribution account.
S
urely, he intended embezzling the
said funds to the detriment of the orphaned children and their
mother, who had no means to take
care of them. He started by
transferring small amounts, as time progressed the withdrawal
increased to several hundred thousands
of rand. All this was
happening before the Liquidation and Distribution account was placed
before the Master for authorisation
and without the consent of Mrs
Tau,
whose pleas for funds to be released to
maintain her children, were falling on deaf ears.
[38]
The Respondent is opposing this application
to
strike him
from the roll of legal practitioners on procedural
grounds as well. According to the Respondent, the non-compliance by
the Applicant
with alleged procedural requirements denied him his
constitutional right as set out in section 34 of Constitution of
South Africa
Act 108 of 1996, which reads as follows:
“
Everyone
has a right to have any dispute that can be resolved by the
application of the law decided in a fair public hearing before
a
court or where appropriate, another independent and impartial
tribunal and a disciplinary committee.”
[39]
The first issue raised by the Respondent is the Applicant`s failure
to have constituted a disciplinary hearing in respect of
the
Tau-complaint before having approached Court for him to be struck
from the roll of legal practitioners. The second issue is
the
Applicant`s alleged denial of the Respondent`s right to appeal the
outcome of the Tau-disciplinary hearing before having approached
Court with the present application. The Respondent states that after
the Disciplinary Hearing Committee found him guilty on all
the main
charges in the Yawa-matter, he intended appealing the outcome, but
the Applicant informed him by means of a letter dated
31 May 2023 as
follows:
“
You are further
advised of your rights to appeal to the appeal tribunal within 30
days as per Section 41 read with Rule 44.1
(sic)
of the
Legal
Practice Act 28 of 2014
. Please be advised that at the present moment
appeal tribunals have not been constituted as yet, therefore you may
direct your
appeal to the High Court, if not satisfied with the
decision of the Disciplinary Committee.”
[40]
The enabling
S 41(1)(a)
and (4) of the LPA came into effect on 26 May
2023. The relevant parts of the said section read as follows:
“
41(1)(a)
…a legal practitioner may…, as determined in the rules
and within 30 days of being informed of the decision
by a
disciplinary committee, lodge an appeal with an appeal tribunal
established in terms of subsection (2) against a finding of
misconduct by the disciplinary committee or against the sanction
imposed, or both;
…
(4)
If a legal practitioner … who has been found guilty of
misconduct lodges an appeal in terms of subsection (1), the decision
of the disciplinary committee may not be enforced before the appeal
tribunal has decided the appeal.”
[41]
At the time of the finalization of the disciplinary hearing in
the Yawa-matter, the enabling
section 41
had therefore not yet come
into operation. At the time when the letter was addressed to the
Respondent, the enabling section had
been proclaimed, but such appeal
tribunals had not yet been established. However, in so far as the
letter intended to advise the
Respondent that he could appeal the
finding of the disciplinary hearing to this Court on the basis of
S
44
of the LPA, such advice was incorrect, since this Court could only
review such a finding. It cannot entertain an appeal against
such a
decision.
[42]
Section 44
of the LPA reads as follows:
“
44 Powers
of High Court
(1) The provisions of
this Act do not derogate in any way from the power of the High Court
to adjudicate upon and make orders in
respect of matters concerning
the conduct of a legal practitioner, candidate legal practitioner or
a juristic entity.
(2)
Nothing contained in this Act precludes a complainant or a legal
practitioner, candidate legal practitioner or juristic entity
from
applying to the High Court for appropriate relief in connection with
any complaint or charge of misconduct against a legal
practitioner,
candidate legal practitioner or juristic entity or in connection with
any decision of a disciplinary body, the Ombud
or the Council in
connection with such complaint or charge.”
[43]
Mr Mpahlwa, who appeared on behalf of the Respondent, relied on the
judgment of Samuels v South
African Legal Practice Council (formerly
Law Society of the Northern Provinces) (1112/2021)
[2022] ZASCA 175
(7 December 2022), in which an appeal was upheld, wherein procedural
unfairness was the main issue for determination within the
context of
an application to strike an attorney from the roll of legal
practitioners.
However,
from a reading of the said judgment it is evident that the facts of
that matter are vastly distinguishable from the facts
of the present
matter to the extent that it cannot be relied on by the Respondent
for purposes of the present matter. See
Melato v South African
Legal Practice Council (3380/2020)
[2021] ZANWHC 5
(18 February 2021)
(which is actually a judgment of this
Division of the High Court).
See
also South African Legal Practice Council v Mphanama (9875/2022)
[2022] ZALMPPHC 70 (13 December 2022). See further Law Society
of the
Northern Provinces v Soller (992/2001) [2002] ZAGPPHC 2 (26 November
2002).
[44]
On the other hand, Mr Mazibuko, who appeared on behalf of the
Applicant, referred to several
decisions by the various Divisions of
the High Court, including this Division, where it was held that a
disciplinary hearing was
not a pre-requisite for the bringing of an
application to strike a legal practitioner from the roll. If the LPC
is on the evidence
available to it, of the opinion that a
practitioner is no longer fit and proper to continue practising, it
is entitled to approach
court for an application to strike the
practitioner from the roll of legal practitioners without being
compelled to first proceed
with a disciplinary hearing.
[45]
The Supreme Court of Appeal reinforced the viewpoint of the
various divisions of the High Court regarding an application
to
strike a legal practitioner from the roll without first conducting or
finalizing a disciplinary hearing and confirmed that the
provision of
section 44 of the LPA was in line with the section 34 of the
Constitution. The test is whether the practitioner is
no longer
considered a fit and proper person in the opinion of the Council
acting objectively in line with the facts before it.
See Law Society
of the Northern Provinces v Morobadi
[2018] ZASCA 185
;
[2019] JOL
40677
(SCA) at paragraph 25:
“…
In general it is correct
that the Council may proceed with the application for the striking
off of the practitioner or for his or
her suspension from practice
without pursuing a formal charge before a disciplinary committee if
in its opinion, having regard
to the nature of the charges, a
practitioner is no longer considered to be a fit and proper person.”
[46]
In South African Legal Practice Council v Mphanama (9875/2022) [2022]
ZALMPPHC 70 (13 December 2022) Makgoba, JP held the following
at
paragraphs 5 to 6:
“
[5] The
right of the Legal Practice Council (“the LPC”) to
approach the Court for relief as sought
in the present application
before us does not depend on its prior holding of a disciplinary
enquiry against the legal practitioner
concerned.
The
Court has inherent powers to hear the application for suspension or
striking off a legal practitioner’s name from the
roll of legal
practitioners irrespective of whether or not disciplinary steps have
been taken against a legal practitioner by the
LPC.
[6] The
respondent legal practitioner has no right to insist upon a
disciplinary enquiry being held prior to steps
being taken for his
removal from the Roll of legal practitioners. In fact, the Court
can
mero
motu
initiate
steps to strike a legal practitioner’s name off the Roll of
legal practitioners.”
[47]
The Respondent`s opposition of the application on the basis of
alleged procedural issues can consequently not succeed.
In
this instance, the Applicant did not commit any procedural
irregularities.
Furthermore, the Respondent had more than
ample opportunity to record his version of the relevant events and to
state his case
during and throughout the respective court
applications referred to earlier, including the present application.
The
Respondent did not suffer any procedural
unfairness.
See Law Society of the Free State v Le Roux and
Others (3039/2014)
[2015] ZAFSHC 233
(30 November 2015) at paragraph
79.
[48]
In view of the totality of the facts and circumstances already with
in this judgment, and my conclusions in relation
thereto, I am
furthermore satisfied that the alleged offending conduct has been
established on a preponderance of probabilities.
[49]
It is an objective fact from the affidavits dealt with above
that the Respondent has already made a number of damning
admissions
regarding the manner in which he dealt with the applicable trust
funds. His behaviour was similar to that of the First
Respondent in
Law Society of the Free State v Le Roux and Others,
supra,
wherein
Molemela JP (as she was then) at paragraph 80 held the following:
“
[80]
The first respondent makes false statements
without flinching and
takes no responsibility for his actions. This court takes a dim view
of an officer of the court who has no
qualms in being untruthful to a
court, for it demonstrates a lack of two important qualities that are
the very essence of an attorney’s
profession: honesty and
integrity. The attorney’s profession is indeed 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.”
[50]
The Respondent initially opposed the applications to suspend
him and pretended to be ignorant of the misappropriation
of trust
funds in respect of the two complainants. He even insinuated that the
Applicant’s Investigation Committee fabricated
the bank
statements that were used in support of the charges against him. The
Respondent`s lack of honesty and integrity can be
seen throughout
this whole matter. His false statements did not end at the
disciplinary hearing, but continued in the affidavits
filed in the
respective applications. The Respondent was just entangling himself
deeper into the spider’s web with his lies.
Even though he had
opportunities to redeem himself, he failed to do so.
[51]
The Respondent did not want to take responsibility, even though
it is clear that he cannot plead ignorance of the transfers
which
were made from his trust account,
not into any
other account but his own business account. Though he wanted us to
believe that this one Vissoker was the one to whom
the money was paid
in the Yawa-complaint,
he did not obtain a confirmatory
affidavit form him, nor did he at least attach his invoice or proof
of the deposit. The horse had
already bolted by the time he wanted to
close the stable, as it was only during the return date of the second
application that
he half-heartedly started to acknowledge that the
relevant irregular and illegal transfers had been made from his trust
account
funds and attempted to provide explanations with regard
thereto.
[52]
It is in my view evident that the offending conduct of the Respondent
clearly did not accord
with the conduct expected of a legal
practitioner.
[53]
In resisting the Applicant`s request for striking off as the only
appropriate sanction, the Respondent
is clinging to the fact that he
has refunded the complainants. This aspect was dealt with and scorned
by Legodi, JP in Law Society
of the Northern Provinces v Mabunda
[2019] ZAMPMBHC 8; 2734/2018 (18 October 2019), where he held the
following at paragraphs 23
to 24:
“
[23] It
is common occurrence for errant attorneys that when investigated,
they would rush to their clients
almost seeking to silence them by
paying them out of whatever source and then request them to withdraw
the complaint. Unfortunately,
by that time the horse would have
already bolted. Trust money would have been misappropriated. A
conduct that cannot be swept
off the carpet by rushing to client,
asking for apology and paying what was supposed to have been paid
long ago.
[24] Insofar
as Mr Mabunda might have seen his conduct of seeking to dispose of
the complaints with
clients in the process of investigation by its
professional body, as mitigating, he is wrong. It is actually
aggravating
in itself. It amounts to defeating the end of justice.
This is not only unprofessional but it also amounts to criminal
unlawful
conduct the same way as misappropriation of trust funds
does. It therefore cannot be minimised by paying what was long due to
trust
creditors.”
[54]
It is the Respondent`s attitude that since the money has been
reimbursed, his conduct should be excused, which is the
wrong way of
approaching the matter. He is not remorseful at all, which is,
inter
alia,
evident from the fact that he wanted to blame Mr Yawa for
the situation he is presently finding himself in, since Mr Yawa
reneged
from their earlier agreement that should the Respondent
reimburse him, Mr Yawa would in exchange withdraw the complaints
against
the Respondent. This is the very conduct Legodi, JP lamented
about as being a trend when legal practitioners find themselves in
situations similar to that of the Respondent. He has not apologised
to those he wrongly and without any basis accused of having
falsified
the bank statements. He initially was non-responsive to the
Applicant’s several correspondences regarding the complaints
against him. The Respondent also resorted to intimidating the
complainants in the matters under investigation. He only reacted
when
the first application to suspend him from practice was brought before
court.
[55]
Misappropriation of trust funds is a very serious offence, which must
be dealt with harshly. The Respondent was the sole
director of the
practice and wanted the court to believe that he had outsourced the
financial aspect to an unqualified person.
Even if it is for a moment
accepted to be true, it constituted reckless conduct on his part, for
which he fails to accept responsibility.
[56]
It is part of an attorney’s training how to deal with trust
funds and to keep proper records of each amount received
and paid
out. Funds may only be transferred into the business account once
work has been done and recorded as fees in an itemized
manner so as
to justify such a transfer. The bank statements in the present matter
reflect something different, since trust money
was transferred as
soon as it was deposited without any record of work having been done.
In the case of Mr Yawa, his instructions
were not carried out, but
the full amount was transferred the following day. In Mrs Tau’s
matter the Respondent misappropriated
funds in excess of R1 100
000.00 The Respondent embezzled the R1 000 000.00 as it was not
disclosed in the Liquidation and
Distribution accounts submitted to
the Master. All transactions were conducted through his business
account mostly disguised as
so-called loans.
[57]
The Applicant has proven that the Respondent was not only
reckless in managing his practice, but his conduct also fell
short of
the two crucial elements of being a fit and proper person to practice
as an attorney, which are honesty and integrity.
[58]
The next question is what the appropriate sanction in the
circumstances would be? Should the Respondent be struck from
the roll
and therefore barred from practicing as an attorney or should a
lesser sanction be imposed in the circumstances?
[59]
The nature of the Respondent`s misconduct is very serious. Not only
did he act recklessly, but
his general conduct in dealing with these
complaints from the start, are indicative of his failure to admit
accountability. Furthermore,
and importantly, it is evident that the
Respondent lacks honesty. I have already dealt with the dishonest
conduct of the Respondent
in relation to the two complaints in his
handling of the relevant trust funds and also in relation to the
contents of his affidavits
filed in the respective court
applications, including the present one. It is therefore evident that
the Respondent also lacks the
required integrity. Members of the
public are to be protected from attorneys of his ilk. The fact that
the complainants have been
reimbursed, cannot in the circumstances of
this matter serve as a mitigating factor.
[60]
When considering all the relevant facts and circumstances of this
matter, I consequently have
no doubt that the only appropriate
sanction for the Respondent is that he be struck from the roll of
legal practitioners.
[61]
In the Notice of Motion the Applicant is seeking and order that the
Respondent be ordered to
pay the costs of the application on an
attorney and client scale. Considering the outcome of the
application, there is no reason
why the Respondent should not be
ordered to pay the costs of the application. Since the usual order in
applications such as the
present is that costs are to be paid on an
attorney and client scale, there is also no reason to deviate from
the usual order.
[62]
The following orders are consequently made:
1.
The name of the Respondent is struck
from the roll of legal
practitioners of the High Court of South Africa.
2.
The Respondent or any other employee
of the Respondent is prohibited,
with immediate effect, from operating and dealing with any of the
trust banking accounts of the
Respondent`s practice, the banking
accounts of any deceased estates in respect of which the Respondent
has been appointed as executor
or Master`s representative and any
banking accounts of any insolvent estates in respect of which the
Respondent has been appointed
as a liquidator.
3.
The Respondent is directed to immediately surrender his certificate
of admission and enrolment as a legal practitioner to the
Registrar
of this Court within 10 court days from date of this order.
4.
Should the Respondent fail
to comply with prayer 3 above, the Sheriff of this court
is
authorised and directed to take possession of the said certificate
wherever and or from whomever he or she may find it and hand
it over
the Registrar of this Court.
5.
Margarette Van Wyk and her successor(s) in-title is appointed as
Curator
Bonis
to the practice of the Respondent as
contemplated in section 90(1)(c) of the Legal Practice Act 28 of 2014
(“the Act”),
to administer and control the
trust accounts of the Respondent and any accounts relating to
insolvent and
deceased estates and any deceased estate and any estate
under Curatorship connected with the Respondent's practice as
an
attorney and including the separate banking accounts opened
and kept by the Respondent at a bank in the
Republic of South Africa in terms of section 86(1) of the Act
and/or any separate savings or interest-bearing accounts as
contemplated by section 86(3) and/or section 86(4) of the
Act, 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 as set out
in paragraph 6 hereunder.
6.
The Applicant is exempted from furnishing security for the
performance of its obligations as Curator B
onis
.
7.
The Respondent is ordered to deliver all of the records relating to
his legal
practice, which for all the purposes of this order, but
without limitations, will include all accompanying records, files,
correspondence
and documents which are directly or
indirectly relevant to or which contain particulars of information
relating to:
(a)
Any monies received, held or paid by the Respondent for or on account
of any person;
(b)
Any monies invested by the Respondent in terms of any provisions of
section 86 of the Act;
(c)
Any interest on monies so invested in terms of section 86(3) or
section 86(4) of the Act;
(d)
Any estate of a deceased person administered by the Respondent
whether as executor or on behalf of the executor,
in terms of the
provisions of the Administration of Estates Act, Act 66 of 1965;
(e)
Any estate in which the Respondent acted as or on behalf of the
Curator to administer the property of a minor child or
any
other person in terms of section 72 of the Administration of Estates
Act, Act 66 of 1965;
(f)
Any insolvent estate administered by the Respondent as trustee or on
behalf of the trustee in a trust in terms of the Insolvency
Act, Act
24 of 1936;
(g)
Any trust administered by the Respondent as trustee, or on
behalf of the trustee in terms of the Trust Property Act, Act
57 of
1988;
(h)
Any company liquidated in terms of the Companies Act, Act 61 of 1973,
administered by the Respondent as Liquidator or on behalf
of the
liquidator;
(i)
Any Close Corporation liquidated in terms of the Close Corporation
Act, Act 69 of 1984, administered by the Respondent as liquidator
or
on behalf of the liquidator;
(j)
The Respondent’s practice as an attorney/legal practitioner of
this Court, and any related files of any Client.
8.Should
the Respondent fail to comply with the provisions of the preceding
paragraph 7 of this order after service thereof upon
him or after a
return by the person entrusted with the service thereof that he/she
has been unable to effect service thereof on
the 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.
9.
The said Curator shall have the following powers:
(a)
To hand over any said records to any person entitled thereto, as soon
as she has satisfied herself that the fees and disbursements
in
connection thereof have been paid or satisfactorily secured, or that
same are no longer required;
(b)
To accept a written undertaking by a trust creditor to pay such
amount as may be due to the Respondent, either on taxation,
assessment or by agreement, as satisfactory security for the purpose
of paragraph 9(a) above, provided that such written undertaking
incorporates a
domicilium citandi et executandi
of such
creditor;
(c)
To require that any records so handed over, be delivered back to her
if in her sole and absolute opinion, she considers them
to be
relevant to and (including any possible anticipated or threatened
claim against her as Curator
Bonis
and/or the Respondent`s
clients and/or the Legal Practitioners Fidelity Fund ("the
Fund");
(d)
To administer and control all of the Respondent’s trust
account(s) which for the purpose of this Order shall include:
(i)
The accounts relating to any estate, curatorship, trust or company,
referred to in paragraph 5 hereof;
(ii)
Any and all banking accounts opened and kept by the Respondent (or on
the Respondent’s behalf) in terms of any
provision contained in
the Act or any of the Acts referred to in paragraph 7 above.
(e)
Subject to the approval of the Board of Control of the Fund ("the
Board"), to sign and endorse cheques, and/or withdrawal
forms
and generally to operate upon the said trust accounts,
but only to such extent and for such purposes as may be
necessary to
bring completion to current instructions in which the Respondent was
acting as at the date of his suspension;
(f)
Subject to the approval of the Board, to recover and receive
and, if necessary in the interest of persons
having
lawful claims upon the said trust accounts and/or investments
by the Respondent in respect of monies held, received
and/or invested
by the Respondent in terms of section 86(2) and 86(3) of the Act
("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
in which the Respondent
may have been concerned and which may have been wrongfully and
unlawfully paid from the said trust accounts
and to receive such
monies and to pay same to the credit of the said trust accounts;
(g)
To ascertain from the Respondent's records the names of all persons
on whose account the Respondent appears to hold or to have
received
trust monies ("trust creditors");
(h)
To call upon such trust creditors to furnish proof, information
and/or affidavits as she may require to enable her,
acting in
consultation with and subject to the requirements of the board, to
determine whether any such trust creditors have a
claim in respect of
money in the said accounts, and if so, the amount of such claim;
(i)
Subject to the approval of the Board, to admit or reject in whole or
in part, the claims of any such trust creditors
without
prejudice to such trust creditor's right to access to the civil
courts;
(j)
Subject to the approval of the Board, to pay such claims as she may
consider lawfully due;
(k)
In the event of there being any surplus in the said trust accounts
after payment of such claims, to utilise such
surplus to settle
or reduce as the case may be, firstly any claim of the fund in
terms of section 86(5) of the Act
in respect of any interest
therein referred to and, secondly without prejudice to the
rights of the Respondent's creditors,
the costs, fees and expenses,
or such portion thereof as has not already been separately paid by
the Respondent to the Applicant
and, if there is any balance left
after payment in full of all such claims, costs, fees and
expenses, to pay such balance
to the fund;
(l)
In the event of there being insufficient trust monies in the said
accounts to pay in full the claims of the trust creditors
as
reflected in the records of the Respondent:
(i)
Subject to the approval of the Board, to close the said accounts and
to pay the credit balances therein to the fund and to require
such
credit balances therein to be placed to the credit of a special
suspense account in the name of the Respondent in the Fund's
books;
(ii)
To refer the claims of all trust creditors to the Board to be
dealt with in terms of the provisions of the Act;
(iii)
To authorise the Board to credit the credit balances referred to
above to its "
paid claims
account
" when the funds have
been paid, in terms of Section 55 of the Act, admitted claims of the
trust creditors of the Respondent
in excess of such credit balances,
provided that, notwithstanding the foregoing, the Board in its
discretion shall be entitled
to transfer to its "
paid
claims account
” the amounts of
any claims as and when admitted and paid by it.
(m) Subject
to the approval of the chairperson of the Fund, to appoint nominees
or representatives and/or consult with
and/or engage the services of
attorneys, counsel, accountants and/or any
such other person where considered
necessary to assist
her in carrying out of her duties as Curator
Bonis
;
(n)
To render from time to time returns to the Board showing how the said
accounts have been dealt with until such time as the Board
notifies
her that she may regard her duties as Curator b
onis
as
discharged.
10.
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, 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 the Respondent in
respect of his 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, subject to such rights (if
any) as he may
have against the trust creditor(s) concerned for payment or recovery
thereof.
11.
A bill of costs drawn on the High Court scale of attorney and client
costs taxed by the Registrar of this Court (who is authorised
to do
so)
mutatis mutandis
as if the Curator and the responsible
officials of the Applicant in discharging their duties as
contemplated in this order had
acted as attorneys, shall constitute
proof of their reasonable fees and disbursements ("the
Curatorship fees and disbursements")
and that the Registrar is
authorised to issue a writ of execution for payment thereof by the
Respondent.
12.
The Curatorship will terminate when the Curator receives a final
written discharge from such duties from the Applicant consequent
upon
the Curator filing with the Applicant a final report and account,
together with supporting vouchers, in respect of the execution
of the
Curator's duties in terms of this Order.
13.
The Respondent is hereby directed:
(a)
to pay, in terms of section 87(2) of the LPA, the reasonable costs of
the inspection of the accounting records of the
Respondent;
(b)
to pay the Curatorship fees and disbursements;
(c)
to pay the expenses relating to the publication of this order or
an abbreviated version thereof.
14.The
Respondent is hereby removed from office as:
(a)
Executor of any estate of which the
Respondent has been appointed in terms of section 14(1),
read with
section 54(1)(a)(v)
of the
Administration of Estates Act, No 66 of
1965
, or the estate of any other person referred to in
section 72(1)
thereof;
(b)
Curator or guardian of any minor or other person's property in terms
of
Section 72(1)
read with
section 54(I)(a)(v)
and section 85 of the
Administration of Estates Act, No 66 of 1965;
(c)
Trustee of any insolvent estate in terms of section 59 of the
Insolvency Act, No 24 of 1936;
(d)
Liquidator of any company in terms of section 379(2) read with 379(e)
of the
Companies Act, No 71 of 2008
;
(e)
Trustee of any trust in terms of section 20(1) of the Trust Property
Control Act, No 57 of 1988;
(f)
Liquidator of any close corporation appointed in terms of section74
of the Close Corporations Act, No 69 of
1984;
(g)
Administrator appointed in terms of section 74 of the Magistrates'
Court Act. No 32 of 1944.
15.
The Respondent is ordered to pay the costs of this application on an
attorney and client scale, including the costs occasioned
by the
employment of Counsel.
S.
O. VELE, AJ
I
concur:
C. VAN ZYL, J
APPEARANCES
Counsel
on behalf of the applicant: Adv. M. S Mazibuko
Instructed
by: Amade & Company INC
BLOEMFONTEIN
Counsel
on behalf of the respondent: Adv. T Mpahlwa
Instructed
by: Motseto INC
Tshwane
c/o
Koenane Attorneys
BLOEMFONTEIN