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[2023] ZAKZPHC 60
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Legal Practice Council (KwaZulu-Natal Provincial Office) v Rajkoomar and Another (5603/19P) [2023] ZAKZPHC 60 (9 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 5603/19P
In
the matter between:
LEGAL
PRACTICE COUNCIL
Applicant
(KWAZULU-NATAL
PROVINCIAL OFFICE)
and
PRANIL
RAJKOOMAR
First Respondent
STANDARD
BANK OF SOUTH AFRICA
Second Respondent
ORDER
The
following order is granted:
1.
The matter is referred for the hearing of oral evidence in terms of
Uniform Rule
6(5)
(g)
at a time and date to be arranged with
the Registrar on the following issues:
(a)
Whether there was any dishonesty or unworthy conduct on the part of
the first respondent
in the administration of Ms Sheriffa Bacus’s
property.
(b)
Whether there was sufficient monies in the first respondent’s
trust account of Ms
Sheriffa Bacus for the payment of R194 399.47
on 29 July 2016 and, if so, why the first respondent did not make
payment towards
the administration of the property earlier.
(c)
Whether the first respondent’s books of account were properly
managed and maintained
and specifically whether the first respondent
maintained a proper fee and transfer journal.
(d)
What monies were held in the first respondent’s trust account
between the period January
2013 to 29 July 2016.
(e)
Whether the first respondent utilized trust monies to pay other
creditors.
(f)
Whether the first respondent withdrew monies from his trust account
from the period
4 May 2015 to 17 September 2017 on no less than six
occasions in the sum of R53 975.00. If so, what the purpose was
of these
withdrawals and whether these monies were credited to his
trust account.
(g)
Whether there was a deficit of R979 573.71 for the period ending
29 February 2016 in
the first respondent’s trust account.
(h)
Whether there was a debit balance in the first respondent’s
trust account as at 30
November 2016 in the sum of R13 256.01.
(i)
Whether the contents of the inspection report dated 1 December 2016
is factually
correct.
2.
The various deponents to the affidavits filed may be called as
witnesses as well
as any other witness(es) that the parties may wish
to call, provided that notice be given to the other party fourteen
(14) days
before the date appointed for the hearing of oral evidence.
3.
Either party may subpoena any person to give evidence at the hearing
whether
such person has consented to furnish a statement or not.
4.
Within 21 days of the granting of this order, each of the parties
shall make
discovery under oath, of all documents relating to the
issues referred to under paragraph 1 hereof, which are or have at any
time
been in the possession or under the control of such party. Such
discovery shall be made in accordance with Uniform rule 35 and the
provisions of that rule with regard to the inspection and production
of documents discovered shall be operative.
5.
Costs are reserved for determination by the Court hearing the oral
evidence.
JUDGMENT
Gounden
AJ (with E Bezuidenhout J concurring)
Introduction
[1]
The applicant, who is described as the Legal Practice Council, seeks
to
strike the name of the first respondent, Mr Praneel Rajcoomar,
from the roll of legal practitioners together with ancillary relief.
[2]
The proceedings before the court are of a disciplinary nature and are
sui generis
. The court is obliged to embark upon a three stage
enquiry which has been summarised as follows:
‘
First,
the court must decide whether the alleged offending conduct has been
established on a preponderance of probabilities, which
is a factual
inquiry. Second, the court must consider whether the person concerned
“in the discretion of the court”
is not a fit and proper
person to continue to practise. This involves a weighing-up of the
conduct complained of against the conduct
expected of an attorney
and, to this extent, is a value judgment. Third, the court must
inquire whether in all the circumstances
the attorney is to be
removed from the roll of attorneys or whether an order of suspension
from practice would suffice.’
[1]
[3]
The courts
have repeatedly emphasized that impeccable ethical standards are
required of an attorney who practises law. He is to
conduct himself
with the utmost integrity and with scrupulous honesty. The Supreme
Court of Appeal has commented that the heavy
responsibility which
officers of the court are required to shoulder in ‘upholding
the Constitution’ is ‘without
parallel’.
[2]
[4]
In a nutshell, this application involves the conduct of the first
respondent
who is alleged to have failed to carry out his mandate and
abandoned his duties to his client. Upon an investigation by the
applicant
it was uncovered that the first respondent had failed to
administrate and manage his practice finanaces in an appropriate
manner.
[5]
In opposition, the first respondent has raised various points in
limine.
At the hearing of this application it was agreed between the
parties that the court would deal with the points in limine before
engaging with the merits of the application, as the effect of the
first respondent being successful on any of the points in limine
may
be dispositive of the matter.
[6]
The in limine challenges are as follows:
(a)
The applicant’s locus standi to institute the application;
(b)
An alleged defect in the notice of motion;
(c)
The deponent to the founding affidavit lacks the personal knowledge
and the requisite
authority to bring the application;
(d)
The applicant instituted the application in terms of the Attorneys
Act 53 of 1979 (‘the
Attorneys Act’), whereas the
application should be in terms of the provisions of the Legal
Practice Act 28 of 2014 (‘the
LPA’) as it was instituted
after 1 November 2018. The provisions of the LPA prescribe a
disciplinary procedure before the
institution of an application and
this process has not been followed by the applicant. Arising from
this point the first respondent
also submits that there is no prima
facie case or cause of action;
(e)
An estoppel challenge.
[7]
Prior to engaging with the points in limine it is necessary to set
out
a background of the factual history of this matter.
The
factual background
[8]
In June 2016 the applicant received a complaint against the first
respondent,
who is an attorney of 25 years, from Ms Fawzia Essop
Bacus, an attorney, who at the time was employed by the Verulam
Justice Centre.
The first respondent was known to Ms Fawzia Bacus as
they had worked with each other over the years.
[9]
In 2009 Ms Fawzia Bacus instructed the first respondent to attend to
the
administration of an immovable property that belonged to her
mother, Ms Sheriffa Bacus, which involved the collection of rental
and other property related matters.
[10]
In terms of the first respondent’s mandate he would attend to
the rental collections
in respect of the property, which would be
received into his trust account and utilised to pay the bond
instalment for the property,
the rates and other utilities on a
monthly basis. He would provide a monthly statement of account
reflecting all monies collected
and disbursements made in respect of
the property.
[11]
Ms Fawzia Bacus relocated to the Western Cape and her sister, who
lived in Durban, continued
to deal with the first respondent. It was
at this stage that the sister raised a query with the first
respondent’s office
as she was not receiving the monthly
statements of accounts. The first respondent’s office was being
evasive, which led to
the sister complaining to Ms Fawzia Bacus about
the lack of response received. Ms Fawzia Bacus attempted
unsuccessfully to contact
the first respondent by making numerous
telephone calls and leaving several messages.
[12]
Sometime in 2015 Ms Fawzia Bacus became aware that Nedbank, the bond
holder of the property
instituted foreclosure proceedings against the
property as the bond instalment had not been paid. Ms Fawzia Bacus
attempted to
arrange an urgent meeting with the first respondent, but
was unsuccessful in all her attempts.
[13]
As a result of the many failed attempts to contact the first
respondent Ms Fawzia Bacus
terminated the first respondent’s
mandate. She contacted Nedbank and made arrangements to settle the
indebtedness to rescue
the property from a sale in execution.
Thereafter, Ms Fawzia Bacus instructed attorneys TC Mehta and Company
to administer the
property, and laid a complaint with the applicant
relating to the conduct of the first respondent.
[14]
The applicant appointed two senior attorneys Mr Praveen Sham (‘Mr
Sham’) and
Ms Manette Strauss (‘Ms Struass’) as
members of the inspection committee. Upon the first inspection, the
inspection
committee reported inter alia that the first respondent
had compiled a report and a reconciliation and paid the sum of
R194 399.47
to Ms Sheriffa Bacus. He was unable to provide any
explanation why the bond instalments for the property were not paid
despite
there being a credit balance. He admitted that he failed to
supervise the person in his office who was responsible for handling
the matter. He was unable to produce any financial records as these
records were with his accountant. The records he did have were
in an
office, which office was locked. His accountant had the only key to
the office. The inspection was adjourned for the production
of the
records. Thereafter the first respondent, in writing, objected to the
continuation of the inspection and challenged the
legal standing of
the inspection committee. He also alleged that his accountant
was hijacked and not available.
[15]
A subpoena was subsequently issued for an interview with the first
respondent. At this
stage, the first respondent engaged the services
of an attorney who raised various objections to the interview. After
various aborted
attempts to conduct the interview the first
respondent eventually attended the inspection and produced his
accounting records.
It is alleged that the first respondent admitted
that there was a shortfall of approximately R1.9 million in his
trust account,
which was remedied through an agreement with a client
who allowed him to utilise the monies on certain terms. The first
respondent’s
attorney confirmed that there was a general
deficiency in his trust account and that his books of accounting
where not properly
written up. A further inspection was undertaken
where further irregularities were uncovered.
[16]
The inspection committee commented as follows in their report dated 1
December 2016:
‘
This
is one of the sorriest looking set of books that we have come across.
Rajcoomar acknowledged that his knowledge of bookkeeping
was limited
and in our view his bookkeepers knowledge of legal accounting is even
more limited’
.
[17]
As a result of the investigation the KwaZulu-Natal Law Society
resolved to bring proceedings
to remove the first respondent from the
roll of attorneys. In April 2017 an application was instituted, but
was withdrawn due to
technical deficiencies in the application. In
May 2019 the applicant’s council approved the recommendation of
its committee
that the resolution taken by the KwaZulu-Natal Law
Society, to institute proceedings for the removal of the first
respondent’s
name from the roll of legal of practitioners, is
confirmed.
[18]
Thereafter the applicant instituted the present application as it
formed the view that
the first respondent had little or no
understanding of basic accounting principles after a lengthy period
of practice; there was
no clear distinction between the first
respondent’s trust and business account; the first respondent
acknowledged an indebtedness
to Ms Sheriffa Bacus without providing
any clarity on the details; there was a reasonable suspicion that he
was rolling trust funds;
as a senior attorney he showed disregard to
the instruction of Ms Fawzia Bacus and a reckless abandonment of the
matter. This led
to unnecessary stress and trauma for the Bacus
family. All these issues were indicative of misappropriation of trust
monies and
unprofessional conduct.
[19]
The first respondent’s answer to the Bacus complaint is that
his records reveal that
there was insufficient income to meet the
monthly expenses on the property and that he paid the expenses from
his business account,
because of his long standing relationship with
Ms Fawzia Bacus. He furnished a full reconciliation of account to
attorneys TC Mehta
and Company, which they accepted. His difficulty
in communicating with Ms Fawzia Bacus was that his office was burgled
and it took
him time to set up new infrastructure and that he did
attempt on various occasions to call Ms Fawzia Bacus to no avail.
[20]
The first respondent also raised and challenged the unfairness of the
inspections that
were held as the two inspectors that conducted the
inspection participated in the deliberations where the decision was
taken to
remove his name from the roll. The first respondent denied
any misappropriation of trust funds as he was provided with a
fidelity
fund certificate and was granted a certificate of good
standing. He also denied the admission relating to the R1.9 million
shortfall
in his trust account that was remedied through an agreement
with his client.
[21]
It is against this background that the in limine challenges must be
seen in their context
and in this regard it is apposite to refer to
the remarks made by the Supreme Court of Appeal in
Law Society,
Northern Provinces v Mogami
:
‘
Very
serious, however, is the respondents' dishonest conduct of the
proceedings. Instead of dealing with the issues they launched
an
unbridled attack on the appellant. It has become a common occurrence
for persons accused of a wrongdoing, instead of confronting
the
allegation, to accuse the accuser and seek to break down the
institution involved. This judgment must serve as a warning to
legal
practitioners that courts cannot countenance this strategy. In itself
it is unprofessional.’
[3]
[22]
I now turn to deal with the points in limine as raised by the first
respondent.
The
applicant’s locus standi to institute this application
[23]
The applicant is cited as a body corporate with full legal capacity
established in terms
of s 4 of the LPA, which exercises jurisdiction
over all legal practitioners as contemplated in terms of the LPA.
[24]
In the founding affidavit, the applicant attached the extract of
minutes of a meeting of
its council which resolved by not less than
nine councillors that an application is to be made for removal of the
name of the first
respondent from the roll of legal practitioners.
The applicant has also referred to itself in the heading of the
application as
the ‘Legal Practice Council (KwaZulu-Natal
Provincial Office).’
[25]
In the replying affidavit, the applicant attached the minutes of the
meeting held by its
council, described as the ‘Legal Practice
Council of South Africa’, in Midrand on 18 May 2019,
which confirmed
the authority of the applicant to institute
proceedings against the first respondent and attached a
recommendation by its council
for the removal of the first
respondent’s name from the roll of practitioners. The applicant
explained that the first resolution
was attached to the founding
affidavit in error.
[26]
In terms of s 4 of the LPA:
‘
The
South African Legal Practice Council is hereby established as a body
corporate with full legal capacity, and exercises jurisdiction
over
all legal practitioners and candidate legal practitioners as
contemplated in this Act’.
[27]
The
LPA makes the legal practice council primarily responsible for the
protection and regulation of the legal profession.
[4]
The applicant is the custodian
of
all legal practitioners, it has a direct and substantial interest in
the matter, and in the subject and object of the proceedings
in
question, and consequently the outcome of the litigation as it is
legislatively responsible for the administration of all candidate
and
legal practitioners as contemplated in the LPA.
[5]
[28]
In the circumstances I am of the view that the applicant has the
requisite legal standing
to bring this application.
An
alleged defect in the notice of motion
[29]
In the notice of motion the applicant states ‘kindly take
notice further that the
affidavit of
Pearl Dawn Arnold Mfusi
and other affidavits referred to therein will be used in support
thereof’. The founding affidavit attached to the notice
of
motion was deposed to by Ms Hlaleleni Kathleen Matolo-Dlepu (‘Ms
Matolo-Dlepu’). There is no affidavit in the name
of Ms Pearl
Dawn Arnold Mfusi attached to the notice of motion. The applicant has
admitted that this was an error on its part and
corrected it by
providing an amended page.
[30]
The first respondent submits that this error is fatally defective
ab
origine
to the application.
[31]
An affidavit deposed to by Ms Matolo-Dlepu, the chairperson of the
applicant, has indeed
been annexed to the founding affidavit. This
point, in my view, is badly raised and seeks to elevate form over
substance.
[32]
Accordingly I find no merit in this point.
The
personal knowledge and authority of the deponent to the affidavit in
support of the application
[33]
The first respondent challenges the personal knowledge and the
authority of the deponent
to the affidavit in support of the
application on the basis that she has no personal knowledge of
matters raised in her affidavit,
and that she has impermissibly
attempted to rectify her failures in reply.
[34]
The affidavit in support of the application is deposed to by Ms
Matolo-Dlepu, who is the
chairperson of the applicant, and who states
that the facts contained in the affidavit, ‘where otherwise
stated, or the context
indicates the contrary, are within her
personal knowledge and belief and are true and correct’ and
that the matter in its
entirety was discussed comprehensively at the
applicant’s council meeting, as such she acquired the knowledge
to depose to
the affidavit.
[35]
First-hand
knowledge of every fact cannot and should not be required of an
official who deposes to the affidavit of large corporations.
[6]
Ms Matolo-Dlepu has satisfied the requirement of her personal
knowledge by virtue of her position held in the applicant and
discussions
that ensued at the applicant’s council meeting,
which is sufficient to depose to an affidavit.
[36]
The applicant has attached the minutes of a meeting of its council
together with an extract
of an approval confirming that the initial
resolution taken to institute proceedings against the first
respondent to remove his
name from the roll of legal practitioners is
confirmed. In my view, this satisfied the internal authorisation of
the applicant
to commence the application against the first
respondent.
[37]
It is trite
that the deponent to an affidavit does not have to be authorised to
depose to an affidavit, she (in this case) is merely
a witness. It is
the attorney of the litigant who by signing the notice of motion and
issuing the papers signifies that he or she
is authorised to initiate
the application on behalf of the litigant.
[7]
[38]
I am of the view that there is no merit in the challenge of personal
knowledge and authority.
Whether
the applicant has complied with the provisions of the LPA
[39]
Both counsels appearing on behalf of the applicant and the first
respondent respectively,
concentrated most of their efforts on this
point. The LPA brought about a new era of governance within the legal
profession in
terms of which the Attorneys Act 53 of 1957 (‘the
Attorneys Act’) was repealed. The four law societies, which
were
established in terms of s 56 of the Attorneys Act, were
dissolved and replaced by nine provincial councils established in
terms
of s 23 of the LPA, which provincial councils in turn fall
under the council, the body tasked with exercising jurisdiction over
all legal practitioners.
[40]
The objects
of the applicant includes enhancing access to justice, promoting and
protecting the public interest, regulating all
legal and candidate
legal practitioners, preserving and upholding the independence of the
legal profession, enhancing and maintaining
the integrity and status
of the legal profession and upholding and advancing the rule of law,
administration of justice, and the
Constitution of the Republic of
South Africa.
[8]
In order to
achieve these objects the applicant is empowered to do all things
necessary for the proper and effective performance
of its functions
or the exercise of its powers, which include inter alia instituting
and defending legal proceedings.
[41]
In 2016 Ms Fawzia Bacus made the complaint against the first
respondent. At that stage
the Attorneys Act was the legislation that
governed the conduct of attorneys. The investigation process that
commenced against
the first respondent was under that legislation. In
2017 an application was instituted by the then KwaZulu-Natal Law
Society for
the removal of the name of the first respondent from the
roll of attorneys. In June 2018 the KwaZulu-Natal Law Society
withdrew
the application.
[42]
The LPA came into operation on 1 November 2018. This application was
launched in August
2019. The first respondent asserts that the
investigation was finalised in December 2016, and when this
application was instituted
there were no legal proceedings against
him and accordingly the correct legislative regime that applies to
the first respondent
is the LPA and not the Attorneys Act as
suggested by the applicant.
[43]
By reference to the applicability of the LPA the first respondent’s
challenge is
centred upon the disciplinary proceedings foreshadowed
in terms of s 39 of the LPA which provides that a disciplinary
hearing must
be convened and in terms of s 40 it is the disciplinary
committee that advises the applicant’s council to apply
for
inter alia the removal of the name of a legal practitioner from
the roll. Section 41 of the LPA provides legal practitioners with
the
right to lodge an appeal against a decision by the disciplinary
committee. It is the first respondent’s challenge that
this
process was not followed by the applicant.
[44]
It is common cause that disciplinary proceedings were not held in
terms of s 39 of the
LPA for the first respondent, but was conducted
in terms of the rules of the KwaZulu-Natal Law Society. The reason
that this process
was adopted is that the compliant was brought
before the implementation of the LPA.
[45]
In order to assess the merits of this challenge two questions arise:
(a) what is the effect
of the withdrawal of the first application?
And (b) the interpretation of the transitional arrangements in terms
of s 116(2) of
the LPA. The controversy raised relates to the change
in the legislative regime and the impact that it has on the present
application
which is based on the LPA.
[46]
Section 116 of the LPA, which is titled ‘Pending Proceedings’,
clarifies the
position regarding pending proceedings prior to the
enactment of the LPA, and reads as follows:
‘
(1)
Any enquiry in terms of any law repealed by this Act into the alleged
unprofessional or dishonourable or unworthy conduct of
a legal
practitioner which has not been concluded at the date referred to in
section 120(4), must be referred to the Council which
must treat the
matter as it deems appropriate.
(2)
Any proceedings in respect of the suspension of any person from
practice as an advocate, attorney, conveyancer or notary or
in
respect of the removal of the name of any person from the roll of
advocates, attorneys, conveyancers or notaries which have
been
instituted in terms of any law repealed by this Act, and which have
not been concluded at the date referred to in section
120(4), must be
continued and concluded as if that law had not been repealed, and for
that purpose a reference in the provisions
relating to such
suspension or removal, to the General Council of the Bar of South
Africa, any Bar Council, any Society of Advocates,
any society or the
State Attorney must be construed as a reference to the Council.’
[47]
In
Murray
NO v FirstRand Bank Ltd
,
[9]
the Supreme Court of Appeal emphasized that when it comes to the
interpretation of statues, the starting point should always be
the
specific language of the statue or section. This should be used
together with the context or background within which the statute,
or
section, has been created, as well as the purpose or objective of the
statute or section. If the language of the specific statute,
or
section, reflects an inability to support the specific meaning that
is being argued, the later should not be accepted.
[48]
Section 116(1) is directed at the consequences of an enquiry in terms
of any law repealed
by the LPA for unprofessional or dishonourable or
unworthy conduct of a legal practitioner that has not been finalised
by 1 November
2018, and it provides the applicant’s council
with a discretion as to the further conduct of the enquiry.
[49]
Section 116(2) is directed at the consequences of any proceedings for
the suspension or
the removal of a legal practitioner from the roll
in terms of any legislation that has been repealed by the LPA, and
which was
not concluded by 1 November 2018. The proceedings must be
continued and finalised in terms of the repealed law.
[50]
The primary
distinction between s 116(1) and (2) is the use of the words
‘enquiry’
[10]
and
‘proceedings’.
[11]
Each of these words contemplate a different processes being adopted
regarding the unprofessional, untoward or dishonourable conduct
of a
legal practitioner.
[51]
In my view, the words ‘
enquiry
’ in s 116(1)
connotes an internal process being followed, and the words ‘
any
proceedings
’ in s 116(2) suggests an application that has
been instituted before a court, but had not been finalised by the 1
November
2018 when the LPA came into effect.
[52]
In
South
African Legal Practice Council v Bobotyana
[12]
Kroon AJ said:
‘
9.
This application, having been launched after 1 November 2018, must be
adjudicated in
terms of the LPA although the conduct of Bobotyana
must be adjudged in accordance with the law as it stood at the time
that it
took place, namely before the repeal of the Attorneys Act and
when the rules of the Law Society were still applicable.
.
. .
110
In the view of the Court the submission that section 116(2) finds
application is not correct. Whilst
it may be so that the internal
investigation of the Law Society and indeed the interdict proceedings
were instituted before 1 November
2018, the current proceedings,
which are not in any way dependent on earlier enquiries /
proceedings, are fresh proceedings and
they were instituted after 1
November 2018 and it is accordingly an application properly brought
in terms of the LPA.’ (footnotes
omitted)
[53]
The investigation into the Bacus complaint commenced soon after the
complaint was made
in June 2016, and the investigation was finalised
in December 2016. At that time the provisions of the Attorneys Act
and the relevant
rules of the KwaZulu-Natal Law Society were
applicable, as that was the law which was of application when the
complaint was made.
As such the compliant must be adjudicated in
accordance with the law as it stood at that time. Therefore, I am in
agreement with
the sentiment expressed by Kroon AJ. The enquiry
envisaged in s 116(1) was finalised at that stage and in terms of the
prevailing
legislation at the time.
[54]
The
withdrawal of the first application is akin to an order for
absolution from the instance, and does not preclude the institution
of a new application.
[13]
[55]
In
Pudi
v Tshwane University of Technology
[14]
it was held as follows:
‘
[18]
A withdrawal of a matter at Court is a unilateral act done by the
applicant as
dominus litis
. Once done, there is no live matter
between the parties pending at Court. However, since the matter was
not decided on the merits
of the application or claim, the applicant
may approach the Court to decide the matter on the merits. The issue
is whether the
applicant may reinstate proceedings and proceed on the
original papers that were withdrawn or re-institute the proceedings
and
proceed on a fresh referral to the Court.
[19]
Almost a century ago, the Court in
Kaplan v Dunell Ebden and Co
,
laid the principle that a withdrawal of a matter at Court is akin to
an order for absolution of instance. The Court stated that
on
withdrawal of the case by the applicant “the case disappears
from the Roll as though absolution from the instance had
been given.”
Thus, the effect of a withdrawal of a matter has the same
consequences as an order of absolution from the instance.
[20]
The principle is that the position of a matter where the defendant
was granted an absolution from the instance does not mean
that the
applicant is barred from bringing his/her claim, it just meant that
the applicant could bring an application
de novo
on the merits
without the defendant raising a plea of
res judicata
or
lis
finita
.’ (footnotes omitted)
[56]
In
Shibogde
v Minister of Safety and Security
,
[15]
it was observed that as long as the merits or issues between the
parties have not been resolved, there is nothing that bars the
applicant from starting the process afresh.
[57]
Accordingly, in my view, there exists a live controversy in this
application which must
be adjudicated upon in terms of the LPA.
[58]
The first respondent’s submission that he has been deprived of
a disciplinary enquiry
in terms of the provisions of LPA is
artificial in light of my finding that the Attorneys Act and rules of
the KwaZulu-Natal Law
Society applied, at the time of the complaint
as that was the law which applied at the time.
[59]
In terms of s 44 of the LPA:
‘
(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.’
[60]
My view is
fortified by the provisions of s 44(1) of the LPA, which clothes this
court with extensive powers that extend beyond
the provisions of the
LPA to adjudicate upon, and make orders in respect of matters
concerning the conduct of legal practitioners.
This is consonant with
the
sui
generis
procedure
to be adopted by this court when dealing with unprofessional conduct
of legal practitioners.
[16]
[61]
Properly
construed, this point is a form over substance argument against the
context of the facts of this case, because it is common
cause that an
investigation was held and finalised in terms of the Attorneys Act
and the rules of the KwaZulu-Natal Law Society,
which culminated in
the applicant adopting a resolution to institute proceedings against
the first respondent. In my view, to hold
a further disciplinary
hearing would only serve to repeat the process and delay the
finalisation of the matter which has been ongoing
since 2016. This
much was conceded by the first respondent’s counsel. The
Supreme Court of Appeal recently reiterated that
substance must
prevail over form.
[17]
[62]
The
applicant has placed the facts before this court and it is now the
duty of this court to exercise its discretion regarding the
conduct
of the first respondent, which it is entitled to do mero motu without
the reliance on the applicant’s co-operation
or, indeed,
against the applicant’s wish.
[18]
Estoppel:
the issuance of a fidelity fund certificate and a certificate of good
standing
[63]
The applicant issued a fidelity fund certificate and certificate of
good standing to the
first respondent after the Bacus compliant was
received by it and a resolution was passed for the removal of his
name from the
roll of attorneys.
[64]
The first respondent submits that the conduct of the applicant in
issuing the certificates
is an acceptance that the first respondent
is a fit and proper person and as such it is estopped from
alleging otherwise.
[65]
In terms of rule 1.20 of South African Legal Practice Rules the
definition of good standing
in relation to a legal practitioner
includes that there are no proceedings pending or contemplated to
remove the name of the legal
practitioner from the roll of legal
practitioners to suspend him or her from practice.
[66]
The applicant submitted that the issuance of the certificates is
administered by a separate
department and that the certificate of
good standing was issued in error. It does not however detract from
the proceedings that
are pending against the first respondent.
[67]
The test
for representation by conduct is whether the representor should
reasonably have expected that the representee might be
misled by the
conduct and the representee acted reasonably in construing the
representation in the sense which the representee
did.
[19]
The first respondent knew of the complaint against him and knew of
the process that was being adopted by the KwaZulu-Natal Law
Society
(as the predecessor to the applicant) against him for the removal of
his name from the roll of attorneys. In my view, it
cannot be said
the issuance of the certificates created a positive impression that
his removal from the roll of attorneys had fallen
away.
[68]
Unprofessional,
untoward and unlawful conduct has been levelled against the first
respondent. Estoppel may not be used to make legal
what would
otherwise be illegal.
[20]
[69]
The conduct of the applicant also deserves comment because the
issuance of the certificates
to the first respondent when there are
pending proceedings against him demonstrates a failure of its
administrative duties, which
should not be countenanced as acceptable
practice.
[70]
In the circumstances, I find that there is no merit in this
challenge.
Referral
to oral evidence
[71]
Upon
reading the papers and during argument, it became apparent that it
might be appropriate to refer the matter for the hearing
of oral
evidence on certain issues. It was also conceded by the parties at
the hearing that the issues between the parties should
be determined
at a hearing of oral evidence. In
Van
den Berg v General Council of the Bar of SA
[21]
the Supreme Court of Appeal said:
‘
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. . . .’
(footnotes
omitted)
[72]
In my view
the first respondent has adopted an obfuscatory approach to this
matter instead of a transparent approach, this much
is evident from
the technical approach to the complaint since its inception, the in
limine challenges, and the prolix content in
the supplementary
affidavit. Whilst a party is fully entitled to raise valid points of
law a party cannot simply raise a plethora
of unsustainable legal
points to cloud and protract issues. The first respondent does not
deal extensively and conclusively with
the Bacus compliant and has
adopted the view that since payment has been made to Ms Sheriffa
Bacus, and the new attorney raised
no further complaint, that puts an
end to the matter. This stance is unfortunate as the first respondent
has a duty to co-operate
and to be completely transparent by
furnishing the court with all the necessary information, so that the
full facts are placed
before the court to enable it to make a correct
and just decision.
[22]
[73]
Insofar as the other issues uncovered by the investigation committee
are concerned, the
first respondent in my view did not properly
engage with the second inspection report, neither did he provide a
proper explanation
of the absence of fees or matters relating to the
transfer journal; the taking of fees without a completion of a
mandate or accounting
to client; the keeping of a conglomerate trust
account; keeping one conveyancing account; a general deficiency in
the trust account
and his books of accounting not being in order;
personal withdrawals of funds and loans taken from clients to rectify
shortfalls.
[74]
In my view, all these issues and questions require an oral hearing to
establish the true
facts.
[75]
The parties were invited at the hearing to produce a list of issues
which should be referred
to the hearing of oral evidence in terms of
Uniform rule 6(5)
(g)
. Both parties submitted lists of issues,
which are simplified below.
[76]
The issues are as follows:
(a)
Whether there was any dishonesty or unworthy conduct on the part of
the
first respondent in the administration of Ms Sheriffa Bacus’s
property.
(b)
Whether there was sufficient monies in the first respondent’s
trust
account of Ms Sheriffa Bacus for the payment of R194 399.47
on 29 July 2016 and, if so, why the first respondent did not make
payment towards the administration of the property.
(c)
Whether the first respondent’s books of account were properly
managed
and maintained, specifically whether the first respondent
maintained a proper fee and transfer journal.
(d)
What monies were held in the first respondent’s trust account
between
the period January 2013 to 29 July 2016.
(e)
Whether the first respondent utilized trust monies to pay other
creditors.
(f)
Whether the first respondent withdrew monies from his trust account
from the period 4 May 2015 to 17 September 2017 on no less than six
occasions in the sum of R53 975.00? If so, what was the
purpose
of these withdrawals and whether these monies were credited to his
trust account.
(g)
Whether there was a deficit of R979 573.71 for the period ending
29 February 2016 in the first respondent’s trust account.
(h)
Whether there was a debit balance in the first respondent’s
trust
account as at 30 November 2016 in the sum of R13 256.01.
(i)
Whether the contents of the inspection report dated 1 December
2016
is factually correct.
Costs
[77]
The conduct of the first respondent in defending himself with the
various unsustainable
legal points, the presentation of his case by
his legal representatives with a prolix and cumbersome supplementary
affidavit and
voluminous heads of argument (totalling almost 71
pages) is unsatisfactory, and demonstrates an attempt by the first
respondent
to cloud the substance of the application. These are
factors that in my view, the court hearing the referral to oral
evidence might
want to consider in the final determination of the
question of costs. At this stage it is however appropriate and in
line with
the usual practice to reserve costs for determination by
the court hearing the oral evidence.
Order
[78]
In the circumstances I make the following order:
1.
The matter is referred for the hearing of oral evidence in terms of
uniform rule
6(5)
(g)
at a time and date to be arranged with
the Registrar on the following issues:
(a)
Whether there was any dishonesty or unworthy conduct on the part of
the first respondent
in the administration of Ms Sheriffa Bacus’s
property.
(b)
Whether there was sufficient monies in the first respondent’s
trust account of Ms
Sheriffa Bacus for the payment of
R194 399.47 on 29 July 2016 and, if so, why the first respondent
did not make
payment towards the administration of the property
earlier.
(c)
Whether the first respondent’s books of account were properly
managed and maintained,
specifically whether the first
respondent maintained a proper fee and transfer journal.
(d)
What monies were held in the first respondent’s trust account
between the period January
2013 to 29 July 2016.
(e)
Whether the first respondent utilized trust monies to pay other
creditors.
(f)
Whether the first respondent withdrew monies from his trust account
from the period
4 May 2015 to 17 September 2017 on no less than six
occasions in the sum of R53 975.00. If so, what was the purpose
of these
withdrawals and whether these monies were credited to his
trust account.
(g)
Whether there was a deficit of R979 573.71 for the period ending
29 February 2016 in
the first respondent’s trust account.
(h)
Whether there was a debit balance in the first respondent’s
trust account as
at 30 November 2016 in the sum of R13 256.01.
(i)
Whether the contents of the inspection report dated 1 December 2016
is factually
correct.
2.
The various deponents to the affidavits filed may be called as
witnesses as well
as any other witness(es) that the parties may wish
to call, provided that notice be given to the other party fourteen
(14) days
before the date appointed for the hearing of oral evidence.
3.
Either party may subpoena any person to give evidence at the hearing
whether
such person has consented to furnish a statement or not.
4.
Within 21 days or the granting of this order, each of the
parties shall
make discovery under oath, of all documents relating to
the issues referred to under paragraph 1 hereof, which are or have at
any
time been in the possession or under the control of such party.
Such discovery shall be made in accordance with Uniform rule 35
and
the provisions of that rule with regard to the inspection and
production of documents discovered shall be operative.
5.
Costs are reserved for determination by the Court hearing the oral
evidence.
GOUNDEN
AJ
BEZUIDENHOUT
J
Appearances
Attorney for the
applicant:
Mr S Chetty
Instructed by:
Siva Chetty and
Company
Counsel for the
first respondent:
Mr DJ Botha
Instructed by:
Udesh Ramesar
Date of hearing:
13 March 2023
Date of judgment:
9 June 2023
[1]
Botha v
Law Society, Northern Provinces
[2009] ZASCA 13
;
2009 (1) SA 227
(SCA);
[2009] 3 All SA 295
(SCA)
para 2, and
Malan
and another v Law Society of the Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA);
[2009] 1 All SA 133
(SCA)
para 4.
[2]
General
Council of the Bar of South Africa v Geach and others
[2012] ZASCA 175
;
2013 (2) SA 52
(SCA);
[2013] 1 All SA 393
(SCA)
para 87.
[3]
Law
Society, Northern Provinces v Mogami and others
[2009] ZASCA 107; 2010 (1) SA 186 (SCA); [2010] 1 All SA 315 (SCA).
[4]
Johannesburg
Society of Advocates v Nthai and others
[2020]
ZASCA 171
,
2021
(2) SA 343
(SCA),
[2021] 2 All SA 37
(SCA) para 24.
[5]
Abrahamse
and others v Cape Town City Council
1953
(3) SA 855 (C).
[6]
Rees
and another v Investec Bank Ltd
[2014] ZASCA 38
;
2014 (4) SA 220
(SCA) para 15.
[7]
ANC
Umvoti Council Caucus and others v Umvoti Municipality
[2009] ZAKZPHC 47;
2010 (3) SA 31
(KZP) para 27 at 43A-I.
[8]
See
s 5
of the
Legal Practice Act 28 of 2014
.
[9]
Murray
NO and another v FirstRand Bank Ltd
[2015] ZASCA 39
;
2015 (3) SA 438
(SCA) para 30; see also
Natal
Joint Municipal Pension Fund v Endumeni Municpality
[2012] ZASCA 13
;
2012 (4) SA 593
(SCA);
[2012] 2 All SA 262
(SCA)
para 18.
[10]
In
Smith NO and others v Master of the High Court, Free State Division,
Bloemfontein and another
[2023]
ZASCA 21
para 2, the Supreme Court of Appeal said the following:
‘
When
a company is placed in liquidation, the Act authorises the court or
the Master ─ at their own volition or on application
by a
liquidator, a creditor, a member or a party with an interest in the
matter ─
to conduct a private enquiry to obtain information
about the affairs, conduct of business and trade dealings
of the
company in terms of s 417 of the Act.’ (emphasis added).
See
also RD Claassen & M Claassen
Claassen's Dictionary of Legal
Words and Phrases
(Service Issue 25 – July 2022) at
‘enquiry’ where it is stated: ‘An “enquiry”
in terms of
s 29 of Act 25 of 1945 is not a judicial proceedings and
is not a proceeding in the administration of justice’.
[11]
Alliance
Commercial Office v Benjamin
1949
(4) SA 92
(T) the court said that the words ‘any proceedings’
in the Rule of Court 49 (Transvaal) includes an appeal. In
Waste-Tech
(Pty) Ltd v Van Zyl and Glanville NNO
2002
(1) SA 841
(E) at 845F-G, it was held: ‘It is my view, with
respect, that the learned Judge a quo placed an unduly restrictive
interpretation
on the words “any proceedings”. There
can, in my view, be no doubt at all that an application for security
in terms
of s 13 of the Companies Act [61 of 1973] or Rule 47 of the
Uniform Rules of this Court can be described as court proceedings.
The fact that a claim for security is a separate and ancillary issue
between the parties, collateral to and not directly affecting
the
main dispute between the litigants, does not place it in a category
other than court proceedings.’
[12]
South
African Legal Practice Council v Bobotyana
[2020] ZAECGHC 114;
[2020] 4 All SA 827
(ECG).
[13]
Pudi v
Tshwane University of Technology
[2022] ZALCJHB 160.
[14]
Pudi
v Tshwane University of Technology
[2022] ZALCJHB 160. See also
Kaplan
v Dunell Ebden and Co
1924 EDL 91
at 93, and
Irish
& Co (now Irish & Menell Rosenberg Inc) v Kritzas
1992 (2) SA 623
(W) at 633B-D.
[15]
Shibogde
v Minister of Safety and Security and others
[2012] ZALCJHB 64 para 26. See also
Bukula
v Clientele Legal
[2011] ZAFSHC 43
para 13, and
Pudi
v Tshwane University of Technology
[2022] ZALCJHB 160 paras 21 – 25.
[16]
Mavudzi
and another v Majola and others
[2022] ZAGPJHC 575;
2022 (6) SA 420
(GJ) para 33, and
Eastern
Cape Provincial Council of the South African Legal Practice Council
v Mfundisi
[2022] ZAECMKHC 87;
[2023] 1 All SA 90
(ECG) paras 43 – 44.
[17]
Auditor-General
of South Africa v MEC for Economic Opportunities, Western Cape and
another
[2021] ZASCA 133
;
2022 (5) SA 44
(SCA) para 22.
[18]
Prokureursorde
van Transvaal v Kleynhans
1995 (1) SA 839 (T).
[19]
Concor
Holdings (Pty) Ltd t/a Concor Technicrete v Potgieter
[2004] ZASCA 59
;
2004 (6) SA 491
(SCA);
[2004] 4 All SA 589
(SCA).
[20]
Eastern
Cape Provincial Government and others v Contractprops 25 (Pty) Ltd
2001 (4) SA 142 (SCA).
[21]
Van
den Berg v General Council of the Bar of SA
[2007] ZASCA 16
;
[2007] 2 All SA 499
(SCA) para 2.
[22]
Hewetson
v Law Society of the Free State
[2020] ZASCA 49
;
2020 (5) SA 86
(SCA);
[2020] 3 All SA 15
(SCA) para
67.