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[2021] ZAGPPHC 144
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South African Legal Practice Council v Shirinda (44215/18) [2021] ZAGPPHC 144 (3 February 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPUBLIC
OF SOUTH AFRICA
CASE
NO:44215/18
In
the matter between:
THE
SOUTH AFRICAN
LEGAL
PRACTICE
COUNCIL APPLICANT
and
HLANGANANI
SAMUEL SHIRINDA
RESPONDENT
REASONS FOR JUDGEMENT
LUKHAIMANE
AJ:
1. This
matter was before court as an application for the suspension of the
Respondent from practice
as a legal practitioner, alternatively, for
the removal of his name from the roll of legal practitioners.
2.
The matter was heard on 17 November 2020. The Respondent was not in
court for the hearing. Judgement
was granted in favour of the
Applicant for an order suspending the Respondent from practice as a
legal practitioner for a period
of one year.
3. The
Respondent now seeks reasons for the judgement.
4.
The Respondent was admitted and enrolled as an attorney of this
Honourable Court on 13 August
1998. He has been practicing as a sole
practitioner since 1 January 2004.
5.
It is the Applicant’s contention that the Respondent failed to
lodge unqualified audit reports
for the periods ending 28 February
2016 and 28 February 2017, in contravention of Rule 70.3 and Rule
70.4 of the Applicant’s
old Rules.
6. Further
that the Respondent was not issued with Fidelity Fund certificates
for the years commencing
January 2017 and January 2018. Therefore,
the Respondent was not entitled to practice for reward and did so in
contravention of
section 41(1) and 41(2) of the Attorney's Act (Act
No. 53 of 1979).
Point
in limine
7.
The Respondent requests that condonation for the late filing of the
Applicant’s
replying affidavit be denied and the matter be
dismissed on that fact alone.
8.
This request was denied as the replying affidavit did not raise any
new issues and there
is an explanation for such late filing, which
the court finds acceptable and reasonable. More importantly, the
Respondent could
not show any prejudice that he would suffer, if such
replying affidavit is admitted.
9. Therefore
the
point in limine
was dismissed.
Merits
10.
A
legal practitioner must scrupulously comply with the provisions of
the Legal Practice Act (Act 28 of 2014), the Attorneys Act
and the
Rules for the Attorneys Profession especially in relation to the
money of a client which is placed into his/her custody
and
control.
[1]
Trust money
does not form part ofthe assets of a legal practitioner. The very
essence of a trust fund is the absence of risk and
the confidence
created thereby. The unjustifiable handling of trust money is totally
untenable and not only frustrates the legal
requirements relating to
trust money but also undermines the principle that a
trust
account is completely safe in respect of money held therein by a
legal practitioner on behalf of another person.
11. A
legal practitioner is a member of a learned, respected and honourable
profession and, by entering
it, he/she pledges himself/herself with
total and unquestionable integrity to society at large, to the courts
and to the profession.
12. The
law expects from legal practitioner
uberrima fides,
the
highest possible degree of good faith in his dealings with his
client, which implies that at all times his submissions and
representations to client must be accurate, honest and frank.
13.
The Respondent admits that he failed to submit audit reports and
therefore practices without
a Fidelity Fund certificate for a
considerable period of time. Having practiced for a period of almost
fifteen years, he practised
without the necessary papers for a period
of three (3) years - an infringement he is well aware of and does not
dispute.
14.
It is the responsibility of every legal practitioner to comply with
the provisions of the
Legal Practice Act, the Attorneys Act and the
Rules of the attorney profession. Such legal practitioner must always
prefer the
interest of his/her clients above his/her own and must
exercise the highest degree of good faith in his/her dealings with
his/her
clients.
15.
The Respondent’s submission is that he was failed by his
secretaries and colleagues
that did not assist him with the
submission of his audit reports as he could not do so himself due to
being computer illiterate
and residing in a rural area.
16.
The
Respondent also raised another procedural issue in that he contends
that the Applicant should have exhausted its internal disciplinary
procedures
prior to
instituting proceedings against him. This point is without merit as
applications of this nature are
sui
generis
and
of a disciplinary nature.
[2]
The
Respondent has no entitlement to any internal disciplinary hearing as
it
is
the court’s place to exercise its disciplinary powers over
truant practitioners. The court will act independent of the
Applicant’s resolution as it must exercise its
own
discretion on the facts.
[3]
17. The
Respondent’s assertions are without merit. The Respondent
accepts that he has contravened
the Attorneys Act, Legal Practice Act
and Applicant’s rules. The Respondent's attempt to rely on
being a so called rural
attorney is without merit. His alleged
attempts to comply with the requirements fall far short of what is
required of someone in
his position who is well aware of the
implications of practising without a Fidelity Fund certificate.
18.
The Respondent's conduct constitutes unprofessional and/or
dishonourable conduct on his
part and a deviation from the standards
of professional conduct required of every legal practitioner.
MALUKHAIMANE
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I
AGREE AND IT IS SO ORDERED
SELBY BAQWA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Appearances:
On
behalf of the Applicant : Ms
SL Magardie
Instructed
by : Damons
Magardie Richardson Attorneys
On
behalf of the Respondents : Shirinda
Attorneys
Instructed
by : S
Shirinda
Date
of hearing : 17
November 2020
Date
of judgment : 3
February 2021
[1]
1 Holmes v Law Society of the Cape of Good Hope and Another, Law
Society of Cape of Good Hope v
Holmes
2006 (2) SA 139
(c) at 152 B -
F
[2]
Hassim v Incorporated Law Society Natal
1977 (2) SA 757
(A) at 767 C
- G
[3]
Summerley v Law Society Northern Provinces
2006 (5) SA 613
(SCA) at
615 B - F