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[2023] ZAKZPHC 45
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Legal Practice Council (Kwazulu-Natal Provincial Office) v Manana and Another (8296/2022P) [2023] ZAKZPHC 45 (28 April 2023)
FLYNOTES:
PROFESSION – Advocate – Misconduct – Trust
account advocate – Misappropriating client’s funds –
Amateurishly false version advanced to court of what became of
balance of funds – Both undisciplined and ignorant of
requirements of profession – No evidence that suspension of
any benefit – No exceptional circumstances –
Respondent’s name removed from roll of advocates.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no:
8296/2022P
In
the matter between:
LEGAL
PRACTICE COUNCIL
APPLICANT
(KWAZULU-NATAL
PROVINCIAL OFFICE)
and
ADVOCATE
ENOCK FELANI MANANA
FIRST RESPONDENT
STANDARD
BANK OF SOUTH AFRICA
SECOND RESPONDENT
Coram:
Mossop J (Shoba AJ concurring)
Heard:
17 April 2023
Delivered:
28 April 2023
ORDER
The
following order is granted
:
1.
The first respondent’s
application for an adjournment is dismissed with costs.
2.
The rule
nisi
granted on 15 September 2022 is confirmed.
JUDGMENT
Mossop
J (Shoba AJ concurring):
[1]
The first respondent is an
advocate by profession and, to be more precise, he is a ‘trust
account advocate’.
[1]
It is this trust account, and the manner in which the first
respondent has dealt with it, that has precipitated the bringing of
this application.
[2]
On 15 September 2022, the
applicant sought and obtained a rule
nisi
against the first respondent, with interim relief, which, in essence,
suspended the first respondent from his practice as an advocate
and
installed a curator to administer his practice. The order granted is
lengthy, covering ten pages, and is not restated for that
reason.
Suffice it to say that it is in the usual form and contains the usual
orders and powers. The applicant now seeks the confirmation
of the
rule, which will, inter alia, result in the name of the first
respondent being finally removed from the roll of advocates.
The
basis for this order is that the applicant alleges that the first
respondent is not a fit and proper person to continue acting
as an
advocate. In a nutshell, the applicant’s allegations are that
the first respondent has failed to account to a client
of his and has
unlawfully misappropriated money from his trust account that
rightfully belongs to that client. Despite several
promises to pay
his client, the first respondent has failed to do so. The first
respondent advances explanations that, so he claims,
explains and
justifies his conduct.
[3]
The applicant is the
KwaZulu-Natal provincial office of the Legal Practice Council (the
Legal Practice Council). The Legal Practice
Council is the regulatory
body for the legal profession in this country. It was established in
terms of section 4 of the Legal
Practice Act 28 of 2014 (the Act) and
its affairs are conducted by its Council, which has certain powers
and duties conferred upon
it in terms of the Act. It is generally
required to regulate the legal profession and to do so it is endowed
with certain powers
and duties. One of its essential functions is to
ensure that appropriate standards of conduct are maintained by its
members.
The
legal profession is an ancient and honourable profession that prides
itself on its members’ integrity, honesty and trustworthiness
and demands the highest ethical standards from those permitted to
practise it.
[2]
The maintenance of these high ethical standards of conduct is vital
for the effectiveness of the profession and for its continued
sustainability. Where the applicant discerns that a practitioner has
potentially conducted him or herself in breach of the accepted
standards of conduct, it is required to investigate, prosecute and,
if necessary, discipline that errant member. One of its powers
is the
entitlement to approach the high court for an order that the name of
a member be removed from the applicable roll of legal
practitioners. When the applicant does so, it acts both for the
benefit of members of the public and members of the profession
.
In
Law
Society
v
Du Toit
,
[3]
the court indicated
that:
‘
The
proceedings are instituted by the Law Society for the definite
purpose of maintaining the integrity, dignity and respect the
public
must have for officers of this Court. The proceedings are of a purely
disciplinary nature; they are not intended to act
as a punishment of
the respondent . . . The public are entitled to demand that a Court
should see to it that officers of the Court
do their work in a manner
above suspicion. If we were to overlook misconduct on the part of
officers of the Court, if we were to
allow our desire to be merciful
to overrule our sense of duty to the public and our sense of the
importance attaching to the integrity
of the profession, we should
soon get into a position where the profession would be prejudiced and
brought into discredit
.’
These words, whilst
committed to paper over 80 years ago, remain true and relevant today.
[4]
The first respondent was
admitted as an advocate in the North Gauteng Division of the High
Court in 2014 and presently practises
as an independent advocate in
Newcastle, KwaZulu-Natal. The second respondent is the commercial
bank at which the first respondent
maintains his trust banking
account. It has correctly played no part in this matter.
[5]
Ms T C Nxumalo is the first
respondent’s erstwhile client (the complainant). During 2019,
she had mandated the first respondent
to recover an amount of
R120 000 (the funds) for her from a firm of attorneys in
Newcastle. The firm of attorneys possessed
the funds pursuant to the
complainant entering into a transaction to purchase certain immovable
property, which transaction ultimately
failed and did not proceed.
The complainant was consequently entitled to a refund of the funds.
The attorneys holding the funds,
however, did not return them to her
and she thus mandated the first respondent to secure their return to
her. The first respondent
took steps to execute his mandate and on 24
August 2020, he received payment of the full amount of R120 000.
According to the first
respondent, the funds were electronically paid
directly into his trust banking account by the firm of attorneys that
previously
held those funds.
[6]
On 8 October 2020, being some
45 days after he received the funds, the first respondent paid the
complainant the amount of R45 000.
The balance of the R120 000,
in the amount of R75 000 (the balance of the funds), was
retained by the first respondent
and has never been paid to the
complainant.
[4]
[7]
When the first respondent
failed to pay the balance of the funds to her within a reasonable
time, the complainant lodged a written
complaint with the applicant.
Having received the complainant’s account of events, the
applicant wrote to the first respondent
seeking his version of
events. The first respondent replied to this letter on 16 October
2020 (the 16 October 2020 letter) and
stated that he agreed that
there had been a ‘misunderstanding’ and that he would pay
the complainant the balance of
the funds by 1 November 2020.
That date came and went and the balance of the funds was not paid to
the complainant.
[8]
When the first respondent
failed to make payment as promised on 1 November 2020, the applicant
appointed an investigating committee
to look into the matter. The
investigating committee ultimately concluded that on the information
available to it, it appeared
that the first respondent had conducted
himself in an unprofessional manner. It recommended that the matter
be escalated and referred
to a disciplinary committee of the
applicant.
[9]
The applicant agreed with that
recommendation and a disciplinary committee was duly constituted by
it and a hearing date was fixed
for 21 September 2021. On 3 September
2021, an administrator employed by the applicant, Mr Halalisani
Nkwanyana (Mr Nkwanyana)
informed the first respondent by email of
the date of the hearing. The first respondent was advised that he
would face three charges,
namely that he was guilty of contravening
paragraph 21.1 and 21.2 of the applicant’s Code of Conduct
[5]
and/or rule 57.1 of the applicant’s rules in that he allegedly:
(a)
Breached rule 54.13 of the
applicant’s rules in that he failed to pay the complainant the
amount of R75 000;
(b)
Breached paragraph 3.4 of the
applicant’s code of conduct in that he failed to honour his
undertakings to pay the complainant
the amount of R75 000; and
(c)
Breached paragraph 3.1 of the
code of conduct in that he failed to maintain conduct of the highest
standard of honesty and integrity
in that he attempted to mislead the
complainant into believing that she owed him the amount of R12 000.
[10]
On 21 September 2021, the first
respondent did not present himself at the hearing at the appointed
hour. The disciplinary committee
decided to proceed in his absence,
having been satisfied through evidence that he had been given proper
notice of the proceedings.
That evidence was given by Mr Nkwanyana.
He explained that the email address that he had used to give the
first respondent notice
of the hearing was the email address
ordinarily used by the first respondent.
[6]
He also explained that he had personally contacted the first
respondent telephonically on three separate occasions about the
hearing.
On the first occasion, the first respondent denied that he
had received the notification. The following interaction on this
point
is instructive:
‘
And
did he give you any explanation as to why he did not receive the
email dated 3 September 2021? --- The only reason that he gave
to me,
he said he did not check his emails.’
The
last of those occasions on which Mr Nkwanyana had spoken to the first
respondent had been on the day before the hearing, namely
20
September 2021.
[11]
The complainant was called to
testify at the hearing. Her evidence was consistent with the
complaint that she had lodged with the
applicant. The following
portion of her evidence, was significant given what the first
respondent would later allege:
‘
He
was confused where he would find me and he said I must send my bank
details to his WhatsApp and I did as he said.’
The
person be referred to as ‘he’, is the first respondent.
[12]
At around 13h30 that day, the
hearing stood down. It was then realised that at 10h54 that day, the
first respondent had sent an
email to the applicant in which he
stated that he had not been given proper notice of the hearing and
that he was unable to attend
the hearing due to prior work
commitments. He explained further that he was not available the next
month, October 2021 at all,
and requested that the hearing be
adjourned to either the first or second week in November 2021.
[13]
The first respondent’s
email came from the very same email address that the applicant had
employed to inform him of the date
of the disciplinary hearing. Given
the evidence of Mr Nkwanyana, the request for an adjournment was not
acceded to by the disciplinary
committee and the hearing continued.
[14]
On 23 March 2022, the
disciplinary committee delivered its written report. It concluded
that the first respondent was guilty of
unprofessional conduct and
that he was not a fit and proper person to continue practising as an
advocate and recommended that an
application be brought for the
removal of his name from the roll of advocates. This application is
the consequence.
[15]
Much of what the complainant
states regarding the conduct of the first respondent is common cause.
The first respondent admits receipt
of the full amount of R120 000
that he was instructed by the complainant to recover and admits
further that he has only ever paid
R45 000 thereof to the
complainant. He accordingly admits that there is a balance of R75 000
due to her. He admits, further, that
he has made at least two written
promises to pay the complainant that he has not honoured.
[16]
That the fact of non-payment is
truly not in issue was revealed by events that occurred when this
matter was called. The first respondent,
who appeared for himself at
the hearing, in my view a most undesirable state of affairs,
[7]
moved an oral application for an adjournment of the matter from the
bar. The basis for the application, so the first respondent
advised,
was that his house had recently been sold and that he anticipated
that transfer would occur shortly and he would then
be able to pay
the balance of the funds to the complainant from the proceeds of that
sale. That application was opposed by Mr Chetty,
who appeared for the
applicant, who stated that whether the balance was paid to the
complainant was an important consideration
but was not the true
issue: the true issue, insofar as the applicant is concerned, is the
alleged dishonesty of the first respondent.
After brief
consideration, the application for postponement was refused, with
costs.
[17]
By virtue of those facts which
are not in dispute, the first respondent’s explanation for why
he admittedly has not paid the
balance of funds to the complainant
assumes some significance. On the face of it, he concedes to conduct
that is, at the very least,
unprofessional in its nature and which,
at the other end of the spectrum, is criminal and could amount to
theft of the money due
to the complainant. It goes without saying
that a very good explanation would have to be advanced by him to
explain why, more than
two and a half years after receiving payment
on behalf of the complainant, he still has not paid the balance of
the funds over
to her.
[18]
In
considering this matter, I intend following the approach proposed in
Jasat
v Natal Law Society,
[8]
namely
that the inquiry that is now to follow must negotiate three distinct
phases, namely:
(a)
The
court must decide whether the alleged offending conduct identified by
the applicant has been established on a preponderance
of
probabilities. This, obviously, is a factual inquiry;
(b)
The
court must then consider whether the first respondent, in the
exercise of the discretion of the court, is not a fit and proper
person to continue to practise as an advocate. This involves weighing
up the conduct complained of by the applicant against the
conduct
expected of an advocate and, is to a large extent, a value judgment;
and
(c)
Finally,
the court must consider whether in all the circumstances of the
matter, the first respondent is to be removed from the
roll of
advocates or whether an order of suspension from practice or some
other lesser form of sanction would suffice.
[19]
In considering whether the
conduct of which complaint is made has been established, I do not
lose sight of the fact that as a general
proposition motion
proceedings are not designed to resolve disputes of fact that arise
on the papers nor are they designed to determine
the likelihood of
certain probabilities having occurred.
In
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd,
[9]
the well-known approach was formulated that has been religiously
followed in motion proceedings, that when disputes of fact arise
on
the affidavits, a final order can be granted only if the facts
averred in applicant’s affidavits, which have been admitted
by
the respondent, together with the facts alleged by the latter,
justify such order. However, the
Plascon-Evans
approach is not the approach to be followed in striking off matters.
In
Van
der Berg v General Council of the Bar of South Africa
,
[10]
Nugent JA explained why this is the case:
‘
Proceedings
to discipline a practitioner are generally commenced on notice of
motion but the ordinary approach as outlined in
Plascon-Evans
is not appropriate to applications of that kind. The applicant’s
role in bringing such proceedings is not that of an ordinary
adversarial litigant but is rather to bring evidence of a
practitioner’s misconduct to the attention of the court, in the
interests of the court, the profession and the public at large, to
enable a court to exercise its disciplinary powers. It will
not
always be possible for a court to properly fulfil its disciplinary
function if it confines its enquiry to admitted facts as
it would
ordinarily do in motion proceedings and it will often find it
necessary to properly establish the facts. Bearing in mind
that it is
always undesirable to attempt to resolve factual disputes on the
affidavits alone (unless the relevant assertions are
so far-fetched
or untenable as to be capable of being disposed of summarily) that
might make it necessary for the court itself
to call for oral
evidence or for the cross-examination of deponents (including the
practitioner) in appropriate cases. In the present
case that might
well have been prudent and desirable so as to resolve the many
questions that are raised by the evidence, but that
notwithstanding,
the appeal can in any event be properly disposed of on the undisputed
facts. (For that reason it is also not necessary
to revisit what
degree of persuasion evidence must carry before facts can be taken to
have been established in cases of this kind.).
’
(Footnotes
omitted.)
[20]
A
consideration of the papers and the admissions made by the first
respondent reveals that there are, in fact, no material disputes
of
fact in this matter and the difficulty contemplated in the extract
above consequently does not arise. The facts are established
and are
admitted. All that falls to be assessed is the explanation offered by
the first respondent for his conduct.
[21]
As previously pointed out, the
first respondent appears, at least initially, to have adopted and
embraced the suggestion that there
had been a ‘misunderstanding’.
It, however, does not appear that he regards himself as being the
party who had misunderstood
anything, because he stated in the 16
October 2020 letter that:
‘
I
acknowledge receipt of the complaint against me. I agree that there
was a misunderstanding that the client believed that the money
was
given to me by the legal counsel on her behalf. She believed that I
played no part in assisting her to recover the money.’
What
this alludes to, I think, is an oblique reference to the fact that
the first respondent wished to be paid for his services
in securing
the repayment of the funds, something that the complainant was not
prepared to countenance. The fees that the first
respondent wanted to
charge had apparently not previously been agreed upon between him and
the complainant and the first respondent
belatedly wanted to charge
the complainant ten percent collection commission, which the
complainant was not prepared to countenance.
[22]
Whilst this disagreement may
have been caused by a misunderstanding, there was no mistaking the
undertaking then proposed by the
first respondent in his letter of 16
October 2020:
‘
I
will then make further payments on the 1 November 2020 for the
balance of R75,000.00 when the payment limit allows me to do.’
Thus,
on the first respondent’s own version, the ‘misunderstanding’,
whatever it was and whoever had misunderstood,
ceased to play a part
in the matter: the first respondent would now pay the complainant the
balance of the funds.
[23]
Why did this not occur then?
The difficulty, according to the first respondent, was that the
second respondent had a policy that
prevented him from making
electronic payments directly from his trust banking account to a
client. Where he wished to make such
a payment, he was first obliged
to transfer the money into his business banking account from his
trust banking account and then
make an electronic payment to the
client from his business banking account. Complicating matters
further was the fact that there
was a transactional limit on his
business banking account of R50 000 per day.
[24]
On 8 October 2020 he made
payment of the amount of R45 000 to the complainant.
[11]
Having made that payment, the first respondent claimed that he was
reluctant to make a second payment without the complainant first
having acknowledged that she had received the first payment. He
claimed to be worried that he might have paid the first payment
into
an incorrect banking account. According to the first respondent, the
complainant allegedly never confirmed receipt of the
amount of
R45 000 and thus he made no further payments to her. Indeed, so
the first respondent contended, not only did the
complainant not
acknowledge receipt of the payment of the R45 000, she actively
avoided taking his calls, blocked his telephone
number and ceased
communicating with him.
[25]
The first respondent’s
first answering affidavit is not a model of clarity and is sparsely
populated with facts or dates.
He also delivered a second answering
affidavit. The second answering affidavit is no improvement in this
regard. The following
facts are not contained in either of those
affidavits but were advanced by the first respondent in argument,
when he was not under
oath. He advised that upon receipt of the
payment of the funds, he had immediately transferred the whole amount
from his trust
banking account into his business banking account. The
payment of the R45 000 to the complainant came from the total amount
in
his business account. In anticipation that the complainant would
at some stage acknowledge his calls and call for payment of the
balance of the funds, the first respondent stated that he resolved to
keep the balance of the funds in his business banking account
and not
in his trust banking account so that he could immediately pay her.
[26]
According to the first
respondent, the balance of the funds then remained in his business
banking account. While this is irregular,
as shall shortly be
established, that should then have been the end of the matter. If his
version was that he was unsure that the
complainant had received the
payment that he made to her, that uncertainty was erased when he was
contacted by the applicant. The
balance of the funds was demanded
from him and that could only mean that the complainant acknowledged
receipt of the R45 000. Why
then did he not simply pay her from his
business banking account as he had planned to do? What would appear
to be a simple and
obvious resolution of the matter is, in fact, not
that simple according to the first respondent.
[27]
The first respondent explains
in his second answering affidavit, delivered without the leave of the
court, that on an undisclosed
day in November 2021, he was summoned
from the magistrates’ court to his offices to conduct a
consultation with four new
clients. Eager for the new work, he rushed
from the court to his office. Those clients then held him up at
gunpoint, stole his
computer and demanded his banking password from
him. Using his cellular telephone, which they had taken from him,
they then transferred
all the money in his business banking account
to their banking account. By his estimation, this amounted to over
R80 000. He was
thus left impoverished and unable to refund the
complainant. His carefully crafted plan to effect swift payment to
the complainant
came to naught. The first respondent asserts that he
reported this unfortunate and unpleasant experience to the South
African Police
Service (SAPS), but was not given a CR number to prove
that he had done so.
[28]
It is notionally possible that
there was some form of misunderstanding between the complainant and
the first respondent when he
first accepted her mandate. She
apparently made a payment to him of R1 000 for the opening of a
file in his practice and it
is possible that she believed that this
was the only payment that she would be obliged to make to him. On the
first respondent’s
own version, he did not, in accepting the
complainant’s mandate, discuss other fees or the levying of
collection commission
on what he recovered with her. But whatever
impediment that constituted was, on the first respondent’s own
version, made
redundant because he ultimately agreed to pay her in
full.
[29]
It is, again, not impossible
that funds that needed to be paid electronically from the first
respondent’s trust banking account
had to first be transferred
into his business banking account so that they could be
electronically disbursed to the client entitled
to such payment. If
this is accepted, then accepting that there may be a transactional
limit is equally possible. Thus it is plausible
that the full amount
due to the complainant could not be paid to her in a single
transaction. In allowing for this, I must acknowledge
that there was
no evidence from the second respondent that this was how the first
respondent was required to operate his accounts
with it. But it
appears to me, from ordinary human experience, that what the first
respondent submits is possible.
[30]
But that is where my
understanding of the first respondent’s version comes to a
grinding halt. There are a number of areas
of his explanation that I
have difficulty with. I shall come to the lesser problems in due
course. But an overall conspectus of
the primary reason advanced by
the first respondent is that he ultimately could not pay the
complainant because of the consequences
of the robbery. He wanted to
pay, knew he must pay, but he physically lacked the means to make
such payment because all the previously
available funds were no
longer available.
[31]
The first respondent’s
first answering affidavit was delivered on 24 August 2022 and the
second was delivered on 1 November
2022. The remarkable thing is that
the first answering affidavit contained no reference whatsoever to
the occurrence of the robbery.
It was completely silent on that
aspect. As if it had not occurred.
[32]
But, of course, according to
the first respondent it had occurred. Why was it not mentioned then
at the earliest opportunity and
when precisely did it occur? No date
other than the month and the year is mentioned in the second
answering affidavit. It is difficult
to accept that the first
respondent cannot be more accurate about this. He could not have been
held up in his chambers at gunpoint
on too many occasions in his
life. One would think that the date of that frightful occurrence
would be scorched into his memory
and that it would be impossible for
the first respondent not to remember it. In the first respondent’s
second answering affidavit,
the best that he can do is to state that
the robbery allegedly occurred sometime in November 2021. However,
when he argued the
matter, the first respondent stated that it
happened in December 2021. This causes considerable doubt to
exist over the alleged
occurrence of the incident.
[33]
But the real problem behind
accepting that the robbery, if it did happen, is the cause of the
first respondent’s difficulties
may be discerned if a
chronology of events is considered. On the first respondent’s
own version, he made no payment to the
complainant after he paid the
R45 000 to her because he was unsure about the accuracy of her
banking details. More about that shortly.
But after the applicant
became involved in the matter and wrote to him, he indicated in the
16 October 2020 letter that he would
pay the balance of the funds to
the complainant by 1 November 2020. He could only pay if he was now
satisfied that he had the correct
banking details. Clearly, his
undertaking must mean that he was now satisfied with those details.
This would have been reinforced
by the fact that he only had to pay
R75 000, meaning that the complainant had received the payment of R45
000. The balance of the
funds was in his business banking account for
the express purpose of allowing for swift payment to the complainant.
Everything
that was needed for payment to occur to the complainant
was in place. But the robbery allegedly prevented that from
occurring.
The difficulty for the first respondent’s version is
that the robbery did not occur in November 2020, but in November 2021
(if his argument that it occurred in December 2021 is ignored). There
is thus a gap of one year between the 16 October 2020 letter,
when
the first respondent undertook to pay the complainant by 1 November
2020, and the date of the alleged robbery. For one year
the first
respondent, on his own version, sat with the balance of the funds in
his business account and did not pay it to the complainant.
There is
no explanation for this conduct.
[34]
There is, of course, another
insurmountable stumbling block in the first respondent’s
version pertaining to the robbery. If
there was a transactional limit
on his business banking account of R50 000 per day, which I have
already indicated that I am disposed
to accepting, how did the
robbers transfer R80 000 from that account? The first respondent was
invited to address the court on
this aspect but could only state that
he did not know how they did it.
[35]
There are further factors that
tend to show that the robbery did not occur. The robbers, by
transferring the funds from the first
respondent’s business
banking account to their bank account would have had to identify the
details of their banking account.
With knowledge of the account
number, ascertaining the identity of the account holder, and
therefore who the robber was, would
have been a formality. Yet, no
one has apparently been arrested for the robbery. Finally, it is
improbable that the first respondent
was not provided with a
reference number when he allegedly reported the incident to the
SAPS. In argument from the bar, the
first respondent indicated
that the robbers had said at the time of the robbery that they had
‘connections’ at the
local SAPS. The likelihood of them
disclosing this to the first respondent appears remote, but if it was
said, then given the serious
consequences for the first respondent of
the robbery why did he not report the matter to a different SAPS
station? Why has the
first respondent not been more pro-active in
galvanizing the SAPS into action? Why has he been so supine in merely
accepting the
theft of a considerable sum of money? Why did he not
report the robbery to the applicant? The answers to all these
perfectly legitimate
questions are, I believe, self-evident.
[36]
But there are other aspects of
the first respondent’s version that are equally as unappealing
as his version of the robbery.
I mention hereafter but a few of them.
[37]
I have difficulty in accepting
that the complainant, who had specifically mandated the first
respondent to recover all her funds,
would then refuse to communicate
with him and would block his telephone number on her cellular
telephone. The complainant would
have been desirous of information
and news on the quest to recover her funds and I can conceive of no
reason why she would not
want to communicate with the first
respondent in those circumstances.
[38]
A further difficulty that I
have with the first respondent’s version is that he claims that
he was anxious about the complainant’s
banking details and thus
made no further payment after paying the amount of R45 000 to her. In
argument, he attributed this anxiety
to the fact that he had received
the complainant’s banking details from the firm of attorneys
who originally held the funds
and he was worried that those details
might be stale. That begs the question of why he was content to then
make the first payment?
Why was he not anxious about those very same
banking details before making that payment? If he was not anxious
before making that
payment, why did he immediately become anxious
after making that payment? What changed? No solutions to these
questions have been
provided by the first respondent. However, the
most obvious reason for doubting the first respondent’s alleged
anxiety and
caution over the complainant’s banking details is
the evidence that she gave to the hearing that he had requested her
banking
details from her and she sent them to him using WhatsApp.
[39]
Finally, the first respondent’s
explanation as to why the funds were not held in his trust banking
account but in his business
banking account is beyond belief. That
this is what he claims to have done merely serves to show his
disregard for the rules of
his own profession. Rule 54.11 of the
applicant’s rules specifically prohibits the holding of trust
funds in a business banking
account.
[12]
[40]
It appears to me that the
alleged occurrence of the robbery is a recent invention conjured up
by the first respondent to try and
explain why he is no longer in
possession of the balance of the funds. He had not thought of it at
the time when he delivered his
first answering affidavit and that
explains why it is never mentioned in that affidavit. The inference
is irresistible that he
did not pay the complainant when he promised
to do so because he no longer possessed the balance of the funds,
having misappropriated
them for his own purposes. As a whole, the
first respondent’s version is unpalatable and unacceptable. I
am accordingly satisfied
that the conduct of which complaint has been
made has been established satisfactorily.
[41]
It falls now to be considered
whether the first respondent was correctly found to be a person who
should not be permitted to continue
practising as an advocate. The
question of an appropriate sanction in matters such as the present is
always difficult. It is difficult
to lose sight of the fact that the
first respondent has studied for a number of years to put himself
into a position where he is
able to practice law. In addition, the
Bill of Rights protects a citizen’s right to freely choose
their trade, occupation
or profession.
[13]
The first respondent will have members of his family who will be
dependent on him for their survival. Sight is not lost of the
fact
that the amount misappropriated is, in relative terms, not a huge
amount of money at all. On the other hand, we have the reasonable
demands of the public that dishonesty by people who are trained in
the law and who should know better should not be tolerated and,
when
uncovered, should be appropriately sanctioned.
[42]
The
opening premise must be that where an advocate has been found to be
dishonest and has misappropriated money belonging to his
client,
there would have to be truly exceptional circumstances in place
before a court will order a suspension from practice instead
of a
removal from practice.
[14]
[43]
Where
dishonesty has been established, to avoid striking off, Wallis JA, in
a minority judgment, in
Geach
noted that:
‘
In
the context of an advocate who has been shown to be dishonest and
lacking integrity, what is called for is evidence showing that
the
character flaw of dishonesty has been overcome, or will be overcome,
if a sanction less than striking off, is imposed.’
[15]
[44]
Thus
dishonesty does not ineluctably lead to the imposition of the
ultimate professional sanction.
If
the question of a suspension, in preference to a striking off, is
considered, then there must still be evidence of exceptional
circumstances that apply to that errant legal practitioner for that
consequence to be preferred. There would, in my view, have
to be
evidence that a suspension from practice would have the effect of
remedying the defect in character that had led to the occurrence
of
the offending conduct and would reconfigure the offender into being a
fit and proper person to practise as an advocate once
more. As Harms
ADP said in
Malan
:
‘
It
is seldom, if ever, that a mere suspension from practice for a given
period in itself will transform a person who is unfit to
practise
into one who is fit to practise.’
[16]
If there is no
evidence of this, then a suspension from practice will serve no
purpose and the suspended party will return to practice
with the
defect in his character that caused the suspension, untreated and
unhealed.
[45]
In considering the first
respondent’s conduct, it may be of some assistance to consider
what the courts regard as the essential
qualities that members of the
legal fraternity should
possess.
In
General Council of the
Bar of South Africa v Jiba and others
,
[17]
the court held that:
‘
[2]
A successful practitioner, an attorney or an advocate, should
possess and display certain qualities, most of which cannot
be
acquired through learning. Having these qualities could indicate that
a person is indeed a “fit and proper” person
for the
profession. An appropriate academic training may, however, play a
vital part in improving them, as they are “by nature
at least
latent”.
[3] The
following are listed as the least of the qualities a lawyer should
possess:
“•
(I)ntegrity
— meaning impeccable honesty or an antipathy to doing anything
dishonest or irregular for the sake of personal
gain,
•
objectivity
— no irrelevant consideration whatsoever should bear upon one's
judgment,
•
dignity
— practitioners should conduct themselves in a dignified manner
and should also maintain the dignity of the court,
•
the
possession of knowledge and technical skills,
•
a
capacity for hard work,
•
respect
for legal order, and
•
a
sense of equality or fairness.”
’
(Footnote
omitted.)
[46]
If one is to compare the
desired qualities enumerated above with those that the first
respondent has displayed in this matter, then
one is left with a
feeling of disappointment and despair for him. I do not mention all
of those qualities and I need not dwell
at all on the issue of
integrity as the finding of dishonesty made against him must mean
that he has failed to demonstrate any
integrity. He has not conducted
himself with dignity. In his affidavit utilised in support of an
application for condonation for
the late filing of his heads of
argument, the first respondent states:
‘
Firstly,
I would like to greatly apologize for filing the Heads of Argument
out of the required time. The reason being the proceedings
to this
application has been unfair to me from the beginning.’
There
is no basis for his complaint. The proceedings have not been
conducted in a manner that is prejudicial to him nor has it treated
him unfairly. As shall be seen shortly, it is the first respondent
that has been out of order in the way that he has conducted
himself.
[47]
It is apparent that the first
respondent lacks the essential knowledge required of a trust fund
advocate. He indicated in argument
that he did not know that he
contravened the applicant’s rules by retaining trust funds in
his business banking account.
This is a basic concept relating to
trust monies of which he ought to have been aware. His ignorance of
this, if true, is alarming.
[48]
The first respondent complained
further that the applicant’s replying affidavit was not served
upon him. I assume that this
was in support of his allegation that he
had been treated unfairly. This very complaint was one of the reasons
why the matter was
adjourned on the previous occasion when it was due
to be argued. The complaint was without merit. The replying affidavit
had been
served upon the first respondent. He appears to have
overlooked the fact that he had appointed a firm of attorneys to
assist him
at one stage. Those attorneys came on record and the
replying affidavit was properly served on those attorneys. There was
thus
proper service of the replying affidavit.
[49]
Finally, I failed to detect any
sense of respect for the legal order arising out of the first
respondent’s conduct. Time limits
and the requirements imposed
by the Uniform Rules were simply ignored by him. Thus:
(a)
He delivered his first
answering affidavit out of time, and consequently had to seek
condonation therefore;
(b)
He delivered his second
answering affidavit without the leave of the court being sought in
terms of Uniform rule 6(5)
(e)
;
and
(c)
He delivered his heads of
argument out of time and he consequently had to seek condonation for
this failure as well.
All
of this paints a bleak picture of an advocate who is both
undisciplined and, regrettably, ignorant of the requirements of his
own profession. He appears to be
quite
indifferent to the demands of the profession that he has chosen to
serve.
[50]
In
Johannesburg
Society of Advocates v Edeling
,
[18]
Wallis JA stated that:
‘
An
advocate is required to be completely honest, truthful and reliable.’
That,
with respect, perfectly sums up the essential qualities that an
advocate must possess. When an advocate displays none of these
qualities then his future ability to remain an advocate must be open
to serious doubt.
[51]
Could it possibly be argued
that this was a single, unfortunate event that is unlikely to be
repeated again in the future? Of course,
what the future brings is
not known to mortal man. It is possible that the first respondent may
repent and never sin again but
it is possible that he will repeat his
conduct. In
Geach
Nugent JA stated that
‘
Once
an advocate has exhibited dishonesty it might be inferred that the
dishonesty will recur and for that reason he or she should
ordinarily
be barred from practice.’
[19]
[52]
In my view, the first
respondent has persistently over the course of the facts being
considered demonstrated dishonest conduct,
firstly towards his client
by misappropriating her funds, and secondly towards this court in
advancing an amateurishly false version
of what became of the balance
of the funds.
In
Hayes
v The Bar Council
,
the court stated that the need for absolute honesty and integrity
applies both in relation to advocates’ duties to their
clients
and to their duties to the courts.
[20]
[53]
When offered the opportunity to
give a truthful explanation for events, the first respondent chose to
rather give a false explanation.
I would regard the brazen yet false
explanation of the alleged robbery as an aggravating factor because
it was told under oath
and was persisted with in argument before this
court.
[54]
I have carefully considered the
first respondent’s conduct, and I can find nothing in it that
redeems him in my view. I detect
no exceptional circumstances that
would allow the first respondent to avoid the inexorable sanction
that must follow upon such
conduct.
Kirk-Cohen
J in
Law
Society, Transvaal v Matthews
[21]
stated
the following in respect of the attorney’s profession but it is
of equal application to advocates:
‘
The
attorney is a person from whom the highest standards are exacted by
the profession and [the] Court . . . In this regard the
standards are
admirably dealt with in the founding affidavit as follows:
“
. . .The
profession itself is not a mere calling or occupation by which a
person earns his living. An attorney is a member
of a learned,
respected and honourable profession and, by entering it, he pledges
himself with total and unquestionable integrity
to society at
large, to the courts and to the profession... only the very highest
standard of conduct and repute and
good faith are consistent with
membership of the profession which can indeed only function
effectively if it inspires the unconditional
confidence and trust
of the public. The image and standing of the profession are judged by
the conduct and reputation of all
its members and, to maintain this
confidence and trust, all members of the profession must exhibit the
qualities set out above
at all times. . .”’
[55]
I agree with those words. The
first respondent’s conduct has fallen short of these high
standards. There is no evidence that
a period of suspension will be
of any benefit and there are no exceptional circumstances to be
found. The first respondent’s
name must be removed from the
roll of advocates.
[56]
I would therefore propose the
following order:
1.
The first respondent’s
application for an adjournment is dismissed with costs.
2.
The rule
nisi
granted on 15 September
2022 is confirmed.
MOSSOP
J
I
agree:
SHOBA
AJ
APPEARANCES
Counsel for the
appellant:
Mr S N Chetty
Instructed by:
Siva Chetty and
Company
Town Bush Office
Park
Block C, Second
Floor, Suite 10
460 Townbush Road,
Montrose
Pietermaritzburg
Counsel for the
first respondent:
In person
Instructed by:
K
M Chetty Attorneys
Care of:
Botha and Olivier
Incorporated
239 Peter Kerchoff
Street
Pietermaritzburg
Date
of Hearing
: 17
April 2023
Date
of Judgment
: 28 April 2023
[1]
Rule
1.34 of the Rules applicable to the
Legal
Practice Act 28 of 2014
defines
a 'trust account advocate' as ‘an advocate referred to in
section 34(2)
(b)
of the Act who is, in terms of the Act, required to hold a Fidelity
Fund certificate’ (
The
South African Legal Practice Council Rules, GN 401,
GG
41781
,
20 July 2018).
[2]
Eastern
Cape Provincial Council of the South African Legal Practice Council
v Mfundisi
[2022]
ZAECMKHC 87;
[2023] 1 All SA 90
(ECG) para 1.
[3]
Law
Society
v
Du Toit
1938
OPD 103
at 104.
[4]
This notwithstanding that as recently as 14 November 2022, being the
date when this matter was last before this court, an adjournment
was
taken by consent in which it was recorded that the first respondent
had undertaken to pay to the first respondent the balance
of the
funds within 10 days of 14 November 2022. The payment was not made.
[5]
Code
of Conduct for all Legal Practitioners, Candidate Legal
Practitioners and Juristic Entities, GN 168,
GG
42337,
29 March 2019.
[6]
Indeed,
the first respondent used the same email address to transmit the 16
October 2020 letter.
[7]
‘
Before
you act, it’s Prudence soberly to consider; for after Action
you cannot recede without dishonour: Take the Advice
of some Prudent
Friend; for
he
who will be his own Counsellour, shall be sure to have a Fool for
his Client
’,
by W De Britaine
Humane
Prudence, or, The Art by which a Man May Raise Himself and Fortune
to Grandeur
(1682) at 57.
[8]
Jasat
v Natal Law Society
2000
(3) SA 44
(SCA),
[2000]
2 All SA 310
(SCA)
para 10.
[9]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) SA 623 (A)
at
634-635.
[10]
Van
der Berg v General Council of the Bar of South Africa
[2007]
ZASCA 16; [2007] 2 All SA 499 (SCA) para 2.
[11]
The
maximum of R50 000 was not paid to the complainant because,
according to the first respondent, he had already paid out R5 000
to another client or clients that day.
[12]
Rule
54.11 reads, in part, as follows: ‘Trust money shall in no
circumstances be deposited in or credited to a business
banking
account. Money other than trust money found in a trust banking
account at any time shall be transferred to a business
banking
account without undue delay. . .’
[13]
Section
22.
[14]
Malan
and another v Law Society, Northern Provinces
[2008]
ZASCA 90
;
2009 (1) SA 216
(SCA);
[2009] 1 All SA 133
(SCA) para 10.
[15]
General
Council of the Bar of South Africa v Geach and others
[2012] ZASCA 175
;
2013 (2) SA 52
(SCA) para 156.
[16]
Malan
and another v Law Society, Northern Provinces
[2008]
ZASCA 90
;
2009 (1) SA 216
(SCA);
[2009] 1 All SA 133
(SCA)
para
8.
[17]
General
Council of the Bar of South Africa v Jiba and others
[2016]
ZAGPPHC 833; 2017 (1) SACR 47 (GP); 2017 (2) SA 122 (GP); [2016] 4
All SA 443 (GP) paras 2 and 3.
[18]
Johannesburg
Society of Advocates v Edeling
[2019]
ZASCA 40; 2019 (5) SA 79 (SCA) para 17.
[19]
General
Council of the Bar of South Africa v Geach and others
[2012] ZASCA 175
;
2013 (2) SA 52
(SCA)
para
69.
[20]
Hayes
v The Bar Council
1981
(3) SA 1070
(ZA)
at 1081H-1082D.
[21]
Law
Society, Transvaal v Matthews
1989
(4) SA 389
(T)
at 395F-J, approved of in
Botha
and others v Law Society, Northern Provinces
[2009]
ZASCA 13
;
2009 (3) SA 329
(SCA);
2009]
3 All SA 295
(SCA) fn 14
.