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[2022] ZAECMKHC 87
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Eastern Cape Provincial Council of the South African Legal Practice Council v Mfundisi (3630/2021) [2022] ZAECMKHC 87; [2023] 1 All SA 90 (ECG) (20 October 2022)
FLYNOTES:
LPC AND ATTORNEY’S FRAUD CONVICTION
Profession
– Attorney – Striking from roll – Conviction of
fraud – Disciplinary committee recommending
sanction of
suspension (suspended) – Council can seek relief outside
this sanction – Court ultimately decides
– Struck from
roll –
Legal Practice Act 28 of 2014
,
s 40(8).
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
REPORTABLE
Case
No: 3630/2021
In
the matter between:
THE
EASTERN CAPE PROVINICAL COUNCIL OF
Applicant
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
and
JULIA
MFUNDISI
Respondent
Coram:
Lowe
J
et
Bands AJ
Date
heard: 21
July 2022
Delivered: 20
October 2022
JUDGMENT
BANDS
AJ:
[1]
At the cornerstone of the legal profession, is the ethical code of
conduct
which governs its members’ moral and professional
duties, not only towards each other and towards the members’
clients,
but also towards the court. It is a respected and honourable
profession, which demands impeccable standards of honesty, integrity,
and reliability from its members. It is against this backdrop that
the applicant has brought the respondent before court.
[2]
The South
African Legal Practice Council (“
the
Council
”)
was established in terms of section 4 of the Legal Practice Act, 28
of 2014 (“
the
LPA
”).
Amongst its objects is (i) the promotion and protection of the public
interest; (ii) the regulation of all legal practitioners
and
candidate legal practitioners; (iii) the enhancement and maintenance
of the integrity and status of the legal profession; and
(iv) the
determination, enhancement, and maintenance of the appropriate
standards of professional practice and ethical conduct
of all legal
practitioners and all candidate legal practitioners.
[1]
[3]
In order to
achieve these objects, the Council is empowered to do all things
necessary for the proper and effective performance
of its functions
or the exercise of its powers.
[2]
Such powers include the power to institute or defend legal
proceedings on behalf of the Council,
[3]
and to delegate any of its powers and its functions to its committees
or Provincial Councils
[4]
established in terms of section 23 of the Act, such as the applicant
herein.
[4]
By reason
of the respondent’s conduct, which culminated in criminal
proceedings against her in the Commercial Crimes Court,
and which
ultimately led to her conviction of fraud, the applicant seeks an
order in accordance with section 31(1)(a) of the Act;
read together
with section 44(1) thereof, striking the respondent’s name from
the roll of attorneys; alternatively, an order
interdicting the
respondent from practising as an attorney.
[5]
[5]
On 10 August 2021, the respondent was interdicted from practicing as
an
attorney of this court, pending the outcome of disciplinary
proceedings against the respondent, as well as the outcome of these
proceedings (if any).
[6]
It is
apposite to mention, that the interdict proceedings served before my
colleague Lowe J; sitting together with Kruger AJ, on
an uncontested
opposed basis. Whilst the respondent had filed a notice of intention
to oppose the said proceedings, she failed
to file papers in
opposition to the application. On the date of hearing, neither her
nor her attorney of record were present in
court. Accordingly, the
matter was determined on the applicant’s version only. Given my
colleague’s former involvement
in the interdict proceedings and
being mindful of note 13(iv) of the Code of Judicial Conduct, the
court, whilst of the view that
there existed no grounds for Lowe J’s
recusal,
[6]
enquired from the
respondent’s legal representative in open court, prior to the
hearing of the matter, as to whether the
respondent contended there
to be a conflict of interest and whether the respondent intended
seeking the recusal of Lowe J. No such
conflict was contended for.
Moreover, the respondent’s attorney of record advised that the
respondent had no intention of
seeking the recusal of Lowe J. The
matter accordingly proceeded with the court as constituted. I now
turn to the facts of the present
dispute.
[7]
It is
common cause that whilst the respondent, prior to the granting of the
aforesaid interdict, practiced as an attorney of this
court under the
name and style of J Mfundisi Attorneys in Makhanda, she, at the time
of the commission of the offence convicted
of; was a non-practicing
attorney. Nothing turns on this.
[7]
[8]
The chronology of the events leading to the respondent’s
conviction
and the institution of these proceedings, are as follows.
[9]
The respondent was previously employed as a litigation officer by the
Road Accident Fund (“
the RAF
”), at its East London
offices. In order to facilitate direct claims from members of the
public who had been involved in motor
vehicle accidents, the RAF
created a roadshow, termed Project Siyenza, to create awareness
amongst the public regarding the RAF
and to provide assistance to
members of the public, without the need for such persons to engage
the services of an attorney. The
respondent was the co-ordinator of
Project Siyenza.
[10]
As a consequence of the incident arising in 2014, which I deal with
in greater detail hereunder,
the respondent was arraigned before the
Regional Court of the Eastern Cape in the Specialised Commercial
Crimes Court, Port Elizabeth
(as it then was), under case number
CCC1/47/2015, on a charge of fraud.
[11]
The State’s case against the respondent was that on 26 July
2014, the complainant,
Mr Mncedi Dyosi (“
Dyosi
”),
met the respondent in Zwelitsha, when he approached the RAF directly.
It was further contended that the respondent, unlawfully
and falsely,
with the intention to defraud Dyosi advised him that as a
self-claimant, the RAF would not entertain a claim based
on future
loss of income (in circumstances where she knew this not to be true);
and that by signing certain documentation, which
the respondent
provided to him, she would assist Dyosi in instituting a claim
against the RAF. Unbeknown to Dyosi at the time of
signature thereof,
the said documentation served to terminate the RAFs mandate and in
its stead, appointed B. Bangani Attorneys
as his legal
representative, subject to a contingency fee agreement in terms of
which the attorneys would be entitled to procure
25% of any award
obtained from the RAF, as fees. The respondent thereafter notified
the RAF on 18 August 2014 that direct communication
with Dyosi must
cease, given that he was now legally represented, and B Bangani
Attorneys, in turn, lodged a claim against the
RAF. Dyosi, upon
becoming aware of the true state of affairs, immediately terminated
the services of B Bangani Attorneys. Evidence
was further led on
behalf of the State that on 2 September 2014, an official of the RAF
requested a meeting with the respondent,
following an investigation
into Dyosi’s claim. The respondent advised that she had left
the building, without permission,
and that she was not available for
the meeting as she had a family crisis. The respondent resigned on
the afternoon of the same
day, and never returned to her office. She
subsequently began operating her firm on 14 September 2014.
[12]
The respondent pleaded not guilty to the charge against her. At the
end of the trial, the
Commercial Crimes Court accepted the evidence
on behalf of Dyosi and rejected the evidence adduced by the
respondent. The respondent
was found guilty, beyond reasonable doubt.
The respondent did not impress the court as a witness, which found
that (i) her version
of events was improbable; (ii) she contradicted
herself and her instructions with her advocate; (iii) she was evasive
in answering
pertinent questions; (iv) she did not hesitate to
fabricate her evidence when “
painted into a corner
”;
and (v) she contradicted herself on several aspects.
[13]
The respondent was accordingly convicted as charged on 3 October
2016, whereafter she was
sentenced, on 4 January 2017, to a fine of
R100,000.00; alternatively, direct imprisonment for a period of three
years. Provision
was made for the fine to be paid in monthly
instalments in the amount of R10,000.00 per month.
[14]
The respondent applied to this Honourable Court for leave to appeal,
which application
was dismissed on 13 October 2017. She subsequently
made application for leave to appeal to the Supreme Court of Appeal,
which application
was also dismissed. Aggrieved by the aforesaid
findings, the respondent applied for leave to appeal to the
Constitutional Court,
which dismissed the said application on 6 June
2019.
[15]
A complaint regarding the respondent’s conduct, having
previously been lodged with
the Cape Law Society, was thereafter
correctly transferred to the applicant to attend to.
[16]
Following the constitution of an investigation committee in terms of
section 37(1) of the
Act; read together with Rule 40 thereof, the
committee investigated the circumstances surrounding the respondent’s
conviction
and prepared a written report and recommendation. The
extracts from part B of the report bear repetition herein:
“
6.
Respondent has exploited all avenues to challenge the guilty verdict
of Fraud. She has failed each challenge.
7.
Council has no alternative but to accept guilty verdict of fraud
passed on 3 October 2016.
8.
…
9.
The Committee directs that Ms Mfundisi be required to respond to the
charge that she was
guilty of Unprofessional Conduct for
contravening:
(1) Rule 40:1 –
Fail to maintain the highest standard of honesty and integrity;
(2) Read with Rule
40:14 – Bringing the profession into disrepute in that:
9.1
…
9.2
…
9.3
…
9.4
…
9.5
…
9.6
She delayed finalisation of proceedings against her by exploiting
every possible avenue through our
Courts to continue to deny
liability and guilt.
9.7
…
9.8
She showed no remorse to her action and the finding of guilty in
respect of the fraud charges and in
her letter to the Legal Practice
Council dated 15
th
December 2022, she submitted that
because she paid the aforementioned fine in full, that no sanction
should be imposed. This demonstrates
her lack of remorse and lack of
accountability and responsibility towards the community at large.”
[17]
Part C of the report, which contains the proposed appropriate
sanction of the investigation
committee, records
inter alia,
that the complaints and criminal charges and verdict of guilty
against the respondent are of a very serious nature incorporating
dishonesty and a breach of trust and accordingly recommends that
proceedings against the respondent must be concluded against her
“
soonest
”. It was further recommended that an
application must be made to this Honourable Court to suspend the
respondent from practicing
as an attorney, pending an application to
have her name struck from the roll of attorneys.
[18]
The disciplinary process against the respondent, as envisaged in
section 38 of the Act;
read together with section 39 thereof, ran
parallel to the interim interdict proceedings, to which I have
previously referred.
[19]
A disciplinary hearing was held on 15 July 2021, whereafter the
disciplinary committee’s
determination came to hand on 17
August 2021. As previously stated, the interim interdict was granted
on 10 August 2021. The significance
of these dates becomes more
apparent hereunder.
[20]
The disciplinary committee ultimately advised the applicant to
approach this Honourable
Court to apply for an order that the
respondent be suspended from practicing for a period of one year,
which suspension is to be
suspended for three years on condition that
the respondent is not found to have committed any dishonest conduct
during the period
of suspension.
[21]
Apparent
from the disciplinary committee’s ruling is that the
respondent, despite asserting her innocence throughout the criminal
proceedings, elected to plead guilty to the charges of misconduct.
The respondent’s guilty plea was unqualified; it was
accompanied by a full explanation of her personal circumstances at
the time of the infraction; and the respondent expressed remorse.
It
is apparent,
ex
facie
the finding, that the respondent’s conduct in this regard
weighed heavily in the committee’s determination of the
appropriate sanction, being that of a suspension (suspended) as
opposed to one that was more onerous. Whilst such about turn would,
in certain circumstances, indicate an acceptance by the respondent of
the findings against her in the criminal proceedings
[8]
and the reformation of the applicant, it is regrettable that the
respondent’s conduct, subsequent to the disciplinary
proceedings,
evidences the contrary.
[22]
Following the granting of the interim interdict on 10 August 2021,
the respondent launched
urgent proceedings in this court on 16 August
2021, in which she sought that the interim interdict be stayed and
rescinded. I interpose
to highlight that the application was launched
one day prior to the date on which the committee’s ruling was
made available
to the parties.
[23]
The urgent application was set down for hearing on 24 August 2021 and
again on 7 September
2021. On the first occasion, the matter was
struck from the roll with the issue of costs reserved, by reason of
the late filing
of papers. On the second occasion, the matter was
removed from the roll with the issue of costs reserved following a
prima facie
view having been expressed by Brooks J, before
whom the application served. Subsequently, the respondent has made no
further attempt
to pursue the application.
[24]
Startlingly, the entire basis of the respondent’s application
was that “
the outcome of the disciplinary proceedings was a
suspended fine namely R20 000.00 suspended for three years
”
and that the applicant had failed to inform the court of this fact on
10 August 2021 when seeking interdictory relief.
[25]
It is common cause, on the papers before this court, that not only
had the ruling from
the disciplinary committee not yet come to hand
at the time that the respondent launched her urgent application, but
the outcome
of such proceedings, as contended for by the respondent,
bears no resemblance to the actual outcome received from the
disciplinary
committee on 17 August 2021. In the absence of any
cogent explanation from the respondent for her conduct, it must be
inferred
that the respondent attempted to mislead the court in the
urgent application, for self-serving purposes.
[26]
What is more, the respondent in an effort to persuade this court that
she is a fit and
proper person to remain on the roll of attorneys,
once again asserts her innocence, notwithstanding the stance adopted
by her in
the disciplinary proceedings. To this end, the respondent
goes as far as to state that:
“
4.6
I must state categorically that there is nothing unlawful, untoward
or irregular in all what I did. My conduct is
not even closure (sic)
to committing fraud or any other offence for that matter
.”
[27]
The stance adopted by the respondent is not only dishonest but is
reprehensible in the
extreme.
[28]
The version
placed before this court by the respondent, albeit in less detail
than in the criminal proceedings, is the very same
version that was
rejected by the Commercial Crimes Court. It is not open to this court
to revisit the factual findings of the Commercial
Crimes Court, which
findings are final and binding. In the context of the present
proceedings, it was the content of the judgment
which the respondent
was required to answer,
[9]
which
she elected not to do.
[29]
In addition to attacking the merits of the present application on the
basis that she is
a fit and proper person, the respondent has raised
three technical points
in limine
, in opposition to the relief
sought. I intend dealing with the points
in limine
first.
Section
40(3)(a)(i) of the Act and the procedure envisaged therein
[30]
The respondent, relying on section 40(3)(a)(i) of the Act, contends
that the “
punishment
” imposed by the disciplinary
committee is not susceptible to being brought to court in the manner
pursued by the applicant
and accordingly the application ought to
fail on this ground alone.
[31]
Put differently, the respondent’s complaint appears to lie in
the relief sought by
the applicant, contending same to be incompetent
by virtue of section 40(3)(a)(i) of the Act.
[32]
Section 40(3)(a)(i) of the Act caters for situations in which the
disciplinary committee
finds a legal practitioner to be guilty of
misconduct and imposes a sentence that the legal practitioner is to
pay compensation,
with or without interest to the complainant. In
such circumstances, the order is subject to confirmation by an order
of any court
having jurisdiction, on application by the applicant.
[33]
In the present instance, the sanction imposed by the disciplinary
committee falls within
the ambit of section 40(3)(a)(iv) of the Act
and is properly before court.
[34]
Accordingly, the respondent’s reliance on section 40(3)(a)(i)
of the Act is misguided
and can accordingly be dismissed out of hand.
The
interpretation of Section 40(8) of the Act
[35]
The respondent, placing reliance on section 40(8) of the Act,
contends that the applicant
is bound by the sanction of the
disciplinary committee and accordingly, the applicant is “
estopped
from applying for a sanction different to that proposed”
by
the said committee.
[36]
Given the present lack of legal authority in respect of section 40(8)
of the Act, the applicant
requests that this court deal with the
interpretation of the section to provide clarity.
[37]
It is necessary to begin by considering the court’s role in
applications of this
nature, as well as that of the applicant, as has
been repeatedly articulated by the courts prior to the commencement
of the Act.
I thereafter turn to consider, the impact, if any, that
the Act has had on the above position, and more particularly, whether
the
applicant’s function has been circumscribed by section
40(8).
[38]
Proceedings
such as the present are not ordinary civil proceedings but are
sui
generis
in
nature. In this regard, Kroon J at paragraph [4.1] of
General
Council of the Bar of South Africa v Matthys
,
[10]
stated as follows:
“
The proceedings
are not ordinary civil proceedings, but are sui generis in nature:
they are proceedings, of a disciplinary nature,
of the Court itself,
not those of the parties; the Court exercises its inherent right to
control and discipline the practitioners
who practise within its
jurisdiction; the applicant, in bringing the application, acts
pursuant to its duty as custos morum of
the profession; in the
interests of the Court, the public at large and the profession, its
role is to bring evidence of a practitioner's
misconduct before the
Court, for the latter to exercise its disciplinary powers; the
proceedings are not subject to all the strict
rules of the ordinary
adversarial process.
”
[39]
The
applicant, in bringing such matters before court, does so in
fulfilment of a public duty by bringing the conduct of a legal
practitioner to the attention of the court to allow the court to
exercise its supervisory functions over its officers. In
Van
den Berg v General Council of the Bar of SA
[11]
Nugent JA, writing for the Supreme Court of Appeal, noted as follows
at paragraph [2]:
“
The applicant’s
role in bringing such proceedings is not that of an ordinary
adversarial litigant but is rather to bring evidence
of a
practitioner’s misconduct to the attention of the court, in the
interests of the court, the profession and the public
at large, to
enable a court to exercise its disciplinary powers.
”
[40]
Accordingly,
the exercise of the court’s supervisory powers over the conduct
of legal practitioners is not only to discipline
errant
practitioners, but also to promote and protect the public
interest.
[12]
[41]
Corbett J,
in
Law
Society, Transvaal v Behrman
emphasised that:
[13]
“
Clearly the Law
Society has an interest to ensure that persons who are admitted, or
re-admitted, and enrolled as attorneys and who
by practising become
members of the Law Society are fit and proper persons to be so
admitted or re-admitted. The interest comprehends
not only the
relationship which is created between a member and Society but also
the duties and responsibilities which the Law
Society assumes in
regard to members to the Court and to the general public
.”
[42]
Insofar as the appropriate sanction is concerned, and whilst I deal
with this aspect in
greater detail later in the context of the
respondent cited herein, it suffices at this juncture to emphasise
that it is the court
which remains the final arbiter, in the exercise
of its discretion, as to whether a practitioner ought to be removed
from the roll
of attorneys or whether an order suspending the
practitioner would be appropriate in the circumstances.
[43]
In terms of section 44(1) of the Act:
“
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.
”
[44]
Accordingly, and by virtue of the express provisions of section 44(1)
of the Act, the court’s
role, and the powers that it has in
adjudicating applications such as the present, remains unchanged
notwithstanding the commencement
of the Act.
[45]
Section 40 of the Act, in broad terms, deals with the procedural
aspects which follow disciplinary
proceedings pertaining to legal
practitioners, candidate legal practitioners and juristic entities.
It includes the duties and
powers of the disciplinary committee,
including those pertaining to sanction, following a finding of
misconduct, and the concomitant
rights of such practitioner or legal
entity, as the case may be, insofar as mitigation of sentence is
concerned.
[46]
For present purposes, the provisions of section 40(3)(a)(iv) of the
Act are of relevance:
“
(3)
If found guilty of misconduct, the disciplinary committee concerned
may call witnesses to give evidence in
aggravation of sentence and
may-
(a)
in the case of a legal practitioner:
(i)
…
(ii)
…
(iii)
…
(iv)
advise the Council to apply to the High Court for-
(aa) an
order striking his or her name from the Roll;
(bb) an
order suspending him or her from practice;
(cc)
an interdict prohibiting him or her from dealing with trust monies;
or
(dd) any
other appropriate relief
.”
[47]
In the present instance, it is common cause that the disciplinary
committee advised the
Council to approach this court for relief in
accordance with section 40(3)(a)(iv)(bb) of the Act.
[48]
Section 40(8) of the Act, reads as follows:
“
The Council
must give effect to the advice and decision of a disciplinary
committee
.”
[49]
The language used in section 40(8) is uncomplicated. The question
which remains to be answered
however, is whether section 40(8)
precludes the Council, or the relevant Provincial Council as the case
may be, from seeking relief
outside of the sanction deemed
appropriate by the disciplinary committee. The answer to this
question must, of necessity, be no.
[50]
Our courts
have over time, developed harmony, in the proper approach to the
interpretation of documents. As succinctly set out in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
:
[14]
“
[18] …
The present state of the law can be expressed as follows.
Interpretation is the process of attributing meaning to the words
used
in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading
the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document, consideration
must be given to the language used in the light of the ordinary
rules
of grammar and syntax; the context in which the provision appears;
the apparent purpose to which it is directed and the material
known
to those responsible for its production. Where more than one meaning
is possible each possibility must be weighed in the
light of all
these factors.
The
process is objective not subjective. A sensible meaning is to be
preferred to one that leads to insensible or unbusinesslike
results
or undermines the apparent purpose of the document. Judges must be
alert to, and guard against, the temptation to substitute
what they
regard as reasonable, sensible or businesslike for the words actually
used. To do so in regard to a statute or statutory
instrument is to
cross the divide between interpretation and legislation.
…
[19]
All this is consistent with the ‘emerging trend in statutory
construction’. It clearly adopts as the proper
approach to
the interpretation of documents the second of the two possible
approaches mentioned by Schreiner JA in Jaga v
Dönges NO
and another, namely that from the outset one considers the
context and the language together, with neither
predominating over
the other. This is the approach that courts in South Africa should
now follow, without the need to cite authorities
from an earlier era
that are not necessarily consistent and frequently reflect an
approach to interpretation that is no longer
appropriate. The path
that Schreiner JA pointed to is now received wisdom elsewhere. Thus
Sir Anthony Mason CJ said:
‘
Problems
of legal interpretation are not solved satisfactorily by ritual
incantations which emphasise the clarity of meaning which
words have
when viewed in isolation, divorced from their context. The modern
approach to interpretation insists that context be
considered in the
first instance, especially in the case of general words, and not
merely at some later stage when ambiguity might
be thought to arise.’
…
[23] …
If
interpretation is, as all agree it is, an exercise in ascertaining
the meaning of the words used in the statute and is objective
in
form, it is unrelated to whatever intention those responsible for the
words may have had at the time they selected them. Their
purpose is
something different from their intention, as is their contemplation
of the problem to which the words were addressed.
[25] … [W]hen
the provision is read in context, that is the appropriate meaning to
give to the language used. At the other
extreme, where the context
makes it plain that adhering to the meaning suggested by apparently
plain language would lead to glaring
absurdity, the court will
ascribe a meaning to the language that avoids the absurdity. This is
said to involve a departure from
the plain meaning of the words used.
More accurately it is either a restriction or extension of
the language used by
the adoption of a narrow or broad meaning of the
words, the selection of a less immediately apparent meaning or
sometimes
the correction of an apparent error in the language in
order to avoid the identified absurdity
.”
[51]
The Supreme
Court of Appeal, in
Capitec
Bank Holdings Limited and another v Coral Lagoon Investments 194
(Pty) Ltd and others
,
[15]
cautioned against utilising the principals enunciated in
Endumeni
Municipality
as an open-ended permission to pursue undisciplined and self-serving
interpretations. Unterhalter AJA went on further to state
at
paragraph [50] that:
“
Endumeni simply
gives expression to the view that the words and concepts used in a
contract and their relationship to the external
world are not
self-defining. The case and its progeny emphasise that the meaning of
a contested term of a contract (or provision
in a statute) is
properly understood not simply by selecting standard definitions of
particular words, often taken from dictionaries,
but by understanding
the words and sentences that comprise the contested term as they fit
into the larger structure of the agreement,
its context and purpose.
Meaning is ultimately the most compelling and coherent account the
interpreter can provide, making use
of these sources of
interpretation. It is not a partial selection of interpretational
materials directed at a predetermined result.
”
[52]
At paragraph [51] Unterhalter AJA, commented, in the context of
contracts, that:
“
Most contracts,
and particularly commercial contracts, are constructed with a design
in mind, and their architects choose words
and concepts to give
effect to that design. For this reason, interpretation begins with
the text and its structure. They have a
gravitational pull that is
important. The proposition that context is everything is not a
licence to contend for meanings unmoored
in the text and its
structure. Rather, context and purpose may be used to elucidate the
text.
”
[53]
The same can be said regarding the drafters of legislation and
statutory interpretation.
[54]
The
disciplinary committee is a disciplinary body,
[16]
established by the Council in terms of section 37 of the Act and is
tasked with the conduct of disciplinary hearings subject to
the
provisions of section 39 of the Act and the rules determined by the
Council.
[55]
It is the Council that is the statutory, regulatory authority, and
which acts as the
custos morum
of the profession and
accordingly it is the Council that has the power to institute legal
proceedings to
inter alia
, achieve its objects set out in
section 5 of the Act, which as previously stated, includes the
promotion and protection of the
public interest; the regulation of
all legal practitioners; and the enhancement and maintenance of the
integrity and status of
the legal profession.
[56]
If regard is had to the wording of section 40(8), due consideration
being had to the factors
enunciated in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
and
Capitec Bank Holdings Limited and another v Coral Lagoon
Investments 194 (Pty) Ltd and others
, it is clear that the
purpose of the said section is to ensure that the Council acts upon
all infractions, as determined by the
disciplinary committee.
[57]
Nowhere in the sub-section under consideration, or in the broader
context of section 40,
does the legislation make the content of the
ruling, and the sanction deemed to be appropriate by the disciplinary
committee final
and binding on the Council.
[58]
In the event that section 40(8) was to be given the meaning ascribed
to it by the respondent,
same would lead to absurd results as
cautioned against by the Supreme Court of Appeal.
[59]
By way of illustration, if on a consideration of the facts of a
particular matter, there
is no doubt that a suspension from practice
is entirely incompatible with the finding that a particular person
was not a fit and
proper person to continue practising, but the
disciplinary committee incorrectly ruled that the sanction ought to
be one of suspension,
which in itself was suspended, it would result
in the anomalous situation that the Council, or the Provincial
Council as the case
may be, would be bound to seek an order in line
with the committee’s ruling in relation to a person who is
explicitly unfit
to continue practising as an attorney.
[60]
Moreover, circumscribing the relief that the Council can seek, in
proceedings such as the
present, would serve to have no practical
effect, in that it is the court which ultimately determines the
appropriate sanction
in each case.
[61]
Having determined the interpretation of section 40(8) as aforesaid,
the respondent’s
second point
in limine
must fail.
Notice
in terms of Uniform Rule 7
[62]
The respondent, haphazardly, raises her third point
in limine
by (i) disputing that the deponent to the applicant’s founding
papers is the chairperson of the applicant and that she has
the
requisite authority to depose to the founding papers and institute
the proceedings; and (ii) by contending that the applicant,
in this
regard, has failed to respond to the respondent’s notice in
terms of Uniform Rule 7.
[63]
The
respondent’s use of the procedure envisaged in Uniform Rule 7
is misplaced. The authority contemplated by Uniform Rule
7 is the
authority given by a client to his or her attorney to authorise the
attorney to institute or defend proceedings on his
or her behalf. It
does not contemplate a general authority by one person to another to
represent him or her in legal proceedings.
In the latter instance, if
the attorney is authorised so to act on behalf of such party, there
is no need for any other person,
whether he or she is a witness or
someone who becomes involved, to be additionally authorised.
[17]
[64]
The
applicant in any event,
ex
abundante cautela
,
filed an affidavit in reply dealing with the deponent’s
designation and her authority to launch the application and depose
to
all necessary affidavits, which is permissible in the
circumstances.
[18]
[65]
Accordingly, there is no merit in the objection raised to the
deponent’s authority.
[66]
Belatedly,
the respondent in her heads of argument, contends that it is the
Council that has the requisite
locus
standi
to institute the present proceedings and not the Provincial Council.
Without dealing with the irregular manner in which the point
in
limine
was raised, it suffices to point out that the Council, as repeatedly
stated herein, is empowered by the Act to delegate any of
its powers
to a Provincial Council
[19]
and accordingly I need not deal with this aspect any further.
[67]
Having disposed of the respondent’s points
in limine
, I
now turn to deal with the main enquiry before this court, being the
enquiry into whether or not the respondent is a fit and
proper person
to practice as an attorney of this court.
Merits
of the enquiry before the court
[68]
The enquiry
before court contemplates a three-stage enquiry and can be summarised
as follows:
[20]
“
The
test to determine whether a person is fit and proper is well
established and needs no further elaboration. The first enquiry
is to
determine whether the offending conduct has been proven on a balance
of probabilities. Once this is shown, the second enquiry
is to
determine whether the person is fit and proper taking into account
the proven misconduct. The final enquiry is to determine
whether the
person concerned should be suspended from practice for a fixed period
or should be struck off the roll. The last two
enquiries are matters
for the discretion of the court, which involve a value judgment.
[69]
The aforesaid requirements are dealt with
ad seriatim
below.
Has
the alleged offending conduct been established on a preponderance of
probabilities?
[70]
The respondent stands convicted of fraud, a crime with an element of
dishonesty. Such conviction
is final and binding and cannot be
revisited. The respondent’s conduct leading up to her
conviction, and thereafter, has
been set out in detail.
[71]
Where an
attorney is convicted of an offence, which is of a seriously
sufficient nature, such conviction serves as prima
facie
proof
that he or she is unfit to be on the roll of attorneys.
[21]
[72]
The respondent, as highlighted by the investigation committee,
delayed the finalisation
of the criminal proceedings through every
possible avenue for the purposes of delaying the inevitable. Her
delay tactics continued
by the launch of the urgent rescission
proceedings in relation to the interim interdict granted on 10 August
2021. The assertions
made by the respondent in the rescission
proceedings evidences her continued lack of integrity and dishonesty
and a clear lack
of reformation since the commission of the
fraudulent incident in 2014.
[73]
Despite the finding of the Commercial Crimes Court, and
notwithstanding the respondent’s
plea of guilty before the
disciplinary committee, she has, in the present proceedings, once
again continued to protest her innocence,
and unscrupulously denies,
without any basis, that her conduct was unlawful. The respondent
shows no remorse for her actions and
demonstrates no appreciation for
her wrongful conduct.
[74]
It is
expected of a respondent in proceedings of this nature, to make a
full disclosure to enable the court to assess his or her
motives and
conduct. The respondent’s conduct herein falls far short of the
degree of disclosure and openness required of
an attorney.
[22]
[75]
There can accordingly be no doubt that alleged offending conduct has
been established on
a preponderance of probabilities.
Is
the respondent a fit and proper person taking into account the proven
misconduct
[76]
In answering this question, the conduct of the respondent must be
weighed against that
which is expected from an attorney of this
court.
[77]
The Supreme
Court of Appeal has repeatedly emphasised that the attorneys’
profession in an honourable one which demands complete
honesty,
reliability and integrity from its members.
[23]
[78]
In
General
Council of the Bar of South Africa v Geach & Others
,
[24]
Ponnan JA commented as follows:
“
After
all they are the beneficiaries of a rich heritage and the mantle of
responsibility that they bear as the protectors of our
hard won
freedoms is without parallel. As officers of our courts lawyers play
a vital role in upholding the Constitution and ensuring
that our
system of justice is both efficient and effective. It therefore
stands to reason that absolute personal integrity and
scrupulous
honesty are demanded of each of them.
It
follows that generally a practitioner who is found to be dishonest
should in the absence of exceptional circumstances expect
to have his
name struck from the roll
.”
[79]
The respondent’s conduct displays a complete lack of integrity
and dishonesty and
is contemptuous of the applicant, being the
regulatory authority of the profession, and of this court. The
respondent is unrepentant.
I am accordingly satisfied that the
respondent is not a fit and proper person to practise as an attorney.
Should
the respondent be suspended from practice for a fixed period (such
suspension to be suspended) or should she be struck off
the roll
[80]
In
Jasat
v Natal Law Society
[25]
the court stated that:
“
W
hether
a court will adopt the one course or the other will depend upon such
factors as the nature of the conduct complained of,
the extent to
which it reflects upon the person's character or shows him to be
unworthy to remain in the ranks of an honourable
profession…
the likelihood or otherwise of a repetition of such conduct and the
need to protect the public. Ultimately it
is a question of degree.
”
[81]
I have dealt with the respondent’s conduct at length.
[82]
Logic dictates that once a court finds that a person is not a fit and
proper person to
practice an attorney, it must follow that his or her
name be struck from the roll of attorneys. An order suspending the
respondent
from practice, wholly suspended, is wholly incompatible
with the above finding.
[83]
In this regard, the Supreme Court of Appeal in
Law Society of the
Cape of
Good Hope v Budricks
(supra) stated as follows at
paragraph [7]:
“…
The
suspension of his suspension from practice is entirely incompatible
with the finding that he was not a fit and proper person
to continue
practising and resulted in the anomalous situation that a person who
had explicitly been pronounced unfit to do so,
was allowed to
continue his practice. (Logically, a striking off order or an order
of suspension from practice should only be suspended
if the court
finds that the attorney concerned is a fit and proper person to
continue to practice but still wishes to penalize
him...
”
[84]
In light of the aforesaid, there exists no other appropriate order
other than to strike
the respondent’s name from the roll.
[85]
In the result, I make the following order:
1.
The respondent’s name be and is hereby struck from the roll of
attorneys.
2.
The applicant is directed to cancel the enrolment of the respondent
as an attorney
as envisaged in Section 31(1)(a) of the Legal Practice
Act 28 of 2014 (“
The LPA
”).
3.
The respondent shall surrender and deliver to the Registrar of this
Court her
certificate of enrolment as an attorney.
4.
Should the respondent fail to comply with the provisions of the
preceding paragraph
of this order within 2 (two) weeks from date
hereof, the Sheriff of the District, in which such certificate of
enrolment is, is
empowered and directed to take possession of and
deliver the same to the Registrar of this Court.
5.
The respondent shall deliver her books of account, records, files and
documents
containing particulars and information relevant to:
5.1
any moneys received, held or paid by the respondent from or on
account of any person;
5.2
any moneys invested by the respondent in terms of sections 78(1),
78(2) and/or section 78(2A)
of Act No. 53 of 1979 and sections 86(2),
86(3) and section 86(4) of the LPA;
5.3
any interest or moneys so invested, which was paid over or credited
to the respondent;
5.4
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
5.5
the respondent’s practice as an attorney;
to the curator appointed
hereunder, provided that as far as such books of account, records,
files 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 and provided that such curator
shall be and is authorised and directed to release such books of
account, records, files
and documents upon production to him/her of
the certificate referred to in paragraph 3 above.
6.
Should the respondent fail to comply with the provisions of the
preceding paragraph
of this order within 1 (one) week after service
thereof upon her or after a return by the person entrusted with the
service thereof
that he/she has been unable to effect service thereof
on the respondent, as the case may be, the Sheriff for the District
in which
such books of account, records, files and documents are, is
empowered to take possession of and deliver them to such curator.
7.
The curator is entitled and is directed to:
7.1
hand over to the persons entitled thereto all such records, files and
documents;
7.2
hand over all such records, files and documents over which the
respondent exercised a
lien
to the persons entitled thereto as
soon as he/her has satisfied himself/herself that the fees and
disbursements in connection therewith,
if any, have been paid or
secured, or in the event of any dispute as to the provisions of
security, in his/her discretion.
8.
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.
9.
Such curator is authorised and directed to require that any such
file, the contents
of which he/she may consider to be relevant to a
claim, or possible or anticipated claim, against him/her and/or the
respondent
and/or the respondent’s clients and/or the Legal
Practitioners Fidelity Fund (“
The Fund
”) in
respect of money and/or other property entrusted to the respondent,
be re-delivered to such curator.
10.
The respondent is interdicted and prohibited from operating on her
trust account(s).
11.
The Director, failing whom, the Acting Director, failing whom, the
Deputy Director, failing whom,
the Acting Deputy Director, failing
whom, the Assistant Director, failing whom, the Acting Assistant
Director for the time being
of the applicant, is appointed as curator
to administer and control the trust account of the respondent
comprising the separate
banking accounts opened and kept by the
respondent at a bank in terms of Section 86(2) of the LPA and/or any
separate saving or
interest-bearing accounts as contemplated by
Section 86(3) and/or 86(4) of the LPA, in which money from such trust
banking accounts
have been invested by virtue of the provisions of
the said subsection/s or in which moneys in any manner have been
deposited or
credited (the said account(s) being herein after
referred to as “
trust account(s)
”), with the
following powers and duties:
11.1 subject
to the approval of the Legal Practitioners’ Fidelity Fund Board
(“
the Board
”), to sign and endorse cheques and/or
withdrawal forms and generally to operate upon the trust account(s),
but only to such
extent and 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;
11.2 subject
to the approval and control of the Board, to recover and receive and,
if necessary in the interests of
persons having lawful claims upon
the trust account(s) and/or against the respondent in respect of
money held, received and/or
invested by the respondent in terms of
sections 78(1), 78(2) and/or section 78(2A) of Act No. 53 of 1979 and
sections 86(2), 86(3)
and 86(4) of the LPA (“
trust moneys
”),
to take legal proceedings which may be necessary for the recovery of
money which may be due to such persons in respect
of incomplete
transactions in which the respondent may have been concerned and
which may have been wrongfully and unlawfully paid
from the trust
account(s) and to receive such moneys and to pay the same to the
credit of the trust account(s);
11.3 to
ascertain from the respondent’s books of account the names of
all persons on whose account the respondent
appears to hold or to
have received trust moneys (“
trust creditors
”) and
to call upon the respondent to furnish him/her, within 30 (thirty)
days of the date of this Order or such further period
as he/she may
agree to in writing, with the names, addresses of, and amounts due to
all trust creditors;
11.4 to call
upon such trust creditors to furnish such proof, information and
affidavits as he/she may require to enable
him/her, acting in
consultation with, and subject to the requirements of the Board, to
determine whether any such trust creditor
has a claim in respect of
money in the trust account(s) and, if so, the amount of such claim;
11.5 to admit
or reject, in whole or in part, subject to the approval of the Board,
the claims of any such trust creditor,
without prejudice to such
trust creditor’s rights of access to the civil courts;
11.6 having
determined the amounts which he/she considers are lawfully due to
trust creditors, to pay such claims in
full, but subject always to
the approval of the Board;
11.7 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
utilise 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
LPA in respect of any interest therein referred to and, secondly,
without prejudice to the rights of the
creditors of the respondent,
the costs, fees and expenses as envisaged 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 such claims,
costs, fees and expenses, to pay such
balance, subject to the approval of the Board, to the respondent, if
she is solvent, or,
if the respondent is insolvent, to the trustee(s)
of the respondent’s insolvent estate;
11.8 in the
event of there being insufficient moneys in the trust banking
account(s) opened by the respondent as referred
to above from which
to pay the claims of trust creditors in full and after taking
reasonable steps to ascertain the identities
of such creditors and
the amounts due to them to distribute
pro rata
among creditors
whose claims have been proved or admitted, the amount(s) reflected by
the credit balance(s) in said account(s)
provided that the curator
shall pay to trust creditors whose funds are held in separate
accounts in terms of sections 86(2) and/or
86(3) and/or 86(4) of the
LPA who satisfy him/her that they are entitled to such funds, the
amounts due to such creditors;
11.8.1
subject to the approval of the Board,
to close the trust account(s)
and pay the credit balance(s) to the Fund and to require the credit
balance(s) to be placed to the
credit of a special trust suspense
account in the name of the respondent in the Fund’s books;
11.8.2
to refer the claims of all trust creditors
to the Board to be dealt
with in terms of the provisions of the LPA;
11.8.3
to authorise the Board to credit the credit
balance(s) referred to in
11.8.1 above to its “Paid Claims Account” when the Fund
has paid, in terms of Section 55
of the LPA, admitted claims of the
trust creditors in excess of such credit balance(s), provided that,
notwithstanding the afore
going, the said Board shall be entitled, in
its discretion, to transfer to its “Paid Claims Account”
the amount of
moneys of any claim or claims as and when admitted and
paid by it;
11.9 subject
to the approval of the Chairman of the Board, 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 carrying out
the duties of a curator; and to render from time to time, as curator,
returns to the Board
showing how the trust account(s) has (have) been
dealt with, until such time as the said Board notifies him/her that
he/she may
regard his/her duties as terminated.
12.
The respondent is directed:
12.1 to pay
the fees and expenses of the curator, such fees to be assessed at the
rate of R850.00 per hour, including
travelling time;
12.2 to pay
the reasonable fees and expenses charged by any person(s) consulted
and/or engaged by the curator as aforesaid;
12.3 to pay
the costs of and incidental to this application on a scale as between
an attorney and client;
12.4 within 1
(one) year of her having been 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 her former practice. And should
she fail to do so, she shall
not be entitled to recover such fees and
disbursements from the curator without prejudice, however to such
rights, if any, as she
may have against the trust creditor(s)
concerned for payment or recovery thereof.
I
BANDS
ACTING
JUDGE OF THE HIGH COURT
I
agree:
M
LOWE
JUDGE
OF THE HIGH COURT
Appearances:
For
the Applicant: K.L.
Watt
Instructed
by: N.N.
Dullabh & Co.
5 Bertram Street,
Makhanda
For
the Respondent:
T.M Jikwana
Instructed
by: Yokwana
Attorneys
10 New Street, Makhanda
[1]
Section 5 of the Act, and more particularly, sub-sections (c); (d);
(f); and (g).
[2]
Section 6(1)(b)(iii) of the Act.
[3]
Section 6(1)(a)(v) of the Act.
[4]
Section 6(1)(a)(x) of the Act.
[5]
And other ancillary relief.
[6]
In that the Court was satisfied that there existed no real or
reasonably perceived conflict of interest; nor did there exist
a
reasonable suspicion of bias based upon objective facts as envisaged
in article 13 of the Code of Judicial Conduct GG 35802
of 18 October
2012.
[7]
It was conceded on behalf of the respondent that whilst the court,
in this case, was not concerned with misconduct committed
by the
respondent in her professional capacity as an attorney, the court
will in a proper case remove an attorney from the roll
where he or
she has been convicted of a crime which was not committed in his or
her professional capacity.
See:
Incorporated Law Society v Transvaal v Mandela
1954 (3) SA
102
at 107 B-H.
[8]
In the Commercial Crimes Court, which were duly upheld by this
Honourable Court; the Supreme Court of Appeal; and the
Constitutional
Court.
[9]
Legal
Practice Council v Beverley Ann Carruthers
,
unreported judgment of this Honourable Court, delivered on 16
September 2021, by Roberson J (Pakati J concurring), under case
number 1473/2021.
[10]
2002 (5) SA 1
(E) at paragraph 4(1).
[11]
[2007] 2 All SA 499
(SCA) at paragraph 2.
[12]
Law
Society of the Cape of Good Hope v Budricks
[2002] 4 All SA 441
(SCA) at paragraph 7.
See
also:
Johannesburg Society of Advocates & Another v Nthati &
Others
2021 (2) SA 434 (SCA).
[13]
1981(4) SA 538 (AD) at 551 E-F.
[14]
2012 (4) SA 593 (SCA).
[15]
(470/2020)
[2021] ZASCA 99
(09 July 2021) at paragraph [49].
[16]
Section 1 of the Act.
[17]
Erasmus, Superior Court Practice, Juta. B1-59 [Service 41, 2013] and
the authorities cited therein at fn’s 4 and 5.
[18]
Moosa
and Cassim NNO v Community Development Board
1990 (3) SA 175
(A) at 180H – 181C.
[19]
Section 6(1)(a)(x) of the Act; read with section 21(1)(d) of the
Act.
[20]
Hewetson
v The Law Society of the Free State
[2020]
ZASCA 49 (5 May 2020) at paragraph [4].
See
also:
Botha v Law Society, Northern Provinces
2009 (1)
SA 227 (SCA) at paragraph [2];
Malan and Another v Law
Society of the Northern Provinces
2009 (1) SA 216 (SCA) at
paragraph [4].
[21]
Kwazulu-Natal
Law Society v Veronica Singh
(1526/2010) [2011] ZAKZPHC 12 (25 March 2011).
[22]
Botha
and other v Law Society, Northern Provinces
2009 (3) SA 329
(SCA) at paragraph [18].
South
African Legal Practice Council v Bobotyana
[2020]
4 All SA 827 (ECG) at paragraph [76].
[23]
Law
Society of the Cape of Good Hope v Randell
[2015]
4 All SA 173 (ECG).
Vassan
v Law Society of the Cape of Good Hope
1998
(4) SA 532 (SCA) at 538 G-I.
General
Council of the Bar of South Africa v Geach & Others
2013
(2) SA 52 (SCA).
[24]
Supra
at paragraph [87].
[25]
2000 (3) 44 (SCA) at 51 H-I.