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[2022] ZAFSHC 18
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Legal Practice Council v Lielies and Another (1119/2020) [2022] ZAFSHC 18 (8 February 2022)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case no:
1119/2020
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In
the matter between:
THE
LEGAL PRACTICE COUNCIL
Applicant
and
LLOYD
GEORGE CHARLES LIELIES
1
st
Respondent
LGC
LIELIES ATTORNEYS
2
nd
Respondent
CORAM:
DAFFUE
J
et
MTHIMUNYE AJ
HEARD
ON:
20 JANUARY 2022
DELIVERED ON:
08 FEBRUARY 2022
JUDGMENT BY:
DAFFUE J
This judgment was handed
down electronically by circulation to the parties’
representatives by email, and release to SAFLII.
The date and
time for hand-down is deemed to be 13:00 on 08 February 2022.
I
INTRODUCTION
[1]
This is an application by the Legal Practice Council (“LPC”)
for an order striking off an attorney from the roll of attorneys,
alternatively, that he be suspended from practising as an attorney
for such period and on such conditions as the court may deem fit,
together with the customary ancillary relief.
II
THE PARTIES
[2]
As mentioned
supra
,
the LPC is the applicant in this application. It bears
mentioning that although the erstwhile Law Societies established
in
accordance with the now repealed Attorneys Act
[1]
have been disposed of, it will be seen later that the history of this
matter originated prior to the commencement of the new Act,
to wit
the Legal Practice Act
[2]
that
now regulates the affairs of all legal practitioners, including
attorneys. The Legal Practice Act came into operation
on 1
November 2018. Since then the LPC possesses authority to launch
applications for striking off or suspension of attorneys.
[3]
The first respondent is Mr Lloyd George Charles Lielies, an attorney
and
sole practitioner practising in Welkom under the name and style
of LGC Lielies Attorneys, cited as the second respondent.
I
shall hereinafter refer to Mr Lielies as the respondent.
III
THE COMPLAINTS
[4]
The LPC’s submission that the respondent is not a fit and
proper
person to practise as attorney is based on distinct grounds.
In the first place its predecessor, the Free State Law Society,
has
received numerous complaints, the latest of which were summarised in
the founding affidavit.
[3]
Many of these complaints were not fully investigated and I do not
intend to rely on any allegations in this regard in order
to come to
a conclusion in this judgment. It is also alleged that since
the establishment of the LPC it has been “flooded
with
complaints”, reliance having been placed in the founding
affidavit on ten such complaints.
[4]
Again, these had not been fully investigated by the time that the
application was issued on 6 March 2020 and consequently, I shall
not
rely on these to come to any conclusion, save for cursory remarks to
be made during the evaluation of the evidence.
[5]
The LPC’s more relevant complaint for purposes hereof is the
respondent’s
non-compliance with sections 42 and 78 of the now
repealed Attorneys Act, read with rule 16B promulgated under that
Act.
It is not necessary to quote the relevant sections or rule
16B. It is sufficient to mention that it is the LPC’s
case
that the respondent failed to file unqualified audit reports,
that he was not issued with Fidelity Fund Certificates (“FFC’s”)
for a number of years and that he therefore practised in
contravention of section 41 of the Attorneys Act and made himself
guilty
of a criminal offence as stipulated in section 83(10) of the
same Act.
[5]
It is
furthermore the LPC’s case that the respondent continued to
practise without a FFC for all the years since the
establishment of
the LPC, to wit the 2018, 2019 and 2020 financial years and he is
still practising as such.
[6]
The LPC’s deponent to the founding affidavit submitted
that the various complaints against the respondent “are
almost
irrelevant” insofar as the respondent’s practising
without a valid FFC is “unprofessional conduct of the
highest
degree” and
per
se
justifies his striking off the roll.
[7]
It should be mentioned at this stage already that due to the time
lapse to be explained later, the FFC for the 2021 financial
year is
now outstanding as well.
IV
THE LITIGATION BETWEEN THE PARTIES
THUS FAR
[6]
The litigation between the parties has dragged out for nearly two
years.
In order to bring the reader in the picture, I provide
the following summary:
6.1
As mentioned the application was issued on 6 March 2020.
6.2
The respondent gave notice of intention to oppose, but filed his
answering affidavit
on 28 May 2020 only,
ie
two months later.
It is accepted that the lockdown measurements implemented in order to
curb the Covid 19-virus played a
role in this regard.
6.3
On 2 July 2020 the respondent filed a supplementary answering
affidavit.
6.4
The LPC’s replying affidavit was filed on 7 August 2020.
Herein
it was reiterated that the reason for disclosing the numerus
complaints against the respondent “never was to ventilate the
merits of each complaint in these proceedings, but rather to show the
justification of the decision to lodge an application for
the First
Respondent to be struck from the roll of attorneys”.
[8]
The deponent continued to state that the respondent has been
practising on his own version “for at least the past 4
years
without the Fidelity Fund Certificate” and that “complaints
against him keep pouring in.”
[9]
It is also stated that the respondent did not “deny that he
receives money from members of the public or clients and
that members
of the public do not enjoy any coverage, for the reason that he is
not in possession of a Fidelity Fund Certificate
since at least 2017
to date.”
[10]
6.5
The matter was set down for hearing on 21 January 2021
when it was postponed by agreement
to 22 April 2021 with directions
pertaining to the filing of further affidavits.
[11]
A further supplementary answering affidavit was indeed filed on
behalf of the respondent to which the LPC replied with a
supplementary replying affidavit.
6.6
On 22 April 2021 the matter was again postponed by agreement to 7
October 2021.
Leave was granted to the parties to supplement
their papers yet again. Further by agreement, an investigation
by an independent
auditor was directed in respect of the respondent’s
trust account relating to his audit reports lodged with the LPC for
the
2018, 2019 and 2020 financial years.
[12]
The court order attached to the papers does not contain the
appropriate preamble, but it is accepted that the order is
incomplete.
The LPC supplemented its papers and also filed the
first report by the appointed auditor. The respondent did not
file a supplementary
affidavit at that stage.
6.7
On 7 October 2021 the matter was again postponed to the opposed roll
of Thursday,
20 January 2022 when the matter was heard by me and my
colleague, Acting Judge Mthimunye. On 7 October 2021 the
respondent
was directed to provide the LPC with legible hard copies
of the documentation previously presented to the LPC for audit
purposes.
Again, the parties were given a further opportunity
to file supplementary affidavits relating to the aspects in the audit
report.
On 18 November 2021 the second report of the appointed
auditor was filed with the LPC’s further supplementary
affidavit.
On 7 December 2021 the respondent filed his
supplementary affidavit in response to the court orders of 22 April
and 7 October 2021.
The LPC responded by filing yet again
another affidavit on 6 January 2022.
6.8
Once all the affidavits and annexures thereto were filed, bundle 1
consisted
of 876 pages, bundle 2 of 72 pages and bundle 3 of 275
pages. As said, it took the parties nearly two years to have
the application
finally argued and bearing in mind the crisp issue to
be considered, unnecessary paper work has been generated.
V
THE APPLICABLE LAW
[7]
Section 22(1) of the now repealed Attorneys Act stipulated that an
attorney
may “
on application by
the society concerned be struck off the roll or suspended from
practice by the court within the jurisdiction of
which he practices –
(d)
if he or she, in the discretion of the court, is not a fit and proper
person to continue to practise as an attorney.”
[8]
It is trite that applications in terms of section 22(1)(d) of the
repealed
Act involved a threefold enquiry.
[13]
In my view the Legal Practice Act has not changed the manner in which
applications for striking off or suspension are to
be adjudicated
notwithstanding the detailed provisions contained in this Act.
[9]
Chapter 4 of the Legal Practice Act, deals
with professional conduct and the establishment of disciplinary
bodies in ss 34 –
44 thereof. Notwithstanding the
establishment of disciplinary bodies, the procedure for dealing with
complaints of misconduct
and the further procedure to be followed in
disciplinary hearings (including appeals), the powers of the High
Court remain intact,
as was the case in terms of the repealed
Attorneys Act. Section 43 of the Legal Practice Act 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 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.”
Section 44 reads as
follows:
“
44. Powers of High Court.-
(1) The provisions of this Act do not
derogate in any way from the power of the High Court to adjudicate
upon and make orders
in respect of matters concerning the conduct of
a legal practitioner, candidate legal practitioner or a juristic
entity.
(2) Nothing
contained in this Act precludes a complainant or a legal
practitioner, candidate legal practitioner or juristic
entity from
applying to the High Court for appropriate relief in connection with
any complaint or charge of misconduct against
a legal practitioner,
candidate legal practitioner or juristic entity or in connection with
any decision of a disciplinary body,
the Ombud or the Council in
connection with such complaint or charge.”
[10]
The first enquiry referred to in
Budricks
supra
is aimed at determining whether the applicant has established the
offending conduct relied upon on a balance of probabilities.
Secondly, it has to be determined whether the attorney, in the light
of the misconduct proven, is not a fit and proper person to
continue
to practise as such. In considering the second requirement the
court exercises a discretion which in the words of
Scott JA in
Jasat
v Natal Law Society
[14]
:
“…
involves
in reality a weighing up of the conduct complained of against the
conduct expected of an attorney and, to this extent,
a value
judgment.”
Finally,
and only if it is found that the attorney is not a fit and proper
person as mentioned, the court must decide in the exercise
of its
discretion whether the attorney deserves the ultimate penalty of
being struck off the roll or whether an order of suspension
from
practice will suffice.
[11]
Applications for striking off are considered to be
sui
generis
.
They are proceedings of a disciplinary nature and not ordinary civil
proceedings as reiterated in
Hepple
and Others v Law Society of the Northern Provinces
.
[15]
The LPC, as was the case in respect of the Law Societies earlier in
respect of the attorneys’ profession, does so
custos
morum
as the guardian of morals of the legal practitioners’
profession. It performs a public duty as recognised nearly a
century ago.
[16]
The LPC’s role can also be seen as that of a
nuntius
as
stated in
Hassim
v Incorporated Law Society of Natal.
[17]
It merely places facts relating to alleged unprofessional conduct
before the court for consideration by it in order for the
court to
exercise its discretion as to the appropriateness of a sanction to be
imposed in the event of the commission of the transgression
being
established.
[12]
As a general rule the ultimate sanction of striking off is reserved
for attorneys
who have acted dishonestly whilst transgressions that
don’t involve dishonesty are usually visited with the lesser
penalty
of suspension from practice. If dishonesty is found,
the circumstances must be exceptional before a court will order
suspension
instead of striking off.
[18]
However, in
Summerley
v Law Society, Northern Provinces
[19]
Brand JA made it clear that the so-called general rule referred to
supra
cannot
be regarded as a rule of the Medes and the Persians and continued as
follows:
“
The
distinction is not difficult to understand. The attorney’s
profession is an honourable profession, which demands
complete
honesty and integrity from its members. In consequence
dishonesty is generally regarded as excluding the lesser
stricture of
suspension from practice, while the same can usually not be said of
contraventions of a different kind.
[13]
In
Malan
and Another v Law Society of the Northern Provinces
[20]
Harms ADP stated the following:
“
Obviously,
if a court finds dishonesty, the circumstances must be exceptional
before a court will order a suspension instead of
a removal …
Where dishonesty has not been established the position is as set out
above, namely that a court has to exercise
a discretion within the
parameters of the facts of the case without any preordained
limitations.”
[14]
In the light of the kind of proceedings,
ie
they
are
sui
generis
and of a disciplinary nature as illustrated in
Hepple
supra
,
the SCA confirmed the duty resting on an attorney in these
proceedings in the following
dictum:
[21]
“
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.”
[15]
Attorneys confronted with applications for striking-off must be
cautious of not trying
to blame the LPC, its functionaries, auditors
and lawyers without any foundation. The following remarks by
Harms ADP in
Malan
supra
[22]
are apposite:
“
Furthermore
,
instead of dealing with the merits of the allegations, the
appellants
conducted a paper war and they 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... These factors
are ‘aggravating’
and not extenuating because they manifest character defects, a lack
of integrity, a lack of judgment
and a lack of insight.”
[16]
Harms ADP went further and observed in
Law
Society of the Northern Provinces v Mogami
[23]
that it had become a common occurrence for persons accused of
wrongdoing to accuse the accuser and seek to break down the
institution
involved instead of properly confronting the
allegations. He emphasised that courts cannot countenance such
a strategy.
I shall deal with this observation again when I
consider the evidence.
[17]
In
Law
Society of the Northern Provinces v Mabando
[24]
the Law Society’s appeal against an order of the High Court
succeeded and the practitioner was struck from the roll of
attorneys.
[25]
The court
considered the approach of the practitioner and I merely quote the
following:
“
In
October 2000, the First Respondent scandalously and in
stereotypically errant debtor style dispatched a letter to Mr van Zyl
allegedly enclosing a cheque that in fact was not attached. In the
case of Mr van Zyl, the amount due was paid approximately five
years
after the complaint was laid and then was paid in two instalments
some nine months after the Appellant had ordered him to
so, following
on the disciplinary enquiry. In the ordinary course, the
amounts
collected and due to the instructing attorney or client would have
had to be retained in a trust account. Considering the
common cause
facts the inference is inescapable that the amounts were not so
retained ─ a grave and usually fatal error on
the part of any
attorney
.“
(emphasis
added)
The
court continued:
[26]
“
To
this day, the First Respondent continues to demonstrate a remarkable
lack of insight concerning the professional and ethical
standards
expected of an attorney. Lastly, even at the time of the hearing, the
First Respondent showed a remarkable lack of contrition
and
unaccountability.”
[18]
Sections 78 of the repealed Attorneys Act provided as follows:
“
s
78 Trust accounts
(1)
Any practising practitioner shall open and keep a separate trust
banking account at a banking institution in the Republic and
shall
deposit therein the money held or received by him or her on account
of any person.
(2)…
(3)
…
(4)
Any practising practitioner shall keep proper accounting records
containing particulars and information of any money received,
held or
paid by him or her for or on account of any person, …”
[19]
Now, the relevant sections in the Legal Practice Act dealing with
trust accounts
are:
“
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 fulltime 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
.
(Emphasis added)
86 Trust accounts
(1)
Every legal
practitioner
referred to in section 84 (1)
must operate a
trust account
.
(2) Every trust account
practice must keep a trust account at a bank with which the Fund has
made an arrangement as provided for
in section 63 (1)
(g)
and
must deposit therein
, as soon as possible after receipt
thereof,
money held by such practice on behalf of any person
.
(3) …..
(4) …..
(5) …..
(6) …..
(7) ….. (Emphasis
added)
87 Accounting
(1)
A trust account
practice must keep proper accounting records
containing
particulars and information in respect of –
(a)
money received
and paid on its own account;
(b)
any money
received, held or paid on account of any person
;
(c)
money invested
in a trust account or other interest-bearing account referred to in
section 86; and
(d)
any interest
on money so invested which is paid over or credited to it.
(2) …..
(3) ….
(4) ….
(5) …..
(6) ….
(Emphasis added)
93 Offences and
penalties
(1) – (7) ….
(8) Any person who
contravenes section 84 (1) or (2) or section 34, in rendering legal
services
(a)
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.
(9) …. “
[20]
In
Botha
v Law Society, Northern Provinces
[27]
Cloete JA considered the uncalled for criticism by the practitioner
and his lack of co-operation with the Law Society, but eventually
found that striking-off as ordered by the High Court was
inappropriate. The practitioner was suspended from practice for
one year which suspension was suspended on certain conditions.
[21]
In
Law
Society of the Northern Provinces v Viljoen
[28]
the Law Society unsuccessfully appealed two judgments from two
different judges of the High Court compelling the Law Society to
issue FFC’s to the particular attorneys from two different
firms. In that case the Law Society, after receiving numerous
serious complaints against the attorneys, instituted proceedings for
their striking off. Both the High Court and the Supreme
Court
of Appeal held that the secretary of the Law Society incorrectly
decided against issuing the FFC’s. The SCA reasoned
as
follows:
[29]
“
[7]
… It suffices, in my view, to state that the
first appellant had received various complaints against
the
respondents, in both matters, which it regarded as serious. Following
thereupon, the first appellant instituted proceedings
in the North
Gauteng High Court, Pretoria, for the respondents' names to be struck
off the roll of attorneys on the basis that
they are no longer fit
and proper to continue practising. Having had sight of the
appellants' affidavits, I harbour no doubt
that the allegations
made against the respondents are serious, and, if proven to be true,
might justify a striking-off of the respondents'
names by the court.
[10]
….. Counsel were agreed that, although the
resolution does not amount to a suspension from practice of
a
legal practitioner, the practical effect thereof is that a
practitioner who has not been issued with a fidelity fund certificate
is not allowed to practise on his own account or in partnership. It
is trite that any legal practitioner who practises without
a fidelity
fund certificate is committing a professional misconduct.
[14]
…. The authority of the second appellant to issue
fidelity fund certificates is clearly circumscribed
by s
42(3)
(a).
This section sets out two requirements to be
met by a legal practitioner for him or her to qualify for a fidelity
fund certificate.
The first requirement is that such a practitioner
must satisfy the secretary that he or she has discharged all his or
her liabilities
to the society in respect of his or her contribution
and, secondly, that he or she has complied with any other lawful
requirement of
the society. Once the two requirements have been
met, s 42(3)
(a)
compels the second appellant to forthwith
issue the fidelity fund certificate in the prescribed form to the
applicant.
[16]
It is important to bear in mind that a practitioner is
enjoined by s 42(1) to apply for a fidelity fund certificate
in the
prescribed form. A perusal of the prescribed form makes it clear,
from the questions that such a practitioner has to answer,
that the
major focus is on the question whether the practitioner is managing
his trust accounts in strict compliance with the rules
of the
society, and not whether he or she is fit and proper to practise.
This is underscored by the request to a practitioner in
the
prescribed form to disclose the balances in his or her trust account
at the end of each quarter of the year. Furthermore, this
is
bolstered by the requirement that such a practitioner shall submit
his or her audited financial statements. It is clear to me
that this
enquiry is intended solely to assess any risk attendant on the
secretary issuing a fidelity fund certificate so
as to ensure that
the Fidelity Fund is not overexposed. Manifestly, this has nothing to
do with issues of ethics or whether such
a practitioner is fit and
proper to continue to practise. The enquiry regarding the fitness of
a practitioner to continue to practise
is the preserve of the
courts.”
VII
EVALUATION OF THE EVIDENCE, THE SUBMISSIONS BY THE PARTIES AND
APPLICATION OF THE LEGAL PRINCIPLES
First requirement: Was
the offending conduct relied upon by applicant established?
[22]
I referred above to the numerous affidavits filed herein totally
contrary to the established principles,
but each time by order of
court and as agreed to by the parties. In my view this matter
should have been finalised more than
a year ago.
[23]
Before dealing with what I called the crisp issue to be adjudicated,
to wit the respondent
practising without a valid FFC, I am bound to
mention an aspect that appears on the face of it to be serious and
disconcerting.
In response to the complaints lodged by clients
as set out in the LPC’s founding affidavit, the respondent
attached in several
cases so-called “withdrawal affidavits”
by the complainants apparently prepared by himself. These read
word for
word the same and were deposed to by the various
complainants before the same commissioner of oaths. In each
case the complainants
confirmed the respondent’s version that
they had withdrawn their complaints.
[30]
In other matters, settlement agreements between him and the
complainants were relied upon.
[31]
[24]
In the LPC’s original replying affidavit filed on 7 August 2021
to which I
referred above, the deponent mentioned another eight
complaints received from the respondent’s clients. In
addition,
the LPC’s Investigating Committee made a
recommendation to the LPC’s Provincial Council who resolved on
4 October 2021
to launch another application to the High Court for
the respondent’s suspension in regard to five further
complaints received.
[32]
[25]
The respondent has much to say about the report of
Me De Jonge of PKF auditors dated 19 May 2017 attached
to the
founding affidavit.
[33]
Several discrepancies existed in the respondent’s trust account
at the time, but it would serve no purpose to deal with these.
I am also aware of the criticism and objections raised by the
respondent’s former auditor, Mr Marais. The respondent
also mentioned that his accounting records for the period 1 March
2011 to 29 February 2016 had to be drafted by Roos & Kie
and that
existing discrepancies were rectified.
[34]
Thereafter he appointed new auditors. According to him the PKF
report was overtaken by events in that his books were
subsequently
updated and re-audited by Mazars and De Jager Auditors whose reports
were submitted to and accepted by the erstwhile
Law Society.
[35]
A FFC for the year ending 31 December 2016 was indeed issued.
[36]
[26]
The LPC’s allegations that the
respondent was practising without FFC’s for the following
years
and ending on 31 December 2020,
[37]
was met by a response that he had instructed his auditor to prepare
all outstanding audit reports.
[38]
In the supplementary answering affidavit dated 2 July 2020 the
respondent averred that he had received an email from his
auditor
confirming that the audit reports for 2018 and 2019 had been
completed and that the LPC had granted a “lee way”
for
the filing of the 2020 audit report.
[39]
[27]
Upon receipt that the 2018 and 2019 reports had been received by the
LPC, the respondent
applied for the 2020 FFC which was issued to him
on 25 November 2020.
[40]
The LPC explained that acknowledgment of receipt of the audit reports
did not equate to confirmation of the correctness and
approval
thereof. These still had to be examined; also that the
FFC which could be obtained on line, was incorrectly
issued and
therefore withdrawn.
[41]
The respondent who argued the matter before us in person again relied
upon the
Viljoen
-judgment
of the SCA quoted in detail above as he did in his so-called replying
affidavit filed on 18 March 2021. According
to him the
requirements for issuing of the FFC’s have been met and the
responsible person, to wit the Trust Interest Portfolio
Officer
correctly issued an FFC for 2020. There is a dispute in this
regard, but it is evident that the LPC’s
Provincial
Council had resolved on 1 February 2021 to withdraw the FFC as it was
incorrectly issued.
[42]
As will be explained later herein, this court cannot now issue a
mandamus
directing the LPC to issue the required FFC’s in the absence of
a proper application by the respondent, substantiated by
acceptable
testimony. In any event, the respondent was not issued with a
FFC for the year ending 31 December 2021.
[43]
[28]
As mentioned and following upon the court order of
22 April 2021 the auditor, Kotie Kruger filed
two reports, confirmed
under oath. The respondent failed to deal with the merits of
the reports and particularly failed to
rely on the evidence and
expert testimony of any of his auditors to show any alleged factual
incorrectness and/or unsubstantiated
opinions.
[29]
Instead of dealing with the merits of the auditor’s findings,
the respondent
argued that his constitutional rights had been
infringed. He relied upon several procedural issues which I
deem not necessary
to consider. Fact of the matter is that he
had ample opportunity to file supplementary affidavits over a period
of four months
since receipt of the reports as directed by agreement
in the orders of 22 April and 7 October 2021. His latest
supplementary
affidavit filed on 7 December 2021 consists of not less
than 56 pages. It contains much argument, but nothing to show
that
Kotie Kruger’s concerns are not valid. The
respondent replied as follows to one of Kotie Kruger’s
conclusions,
to wit that trust monies were not accounted for in the
accounting records in that these were either not banked, or not
otherwise
recorded
[44]
and I
quote
verbatim
:
[45]
“
152.
The contents of this paragraph are denied. Fee and mandate
agreements were signed by the complainants. We
respectfully
place on record that in terms of Sec 45 adequate steps were taken to
rectify the irregularity of not prompt depositing
Trust monies….”
The
denial of Kotie Kruger’s conclusion and the reference to fee
and mandate agreements became clear during oral argument,
to which I
shall refer hereunder.
[30]
Kotie Kruger started with investigations of the respondent’s
books, but it
soon became clear to him that much more information
and/or documents were required to conduct a proper forensic
investigation.
[46]
He
inter
alia
sought back-ups of the accounting records from the 2015/2016
financial year, alternatively the ledgers, trial balances, cash
books,
journals as well as the trust and business bank statements for
those years. Needless to say, the respondent refused to tender
any documentation pertaining to the years prior to the 2018 financial
year and insisted that his business bank account was irrelevant
to
the enquiry.
[47]
[31]
I do not intend to deal exhaustively with any of the two reports of
Kotie Kruger and shall
restrict myself to the following:
31.1
The audit firm, AC Marais issued an unqualified audit opinion on 8
November 2016 in respect of
the 2016 financial year, but the
auditors, Mazars who re-audited the 2016 financial year issued a
qualified audit opinion on 22
March 2018, indicating that the trust
accounts were not maintained in compliance with the Attorneys Act and
the rules issued thereunder.
[48]
31.2
The audit firm, De Jager Inc issued a qualified audit opinion on 9
January 2018, stating that
opening balances could not be confirmed
with the previous year’s closing balances, but as Kotie Kruger
indicated, this report
is dated almost two months before the
respondent’s annual statement on trust accounts and before the
date of the re-audit
report referred to in the previous
sub-paragraph.
[49]
31.3
The audit firm, Gert Jordaan Inc issued an unqualified audit opinion
on 1 July 2020 in respect
of the 2018 financial year. However,
Kotie Kruger raised several question marks in respect of this
unqualified report.
Cash deposits of only R153 310.00 were
received in the trust bank account, but payments relating to
disbursements and to trust
creditors out of the trust bank account
amounted to over R1 million.
[50]
Kotie Kruger made the point that this supporting documentation for
journals were not available and the total fee transfers
from trust to
business could not be verified with the business bank account.
[51]
31.4
The audit firm, Gert Jordaan Inc issued another unqualified audit
opinion, again on 1 July 2020
in respect of the 2019 financial year.
The total cash deposits in the trust bank account amounted to only R7
450.00.
No journal transfers from trust to business
occurred.
[52]
31.5
The audit firm, Ramathe Inc issued a qualified audit opinion on 20
January 2021 in respect of
the 2020 financial year. What is
extremely strange from Kotie Kruger’s report is that no cash
deposits were received
for this financial year and no trust receipts
were issued at all. The total fee transfers from trust to
business amounted
to R119 191.30, the transfers could not be
verified without the business bank statements.
[53]
31.6
Kotie Kruger’s summary of findings is significant and surely
called for a proper explanation.
[54]
The following aspects are emphasised:
31.6.1
The total fee transfers from trust to business decreased from
R1 139 852.40 in the 2018 financial year
to a mere
R119 191.30 in the 2020 financial year;
31.6.2
The trust cash deposits decreased from R150 020.00 in the 2018
financial year, to nil rand in the 2020 financial
year;
[55]
31.6.3 The
audit report for 28 February 2017 was qualified on the basis that the
opening balances could not be confirmed
with the previous year’s
closing balances, and several questions in this regard needed to be
posed to the auditor who presented
the 2017 audit report;
[56]
31.7
Kotie Kruger concluded
inter
alia
as
follows:
[57]
31.7.1 Fee
transfers from trust to business bank account decreased significantly
and the question was asked as to how
business/ practice expenses were
covered in the process;
31.7.2 Trust
cash deposits decreased significantly since the LPC started
conducting investigations and the question
to be asked is whether
trust funds were deposited into the business bank account;
31.7.3
Different versions of book-keeping systems were maintained and this
will impact on the reliability of evidence
and reliance on internal
control;
31.7.4 A full
investigation could not be conducted in order to determine if any
trust monies were deposited into the
business bank account as the
respondent refused to provide copies of the statements of his
business bank account.
[32]
If respondent wanted the court to believe that he was
bona fide
and truthful and that he had nothing to hide, he should have
presented this court with a meaningful explanation, backed up by his
auditors’ versions under oath. There was more than one
auditor at various times. As stated in
Hepple
supra
,
it was expected of the respondent to respond meaningfully to
allegations made and to furnish a proper explanation. He could
not merely brush aside the requests of the independent auditor and/or
ignore the factual findings of Kotie Kruger.
[33]
I am of the view that applicant has established the offending conduct
relied upon
on a balance of probabilities. In fact, it is
common cause that the respondent has been practising all these years
without
FFC’s being issued to him, to wit for the years 2017,
2018, 2019 and 2020. The FFC for the 2021 year is also
outstanding.
[34]
The respondent made the point in his supplementary affidavit, bearing
in mind the
provisions of sections 37 & 41 of the Legal Practice
Act, that the complaints against him had to be finalised and even in
the
event of findings of misconduct by the disciplinary committee, he
had the right of appeal. Therefore, in so far as the internal
process provided for in chapter 4 of the Legal Practice Act has not
been exhausted, the LPC could not approach this court for an
application to strike him off, alternatively suspend him from the
roll of attorneys.
[58]
I
do not agree, relying on the authorities quoted
supra
.
Second requirement: Is
respondent a fit and proper person to practise as an attorney?
[35]
Respondent’s various affidavits are replete with accusations
against the LPC,
the Law Society before November 2018, and their
functionaries which are really unfair and uncalled for. He even
accused the
independent auditor for being guilty of contempt of
court.
[59]
[36]
I am satisfied that the respondent has demonstrated a remarkable lack
of insight concerning the
professional and ethical standards expected
of an attorney. Obstructionism, denials and evasions have no
place in matters
of this nature and it was expected of respondent to
put full facts before the court as reiterated in
Law
Society, Northern Provinces v Sonntag.
[60]
When respondent was asked during oral argument for an explanation why
the balance in his trust account and transfers from
the trust account
decreased so tremendously, he spontaneously replied that it was due
to the lock-down as a consequence of the
Covid 19 pandemic.
When I pointed out that the country was not in lock-down before the
end of the 2020 financial year, he
responded that he was making use
of “fee and management agreements” with clients.
This answer is in line with
an allegation made in one of his
affidavits. I did not understand what he meant when reading the
affidavit, but it was explained
during argument. It is the
respondent’s case that he is doing predominantly criminal
work. When instructed by
a client to assist, he will enter into
such agreement and accept the fee in his business account. This
is clearly wrong and
exactly what the legislature wants to
prevent.
[61]
The fee is
not earned until the work is done. I borrow from the judgment
in
Mabando
the following words with which I respectfully align myself:
“
Considering
the common cause facts the inference is inescapable that the amounts
were not so retained ─ a grave and usually
fatal error on the
part of any attorney.”
[37]
There is in my view no doubt that the respondent is not a fit and
proper person to
practice as an attorney at this stage. He has
been carrying-on in the same vein for a number of years and is not
prepared
to accept that his conduct is unprofessional. Clients
who entrust him with their monies in the belief that these are paid
into his trust account and that in the event of misappropriation of
such funds the Fidelity Fund would settle their claims will
encounter
unpleasant surprises. As mentioned, it is not only
unprofessional conduct for an attorney to practice without a
Fidelity
Fund Certificate, but the conduct is also illegal and thus
constituting a criminal offence. The second requirement
has
been met.
Third
requirement: The appropriate sanction: striking-off or suspension
from practice?
[38]
In the exercise of my discretion I have to decide whether respondent
deserves the
ultimate penalty of striking-off or whether a suspension
from practice will suffice and in the event of a suspension, on what
conditions.
[39]
I have considered the totality of the evidence as well as the
authorities quoted,
but the following factors play a particular role
in the exercise of my discretion:
39.1
Respondent, not a young person anymore, may find it difficult to get
suitable employment if struck
from the roll.
39.2
The respondent lodged audit reports for 2018, 2019 and 2020, although
qualified. I accept
that he held the view, incorrectly so, that
his trust bookkeeping was in order, that the LPC without sufficient
cause refused to
issue FFC’s and that he was entitled to
practise.
39.3
A suspension will not close the doors of practice for ever and as
clearly held in
Viljoen supra
, if the respondent can convince
the court when a
mandamus
is sought in future that he has
complied with the requirements for FFC’s to be issued to him,
there is no reason why the
suspension shall not be uplifted, unless
the LPC is able to present proof of other serious transgressions.
39.4
Although respondent stubbornly attacked the LPC and functionaries and
provided the court with
evasive and argumentative answering
affidavits, thereby demonstrating a lack of insight - conduct not
expected of an attorney accused
of misconduct as indicated by the
authorities referred to
supra
- I am of the view that
respondent probably believed that attack was the best form of
defence. I am of the opinion that he
should not be penalised
with the ultimate sanction, but in saying that I should not be
understood to say that striking-off may
not be an appropriate
sanction in similar circumstances. The matter
in casu
can be distinguished from the allegations made by the practitioners
in
Malan
supra,
whilst the facts are more in line with
those in
Botha
and
Summerley
supra.
[40]
In conclusion, the LPC has proven the offending conduct. There
cannot be any
doubt that the respondent is not a fit and proper
person to practise as an attorney in the prevailing circumstances.
Finally,
and although this is perhaps a borderline case, I am
satisfied that a lifeline may be thrown to the respondent and
therefore instead
of striking off, the respondent should be suspended
from practice. If he is allowed to practice without a FFC this
court
will be closing its eyes to unprofessional and criminal conduct
which may have serious consequences for the public in general, but
the respondent’s existing and prospective clients in
particular. This means that he will have to satisfy the court
in the future that he is a fit and proper person to resume practising
as an attorney.
[41]
Mr Sander submitted on behalf of the LPC that if the court is not
inclined to strike
the respondent from the roll, leave should be
granted to it to apply to the court on the same papers, duly
amplified, for striking
off. I indicated earlier that
unnecessary paper work has been produced. If facts are
established in future warranting
a striking off, the LPC may always
approach the court with a fresh application. The judges dealing
with that application
will confine themselves to the facts presented
to them instead of trawling through more than a thousand unnecessary
pages.
[42]
The respondent is also not without a remedy. If his books are
in order and
his in a position in future to lodge unqualified audit
reports for all relevant years, he may well seek relief by way of a
mandamus
to direct the issuing of FFC’s and lifting of
his suspension.
VIII
COURT ORDERS
[43]
Therefore the following orders are made:
1.
The Respondent, Lloyd George Charles Lielies, is suspended from the
practice
of an attorney.
2.
2.1 The Respondent shall surrender and
deliver
to the Director of the
Free State Provincial
Office of the South African Legal Practice Council (‘the
Director”) in Bloemfontein his certificate
of enrolment as an
attorney.
2.2
Should the Respondent fail to comply with the provisions of the
preceding sub-paragraph
of this order within 2 (two) weeks from date
thereof, the Sheriff of the district in which such certificate of
enrolment is found,
is empowered and directed to take possession
thereof and deliver same to the Director.
3.
The Respondent is ordered to deliver his books of account, records,
files and
documents containing particulars and information relevant
to:
3.1
any moneys received, held or paid by the Respondent for or on account
of any
person;
3.2
any moneys invested by the Respondent in terms of section 86(3)
and/or section
86(4) of the Legal Practice Act, 28 of 2014
(hereinafter referred to as “the Act”) or previously
under section 78 of
the now repealed Attorneys Act;
3.3
any interest in moneys so invested, which was paid over or credited
to the Respondent;
3.4
any estate of a deceased person, or any insolvent estate, or any
estate placed
under Curatorship of which the Respondent is the
Executor, Trustee or Curator, or which the Respondent is
administering on behalf
of the Executor, Trustee or Curator of such
estate; and
3.5
the Respondent’s practice as an attorney,
to the
curator bonis
(“Curator”) appointed in terms of paragraph 9 hereof,
provided that as far as such book of account, records, filed
and
documents are concerned, the Respondent shall be entitled to have
access to them, but always subject to the supervision of
such Curator
or a nominee of such Curator.
4.
Should the Respondent fail to comply with the provisions of the
preceding paragraph
of this order within 2 (two) weeks after service
thereof upon him, or after a return by a person entrusted with the
service thereof
that he has been unable to effect service thereof on
the Respondent, as the case may be, the Sheriff of the district in
which such
books of account, records, files and documents are, is
empowered to take possession thereof and deliver them to such
Curator.
5.
Such Curator shall be entitled to hand over to the persons entitled
thereto all
such records, files and documents as soon as she has
satisfied herself that the fees and disbursements in connection
therewith
have been paid or satisfactorily secured or that same are
no longer required by the Curator.
6.
A written undertaking by a person to whom the records, files and
documents referred
to in paragraph 5 above are handed, to pay such
amount as may be due to the Respondent, either on taxation or by
agreement, shall
be deemed to be satisfactory security for the
purposes of the preceding paragraph hereof, provided that such
written undertaking
incorporates a
domicilium citandi et
executandi
of such person.
7.
Such Curator is empowered to require that any such file, the contents
of which
she may consider to be relevant to a claim, or possible or
anticipated claim, against her and/or the Respondent and/or the
Respondent’s
clients, and/or the Legal Practitioners’
Fidelity Fund (herein referred to as “the Fund”) in
respect of money
and/or other property entrusted to the Respondent,
be re-delivered to such Curator.
8.
The Respondent is interdicted and prohibited from operating on his
trust account(s)
as defined in paragraph 9 hereof.
9.
The Director, being Ms Tumelo Leope, is appointed as Curator to
administer and
control the trust account(s) of the Respondent,
comprising of the separate banking accounts opened and kept by the
Respondent at
a bank in terms of section 86 of the said Act and/or
any separate savings or interest-bearing accounts as contemplated by
section
86(3) and/or section 86(4) of the said Act, (including
accounts opened in accordance with the corresponding sections of the
repealed
Attorneys Act, 53 of 1979) in which moneys from such trust
banking accounts have been invested by virtue of the provisions of
the
said sub-section or in which moneys in any manner have been
deposited or credited (the said accounts being herein referred to as
“The trust account(s)”) with the following powers and
duties:
9.1
subject to the approval of the Board of Control of the Fund to sign
and endorse cheques and/or
withdrawal forms and generally to operate
upon the Trust account(s), but only to such extent and/or for such
purpose as may be
necessary to bring to completion current
transactions in which the Respondent was acting at the date of this
order;
9.2
subject to the approval and control of the Board of Control of the
Fund to recover and receive
and, if necessary in the interest of
persons having lawful claims against the Trust account(s) and/or
against the Respondent in
respect of moneys held, received and/or
invested by the Respondent in terms of the aforesaid sections
(hereinafter referred to
as “Trust moneys”), to take
legal proceedings which may be necessary in respect of incomplete
transactions in which
the Respondent may have been involved and which
may have been wrongfully and unlawfully paid from the Trust
account(s) and to receive
such moneys and to pay same to the creditor
of the Trust account(s);
9.3
to ascertain from the Respondent’s book of account the names of
all persons on whose account
the Respondent appears to hold or to
have received Trust moneys (hereinafter referred to as “the
Trust Creditors”)
and to call upon the Respondent to furnish
her within 30 (thirty) days from the date of this order, or such
further period as he
may agree to in writing, with the names,
addressed of and amounts due to all Trust Creditors;
9.4
to call upon such Trust Creditors to furnish such proof, information
and affidavits as she may
require to enable her, acting in
consultation with and subject to the requirements of the Board of
Control of the Fund, to determine
whether any such Trust Creditor has
a claim in respect of moneys in the Trust account(s) and if so, the
amount of such claim;
9.5
to admit or reject, in whole or in part, subject to the approval of
the Board of Control of the
Fund, the claims of any such creditors,
without prejudice to such Trust Creditors’ right of access to
the Civil Courts;
9.6
having determined the amounts which she considers are lawfully due to
Trust Creditors, to pay
such claims in full, but subject always to
the approval of the Board of Control of the Fund;
9.7
in the event of there being any surplus in the Trust account(s) after
payment of the admitted
claims of all Trust Creditors in full, to
utilize such surplus to settle or reduce, as the case may be,
firstly, any claim of the
Fund in terms of section 86(5)(a) of the
said Act in respect of any interest therein referred to and secondly,
without prejudice
to the rights of creditors of the Respondent, the
costs, fees and expenses referred to in this order, or such portion
thereof as
has not already been separately paid by the Respondent to
the Applicant and, if there is any balance left after payment in full
of all such claims, costs, fees and expenses, to pay such balance,
subject to the approval of the Board of Control of the Fund,
to the
Respondent. If he is solvent, or, if the Respondent is
insolvent, to the Trustee of his insolvent estate;
9.8
in the event of there being insufficient trust monies in the Trust
account(s) to pay the claims
of Trust Creditors reflected in the
books of account of the Respondent in full –
9.8.1
subject to the approval of the Board of Control of the Fund to close
the Trust account(s) and pay
the credit balances to the Fund and to
require the credit balances to be placed to the credit of a special
Trust suspense account
in the name of the Respondent in the Fund’s
books;
9.8.2
to refer the claims of all Trust Creditors to the Board of Control of
the Fund to be dealt with in
terms of the provisions of the said Act,
and
9.8.3
to authorise the Board of Control of the Fund to credit the credit
balances referred to in sub-paragraph
9.8.1 above to its “Paid
Claims Account” when the Fund has paid, in terms of section 55
of the said Act admitted claims
of the Trust Creditors in excess of
such credit balances, provided that, notwithstanding the afore going,
the said Board shall
be entitled in its discretion, to transfer to
its “Paid Claims Account” the amount or amounts of any
claim or claims
as and when admitted and paid by it;
9.9
subject to the approval of the Chairperson of the Board of Control of
the Fund
to appoint nominees or representatives and/or consult with
and/or engage the services of attorneys and/or counsel and/or
accountants
and/or other persons, where considered necessary, to
assist such Curator in the execution of the duties of the Curator,
and
9.10
to render from time to time, as Curator, returns to the Board of
Control of the Fund, showing
how the Trust account(s) have been dealt
with, until such time as the said Board notifies him that she may
regard her duties as
terminated.
10.
The Respondent is hereby directed:
10.1
to pay the fees and expenses of the Curator, such fees to be assessed
at the applicable rate
as determined by the Board of Control of the
Fund, including travelling time;
10.2
to pay the reasonable fees and expenses charged by any persons
consulted and/or engaged by the
Curator as aforesaid;
10.3
within 1 (one) year of him being requested to do so by the Curator,
or within such longer period
as the Curator may agree to in writing,
to satisfy the Curator, by means of the submission of taxed bills of
costs, or otherwise,
of the amount of the fees and disbursements due
to the Respondent in respect of his former practice, and should he
fail to do so,
he shall not be entitled to recover such fees and
disbursements from the Curator without prejudice, however, to such
rights, if
any, as he may have against the Trust Creditors concerned
for payment or recovery thereof.
11.
That the Respondent is hereby removed, during the period of
suspension, from office as -
11.1. executor of
any estate of which the respondent has been appointed in terms of
section 54(1)(a)(v)
of the
Administration of Estates Act, No 66 of
1965
or the estate of any other person referred to in
section 72(1)
;
1in;
margin-bottom: 0in; line-height: 150%">
11.2. curator or
guardian of any minor or other person's property in terms of
section
72(1)
read with
section 54(1)(a)(v)
and
section 85
of the
Administration of Estates Act, No 66 of 1965
;
11.3. trustee of
any insolvent estate in terms of
section 59
of the
Insolvency Act, No
24 of 1936
;
11.4. liquidator
of any company in terms of
section 379(2)
read with section 379(e) of
the Companies Act, No 61 of 1973;
11.5. trustee of
any trust in terms of section 20(1) of the Trust Property Control
Act, No 57 of 1988;
11.6. liquidator
of any close corporation appointed in terms of section 74 of the
Close Corporation Act, No 69 of 1984; and
11.7.
administrator appointed in terms of section 74 of the Magistrates'
Court Act, No 32 of 1944;
12. The
Respondent shall pay the costs of this application on the attorney
and client scale.
JP
DAFFUE J
I
concur.
D
MTHIMUNYE AJ
On
behalf of applicant:
Adv
A Sander
Instructed
by:
Horn
& Van Rensburg Attorneys
BLOEMFONTEIN
On
behalf of respondent:
In
person
[1]
53
of 1979
[2]
28
of 2014
[3]
Para
8 on pp 23 – 27 of bundle 1
[4]
Para
13.9 on p 41 of bundle 1
[5]
Paras
9, 10, 11 and 12 of the founding affidavit on pp 28 – 38 with
particular reference to the 2016 and 2017 financial
years
[6]
Para
12.1 – 12.4 on pp 33 & 34 and para 13 on pp 38 - 41
[7]
Para
12.2 on p 34
[8]
Para
2.4 p 852 of bundle 1
[9]
Paras
4.3 & 5.1 p 854 of bundle 1
[10]
Para
11 p 859 of bundle 1
[11]
P
1 bundle 2
[12]
P 4 & 5 bundle 3
[13]
Law
Society of the Cape of Good Hope v Budricks
2003 (2) SA 11
(SCA) at para [2] and numerous SCA judgments
thereafter
[14]
2000
(3) SA 44
(SCA) at 51E-F;
Budricks
supra
at 14A
[15]
[2014]
3 All SA 408
(SCA) at para 9
[16]
Solomon
v The Law Society of Good Hope
1934 AD 401
at 408 – 409
[17]
1977
(2) SA 757
(AD) as 767C –G
[18]
Law
Society, Cape of Good Hope v Peter [2006] SCA 37 RSA at para [19] in
which case exceptional circumstances were found
[19]
2006
(5) SA 613
(SCA) at para 21
[20]
[2008] ZASCA 90
;
2009
(1) SA 216
(SCA) at para 10
[21]
Hepple
supra
at
para 9;
Malan
supra
at
paras 27 - 28
[22]
Paras
27 - 28
[23]
2010
(1) SA 186
(SCA) at para 26
[24]
[2011]
4 All SA 238 (SCA)
[25]
At
para 54
[26]
At
para 55
[27]
[2008] ZASCA 106
;
2009
(1) SA 227
(SCA) at para 10 & further
[28]
2011
(2) SA 327 (SCA)
[29]
Ibid
at paras 7, 10, 14 & 16
[30]
See
inter alia bundle 1, paras 9.11& 9.23 on pp 203 & 205 with
annexures; para 13.9 on p 226 & further with annexures
LGC 48 –
LGC 50 on pp 772 - 786
[31]
Annexures
LGC10 on p 262 & ACM37 on p 585A in bundle 1
[32]
Para
7.1 of supplementary affidavit: bundle 3 p 264
[33]
Annexure
H on p 78 & further in bundle 1
[34]
Answering
affidavit: bundle 1, para 11.14 on p 215
[35]
Ibid
para 13.12 in bundle 1 p 221
[36]
Annexure
LGC 29 p 294
[37]
Para
12.3 on p 34 in particular
[38]
Para
13.4 on p 219
[39]
Para
11.2 p 821
[40]
Paras
5 & 6 of affidavit dated 4 February 2021 in support of
application to file yet a further affidavit, bundle 2 pp 12 &
13
[41]
Paras 4 & 5 of the supplementary replying affidavit, bundle 2 pp
23 - 25
[42]
Resolution
attached as SRA. HKMD 2 on p 25 of bundle 2
[43]
Ibid
para 7, bundle 2 on p 25
[44]
Para
5.7 of the second report, bundle 3 on p 91
[45]
Para
152, bundle 3 on p 149
[46]
Letter
to LPC dated 4 May 2021, bundle 3 p18
[47]
Letter
of 31 May 2021, bundle 3 p 21/2
[48]
Paragraph
3.4 of both reports on pp 38 & 72 respectively
[49]
See
para 3.5 of both reports on pp 39 & 73 respectively
[50]
Paragraphs
3.6 of both reports on pp 39 & 73 respectively
[51]
2
nd
Report
on pp 75 & 76
[52]
2
nd
Report
pp 79 & 80
[53]
Paragraphs
3.8 of the 2
nd
report
p 80
[54]
Paragraph
4 of the 2
nd
report
pp 81 - 84
[55]
See
paras 4.2 and 4.4 of the 2
nd
report
[56]
Paragraph
4.7 of the 2
nd
report
p 84
[57]
Paragraph
5 of the 2
nd
report
pp 90 - 93
[58]
Paragraphs
41 – 44 on bundle 3 pp 111 - 113
[59]
Para
45 of the supplementary affidavit, bundle 3 p 113
[60]
2012
(1) SA 372
(SCA) at paras 17 – 20 as well as the authorities
quoted
supra
[61]
See
again section 84(3) read with section 84(1) & (2) and 86(1) &
(2)