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[2022] ZALMPPHC 61
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Law Society of the Northern Provinces v Mokone (6370/2018) [2022] ZALMPPHC 61 (25 November 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 6370/2018
REPORTABLE:
YES/ NO
OF
INTEREST TO OTHER JUDGES: YES/ NO
REVISED:
NO
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN PROVINCES APPLICANT
And
SIMON
NKUBA
MOKONE RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
On 23
rd
October 2018 the applicant issued an urgent
application against the respondent which was in Part A and Part B,
which application
was set down for 27
th
November 2018. On
receipt of the application by the respondent, by agreement the matter
was removed from the roll and re-instated
for the 4
th
December 2018. In part A, the applicant is seeking the striking off
of the respondent from the roll of attorneys, alternatively
that the
respondent be suspended from practice as an attorney pending the
finalisation of the application for the removal of his
name from the
roll of attorneys together with other ancillary relief. In Part B the
applicant is seeking that the respondent’s
name be struck off
the roll of attorneys, notaries and conveyancers, and confirmation of
other ancillary relief granted in Part
A.
[2]
The grounds of the applicant’s application was that the
respondent had failed/refused to cooperate
with the Law Society in a
proposed inspection of his accounting records; had made himself
guilty of unprofessional conduct in terms
of section 70(2) of the
Attorneys’ Act by failing to cooperate with the Law Society in
the proposed inspection of his accounting
records; in his dealings
with the Law Society the respondent was obstructive and employed
delaying tactics; the respondent had
failed to repay to the Road
Accident Fund monies which were paid to him in error; the respondent
appears to have misappropriated
the Road Accident Fund’s
monies; the respondent delayed the payment of trust funds; the
respondent collected excessive amounts
from judgment debtors in
respect of monies collected; the respondent collected excessive
amounts from judgment debtors and retained
the monies; the respondent
possibly misappropriated the judgment debtors’ monies; the
respondent contravened several provisions
of the Attorneys’ Act
and the Rules for the attorneys’ profession; the respondent
persistently failed to reply to correspondence
addressed to him by
the Law Society; the respondent failed to furnish the Law Society
with his comments on complaints submitted
to the Law Society, despite
having been notified to do so; the respondent failed to appear before
a disciplinary committee of the
Council despite having been notified
to do so; the respondent’s trust position is unknown; the Law
Society has received several
serious complaints against the
respondent; and that the respondent had placed his trust creditors
and Attorneys Fidelity Fund at
risk.
[3]
The applicant avers that as a result of non-cooperation by the
respondent, the Council of the Law Society
resolved to call the
respondent to appear before it on 17
th
September 2018 to
show cause why an application for the striking of his name from the
roll of attorneys should not be brought.
The respondent was duly
notified of the date of the Council meeting, but he failed to attend.
The Council considered the complaints
against the respondent
cumulatively, and found that he had made himself guilty of
unprofessional or dishonourable or unworthy conduct,
and that he is
no longer fit and proper person to continue to practise as an
attorney or officer of the court. The Council resolved
that the
respondent’s name should not be allowed to remain on the roll
of attorneys.
[4]
The respondent filed his answering affidavit in relation to Part A of
the application, even though to
some extent it covered Part B. The
respondent has stated in his answering affidavit that he will file a
comprehensive answering
affidavit of Part B of the applicant’s
founding affidavit on or before the 20
th
December 2018.
However, that was never filed. The respondent in his answering
affidavit on Part A has raised points
in limine
challenging
the legal authority of the applicant to institute the application
against him. The basis of the challenge was that
the resolution taken
by the Council on 17
th
September 2018 was defective.
[5]
On the merits, the respondent has conceded that he had refused to
cooperate with the legal official
who wanted to conduct an inspection
in terms of section 70 of the Attorneys Act since the legal official
had refused to furnish
him with the further particulars that he had
requested. With regard to the Road Accident Fund complainant the
respondent avers
that he was surprised when that complaint was
resurrected as he assumed that it was finalised during May 2016 when
the complainant
in that matter undertook to withdraw it. The
respondent stated that as at 30
th
November 2016 and
February 2017 he had surplus trust funds of R0-55 and R1-84
respectively. Regarding failing to attend disciplinary
hearing, the
respondent stated that the whole prospective disciplinary hearing was
null and void
and he therefore forfeited his appearance at the
hearing. Further that in terms of Rule 50, the committee of the
applicant was
entitled to proceed with the enquiry on the scheduled
date and deliver a verdict if they were of the opinion that there was
a prima
facie case.
[6]
The respondent conceded that on 3
rd
August 2018 he
received a notice calling him to appear before the Council meeting of
17
th
September 2017 in order to show cause why an
application should not be made for the removal of his name from the
roll of attorneys.
The respondent alleges that on receipt of that
notice, he requested further particulars, and the applicant never
responded to his
request. Since the applicant did not respond to his
request, the respondent did not attend the Council meeting of the
17
th
September 2018.
[7]
The respondent also filed a discovery notice requesting the applicant
to produce certain documents.
The applicant responded to the
respondent’s notice by letter dated 29
th
November
2018 stating that the respondent’s notice was a nullity and
that they will be proceeding with Part B of the notice
of motion on
4
th
December 2018. On 4
th
December 2018, the
respondent was suspended from practising as an attorney pending the
finalisation of the application for the
removal of his name from the
roll of attorneys. On 11
th
January 2019 the applicant
filed a Rule 30A notice stating that the respondent’s notice
dated 28
th
November 2018 constitute a nullity and does not
require either a reply or further steps to be taken, and further that
it did not
constitute notice in terms of Rule 35(12).
[8]
On 26
th
February 2019 the applicant filed its replying
affidavit to the respondent’s answering affidavit. On 27
th
February 2019 the respondent filed a Rule 30 notice stating that the
applicant’s replying affidavit was irregular in that
it dealt
with Part A of the respondent’s answering affidavit which the
court had already granted an order on 4
th
December 2018,
and that the respondent had not yet filed an answering affidavit in
respect of Part B of the notice of motion. The
applicant filed a
reply to the respondent’s Rule 30 notice on 14
th
March 2019 stating that the respondent’s notice did not comply
with Rule 30 and was therefore a nullity. Further that the
replying
affidavit was filed for the benefit of the court and to assist the
court.
[9]
On 22
nd
March 2019 the respondent brought a review
application under the same case number as that of the applicant,
seeking orders that
the following decisions and/or resolutions of the
of respondent (applicant in main application whom I will refer as
applicant)
are reviewed and set aside, and declared invalid: (i) the
decision and/or resolution of the applicant dated 19
th
September 2018 and adopted on 17
th
September 2018,
resolving to apply to court for the urgent removal of the applicant’s
name from the roll of attorneys, alternatively
for the urgent
suspension of the applicant from practice pending the finalisation of
the application for the removal of the applicant’s
name from
the roll of attorneys; (ii) the decision and/or resolution of the
applicant dated and adopted on 27
th
July 2018, resolving
that respondent be requested to appear before the Council of the
applicant to show cause why application should
not be made for the
removal of applicant’s name from the roll of attorneys; and
(iii) the decision and/or resolution dated
15 November 2017 and
adopted on 29
th
September 2017, resolving that an
investigation of the financial records of the respondent be conducted
in terms of section 70
of the Attorneys Act 53 of 1979 and that all
records, documents and files be made available by the respondent for
purposes of such
investigation.
[10]
The respondent is further seeking declaratory orders that (i) the
respondent’s conduct, as alleged by the
applicant in respect of
the complaints received and referred to the complaints, does not
constitute unprofessional or dishonourable
or unworthy conduct within
the contemplation of the law; (ii) that the applicant’s
application under this case number for
the removal from the roll of
attorneys alternatively suspension from practice of the respondent be
declared
null and
void ab origine
and be reviewed and
set aside including all attendant processes or orders subsequent
thereto and consequent thereupon; and further
that the respondent be
ordered to submit for taxation in terms of Rule 49.7 of the Rules for
Attorneys’ profession, debt-collection
accounts to the relevant
clerk(s) and/or register(s) of court in respects of the complainants
who have lodged their complaints
against the respondent with the
applicant. The applicant had filed its answering affidavit, whilst
the respondent failed to file
his replying affidavit.
[11]
On 24
th
April 2019 the respondent filed a Rule 30A notice
in respect of the review application notifying the applicant that
records which
the applicant has dispatched did not constitute
compliance with the Uniform Rule 53(1)(b) of the Uniform Rule, PAJA,
PAIA, Constitution
and respondent’s notice of motion in that it
was unaccompanied by the undermentioned elucidation and bifurcation,
which arose
out of the delivered record as well. The respondent
listed the documents which according to him were still outstanding.
On the
same date the respondent also filed a Rule 7 notice requesting
the applicant to furnish him with a copy of the minutes and
resolution
adopted on 17
th
September 2018 by the Council
of the applicant in terms whereof Rooth and Wessels Inc has been
appointed as attorneys for the applicant
to institute the application
for removal of the respondent’s name from the roll of
attorneys.
[12]
On 3
rd
April 2019, the respondent brought an application
in terms of Rule 30A(2) and Rule 30(2)(c) seeking an order that in
terms of Rule
30A the applicant be ordered to comply with the
respondent’s notice dated 28
th
November 2018. The
applicant in its answering affidavit has stated that the respondent
has failed to make out a case for any relief
set out in the notice of
motion. The applicant has further stated that the respondent’s
founding affidavit contains no evidence
to sustain the relief sought
in the notice of motion.
[13]
On 29
th
April 2019 the applicant responded to both the
respondent’s Rule 7 and Rule 30A(1) notices. Regarding the Rule
7 notice,
the applicant notified the respondent that the resolution
of the Council dated 19
th
September 2019 has been attached
to the founding affidavit in the main application. Regarding the Rule
30A(1) the applicant has
stated that the record was complete and
represented the entire record as served and filed, and therefore Rule
53 has been complied
with.
[14]
On 13
th
May 2019, the respondent filed a notice in terms
of Rule 35(12) read with Rule 35(13), Rule 35(14), Rule 30A(2) and
Rule 30(2)(C)
in relation to the review application. The respondent
was requesting the applicant to produce for inspection the originals
of (i)
copies of the Council’s resolution authorising the
deponent to oppose the application and to depose to the affidavit on
behalf
of the Council, such resolution to include and/or be
accompanied by a duly signed and authorised minutes of the meeting
and not
extract, list of members of the Council who participated in
the decision-making, and full minutes and resolution thereof; (ii)
copy(ies) of the court order or judgment granted by court on 4
th
December 2018 in respect of the applicant’s discovery notice;
and (iii) copy(ies) of duly served and filed of the applicant’s
notice of intention to oppose review application or motion by the
respondent.
[15]
In reply to the respondent’s notice the applicant has stated
that the respondent’s notice in terms
of Rule 35(13) and (14)
constitute a nullity, was invalid and legally void as the respondent
had failed to first sought directions
from the court. In relation to
Rule 35(12) the applicant has stated that the respondent was seeking
non-existent documents, and
further that the respondent’s
request did not fell within the ambit of Rule 35(12), and also that
the respondent did not
require those documents referred to for
purposes of preparing his replying affidavit, and further that the
applicant had already
provided the respondent with the relevant
resolution.
[16]
On 16
th
May 2019 the respondent filed a notice in terms of
Rule 35(12) read with Rule 35(13) and (14) in respect of the
applicant’s
notice in terms of Rule 7. In that notice the
respondent requested the applicant to produce for his inspection and
to make copies
of the following documents: (i) the date of the
meeting of Council in respect of the resolution dated 29
th
April 2019; (ii) list of all Council members present at the meeting
of the Council in respect of resolution dated 29
th
April
2019; (iii) copy(ies) of the duly signed full minutes of the meeting
of the Council in respect of resolution dated 29
th
April
2019; and (iv) copy of the record of the meeting of Council in
respect of the resolution dated 29
th
April 2019 within the
contemplation of
section 16(3)
of the
Legal Practice Act 28 of 2014
.
[17]
The applicant in reply to the respondent’s notice has stated
that the respondent’s notice in terms
of
Rule 35(13)
and (14)
constitute a nullity in that the respondent has failed to first
sought the directions of the court. In respect of the
respondent’s
Rule 35(12), the applicant has stated that the said Rule applies to
pleadings and affidavits only and not to
notices, and therefore the
respondent’s notice constitutes a nullity, was invalid and
legally void.
[18]
On the 16
th
May 2019 the respondent also filed a notice of
bar in respect of the review application. In the notice the
respondent is requesting
the applicant to deliver within 5 days
annexures and documentation accompanying Mr van Staden’s
memorandum dated 6
th
September 2017 to the Council of the
applicant as delivered in volume 7 of the record of the proceedings
served on 29
th
April 2019. The applicant in reply to the
respondent’s notice has stated that
Rule 26
applies to actions
only, and not to motion proceedings, and therefore constitute a
nullity, was invalid and void.
[19]
On 20
th
May 2019 the respondent filed a
Rule 30(2)(b)
against the applicant in respect of the review application stating
that the applicant’s answering affidavit and notice of
intention to oppose constitute irregular step(s) and/or processes.
The applicant was given 10 days within which to remove the cause
of
complaint. In reply to the notice the applicant has stated that
Rule
30(2)
is not available to the respondent since he had already taken a
step by filing a notice of bar, and further that the answering
affidavit was filed within the stipulated 10 days period, and
therefore the applicant’s notice constitutes a nullity, was
invalid and legally void.
[20]
On 20
th
August 2020 the applicant filed a supplementary
affidavit to its main striking off application. On 8
th
December 2020 the applicant filed a further supplementary affidavit
to its main striking off application. The main application,
review
application and application to compel were all set down to be heard
on 23
rd
July 2021. On 13
th
July 2021 the
respondent filed a
Rule 30(2)(b)
stating that the set down for the
23
rd
July 2021 constitute an irregular step as it was
premature since the review application has not yet been adjudicated
upon, and
further that the respondent has not yet launched its
Rule
30A(2)
application since the applicant has failed to comply with the
respondent’s Rule 30A(1) notice. The applicant removed the
matter from the roll and reinstated it for 6
th
August
2021.
[21]
On 6
th
August 2021 all the applications were postponed
sine die. The applications were set down for the 17
th
September 2021. In morning of the 17
th
September 2021 the
respondent brought a substantive application for postponement stating
that the matters were set down on a date
which he had informed the
applicant’s attorneys that he was not available ignoring a date
which he had stated that he was
available. On 17
th
September 2021 all the applications were postponed sine to enable the
parties to agree on a common date on which the matters will
be able
to proceed.
[22]
On 16
th
September 2021 the respondent brought an
application in terms of
Rule 30A(2)
seeking an order that the
applicant comply with the respondent’s notice in terms of
Rule
30A(1)
dated 24
th
April 2019. On 11
th
April
2022 the applicant filed its answering affidavit dated 7
th
April 2022 to the respondent’s application. The applicant in
its answering affidavit has stated that the respondent has failed
to
make out a case for the relief set out in his notice of motion, in
that the complete record of the proceedings of the decisions
under
review has been filed, and that there were no further documents to
file.
[23]
The parties could not agree on a common date, and on 5
th
May 2022 the court decided to put this matter under case flow
management. A case flow management meeting was set down for the 19
th
May 2022 at 14h00 in the Judge’s chamber. All the parties were
duly notified of the date and time. The respondent despite
been aware
of the date and time, failed to attend the meeting. After the meeting
the Judge issued the directives of what each party
should do, and
also the time frames. The applicant complied with the time frames
whilst the respondent failed to comply with the
directives. The
parties were notified to set down all the applications to be heard
simultaneously on 28
th
October 2022.
[24]
On 1
st
June 2022 the respondent filed a
Rule 30(2)(c)
application seeking that the applicant’s answering affidavit in
terms of
Rule 30A(2)
served on the respondent electronically on 8
th
April 2022 be declared irregular step and set aside, in that the
attestation of the affidavit by the commissioner of oaths was
defective, the deponent lacked authority and also lack of
representation of the LPC by Mr Bloem, Mr Groome and Mr van der Walt.
[25]
In relation to the alleged defective attestation of the answering
affidavit, the applicant has stated that there
was substantial
compliance with the Regulations, and that the issues raised by the
respondent placed form over substance. In relation
to the issue of
lack of authority, the applicant has stated that the respondent is
raising a special plea of
non-locus standi in judicio
, and
that
Rule 30
procedure was inappropriate for raising such an issue.
Regarding lack of legal representation of Council, the applicant has
stated
that the legal representatives of the Council have been issued
with fidelity fund certificates for the period 1
st
January
2022 to 31
st
December 2022. Further that Andre Bloem had
resigned as a director of Rooth & Wessels Attorneys, and has
since been employed
as a consultant, and did not require to be in
possession of a fidelity fund certificate.
[26]
The respondent failed to attend court on 28
th
October 2022
despite been duly notified of the date, and the matter proceeded in
the absentia of the respondent. The applicant
is seeking an order
that the applicant be struck off the roll of legal practitioners. It
is trite that the court exercises its
discretion when it determines
whether a legal practitioner is a fit and proper person to remain on
the roll of legal practitioners.
If it is established that indeed,
the legal practitioner is not a fit and proper person to practice as
such, what the court must
decide is whether the legal practitioner be
struck off the roll or suspended from practice. The applicant was a
regulatory body
of the attorneys’ profession and had a duty to
protect the public and the intergrity of the profession.
[27]
This matter emanates before the coming into operation of the
Legal
Practice Act. The
applicant’s application has been brought in
terms of section 22 of the
Attorneys’
Act
[1]
.
In terms of
section 116(2)
of the
Legal Practice Act, these
proceedings are to be continued and concluded as if the Attorneys’
Act had not been repealed, and any reference to the Law
Society must
be construed to refer to the Legal Practice Council.
[28]
It is settled law that applications of this nature involves a three
stage enquiry. The first enquiry is aimed at
determining whether the
law society has established the offending conduct upon which it
relies on a balance of probabilities. The
second enquiry is whether
in the light of the misconduct established, the attorney concerned is
not a fit and proper person to
continue to practice as an attorney,
and this requires a value judgment. The third enquiry requires the
court to exercise a discretion,
and determine whether the person who
has been found not to be a fit proper person to practice as an
attorney deserves the ultimate
penalty of being struck from the roll
or whether an order of suspension from practice will suffice. (See
Jasat
v Natal Law Society
[2]
and
Summerley
v Law Society of Northern Provinces
[3]
).
[29]
The applicant’s application led to the respondent instituting
four counter applications which are interlocutory
in nature since
they are all using the same case number of the applicant’s main
application. I will start with the respondent’s
review
application. The respondent’s review application has been
brought in terms of
Promotion
of Administrative Justice Act
[4]
(PAJA). It is trite that PAJA is used to review administrative
actions.
[30]
In
Tshwane
v Nambiti Technologies
[5]
Wallis JA said:
“
[22]
PAJA gives effect to the right to just administrative action in s 33
of the Constitution. It provides for judicial review of
administrative action. What constitute administrative action is the
subject of a lengthy and somewhat convoluted definition, which
was
consolidated and abbreviated by Nugent JA in Grey’s Marine, in
the following terms:
‘
Administrative
actions means any decision of an administrative nature made…under
an empowering provision [and] taken…by
an organ of State, when
exercising a power in terms of the Constitution or a provincial
constitution, or exercising a public power
or performing a public
function in terms of any legislation, or [taken by] a natural or
juristic person, other than an organ of
State, when exercising a
public power or performing a public function in terms of an
empowering provision, which adversely affects
the rights of any
person and which has a direct external legal effect…’
[23]
The Constitutional Court, citing Grey’s Marine with approval
has broken the definition into seven components,
namely that –
‘
there
must be (a) a decision of an administrative nature; (b) by an organ
of state or a natural or juristic person; (c) exercising
a public
power or performing public function; (d) in terms of any legislation
or an empowering provision; (e) that adversely affects
rights; (f)
that has a direct, external legal effect; and (g) that does not fall
under the any of the listed exclusions’.”
[31]
It is trite that the applicant’s main application constitutes a
disciplinary enquiry by the court into the
conduct of the
practitioner concerned, and the Council fulfils the role of an
amicus
curiae
.
As the regulatory body, the Council brings the offending behaviour to
the court’s notice, but the resultant hearing is an
inquiry
conducted by the court into the behaviour of its officer’s
fitness to remain on the roll of practitioners. (See
Law
Society of the Northern Provinces v Le
Roux
[6]
).
The court in determining the fitness of a practitioner to remain on
the roll practitioners does not depend on the cooperation
of the
Council. Once the offending behaviour has been brought to the
attention of the court, the question whether a practitioner
is still
fit and proper to practise lies within the discretion of the court.
It is for the practitioner to appear before court
and present facts
which will enable the court to exercise its discretion accordingly.
[32]
In Du
Plessis
v Prokureursorde, Transvaal
[7]
the applicant who was a practising attorney brought a review
application seeking to review and set aside the decision of the Law
Society arguing that if his application was successful, the
application for his removal will be declared
null
and void
.
The court in dismissing his application held that an application to
strike the name of an attorney from the roll could be brought
by the
Law Society even if the Law Society’s own disciplinary hearing
had not yet been completed. That the Law Society could
even bring an
application for removal without any preceding investigation having
been conducted. The court further held that practitioner’s
review application was irrelevant as it could not affect the
application for removal.
[33]
The respondent’s review application is not distinguishable from
the Du Plessis matter. The respondent is
an officer of this court and
it is for this court to determine whether he is still fit and proper
to practise. What the applicant
did was to bring the alleged
offending behaviour of the respondent before court, and their role
end up there. Whether the respondent
had issues with the resolution
taken by the applicant in bringing this application before court is
irrelevant for this court in
determining whether he is still fit and
proper to practise. Under those circumstances the respondent’s
review application
stands to be dismissed.
[34]
On 28
th
July 2018, the respondent had served the applicant
with a notice titled “
Discovery – Notice to produce
documents in pleadings
”. It does not appear from the notice
in terms of which specific rule are the documents been requested.
When the applicant
failed to comply with that notice, that led to the
respondent instituting an application in terms of Rule 30A(2) and
Rule 30(2)(c)
on 3
rd
April 2019. The respondent was
notified by the applicant on 29
th
November 2018 that his
notice was a nullity but he did nothing to rectify that. On 4
th
December 2018 the respondent participated in the proceedings wherein
he was suspended without been furnished with the documents
that he
initially requested. His notice was defective, the particulars that
he is seeking in that notice like the resolutions of
the council, the
agenda of the council, list of all council members who attended the
meeting, full minutes of the council meeting
and discussions at those
meetings are all irrelevant to the main application which is to
determine his fitness to continue practising.
That application has no
bearing in determining the respondent’s fitness to continue
practising and stand to be dismissed.
[35]
The respondent’s application issued on 16
th
September 2021 which is a Rule 30A application, is an interlocutory
application of the review application which I have already
found that
it has no merit and stands to be dismissed. Since the review
application has been found to have no merit, this application
will
suffer the same fate. The respondent’s application dated 1
st
June 2022 is an interlocutory application of the review application,
and will also suffer the same fate as the review application.
[36]
Turning to the striking off application it must first be determined
whether the applicant has established the offending
conduct against
the respondent. The applicant has raised serious allegations against
the respondent. Despite those serious allegations
been raised against
the respondent by the applicant, the respondent has failed to file an
answering affidavit refuting those allegations
or giving any form of
explanation. What the applicant did was to raise technical objections
which did not in any way advance his
case. The applicant’s
version remains unchallenged, and this court is satisfied that the
applicant had established the offending
conduct against the
respondent on a balance of probabilities.
[37]
The second question to be determined is whether in the light of the
misconduct established, the respondent is not
fit and proper to
continue to practice as an attorney. After the misconduct were
reported to the applicant by various complainants,
the applicant
tried to engage the respondent, but the respondent was not
co-operative. Even when this court put this matter under
case flow
management and called the respondent to attend the meetings, the
respondent without any excuse despite been aware of
the date failed
to attend. The respondent also failed to comply with the directives
issued by this court in trying to manage the
matters.
[38]
The complaints against the respondent are serious and some of them
have elements of dishonesty. The respondent
instead of co-operating
with the applicant or dealing with the complaints, resorted to
attacking the applicant and even challenging
the applicant’s
standing without any basis. In
Law
Society, Northern Provinces
v
Mogami
[8]
Harms DP said:
“
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 common occurrence
for persons accused of wrongdoing, instead of confronting
the
allegation, to accuse the accuser and seek to break down the
institution involved. This judgment must serve as a warning to
legal
practitioners that courts cannot countenance this strategy. In itself
it is unprofessional.”
[39]
The deliberate defiance which the respondent had shown to the
applicant, and even when called to appear before
this court, and also
his failure to comply with the directives issued by this court, shows
that he is a person who does not want
to be regulated. This is the
type of the conduct which is not expected from an officer of the
court. I therefore find that he is
not fit to continue to practising.
[40]
The last enquiry is what will be the appropriate sanction. The
respondent has been on suspension since the 4
th
December
2018, which is now almost four years. Despite that lapse of time, the
respondent remained defiant, and that shows that
he is not
remorseful. The period which he had spent did not teach him anything.
He had no respect for the authority and does not
want to be
regulated. The only suitable sanction is that of the removal of his
name from the roll of attorneys.
[41]
In the result the following order is made:
41.1
That the respondent’s interlocutory applications are dismissed.
41.2
That Simon Nkuba Mokone (respondent) be struck from the roll of
attorneys.
41.3
That the relief set out in paragraphs 1.3 up to and including 1.16 of
the order of 4
th
December 2018 remain in force.
41.4
That the respondent be and is hereby directed:
41.4.1
to pay, in terms of section 78(5) of Act No 53 of 1979, the
reasonable costs of the inspection of the accounting
records of the
respondent;
41.4.2
to pay the reasonable fees and expenses of the curator;
41.4.3
to pay the reasonable fees and expenses of any person(s) consulted
and/or engaged by the curator as aforesaid;
41.4.4
to pay the expenses relating to the publication of this order or
abbreviated version thereof; and
41.4.5
to pay the costs of this application and the costs of the
interlocutory applications on attorney and client scale.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
I
CONCUR
LEDWABA
AJ
ACTING
JUDGE OF THE HIGH COURT OF
SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the applicant : LG
Groome
Instructed
by : Rooth
& Wessels Attorneys
Respondent
: In
default
Date
heard : 28
th
October 2022
Electronically
circulated on : 25
th
November 2022
[1]
53
of 1979
[2]
2000
(3) SA 44
(SCA) at para 10
[3]
2006
(5) SA 613
(SCA) at para 2
[4]
3
of 2000
[5]
2016
(3) SA 494
(SCA) at paras 22 and 23
[6]
2012
(4) SA 500
(GNP) at 502D-F
[7]
2002
(4) SA 344 (T)
[8]
2010
(1) SA 186
(SCA) at 195I-J