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2022
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[2022] ZAFSHC 241
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Legal Practice Council v Mokhele (3312/2022) [2022] ZAFSHC 241 (14 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
3312/2022
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
THE
LEGAL PRACTICE COUNCIL
Applicant
and
LEBOHANG
MICHAEL MOKHELE
Respondent
CORAM:
MATHEBULA
J
et
MTHIMUNYE AJ
HEARD
ON:
08
AUGUST 2022
JUDGMENT
BY:
MTHIMUNYE AJ
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII
on 14
September 2022. The date and time for hand-down is deemed to be
on 14 September 2022 at 14H00.
[1]
This is an urgent application by the South African Legal Practice
Council (“LPC”
alternatively “the applicant”)
for the following orders:
(i)
That the rules of court in terms of time and service be dispensed
with and this application be
heard on urgency basis.
(ii)
That the respondent be suspended from practising as an attorney
pending finalisation of disciplinary
proceedings instituted or to be
instituted against him by the applicant, alternatively, pending an
application to be launched by
the applicant to have the respondent’s
name struck from the roll of legal practitioners of the High Court of
South Africa;
and that he be prohibited from handling or operating
any trust banking accounts in his practice.
(iii)
That the respondent immediately surrenders and delivers to the
Registrar of this court his admission certificate,
failing which that
within two (2) weeks the sheriff be authorised to take possession of
the said certificate and hand it over to
the Registrar of this court.
(iv)
That a Curator Bonis (“the curator”) be appointed to
administer and control all the trust accounts
of the respondent, with
the customary ancillary orders.
[2]
The applicant is a body corporate established in terms of Section 4
of the Legal Practice
Act of 2014 (“the LPA”), a body
corporate with full capacity and exercising jurisdiction over all
legal practitioners
and candidate legal practitioners as contemplated
in the LPA. The respondent is Mr Lebohang Michael Mokhele, an
attorney practising
in Bloemfontein under the name and style of LM
Mokhele Incorporated, a firm conducting the practice of attorneys in
terms of the
provisions of Section 34(5)(a) of the LPA, which firm
the respondent is the sole director.
[3]
The applicant bases this application on four (4) complaints lodged
with the applicant
against the respondent by four of the respondent’s
erstwhile clients i.e. Mr TW Mokoena, Mr PM Thulo, Mr XM Yawa and Ms
NA
Radebe. The applicant submits that it has objective and compelling
evidence that the respondent has committed acts of misconduct
warranting him to be struck off the roll of legal practitioners.
[4]
Chief amongst these acts of misconduct are the allegations against
the respondent
concerning misappropriation of trust funds entrusted
to him by Mr PM Thulo and Ms NA Radebe and his failure to ensure that
his
trust banking account is not, at any time, in debit.
The
Complaints
[5]
Mr Mokoena had instructed the respondent to assist him with a Rule 43
application,
to file an application for the upliftment of the notice
of bar and to oppose a writ of execution against him. The respondent
failed
to carry out any of these mandates resulting in a complaint
being lodged against him with the applicant. He faced 4 charges
i.e. failure to treat the interests of his client as paramount,
failure to carry out work in a competent and timely manner, bringing
the legal profession into disrepute by misrepresenting the client’s
instructions and failure to respond to communication
received from
opposing party’s legal representative within a reasonable time.
The respondent pleaded guilty to two charges
and the other two were
withdrawn. The respondent was fined R24 000 for these
transgressions and the matter was put to rest.
[6]
The second complaint pertained to the instructions from Mr Thulo for
assisting him
with his wife’s deceased estate. The respondent
requested a deposit of R40 000.00 which Mr Thulo paid on 24
March 2020.
On 8 April 2020 the respondent’s trust account
balance was R36 501.48 but the respondent had done nothing on
the matter
until he withdrew as an attorney of record on 07 March
2021. The respondent failed to account for the monies paid by Mr
Thulo which
led to Mr Thulo lodging a complaint with the applicant on
31 May 2021. The applicant sent a letter to the respondent notifying
him of the complaint on 14 June 2021, and a reminder on 23 July 2021.
The respondent failed to respond to both letters. The applicant
referred the matter to its Investigating Committee and notified the
respondent on 16 September 2021 that the matter was set down
for 7
December 2021.
[7]
On 13 December 2021 the Investigations Committee recommended that the
complaint be
referred to the applicant’s Disciplinary
Committee. The respondent was served with a charge on 08 March 2022
to appear on
28 March 2022. Following receipt of the charges, the
respondent concluded a settlement agreement with Mr Thulo on 15 March
2022
in terms of which the respondent would refund and pay Mr Thulo
all the monies paid into the respondent’s trust account in
exchange for Mr Thulo withdrawing his complaint against the
applicant. In this regard Mr Thulo was to send a letter of withdrawal
to the applicant attaching the settlement agreement. Subsequently, Mr
Thulo refused to withdraw the complaint and the disciplinary
hearing
against the respondent commenced on 28 March 2022. It was partly
heard and postponed to continue on 15 August 2022 for
cross-examination of Mr Thulo by the respondent.
[8]
The third complaint is in respect of Mr XN Yawa who instructed the
respondent in December
2020 to assist him with a matter concerning
his customary marriage and a deceased estate. The respondent’s
instructions were
to file a petition to the Supreme Court of Appeal.
On 22 February 2021, the respondent issued an invoice for R165 000.00
for
services that he claimed to have rendered. After negotiations,
the respondent reduced the amount to R45 000.00 which Mr Yawa
paid into his account on 26 February 2021. On 27 February 2021
an amount of R69 500.00 was transferred from the trust
account
to a certain MA Duma, which resulted in the trust balance of
R2 189.91. It was clear that half of the monies paid
to this MA
Duma belonged to Mr Yawa and this was therefore a trust shortfall. At
that stage, the respondent was even not entitled
to any fees as no
work had been done. The respondent did nothing on this matter and in
August 2021 Mr Yawa confirmed with officials
of this court and the
Supreme Court of Appeal that no petition for appeal was filed. When
Mr Yawa lodged a complaint with the applicant,
the applicant sent
letters to the respondent, to which they received no response.
[9]
The fourth complaint is in respect of Ms NA Radebe who had instructed
the respondent
to launch an application for review on behalf of a
joint venture called Kiwango Infrastructure Consortium JV Divento S.A
Suppliers
(Pty) Ltd against Maluti-a-Phufung Local Municipality in
respect of a tender process outcome where the JV was an unsuccessful
bidder.
The respondent requested a deposit of R150 000.00 which
Ms Radebe paid in 4 instalments. The respondent launched the
application
for review and thereafter failed to update the
complainant on the progress. At some point he informed Ms Radebe that
the matter
had been heard and the court had ruled that
Maluti-a-Phofung must appoint the JV and pay certain monies, and a
sheriff had been
instructed to implement the order.
[10]
After some time with no progress, Ms Radebe, being unhappy with the
treatment she was receiving
from the respondent, asked for a
statement of account for the services rendered and a refund of the
balance. The respondent neither
rendered a statement of account nor
refunded Ms Radebe, which led to Ms Radebe lodging a complaint with
the applicant. Again the
respondent never bothered to respond to the
applicant’s letters in this regard. The respondent and the
complainant are now
embroiled in a legal action instituted by Ms
Radebe in the Bloemfontein Magistrates Court. During the oral hearing
of the matter
the respondent was asked about the statement of account
which he referred to in his papers (but not attached) as Annexure
‘LM10’.
He explained that this may have been an oversight
and requested time to go uplift same from his offices. In about an
hour he returned
with the same dated 25
th
February 2022. In its supplementary heads, the applicant has argued
that this was prepared on the date of trial and the court was
asked
to draw this inference against the respondent.
[11]
In summary, the respondent’s transgressions as alleged by the
applicant are that the respondent
has had shortfalls in his trust
account between 8 and 20 April 2020 in respect of monies entrusted to
him by Mr Thulo. Again between
September and November 2021 there was
a shortfall in respect of the monies entrusted to him by Ms Radebe.
On 27 February 2021 the
same situation reigned in respect of the
trust monies entrusted to him by Mr Yawa which shortfalls he failed
to report to the applicant
as is required by the Code of Conduct for
Legal Practitioners; that the respondent is overreaching his clients;
that he fails to
account to his clients for the monies entrusted to
him; that he does not carry out clients’ mandates and misleads
his clients
on progress; and that he fails to respond to lawful and
reasonable requests from or to account to the application lodged
against
him.
[12]
The complaint against Mr T W Mokoena was finalised on 14 December
2021 and was put to rest. The
disciplinary proceedings against the
respondent in respect of Mr Thulo were still ongoing on the date of
hearing and the applicant
was still to institute disciplinary
proceedings against the respondent in respect of Mr Yawa and Ms
Radebe’s complaints.
Despite these charges emanating from
incidents that occurred over a year ago, we were informed that the
charge sheets have not
been served against the respondent. This means
that the matters against him are not ripe for hearing.
[13]
The applicant further alleges that subsequent to launching this
application, the respondent has
been interfering with complainants
because Mr Thulo visited the applicant’s offices and reported
that he had received death
threats for wanting to take the
respondent’s practising licence away. Mr Yawa has also alleged
that the reason he entered
into a settlement agreement with the
respondent in March is because the respondent had contacted him on 9
March 2022 alleging that
the applicant had instructed him to refund
the monies paid by Mr Yawa and to return all documents relating to
the mandate that
was initially given to him by Mr Yawa in exchange
for Mr Yawa withdrawing the complaint against the respondent.
Although the settlement
agreement was entered into on 18 March 2022,
the applicant alleges that this fact only came to its attention on 26
July 2022 after
this application was launched and thus was only
mentioned in their supplementary papers. On 03 August 2022 Mr
Yawa deposed
to an affidavit that on 30 July 2022 he had received
death threats because of having lodged a complaint against the
respondent.
[14]
For these reasons, the applicant seeks an order to suspend the
respondent pending the finalisation
of the disciplinary proceedings;
alternatively, pending an application by the applicant for the
striking off of the respondent.
This is an order with potentially
far-reaching consequences for a practitioner whose livelihood is
dependent on the practice of
his profession. Necessary caution is
required from the court in matters of this nature.
[15]
The respondent opposes this application on the basis that, firstly
the only urgency is that which
is self-created by the applicant as
there is no risk of misappropriation of funds as alleged by the
applicant and such allegations
are not supported by any evidence. The
issue of urgency was dealt with at the beginning of the proceedings
and the parties agreed
that the matter be heard on such basis. The
respondent further argued that the deponent to the applicant’s
founding affidavit
has relied on hearsay evidence as he had no such
knowledge of the facts he avers and no confirmatory affidavits were
attached to
his founding affidavit. This was however cured by the
applicant in its supplementary papers.
[16]
Further, the respondent submits that the applicant, as the
custom
morum
can easily achieve through its own processes the orders it
seeks from this court as empowered by the LPA. Further, the
respondent
points out that the Mokoena complaint has been disposed of
and its inclusion herein by the applicant is mala fide and
misleading.
This court agrees that the first complaint is water under
the bridge and there is no reason for this court to refer thereto any
further in this judgment.
[16]
At the commencement of the proceedings, this court broached the
question of an order where the
applicant is granted oversight over
the trust account and all other accounts the respondent holds in
trust in his capacity as an
attorney, without suspending the
respondent. This oversight will be pending the finalisation of the
disciplinary proceedings, which
disciplinary proceedings should be
time bound. At the finalisation of the disciplinary proceedings and
depending on the findings,
the applicant would be allowed to approach
this court on the same or amplified papers for an appropriate order
against the respondent.
[17]
The respondent was amenable to enter into an agreement to that effect
and that it be made an
order of court. The applicant’s view was
that such an order was incompetent as a Curator could not be
appointed whilst the
practitioner is not suspended. Given such
divergent views, this court invited both counsel to file
supplementary heads of argument
(“heads”) addressing this
issue.
[18]
Heads were filed and the applicant persisted that such an order would
be incompetent citing
Section 89
of the
Legal Practice Act of 2014
which provides:
“
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 anyway his or her trust account, and
may appoint a
curator bonis
to control and administer that trust account, with any rights, power
and functions in relation thereto as the Court may deem fit.”
This
section empowers the court to bar a practitioner from practicing on
good cause shown by the Council.
[19]
The LPC has brought this application on the bases of four complaints.
One was finalised by the
LPC and has fallen off. One of the
complaints is still before Council and has not been finalised. The
LPC is still in the process
of instituting disciplinary proceedings
against the respondent in respect of the other two complaints.
Neither the LPC nor this
court knows what the outcome of the said
disciplinary proceedings will be and yet this court is asked to
suspend the respondent.
The applicant has intimated misappropriation
of funds on the basis that the respondent would make transfers from
the trust to the
business account without issuing a statement of
account. The respondent when called upon to proffer an explanation
shies away from
the issues. He is less than candid with the applicant
and this court. The irresistible conclusion is that there was such a
trust
shortfall.
[20]
In its supplementary heads the applicant submits that this
application is not brought under
section 89
of the LPA and if a
curator is appointed without the respondent being suspended, the
curator will only serve to ‘babysit’
the respondent
whilst the public remains at risk as he might submit invoices
misrepresenting that he has performed some work when
in fact he had
not done so. Also, argues the applicant, the responded may be tempted
to receive monies into his business account,
which will further
expose members of the public as such monies are not protected and
cannot be refunded by the Legal Practitioners
Fidelity Fund. This
assertion is not supported by any evidence.
[21]
In respect of the appointment of a curator bonis,
section 90(1)(c)
of
the LPA provides:
“
If
any legal practitioner referred to in
Section 84(1)
is struck off or
suspended from practice; the High Court may, on application by the
Council, Board or by any person having an interest
in the Trust
Account or trust account practice, appoint a
curator
bonis
to control and administer that
account, with any rights, powers and functions as the court may deem
fit”
[22]
On the basis of this section the applicant argued that unless a
practitioner is struck off or
suspended from practice, a
curator
bonis
cannot be appointed. This
however does not necessarily mean that the applicant can only have
access or exercise oversight over
the practitioner’s trust
account when the practitioner is suspended or struck off the roll of
practitioners. The applicant,
is, as correctly argued by the
respondent, empowered by the LPA to inspect the accounting records of
any trust account of a law
firm to ensure compliance.
Section
87(2)(a)
of the
Legal Practice Act provides
that:
“
The
Council may, itself or through its nominee, at the cost of Council,
inspect the accounting records of any trust account practice
in order
to satisfy itself that the provisions of
section 86
and subsection
(1) are being complied with.”
[23]
Further, s
ection
84(6) of the
Legal Practice Act allows
the applicant to withdraw the
practitioner’s fidelity fund certificate where there has been
non- compliance with the provisions
of the Act. This section
provides:
“
The
Council may withdraw a Fidelity Fund Certificate and, where
necessary, obtain an interdict against the legal practitioner
concerned
if he or she fails to comply with the provisions of the LPA
or in any way acts unlawfully or unethically”.
[24]
By its own admission, the applicant admits that the order it seeks is
interim pending finalisation
of disciplinary proceedings against the
respondent, which proceedings this court is of the view that can be
finalised within stipulated
time limits. The difficulty of the
submissions on behalf of the applicant is that the relief is sought
for purposes of conducting
further investigations. That can be done
by invoking other provisions of the governing Act. At the
finalisation thereof, and depending
on the findings thereof, the
respondent can then approach this court for an order prohibiting the
respondent to practice. The delay
on the part of the applicant to
institute proceedings against the respondent is not well explained.
[25]
In the
Law Society of the Northern Provinces v Morobadi
(1151/2017)
[2018] ZASCA 185
,
the Supreme Court of Appeal in para
25 held as follows:
“…
In
general it is correct that the Council may proceed with the
application for the striking off of the practitioner or for his or
her suspension from practice without pursuing a formal charge before
a disciplinary committee if in its opinion, having regard
to the
nature of the charges, a practitioner is no longer considered to be a
fit and proper person.”
[26]
This court finds no factual basis to conclude that the offending
conduct has been established
given that the disciplinary proceedings
of the applicant have not been finalised on the one complaint and not
been initiated on
the other two. The basis upon which the applicant
seeks a suspension order against the respondent has not been
established. Undoubtedly,
the applicant is agitated by the flippant
approach adopted by the respondent in their dealings with each other.
It raises eyebrows
and the respondent must be reined in to act in
accordance with the prescripts of this noble profession. These
matters must be brought
to finality.
[27]
In the result, the following
orders
are made:
1.
The matter is heard as urgent and the
applicant’s non-compliance with the rules of this Honourable
Court’s relating
to service time periods and forms is condoned.
2.
The application is dismissed.
3.
The applicant is ordered to finalise the
disciplinary proceedings against the respondent by 31 October 2022.
4.
The parties may supplement their papers,
if so advised, on the matters emanating from the enquiry.
5.
No order as to costs.
DP
MTHIMUNYE AJ
I
concur and it is so ordered,
MA
MATHEBULA J
On
behalf of applicant:
Adv
M S Mazibuko
Chambers,
Bloemfontein
Instructed
by:
Amade
& Company Inc
On
behalf of respondent: Adv
T Mpahlwa
Chambers,
Sandton
Instructed
by:
L M Mokhele
Inc.