IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
and
KABELO MATEE
CORAM : JP DAFFUE J
HEARD ON: 12 APRIL 2024
REASONS DELIVERED ON: 22 APRIL 2024
Reportable: NO
Of Interest to other Judges: NO
Circulate to Magistrates: NO
case no: 2012/2024
Applicant
Respondent
[1] The respondent is Kabelo Matee, an attorney who was admitted to practise as
such on 22 October 2009. He has been practising ever since in Bloemfontein as a sole
practitioner.
[2] On 12 April 2024 the South African Legal Practice Council (the LPC)
approached me whilst on urgent court duties for the respondent's suspension from
practice pending the outcome of a disciplinary hearing to be conducted by its
Disciplinary Committee (the DC) and/or criminal investigations under Cas number
14/01/2024, alternatively for such period and on such conditions as the court may
deem appropriate, together with the customary orders relating to suspension.
[3] The LPC 's application is brought in accordance with the provisions of s 43 of
the Legal Practice Act 28 of 2014 (the LPA) which reads as follows:
'43 Urgent legal proceedings
Despite the provisions of this Chapter, if upon considering a complaint, a disciplinary body is satisfied
that a legal practitioner has misappropriated trust monies or is guilty of other serious misconduct, it must
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inform the Council thereof with the view to the Council instituting urgent legal proceedings in the High
Court to suspend the legal practitioner from practice and to obtain alternative interim relief.'
[4] l shall deal with the legal argument presented to me later herein, but wish to
point out at this stage already that none of the parties referred me to any reported or
unreported judgments specifically dealing with s 43 of the LPC. I researched the issue
on my own and could also not find any reported judgment. The predecessor of the
LPA, the Attorneys Act 53 of 1979, did not contain a similar provision. However, the
established principles pertaining to disciplinary proceedings against errant attorneys
are clear and will be dealt with soon.
[5] The application to this court was preceded by the following:
a) Ms RY Ramohauoa, the daughter of the late Boseya Bernice Tshikare, was
duly appointed as executrix of her mother's estate;
b) she instructed the respondent to act as her attorney and to assist her with the
administration and finalisation of the deceased estate;
c) an account was opened in the name of the estate late Boseya B Tshikare with
First National Bank (FNB);
d) Ms Ramohauoa mandated the respondent to open the account and to operate
thereon;
e) the respondent failed to finalise the estate and Ms Ramohauoa became
suspicious, causing her to approach a new legal representative, whereupon they
established that the respondent had transferred monies from the aforesaid estate
account to his personal and business accounts;
f) Ms Ramohauoa filed a written complaint dated 10 January 2024 with the LPC ;
g) the LPC's Investigating Committee (IC) investigated the complaint and
recorded its findings on 20 March 2024, it having been satisfied that, based on prima
facie evidence available, the respondent was guilty of misconduct, warranting
proceedings in terms of s 43 of the LPA for his suspension and the withdrawal of his
Fidelity Fund Certificates for the years 2022, 2023 and 2024;
h) on 25 March 2024 the Management Committee of the LPC resolved to adopt
the recommendation of the IC where after it instructed Jacobs Boucher Attorneys on
27 March 2024 to launch a s 43 application;
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i) application papers were drawn and issued on 10 April 2024 where after the
application was served on respondent the same day by email, although service of the
application by the sheriff was effected only at 13h15 on 11 April 2024.
[6] When the matter was called on Friday morning, 12 April 2024 at 09h30, Adv P
Madise on behalf of the respondent applied for a postponement from the bar due to
the fact that the respondent received notice of the application the previous day. No
formal application for postponement was filed. I adjourned the matter to 14h15 that
day and ordered the respondent to file his application for postponement on/or before
12h00, the LPC to reply thereto by 13h00 and the respondent to file his replying
affidavit to the postponement application on/or before 14h00.
[7] An application for postponement was filed to which the LPC replied in a detailed
answering affidavit. The respondent did not file a replying affidavit. The respondent
requested a postponement to Thursday 18 April 2024 and for directions to be given
pertaining to truncated time frames. If I granted such relief, it would mean that one of
my colleagues wou ld be saddled with an opposed application, having to read papers
such as the replying affidavit and heads of argument to be filed the previous day only.
Furthermore, the suggested time line did not provide for the intended application to
review and set aside the LPC's decision to withdraw the Fidelity Fund Certificates. The
respondent made the point that he intended to launch such an application and that the
two applications should be consolidated and heard together.
[8] Having considered the application for postponement, I dismissed it and
informed the parties that reasons wou ld follow in due course. Applications for
postponement are not there for the taking. The respondent failed to place any
evidence on record to show that he has an arguable defence and should be given
sufficient time to file a proper answering affidavit. Instead he resorted to attack the
LPC for the manner in which they elected to litigate. It was just not good enough to
aver that he and his counsel could not proceed with the drafting of an answering
affidavit to the main application as they were relying on his administrative staff who
were handling the documents needed to attach to the affidavit. According to him, these
documents were not readily available at the time, ie on 11 April 2024. This was said
whilst the respondent had been given a sufficient opportunity to respond to the
complainant's version before the IC as I shall show herein later.
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[9] Adv Madise indicated that he had no instructions to argue the main application
and that he left the decision in the court's hands. I indicated to the parties that I did not
intend to grant an order as set out in the notice of motion, but that I intended to grant
a rule nisi with return date 16 May 2024 with interim relief and directions pertaining to
filing of affidavits and heads of argument. Mr Madise indicated that although he was
not prepared to argue the application at that stage, the court should consider granting
an interim order with truncated time periods and an earlier return date. Mr Boucher on
behalf of the LPC provided the court with a draft order with 17 May 2024 as return
date. As the 17th is on a Friday, I emphasised that opposed motions are dealt with on
Thursdays and not on Fridays.
[1 0] After considering the main application and bearing in mind the seriousness of
the allegations contained in this application to which I shall refer in the next
paragraphs, I granted a rule nisi with return date 2 May 2024. Further directions were
issued in respect of the filing of affidavits and heads of argument as set out in the order
issued that day. I also ordered that paragraphs 3.1 to 3.12 of the order shall operate
as interim orders with immediate effect. Again, I mentioned that my reasons would
follow in due course.
[11] It cannot be over-emphasised that the respondent was practising without a
Fidelity Fund Certificate at the time when I heard the application. This was common
cause. It is also common cause that the respondent was at all times obliged to be in
possession of a Fidelity Fund Certificate in terms of s 84 of the LPA and had to keep
a proper trust account practice as provided for ins 87(1 ), read withs 87(3) of the LPA.
The relevant sub-sections of s 84 read as follows:
'84 Obligations of legal practitioner relating to handling of trust monies
(1) Every attorney or any advocate referred to in section 34 (2) (b), other than a legal practitioner in the
full-time employ of the South African Human Rights Commission or the State as a state attorney or
state advocate and who practises or is deemed to practise-
(a) for his or her own account either alone or in partnership; or
{b) as a director of a practice which is a juristic entity,
must be in possession of a Fidelity Fund certificate.
(2) No legal practitioner referred to in subsection (1) or person employed or supervised by that legal
practitioner may receive or hold funds or property belonging to any person unless the legal practitioner
concerned is in possession of a Fidelity Fund certificate.
(3) The provisions of subsections (1) and (2) apply to a deposit taken on account of fees or
disbursements in respect of legal services to be rendered.
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(4) A Fidelity Fund certificate must indicate that the legal practitioner concerned is obliged to practise
subject to the provisions of this Act, and the fact that such a legal practitioner holds such a certificate
must be endorsed against his or her enrolment by the Council.
(5) A legal practitioner referred to in subsection (1) who-
(a) transfers from one practice to another; or
{b) ceases to practise,
must give notice of this fact to the Council and comply with the Council's relevant requirements in
relation to the closure of that legal practitioner's trust account and in the case of paragraph (b) return
his or her certificate to the Council.'
[12] The respondent threatened to bring an application against the LPC to review
and set aside its decision to withdraw his Fidelity Fund Certificates. His letters of 9 and
10 April 2024 were attached to the LPC's answering affidavit in the postponement
application. He will get his opportunity in this regard. I provided in my order that he
should file his application in the form of a counter-application on/or before 18 April
2024. However, and until he is successful in this application, he should not be allowed
to practise as this may have an extremely detrimental effect on his current and
prospective clients. If further trust funds are misappropriated, those clients will have
no claim against the Fidelity Fund.
[13] The court may prohibit legal practitioners to operate on their trust accounts as
provided in s 89 which reads as follows:
The High Court may, on application made by the Council or the Board, and on good cause shown ,
prohibit any legal practitioner referred to in section 84 (1) from operating in any way on his or her trust
account, and may appoint a curator bonis to control and administer that trust account, with any rights,
powers and functions in relation thereto as the court may deem fit.'
[14] An attorney such as the respondent, he being a sole practitioner practising for
his own account, who practises without a Fidelity Fund Certificate, is guilty of a criminal
offence as set out in s 93(8) of the LPA which reads as follows:
'(8) Any person who contravenes section 84 (1) or (2) or section 34, in rendering legal services
(aJ commits an offence and is liable on conviction to a fine or to imprisonment for a period not
exceeding two years or to both such fine and imprisonment;
(b) is on conviction liable to be struck off the Roll; and
(c) is not entitled to any fee, reward or reimbursement in respect of the legal services rendered.'
This court cannot put its stamp of approval on such unlawful conduct by allowing the
respondent to continue w ith his practice in such circumstances.
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[15] Having pointed out the problem faced by the respondent mentioned in the
previous paragraphs, that might have been the end of the matter. However, for sake
of completeness, I shall deal with the issues at hand in more detail, accepting that my
colleague who will eventually adjudicate the application will not be bound by my
reasons insofar as mere prima facie proof of misconduct is required at this stage.
[16] The respondent's accusation in the application for postponement that the LPC
is vexatious, accusing it of an approach that 'has all the hallmarks of a regulator which
abuses its powers and the court process rather than a fruitful discharge of its mandate,'
must be criticised. His attitude reminds me of the following dictum in Law Society of
the Northern Provinces v Mogam,1 :
'[26] 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 t9 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. The
problem is that the respondents' professional body appears to have instigated their behaviour and aided
and abetted them in making untruthful denials, ignoring laws and court judgments, and launching an
attack on the appellant. Had it not been for the invidious role of their society I would have had little
hesitation to find that the respondents were not fit to continue practising.'
[17] Clearly, attorneys confronted with applications for striking-off or suspension
should be cautious of not trying to blame the LPC without any foundation. Harms ADP
also remarked as follows in Malan and Another v Law Society of the Norther
Provinces2:
'Furthermore, instead of dealing with the merits of the allegations, the appellants conducted a paper
war and he attacked the Society and its officers, they attacked the Fidelity Fund and they attacked the
attorneys who had to take over their files - in short, their approach on the papers was obstructionist.'
[18] Although I could not find any reported judgments on s 43 of the LPA, the
principles applicable to striking-off and suspension under the LPA are similar to that
which applied under the Attorneys Act 53 of 1979 as well as its predecessor. These
proceedings are sui generis and are brought by the LPC custos morum as the guardian
of morals of the legal practitioners' profession. It performs a public duty as set out in
1 2010 (I) SA 186 (SCA) para 26.
2 2009 (1) SA 2 16 (SCA) para 27.
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Solomon v The Law Society of Good Hope 3 and in Hepple and Others v Law Society
of the Northern Provinces4.
[19] Although this is not a case as in Hepple supra, the following principle stipulating
the duty resting on an attorney in these kinds of proceedings should be reiterated5:
'It follows therefore that where allegations and evidence are presented against an attorney they cannot
be met with mere denials by the attorney concerned. If allegations are made by the law society and
underlying documents are provided which form the basis of the allegations, they cannot simply be
brushed aside; the attorneys are expected to respond meaningfully to them and to furnish a proper
explanation of the financial discrepancies as their failure to do so may count against them.'
[20] I accepted that the respondent had a day, or even less, to file an answering
affidavit to the main application for his suspension. But he had ample time to respond
fully to the complainant's complaint. His first so-called affidavit commissioned by
himself was filed with the IC on 13 February 2024 in response to the complainant's
complaint. At that stage he mentioned that due to the seriousness of the allegations,
he had to instruct his bookkeeper to investigate the transfers of money which were all
made in his favour. In this response, filed nearly two months prior to the hearing of the
application for his suspension, the respondent alleged the following pertaining to the
allegations against him which I quote verbatim:
'2.3.1 ... that all transfers were made in my favour.
2.3.3 ••• my bookkeeper brought it to my attention that I was wrongfully transferring funds from the
estate late account, instead of my business account.
2.3.4 The reason for the stupid mistake is [his exact words] .. . . all the accounts ..... only reflects
account numbers, not the names of the account.
2.3.5 on the 10
th
of February 2024, .... I transferred an amount of R 550 000.00 from the said
business account [the business conducted by him] in my trust account, in favour of the client.
2.3.6 ... it looks like I was utilising the estate late account as my own piggy bank.
2.3.7 I accept the error on my part and I am willing to take any sanction that the law Society is willing
to impose on me.
5. In the premises I submit that there was no misconduct on my part and these complaints are
lodged with the LPC to frustrate the proper administration of justice and are vexatious in nature.'
3 J934AD401 at408- 409.
4 (2014) 3 All SA 408 SCA .
5 Ibid para 9.
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[21] The complainant was given an opportunity to respond to the respondent's
version which she did in writing the same day. It is not necessary to refer thereto, but
she raised valid points. The respondent replied in writing on 5 March 2024, but he
again side-stepped the real issue, ie his apparent misappropriation of trust funds in an
amount in excess of R600 000,00. Again, he said that he would 'accept any sanction
that the LPC would seek to impose due to [his alleged] oversight.' He elected not to
play open cards with the LPC , or its IC. He had ample opportunity since receipt of the
complaint to get his ducks in a row, but he failed to do so.
[22] It is the LPC 's case that a total of 69 payments were made in an amount equal
to R 615 300.00 from the estate late Boseya B Tshikare to the respondent over a
period of 13 months from 25 August 2022 to 4 September 2023. Some transfers were
for amounts as little as R100.00, whilst there were also payments of R 90 000.00, R
50 000.00, R 30 000.00, R 20 000.00 and R 10 000.00 to mention just some of the
payments.
[23] On 14 December 2023 when the complainant and her new attorney
investigated the matter, they found that there was a mere R877 .00 in the bank account
of her deceased mother's estate. After the bomb had exploded, the respondent paid
an amount of R 534 228.68 to the credit of the deceased estate's bank account on 15
February 2024. Hereafter he was still indebted to the deceased estate in an amount
of R 81 071.32. It is apparent from the documents before the court that his trust
account balance is totally insufficient to even settle this outstanding amount. It is also
pointed out that in order for the respondent to have sufficient funds to transfer the
aforesaid amount to the deceased estate's bank account, he had received an amount
of R 550 000.00 on 10 February 2024. The respondent stated that this amount was
transferred from the bank account of a business conducted by him. The LPC is
obviously very concerned about where these funds came from and they made it clear
that this should be investigated.
[24] Although there is proof of financial discrepancies as set out in detail in the LPC 's
affidavit and annexures thereto, the respondent did not deny the transactions, but
relied upon a 'simple mistake'.
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[25] I am satisfied that the LPC has established the offending conduct relied upon,
if not on a balance of probabilities, at least prima facie. Based 0111 this finding, the
respondent is not a fit and proper person to continue to practise as an attorney at this
stage pending finalisation of this application and/or the outcome of the disciplinary
hearing to be conducted by the LPC 's Disciplinary Committee.
[26] I truncated time periods as requested by the respondent's counsel to ensure
that the sanction of suspension does not hang over his head for too long before he is
provided with an opportunity to present the court with a detailed version of his defence.
On behalf of the Applicant:
Instructed by:
On behalf of Respondent:
Mr Boucher
Jacobs Boucher Attorneys
BLOEMFONTEIN
Adv P Madise
Matee Attorneys
BLOEMFONTEIN