About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 85
|
|
Macheka v Legal Practice Council Free State (4057/2023) [2024] ZAFSHC 85 (22 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 4057/2023
In
the matter between:
FUSI
STEPHEN MACHEKA
Applicant
THE
LEGAL PRACTICE COUNCIL FREE STATE
Respondent
CORAM:
MOLITSOANE, J et JORDAAN, J
HEARD
ON:
30 NOVEMBER
2023
JUDGEMENT
BY:
MOLITSOANE; J
DELIVERED
ON:
22 MARCH 2024
[1]
This is an application were the readmission off the application as an
attorney of this court.
This application is opposed by the Legal
Practice Council.
[2]
The applicant was admitted as an attorney of
this court in terms of section 15 the repealed Act 53
of 1979. After
his admission, he practiced under the name and style, Sizephe Macheka
and Partners with the late Maliwa Johannes
Dalinyebo Sizephe. The
practice was however dissolved during 2005. Thereafter he practiced
for his account under the name and style
Fusi Macheka Incorporated.
He also practiced in partnership with S Kamati as Kamati &
Macheka Attorneys. He was struck off
the roll of practicing attorneys
due to a number of misconduct charges levelled against him as more
fully set out herein after.
[3]
In his Heads of Arguments he acknowledges that he was struck off the
roll due to charges as contained
in Annexure FSM 5 from pages 41 to
103 of his founding affidavit.
[4]
It is unnecessary to set out in detail the transgressions which led
to the struck off of the applicant
as he does not deal with them
individually. There were twenty-two complaints levelled against the
applicant. Most dealt with unprofessional
conduct and theft of trust
moneys. In almost all of them he was convicted and sentenced. It also
needs to be told that when the
Legal Practice Council instituted the
struck off proceedings, he chose not to oppose the relief sought.
[5]
The essence of the applicant’s case is that this court should
have regard to what the applicant
avers were the reasons which led to
the conduct which ultimately made the court to hold that he was not
fit and proper to remain
as an attorney of this court. According to
him, he has admitted that he did wrong and he had accepted the
consequences flowing
from his conduct.
[6]
He attributes the conduct that led to his
striking off from the roll of practising attorneys, inter
alia, to
delegating his powers and responsibilities to his erstwhile employees
contrary to the prescripts, standards and ethical
conduct demanded
from him as an attorney of this court. He further attributes the
mismanagement of his professional practise to
a huge number of
instructions his practise accepted but failed to execute on. He makes
this statement
[1]
“
I
also became reckless in the handling of financial affairs of the
other practices, especially the trust account dealings……
As
a result of the unlawful operations I could not establish the amount
of money that my employees could have embezzled.
Notwithstanding, that does not mean I am blaming them as thieves, I
am the one who remained responsible for such theft of money
and that
is why I am prepared to pay the Fidelity Fund, should the court order
me to do so
. I am the one who created suitable ground for
theft to take place under my watch and I condoned the mala fide
practice as I did
not take any remedial action thus reconcile myself
with the situation that made me equally guilty.
” (My
emphasis)
[7]
He admits that he embezzled the trust monies of his clients and
failed to account to them. According
to him the abuse of alcohol,
dagga and engaging in extra-marital relationships contributed to his
unlawful conduct.
[8]
According to him he has turned a new leaf in his life. He professes
that he has accepted Jesus
Christ as his Lord and Saviour and that he
participates in church activities. He contends that he has been
rehabilitated and thus
is a fit and proper person to be readmitted as
an attorney of this court.
[9]
The respondent opposes the application on the basis that the
applicant has not adduced evidence
that he is a fit and proper person
to be readmitted as an attorney of this court. According to the
respondent, the applicant’s
conduct towards his clients and his
complete disregard of the professional ethics continued unabated for
a period of over 5 years.
[10]
The evidence of the respondent is that after the applicant was struck
off the roll of the practising attorneys,
the Attorneys Fidelity Fund
had to deal with over 40 claims made against the applicant’s
trust account for monies stolen
by the applicant. According to the
respondent, the Fund settled over 25 claims totalling R1 131
790.92(one million one hundred
and thirty thousand seven hundred and
ninety rands and nine two cents) plus legal costs which ultimately,
together with the settled
claims, costs the Fund an amount of R1 319-
340 87(One million three hundred and nineteen thousand three hundred
and forty rand
and eighty-seven cents).
[11]
The issue which stands to be adjudicated is whether the applicant has
made out a case for his readmission
as a legal practitioner.
[12]
Section 15(3) of the repealed Attorneys Act 53 of
1979 contained specific provisions which dealt with readmissions.
The
Legal Practice Ac 28 of 2014(the Act) refers only to admissions and
has no express provisions regulating the readmission of
persons who
were previously struck off the roll of practising legal
practitioners. Section 24(2) (c)provides that the High Court
must
admit to practice and authorise to be enrolled as a legal
practitioner any person who, on application, satisfies the court
that
he is a fit and proper person to be so admitted. It should be
uncontested that the provisions of s24 of the Act should find
application in the application for readmission.
[13]
The applicant bears the onus to prove that he is
fit and proper to be readmitted. The question of the onus
and its
discharge in the application for readmission was set out as follows
in
Kudo
v Cape Law Society
[2]
“
In considering
whether the onus has been discharged the Court will have regard to
the nature and degree of the conduct which occasioned
applicant’s
removal from the roll, to the explanation, if any, afforded by him
for such conduct which might, inter alia,
mitigate or even perhaps
aggravate the heinousness of his offence, to his actions regard to an
enquiry into his conduct and proceedings
consequent thereon to secure
his removal, to the lapse of time between his removal and his
application for reinstatement, to his
activities subsequent to
removal, to the expression of contrition by him and its genuineness,
and to his efforts at repairing the
harm which his conduct may have
occasioned to others. These considerations are not necessarily
intended to be exhaustive and the
case. They all, however, relate to
the assessment of the applicant’s character reformation and the
chances of his successful
conformation in the future to the exacting
demands of the profession the seeks to re-enter”
[14]
The readmission of a legal practitioner who was
struck off the roll lies in the discretion of the court.
The court in
Swarzberg
v The Law Society of the Northern Provinces
[3]
held
that:
“
Where a person who
has previously been struck off the roll of attorneys on the ground
that he was not a fit and proper person to
continue to practice
as an attorney, applies for his re-admission, the onus is on him to
convince the Court on a balance
of probabilities that there has been
a genuine, complete and permanent reformation on his part; that the
defect of character or
attitude which led to him adjudged not a fit
and proper person, no longer exists; and that, if he is re-admitted,
he will in future
conduct himself as an honourable member of the
profession, and will be someone who can be trusted to carry out the
duties of an
attorney in a satisfactory way as far as members of the
public are concerned.”
[15]
The applicant has misconstrued the onus saddled on him to discharge.
The reading of his affidavit is replete
with trying to inform the
court of the harshness him and his family had to endure after his
struck off the roll. He then spent
a great deal of his time in trying
to convince this court about how he has changed or turned another
leaf in his life. The complaints
against the applicant which
ultimately led to his struck off are twenty-two in number. Save for
engaging with the conduct which
led to his struck off with reference
to the stated complaints in general terms, the applicant has failed
to engage and deal pertinently
with the said complaints for this
court to understand how they came about. Once the evidence is led as
to how the misdemeanours
came about, this court would be in a better
position to engage with the previous conduct of the applicant in
order to meaningfully
engage with his future expected conduct and
thus, the real issue, before us, whether he is fit and proper to be
readmitted as a
legal practitioner. The court must understand the
defect in his conduct.
[16]
In the same breath, he puts the blame on his erstwhile employees by
saying that his erstwhile employees embezzled
some of the trust
monies although he takes the blame for creating the situation, yet on
the other hand, he still avers that he
does “not blame them as
thieves
[4]
.” He has not
laid charges against them. He has not sought to establish the extent
of their criminality, if any. He only says
let bygones be bygones.
[17]
Contrition alone is not enough. The applicant’s conduct after
his struck off also has to be looked
at. After he was struck off the
roll, in complete disregard to the order of this court, he continued
to practice as an attorney
fully knowing that he has been disbarred
so to practice. He and Mr Chabane registered a close corporation and
operated under the
name and style Macheka and Chabane Legal Services.
Both were convicted on a charge of civil contempt of court and both
were accordingly
sentenced. I take note that Mr Chabane has since
been readmitted as an attorney of this court. But it must be noted
that in making
a decision whether the applicant is a fit and proper
person to be readmitted, this court looks at what the applicant has
identified
as his own defect and to act according to his
appreciation. Chabane was never struck off for the misdemeanours that
led to the
struck off the applicant.
[18]
In the answering affidavit the respondent avers that there were over
40 complaints against the Fund emanating
from the conduct of the
applicant. Twenty-five of those were settled and the cost to the Fund
was over one million Rand. In his
reply, the applicant does not
engage with this averment save to take note of it. I am satisfied
that he does not dispute this averment
by the respondent, The
applicant has misappropriated over one million rands of different
trust creditors. Notwithstanding the fact
that he has engaged the
Fund since 2016 about negotiating monthly settlement of this amount
and costs, the fact is that the money
has not been paid. To contend
that the applicant would pay the money once he has been readmitted
brings to the fore the conduct
not expected from a legal
practitioner. I align myself with the remarks of Rabie J in
Letlhaka
v Law Society of the Northern Provinces (GP)
[5]
in which the court said the following:
“
The
applicant’s laconic remark that he would pay the Law Society’s
costs once he is readmitted as an attorney, falls
short of what is
expected of an attorney.”
[19]
This court also takes note that the applicant was
convicted of theft of trust monies in the amount of R49
702.45. He
unsuccessfully appealed the conviction in all relevant courts of this
country. He has since served his sentence. The
worrying factor is the
applicant’s total disregard of the law. It appears that he is
the Practise Manager in the legal firm,
Mbodla Inc. There was a
complaint against the said firm in 2022. The applicant appears on the
letter head of the said firm and
described as the Practice Manager.
Mr Mbodla has deposed to an affidavit
[6]
in that complaint. He says the following:
“
2.12
I wish to put on record that the Complainant was not assisted by Mr
Macheka, but by myself, although Mr Macheka was present
at all
consultations. Mr Macheka is a travelled individual with wealth of
wisdom, legal expertise and experience in excess of thirty
years. He
currently serves as the Practice Manager of my practice. He is having
a proven record of ushering many legal matters
to success, and he is
described as a Legal Giant within our province, wherein many people
in practice draw from him especially
on very complicated matters.”
[20]
Section 33(4) of the Act regulates the circumstances under which a
person who has been struck off may be
employed in a legal practice.
On his own version, the applicant is a Practice Manager at Mbodla
Inc. He sits in consultations on
legal matters pertaining to clients
of the said practice. It is undisputed that he has no consent from
the respondent to work in
that practice. On his version, he violates
section 33(4) of the Act. This conduct militates against the finding
that the applicant
is a fit and proper person to be admitted as a
legal practitioner. The conduct shows little regard for the
regulations of the profession.
[21]
In my view, it is unnecessary to traverse other grounds raised by the
respondent as the applicant has dismally
failed to make out a case
for his readmission. I cannot find that he is a fit and proper person
to be readmitted as a legal practitioner.
I can find no reason
why costs should not follow the costs.
ORDER
[23]
In the premises, the following order is made:
1.
The application is dismissed with costs on attorney and client scale.
P.E.
MOLITSOANE, J
I
agree:
M
JORDAAN, J
For
the applicant:
Adv.
Litabe
Instructed
by:
Moloi
and Partners
Bloemfontein
For
the respondent:
D
Qwelane
Instructed
by:
Qwelane,
Theron and Van Niekerk
Bloemfontein
[1]
Page
12 of the record para 6.3.
[2]
1972(4)
SA 342(C).
[3]
2008(5)
SA 322(SCA).
[4]
Page
012 of the paginated record.
[5]
Unreported
case no:54065/2012 para 34, delivered on 11 November 2014.
[6]
Pages
275 to 281 of the paginated record.