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[2022] ZAECMKHC 37
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Legal Practice Council v Rubushe (181/2020) [2022] ZAECMKHC 37 (7 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION: MAKHANDA]
CASE
NO. 181/2020
In
the matter between:
LEGAL
PRACTICE
COUNCIL
Applicant
and
BULELANI
RUBUSHE
Respondent
JUDGMENT
JOLWANA
J:
“
This
is yet another case in which an attorney – an officer of the
court who is supposed to act with integrity and comply with
the
highest ethical standards – is guilty of an attempt to grossly
overreach his client, of rapacious and unconscionable
conduct.
Unfortunately, in this jurisdiction, this is a problem that is all
too common. That said, however, it seems to me that
the problems in
relation to contingency fee agreements that come to the attention of
the courts are, in all likelihood, but the
tip of the ice-berg.”
[1]
These are the words of Plasket J (as he then was) in
Mfengwana
[1]
describing the conduct of Mr Rubushe, the respondent herein. Having
described the respondent in the manner referred to above, he,
inter
alia,
made an order setting aside the contingency fees agreement in issue
and requested the registrar of this Court to deliver a copy
of his
judgment to the Cape Law Society.
[2]
The applicant is the successor in title to the then Cape Law Society
which was a statutory body established in terms of the
Attorneys Act
53 of 1979, which has since been repealed and which served as the
regulatory body governing the affairs of all attorneys
in the Western
Cape, Northern Cape and the Eastern Cape. One of the duties of the
applicant is to regulate all legal practitioners
and candidate legal
practitioners and to enhance and maintain the integrity and status of
the legal profession inclusive of all
members of what used to be
referred to as the bar and the side bar. It was established in terms
of the
Legal Practice Act 28 of 2014
, coming into effect in its
entirety on 1 November 2018.
[3]
While the applicant made reference to a number of complaints received
against the respondent it made it clear in its founding
affidavit
that this matter primarily concerns the judgment of Plasket J
referred to above. Incidentally on that date, 12
January 2017,
the respondent wrote a letter to the applicant. The gist of the
respondent’s letter has been summarised by
the applicant as
follows:
“
13.1
A contingency fee entered into with a client can agree that on
settlement the attorney is entitled to 25%, as between attorney
and
client;
13.2 The majority in the
profession are still using the 25% fee, especially in litigation
matters;
13.3 Judges are
interfering with attorney and client agreements and making defamatory
remarks “on” attorneys;
13.4 “The
honourable court is trying to guard against overreaching client,
which on the other hand is prejudicing the Attorneys
…”;
13.5 There was an
incorrect allegation that the respondent had overreached.”
[4]
Four days later on 16 January 2017 the respondent fusilladed with
another letter which the applicant has summarised as follows:
“
14.1
The respondent’s office was in the process of filing an
application for leave to appeal the judgment as Judge Plasket
had
“
acted ultra vires in posing
(sic) his nose of client contingency, as the matter was in Court for
settlement to be made, in fact
contract was signed by client.”;
14.2 The respondent
wondered why the Honourable Judge closed one eye when he read the
Thulo judgment,
14.3 The Honourable Mr
Justice Plasket did not follow the Contingency Fee Act by referring
the dispute to the applicant;
14.4 That the respondent
was of the view that the actions of the Honourable Mr Justice Plasket
were “
malicious, contradictory and acted contrary to the
Act.”
[5]
The last of these letters, all of which can only be described as
pre-emptive strikes against the applicant, is dated 18 January
2017.
The applicant has also summarised it as follows:
“
16.1
The Thulo vs Road Accident Fund case was attached, clearly
interpreting the 25% ceiling of contingency fees;
16.2 Mr Mfengwana was
contacted the previous day and he had asked “
who gave
instructions the Judge to challenge his agreement
(sic).”
[6]
All of these letters predate any of the applicant’s actions
about the referral of the judgment of the court in
Mfengwana
to it. It was only on 26 January 2017 that the applicant sent the
first correspondence to the respondent. In that correspondence
the
applicant acknowledged receipt of the respondent’s letters,
attached the judgment in the
Mfengwana
matter and requested
the respondent to furnish it with a copy of the contingency fee
agreement with Mr Mfengwana as well as copies
of the affidavits which
the court had directed the respondent to file. It appears from the
Mfengwana
judgment that the court had issued an order in the
following terms:
“
1.
Mr Bulelani Rubushe, the plaintiff’s attorney, is directed to
show cause on Tuesday 13 December 2016 why the contingency
fee
agreement between him and the plaintiff should not be set aside.
2. Mr
Rubushe is furthermore directed to furnish affidavits deposed to by
himself and the plaintiff, by 09h30 on Tuesday 13 December
2016, that
comply fully with
s 4
of the
Contingency Fees Act 66 of 1997
.”
[2]
[7]
It is apposite to point out in parenthesis that the respondent
ignored the order of Plasket J in this regard as he did not file
any
affidavits and in fact spurned the opportunity the court gave him to
make representations to the court about why his contingency
fees
agreement with Mr Mfengwana should not be set aside. It therefore
beggars belief and defies all sense of logic that he chose
to write
his letter dated 12 January 2017 to the applicant, effectively
insulting Plasket J. He did not file the application for
leave to
appeal the judgment which he indicated he would file in his letter
dated 16 January 2017. In fact, he continued in his
disrespectful and
insulting language against Plasket J up to the 18 January 2017 when
the last of these unprovoked letters were
written.
[8]
Having received the said judgment on 12 January 2017 the applicant
began investigating the conduct of the respondent as it related
to
his dealings with his client, Mr Mfengwana. A lot of correspondence
was exchanged between the applicant and the respondent as
part of the
applicant’s process of investigating the complaint emanating
from the
Mfengwana
judgment and giving the respondent a
hearing. No useful purpose will be served by analysing the said
correspondence. That correspondence
included different bills of costs
which had been submitted by the respondent to the applicant. The
applicant appointed a cost consultant
to advise it regarding the
respondent’s bill of costs.
[9]
After receiving a report from its cost consultant the applicant
requested the said cost consultant to provide it with a detailed
memorandum setting out what he considered to be overreaching of his
client by the respondent. It does not appear that the respondent
was
given an opportunity to comment on the said report and the
memorandum. However, in this application the applicant has annexed
to
its founding affidavit the various bills of costs that the respondent
had prepared including the said report and memorandum
of the
applicant’s cost consultant. The said memorandum chronicles in
quite some graphic detail how an attempt was made to
take advantage
of Mr Mfengwana.
[10]
The contents of all the documents attached to the founding affidavit,
including the said memorandum, are not disputed by the
respondent in
his answering affidavit. He gives some other explanation without
disputing or in any way challenging the findings
of the applicant’s
cost consultant. I therefore consider them to be admitted and
therefore common cause. That being the case,
and because of the
nature of the relief sought by the applicant, I deem it necessary to
set out the contents of the memorandum
as reflected in the founding
affidavit. The respondent’s complete disregard for ethical
probity and integrity is breath-taking
and the memorandum graphically
illustrates the “rapacious and unconscionable conduct” of
the respondent that the court
referred to in the
Mfengwana
judgment.
[11]
Some of the contents of the memorandum prepared by the applicant’s
costs consultant, which in essence the respondent
admits to the
extent that he does not dispute any of them or confront them, are
detailed as follows in the founding affidavit:
“
28.1
The Respondent had drafted and issued four separate bills in the
matter, the first with fees in the sum of R84 023.50
and
disbursements in the sum of R61 877.57 (the bill had 293 items).
The second bill had fees in the sum of R76 659.50
and
disbursements in the sum of R60 737.57 (the bill had 293 items).
The third bill had fees in the sum of R101 630.00
and
disbursements in the sum of R101 987.57 (363 items). The fourth
bill had fees in the sum of R268 054.50 and disbursements
in the
sum of R143 819.68 (687 items);
28.2 The Respondent had
charged a total of R121 668.00 for travelling time and expenses,
with the majority of the attendances
reflecting travelling to the
Road Accident Fund to deliver correspondence and travelling to the
Post Office. The cost of letters
to the Road Accident Fund or to the
Post Office, which is billed on the tariff of R105.50, was increased
to R1 122.00 when
added to the travelling;
28.3 The Respondent
charged R2 204.00 to deliver the summons to the sheriff and to
collect same, which is in itself overreaching
and which was dealt
with by this Honuorable Court in the case of
Dumse v Mpambaniso
;
28.4 There were various
fees that were charged where the work had not been done by the
Respondent, which included charging for consultations,
inspections in
loco
and telephone calls which did not take place;
28.5 The Respondent could
not produce any file notes or records for numerous items contained in
the bill, including travelling;
28.6 The Respondent
charged for arranging for a witness to sign the power of attorney,
consent to inspect police records and consent
to inspect medical
records, which witness was a member of the respondent’s staff;
28.7 The first three
bills reflected an initial consultation of one hour, while the fourth
bill reflected a consultation lasting
two hours;
28.8 The Respondent
charged for drafting the Summons and Particulars of Claim and, after
they had been issued, again charged for
the perusal thereof;
28.9 Despite the
Respondent practising as an attorney in East London, he charged for a
telephone call to phone the Sheriff to determine
whether the Road
Accident Fund was in their jurisdiction;
28.10 The Respondent
claimed that there were 168 pages in the index, however the main
index comprised 14 pages, and the miscellaneous
index 37 pages;
28.11 The respondent
charged for items after he withdrew as attorney of record for Mr
Mfengwana, and included an opinion from an
advocate (at a cost of
R5 985.00) regarding the validity of his contingency fee
agreement. The respondent further, despite
having withdrawn,
proceeded to settle the party and party costs on 23 January 2017 and
22 March 2017;
28.12 The only conclusion
to be drawn is that the respondent sought to take unfair advantage of
a lay litigant, where he sought
to recover fees to which he was not
entitled.”
[12]
Another aspect of the respondent’s shockingly unethical conduct
is reflected in an application issued by Mr Mfengwana
against his own
attorney, the respondent under case number 3469/2017. In that
application Mr Mfengwana sought and obtained relief
in terms of which
the respondent was ordered to pay to him the sum of R204 889.17.
The respondent was also ordered to make
available to Mr Mfengwana his
entire original file in respect of his claim against the Road
Accident Fund. That application was
not resisted by the respondent
and Mr Mfengwana obtained the relief he sought including an order for
costs of the said application
on an attorney and client scale.
[13]
There are many disturbing allegations made by Mr Mfengwana against
the respondent in case number 3469/2017. Interestingly,
the
respondent did not oppose the said application or dispute any of the
said allegations despite the seriousness thereof. In addition
to
everything else, but just focusing on Mr Mfengwana’s
application, I find it particularly disturbing that on 28 November
2016 the matter of Mfengwana v Road Accident Fund was before Plasket
J who was requested to make a settlement in that matter an
order of
court. On that date the respondent was ordered by the court to show
cause on 13 December 2016 why his contingency fees
agreement with Mr
Mfengwana should not be set aside. He was also ordered to file the
affidavits referred in
section 4
of the
Contingency Fees Act.
[14]
Not only did the respondent not do any of the above but he, on 12
December 2016, which was the date before the date set out
by the
court for him to comply as aforementioned, withdrew as Mr Mfengwana’s
attorney of record. Having withdrawn as Mr Mfengwana’s
attorney
of record on 12 December 2016, the respondent’s correspondent
attorneys issued a warrant of execution against the
Road Accident
Fund on 24 January 2017 for payment in the sum of R904 889.17.
That amount was paid into the respondent’s
trust account. Of
the said amount the respondent paid Mr Mfengwana a round figure of
R700 000.00 on 10 February 2017 thus
retaining a staggering
amount of R204 889.17.
[15]
Was this amount justifiable or reasonable regard being had to the
quantity and quality of the work that the respondent did?
Plasket J
did not think so. The learned Judge assessed the work that was done
after which he expressed himself as follows:
“
It
is clear from what I have said about the amount of work involved in
this matter that a ‘fee’ of 25% of R904 889.17
–
ie R226 222.30 – is grossly disproportionate and amounts
to overreaching on an outrageous scale. When to that
is added the
poor quality of the work done, Mr Rubushe’s conduct is cause
for very serious concern. It is, perhaps, apposite
to cite the
oft-quoted passage from the late judge RPB Davies’ foreword to
the first edition of Herbstein & Van Winsen’s
well-known
book on civil procedure:
‘
But
after all, industry is one of the attributes of an honourable
character: no honourable and honest legal practitioner will accept
a
client’s money for doing his work to the best of his ability,
and then not do it. And before he ever accepts it, he will
have
qualified himself to do the work properly, for, where skill is
required, lack of it is equivalent to negligence. Indeed, to
undertake to do something and the not do it with reasonable
efficiency, either because of unskillfulness or [because] of lack of
diligence, is something very closely akin to obtaining money by false
pretences.’”
[3]
[16]
How an attorney, having withdrawn as an attorney of record, still
considers himself or herself entitled to have a warrant of
execution
issued in that same matter, not for costs taxed and allowed but for
the capital amount of the damages claimed is beyond
comprehension. It
is in fact clear that in withdrawing as an attorney of record in the
matter the respondent merely sought, with
connivance, to avoid having
to comply with Plasket J’s order issued on 28 November 2016.
He, at the same time appropriated
for himself, unlawfully, the right
to still pursue the Road Accident Fund for the capital amount which
the Road Accident Fund was
ordered to pay with an obvious intention,
again, unlawfully, to retain R204 889.17. This conduct on its
own is of egregious
proportions to say the least. It is, in my view,
also a manifestation of dishonesty and deceitfulness on the part of
the respondent.
[17]
The overreaching and rapacious conduct of the respondent is also
glaringly demonstrated by him, inter alia, charging a fee
for
redrawing a contingency fees agreement after it had been set aside by
the court, charging 15 minutes for every phone call,
charging for
consultations which never took place; changing for work that was
never done and charging for travelling to Grahamstown
on occasions in
which he did not go to Grahamstown. The list of the respondent’s
similar behaviour is endless, at the centre
of which is him
descending like a vulture on his own client for his own personal,
unjustified financial benefit.
[18]
In his answering affidavit, deposed to some three and a half years or
so after the judgment of Plasket J in the
Mfengwana
matter,
there is a conditional acceptance by the respondent that the
contingency fees agreement that he drew and signed with Mr
Mfengwana
was defective. He then blames his professional assistant for drawing
what he calls an amended contingency fees agreement
incorrectly which
he falsely claims to have been drawn at the instance of the court.
There is nothing in the judgment to suggest
that Plasket J ever
ordered or suggested that an amended contingency fees agreement
should be drawn. I do not even think that the
court could have done
so for the simple reason that if a contingency fee agreement is
defective, no amended agreement should be
drawn. The defective one is
simply set aside and the fees are ordered to be paid on an attorney
and client scale which are then
subjected to taxation. As far as I
understand the legal position, no new agreement can be drawn to make
an otherwise defective
contingency fees agreement compliant. It is
simply set aside and that is the end of it. He also claims to have
misinterpreted
section 2
of the
Contingency Fees Act in
good faith.
However, the letters that he wrote to the applicant even before he
had received a complaint, which I have referred
to above as
pre-emptive strikes against Plasket J, suggest otherwise.
[19]
He claims to have asked one of his legal secretaries to draw the bill
of costs which he perused and came to the conclusion
that some
significant attendances and costs had been omitted and that this
required an amendment of the bill of costs. He says
this is what led
to another bill of costs having to be drawn. His desire to ensure
that the bill of costs would be “100%
correct” led him to
ask an expert bill of costs consultant to draw it. He also seems to
admit that some file notes were absent
as a result of which his own
cost consultant made it clear to the applicant’s costs
consultant that he could not confirm
the items reflected in the bill
or some of them. For this situation he blames his own cost consultant
for not being able “to
support” a document he, the court
consultant, drew. This, he says, led to the applicant’s cost
consultant recommending
that the matter be settled. He then says he
indicated his preparedness to settle the matter on the basis of a
party and party bill
of costs. He ends his explanation in this regard
with a bald averment that no overreaching or excessive charging took
place and
that Mr Mfengwana received everything he was entitled to.
What he fails to explain is his overt attempt to overreach his
client.
[20]
He admits the letters dated 12 January 2017, 16 January 2017 and 18
January 2017, all of which were written before he was even
required
to respond to the complaint by the applicant. For the content of
those letters, he, for the first time, does not blame
anybody. His
explanation for the content thereof is that at the time he wrote
those letters he was “wrestling with the true
manner in which
the
Contingency Fees Act should
be interpreted” and was hoping
for clarification or guidance from the applicant. He was upset as he
was genuine and bona
fide in drawing the agreement in the manner he
did and felt aggrieved about the matter, particularly the newspaper
articles that
were published at the time. He says the content of
those letters reflected his subjective views at a time when he was
upset that
his “bona fide efforts to assist a needy client had
given rise to such a disastrous outcome for [his] firm and for [his]
reputation”. He accepted without hesitation or qualification
that the “Judge had not erred in any way in his judgment
after
he had taken time to analyse the Act and the current legal position.”
[21]
With regard to the memorandum that the applicant’s costs
consultant drew he says that he “[h]as no reason to challenge
the figures referred to” therein. It was his cost consultant
who costed and finalized the fees for travelling time and expenses.
He denies not doing an inspection in
loco
and rejects as
unfounded “where the Applicant glibly avers that I have charged
for services that did not take place.”
He further avers that Mr
Mfengwana was not put at any “unfair advantage” (sic), on
the contrary Mr Mfengwana received
the advantage of his office’s
funding his claim to the point of settlement.
[22]
Very strangely, the respondent deals with Mr Mfengwana’s
founding affidavit in case number 3469/2017, the application
which Mr
Mfengwana instituted in order to recover R204 889.17 as well as
his original file from him. He attempts, in these
proceedings, to
deny the allegations contained therein without dealing with the fact
that he never opposed that application but
tries to do so in this
matter. He, however, admits that he paid the money “immediately
on receipt of the application papers”.
He, however, again says
that it was not necessary for Mr Mfengwana to launch the said
application which he resolved not to oppose
as doing so would be too
time consuming.
[23]
The respondent’s answering affidavit can best be summarised as
the respondent’s attempt at explaining the inexplicable.
This
he does by blaming everybody else from his staff to his bill of costs
consultant and the applicant from which he says he merely
asked for
clarification and guidance on the
Contingency Fees Act. He
does not
even acknowledge the despicable manner in which he attacked a sitting
Judge for making findings that he clearly disagreed
with. There is
not even a remote or even a half-hearted attempt at apologising to
the judiciary in general and to Judge Plasket
in particular. His was
an unwarranted attack which he never withdrew which he again tries to
explain by saying that he was upset
and did not understand how his
bona fide efforts to assist a needy client ended up with such a
disastrous outcome. This again is
yet another of the respondent’s
attempts to blame everything on something else or someone else other
than himself instead
of taking responsibility for his actions.
[24]
Nowhere does he take responsibility for anything he did. He, on the
contrary, boldly makes this assertion that Mr Mfengwana
ultimately
got what he deserved without even acknowledging how he almost got
away with a substantial portion of Mr Mfengwana’s
money which
was not due to him. The bill of costs itself, which was drawn after
the judgment of Plasket J which set aside the contingency
fees
agreement and referred to the rapaciousness of the respondent,
reflects yet another attempt by the respondent at overreaching
as if
the judgment meant nothing to him. The respondent clearly paid no
attention to what the court said in the
Mfengwana
judgment and
took no heed to how absolutely horrified at the overreaching that was
in motion in that matter the court was. Instead
of taking heed of the
court’s views on both the law and the facts the respondent
chose to attack the presiding judge, effectively
saying the judge did
not know the law and did not understand the Thulo judgment in order
to justify his claimed entitlement to
25% of Mr Mfengwana’s
money. It did not end there. He then drew the bill of costs which
reflected the items and figures which
the respondent himself says he
has no reason to challenge. The said bill is also another instance of
the rapaciousness of the respondent
in his dealings with his client,
Mr Mfengwana, and his dreadful handling of his matter.
[25]
The approach that a court should follow in an application of this
nature has been pronounced upon by our courts and is well
known. It
was restated in
Malan
[4]
in which Harms ADP said:
“
As
was said in
Jasat v Natal Law Society
2000 (3) SA 44
(SCA) ([2000]
2 All SA 310)
at para 10,
s 22
(1) (d)
contemplates a three – stage inquiry:
First, the court must
decide whether the alleged offending conduct has been established on
a preponderance of probabilities which
is a factual inquiry.
Second, it must consider
whether the person concerned ‘in the discretion of the court’
is not a fit and proper person
to continue to practise. This involves
a weighing up of the conduct complained of against the conduct
expected of an attorney and
to this extent, is a value judgment.
And thirdly, the court
must inquire whether in all the circumstances the person in question
is to be removed from the roll of attorneys
or whether an order of
suspension from practice would suffice.”
[26]
While reference to
section 22
(1) (d) was to the since repealed
Attorneys Act 53 of 1979, the approach is still the same even under
the new dispensation provided
for in the
Legal Practice Act. This
legal position was recently pointed out in
Bobotyana
[5]
where Kroon AJ said:
“
Borrowing
from the language of the Attorneys Act, the LPA similarly requires
that a person be fit and proper in order to practice
as either an
attorney or an advocate. The LPA expressly provides that this Court
retains its power to strike the name of an errant
attorney off the
roll of practising attorneys.
Thus, as was the position
in terms of the Attorneys Act, the central question before the Court
remains whether
Bobotyana
is a fit and proper person to
practice law and, if not, what order is to be issued. It follows that
the jurisprudence developed
under the Attorneys Act will remain
applicable to the adjudication of applications of this nature brought
in terms of the LPA.”
[27]
In this matter the facts speak for themselves and do so loudly for
all to hear. The judgment in
Mfengwana
, in which the court was
clearly horrified at the greed of the respondent that was evident in
that matter, has not been challenged
and the findings made therein
remain extant. I am also satisfied that there is an abundance of
evidence which shows very clearly
that the respondent’s conduct
leaves much to be desired. He not only drew a contingency fees
agreement in the manner described
by Plasket J in
Mfengwana
.
He also sought to justify his conduct by writing letters to the
applicant in which he sought to mislead the applicant but also
went
further and attacked the presiding Judge for making the findings that
he did. His attacks on Judge Plasket cannot, in my view,
be separated
from his attempt to overreach his own client, Mr Mfengwana. They are
an aggravating factor. The respondent tried to
escape having to
comply with the court order of 28 November 2016 by withdrawing from
the matter, only to cause a warrant of execution
to be issued against
the Road Accident Fund for the capital amount of damages awarded when
he had no right to do so as has he had
withdrawn from the matter.
When the money was paid into his bank account he appropriated to
himself a sum of R204 889.17 without
any bill of costs having
been taxed by the taxing master as the court had ordered. It took Mr
Mfengwana another court application
to get the money back from the
respondent.
[28]
All of the above uncontroverted facts establish, on a preponderance
of probabilities, that Mr Rubushe is indeed guilty of an
attempt to
overreach Mr Mfengwana. This is over and above his derogatory and
insulting language he chose to employ in communicating
how he felt
about the court and Judge Plasket in particular. All of this shows
the respondent’s ethical deviance of a fundamental
nature.
[29]
This conclusion brings me to the second stage of the enquiry which is
whether or not in all the circumstances the respondent
is fit and
proper to be allowed to continue to practice as an attorney. This
stage of the inquiry was explained more meaningfully
in
Malan
[6]
where the court elaborated on the process involved and the applicable
considerations as follows:
“
As
far as the second leg of the inquiry is concerned, it is well to
remember that the Act contemplates that where an attorney is
guilty
of unprofessional or dishonourable or unworthy conduct different
consequences may follow. The nature of the conduct may
be such that
it establishes that the person is not a fit and proper person to
continue to practice. In other instances, the conduct
may not be that
serious and a law society may exercise its disciplinary powers,
particularly by imposing a fine or reprimanding
the attorney (s 72
(2) (a)). This does not, however, mean that a court is powerless if
it finds the attorney guilty of unprofessional
conduct where such
conduct does not make him unfit to continue to practice as an
attorney. In such an event the court may discipline
the attorney by
suspending him from practice with or without conditions or by
reprimanding him:
Law Society of the
Cape of Good Hope v C
1986 (l) SA 616
(
A
) at 638
I-693 E;
Law Society of the Cape of Good
Hope v Berrange
2005 (5) SA 160
(
C
)
([2006] I All SA 290) at 173G – I (SA) and 302 (All SA).”
[30]
The facts of this matter make it clear that the respondent is not a
fit and proper person to continue to practice. While the
conduct of
the respondent is indisputably of a seriously egregious nature it is
somehow ameliorated by the fact that when all is
said and done the
respondent did not succeed in overreaching his client, Mr Mfengwana.
I must, however, point out that his lack
of success cannot be
accounted for by his lack of trying. It was foiled by Mr Mfengwana
and his new attorneys who acted swiftly
in recovering the amount of
R204 889.17 before it was decimated which would most likely have
happened had they tarried in
moving the application under case no.
3469/2017. There must be a clear distinction between an attempt to
commit an offence and
actually committing the offending conduct. That
distinction leads me to the conclusion that, while he is clearly not
a fit and
proper person to continue to practice, imposing what is
essentially the most extreme punishment a court can give to a legal
practitioner
would not be appropriate.
[31]
That said, a sanction serious enough and which gives him an
opportunity to re-educate himself and re-conscientise himself on
the
ethics of the attorneys’ profession and court etiquette
generally would be the most appropriate in the circumstances
of this
matter. I do think that the appropriate sanction would be one in
which the respondent is suspended from practising as an
attorney for
a period of two years. At the end of the two-year suspension period
his re-entry into the attorneys’ profession
will not be
automatic. He will have to satisfy the court, with proper supporting
evidence, that he is contrite about how he deliberately
and
shamelessly conducted himself towards his client, Mr Mfengwana.
Evidence of a proper understanding of his obligations as a
legal
professional and an officer of the court, regard being had to his
attitude to the courts in general and to Plasket J in particular,
will obviously be one of many considerations. There is no doubt that
the respondent brought the attorneys’ profession into
dispute
by his conduct.
[32]
His re-entry into the profession will not be a matter of an agreement
between him and the applicant nor should it be at the
whim of the
applicant. He will have to bring a substantive application to court,
which must determine if indeed he has demonstrated
that he is fit for
practice once more. It is the court that will hear the application
for his re-entry into the profession that
will consider whatever
evidence as shall be presented to it. It is that court that must
consider the application and satisfy itself
that the respondent has
so undergone a fundamentally positive paradigm shift of perspective
that he can be allowed to re-join the
legal profession. The
suspension of the respondent from practice for an effective period of
two years will protect the members
of the public from his clearly
deviant ethical predisposition while he undergoes proper
introspection, training and the like. This
is absolutely necessary as
he seems to be blissfully unaware of his serious responsibilities to
his clients and the court.
[33]
I am fortified in my views encapsulated hereinbefore by the
sentiments expressed by Harms ADP in
Malan
,
[7]
where the learned Acting Deputy President, writing for the full
court, stated the legal position as follows:
“
Obviously,
if a court finds dishonesty, the circumstances must be exceptional
before a court will order a suspension instead of
removal.
(Exceptional circumstances were found in
Summerley
and in
Law Society, Cape of Good Hope
Peter
[2006] ZASCA 37
and the court was
able in the formulation of its order in those cases to cater for the
problem by requiring that the particular
attorney had to satisfy the
court in a future application that he or she should be permitted to
practice unconditionally.) 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.
As mentioned in
Summerly
(at para 15), the fact that a court finds that an attorney is unable
to administer and conduct a trust account does not mean that
striking–off should follow as a matter of course. The converse
is, however, also correct: it does not follow that striking
off is
not an appropriate order (compare
Prokureurorder
van
Transvaal
v Landsaat
1993 (4) SA 807
(T);
Law Society
of the
Transvaal v Tloubatla
[1999] 4 All SA 59
(T). To the extent
that the judgment in
Law Society of the Cape of
Good Hope v
King
1995 (2) SA 887
(C) at 892 G 0 894C propagates an
‘enlightened approach’, requiring courts to deal with
misconduct which does
not involve dishonesty with (in my words) kid
gloves, I disagree. In order to stem an erosion of professional
ethical values a
‘conservative approach’ is more
appropriate (
Incorporated Law Society Transvaal v Goldberg
1964 (4) SA 301
(T) at 304 A-F).”
[34]
It would be inappropriate to attempt to prescribe to the applicant
and even the court that will assess the respondent’s
suitability to be permitted to practice again after the hiatus
following his suspension. The facts as shall be presented
by
the respondent at that stage will have to be considered by the court
together with the attitude of the applicant and the reasons
therefor
at that stage. As the court said in Malan there should be no
pre-ordained limitations to the court exercising its discretion
as it
considers the facts before it.
[35]
In the result the following order shall issue:
1. The respondent,
Bulelani Rubushe, is suspended from practising as an attorney for a
period of two years.
2. The respondent shall
surrender and deliver to the Registrar of this Court his certificate
of enrolment as an attorney within
two (2) weeks from date hereof.
3. Should the respondent
fail to comply with the provisions of paragraph 2 above within two
(2) weeks from date hereof, the sheriff
for the district in which
such certificate of enrolment is, is empowered and directed to take
possession of and deliver same to
the registrar of this Court.
4. After the expiry of
the suspension period, and in the event that the respondent is
desirous of practising as an attorney, he
shall make a substantive
application to the High Court having jurisdiction to be permitted to
practise as an attorney and shall
serve such application upon the
Legal Practice Council.
5. The respondent is
directed to pay the costs of and incidental to this application on a
scale as between attorney and client.
6. This order shall be
served on the respondent personally at any place in the Republic of
South Africa where he may be found.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
I
agree:
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Heard:
24 March 2022
Delivered:
07 June 2022
Appearances:
Applicant’s
Counsel:
Adv K. Watt
St George’s
Chambers in Makhanda
Respondent’s
Counsel: No
appearance
[1]
Mfengwana
v Road Accident Fund
2017
(5) SA 445
(ECG) at 454 para 27.
[2]
Section
4
of the
Contingency Fees Act 66 of 1997
provides:
(1)
Any offer of settlement made to any party
who has entered into a contingency fees agreement, may be accepted
after the legal practitioner
has filed an affidavit with the court,
if the matter is before court, or has filed an affidavit with the
professional controlling
body, if the matter is not before court,
stating-
(a)
the full terms of the settlement;
(b)
an estimate of the amount or other relief
that may be obtained by taking the matter to trial;
(c)
an estimate of the chances of success or
failure at trial;
(d)
an outline of the legal practitioner’s
fees if the matter is settled as compared to taking the matter to
trial;
(e)
the reasons why the settlement is
recommended;
(f)
that the matters contemplated in
paragraphs (a) to (e) were explained to the client, and the steps
taken to ensure that the client
understands the explanation; and
(g)
that the legal practitioner was informed
by the client that he or she understands and accepts the terms of
the settlement.
(2)
The affidavit referred to in subsection
(1) must be accompanied by an affidavit by the client, stating –
(a)
that he or she was notified in writing of
the terms of the settlement;
(b)
that he or she understands and agrees to
them; and
(c)
his or her attitude to the settlement.
(3)
Any settlement made where a contingency
fees agreement has been entered into, shall be made an older court,
if the matter was
before court.”
[3]
Note
1 supra at para 19.
[4]
Malan
and Another vs Law Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA)
at para 4
[5]
South
Africa Legal Practice Council v Bobotyana
[2020]
4 All SA 827
(ECG) para 10 and 11.
[6]
Note
7 supra para 5.
[7]
Malan
note 4 supra page 221 at D-H