About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2021
>>
[2021] ZAGPPHC 303
|
|
South African Legal Practice Council v Mashabela (31148/20) [2021] ZAGPPHC 303 (18 May 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1) REPORTABLE:
NO.
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED.
DATE: 18
MAY 2021
CASE
NO 31148/20
In
the matter between
SOUTH
AFRICAN LEGAL PRACTICE COUNCIL
Applicant
and
LUCKY
BONANG MASHABELA
Respondent
Coram:
Davis J and Munzhelele AJ
Date
heard: 11 March 2021
Date
delivered: 18 May 2021
JUDGMENT
MUNZHELELE
AJ
Introduction
[1]
The applicant, Legal Practice Council (The Council) brought an
application to strike the name of Lucky
Bonang Mashabela (The
Respondent) from the roll of attorneys and on such terms and with
such conditions as the Court may deem appropriate.
The respondent did
not deliver an answering affidavit to oppose this application.
[2]
On the date for hearing of this application, the respondent, who
appears in person, filed on Caseline
the Fidelity Fund certificate
for the year ending in 31 December 2020 together with two letters
dated 10 March 2017 and 26 June
2017 addressed to one Ruby, and the
attorneys for the Council Rooth & Wessels Inc, Lekgetho and
Curators at the Law Society
of the Northern Provinces. The respondent
alleges that he was practising in 2020 while in possession of the
Fidelity Fund certificate.
It was because of this late filing of the
certificate and the letters which led to the court allowing the
applicant to file a supplementary
affidavit on 11 March 2021.
Background
of the case
[3]
The facts of this case arise from the report filed by the chartered
accountant and auditor Puseletso
Hlogoana and the founding affidavit
of Hlaleleni Kathleen Matolo-Dlepu the chairperson of the Legal
Practice Council. It is alleged
that the respondent, Mr Lucky Bonang
Mashabela is a practising attorney in the Gauteng Province since 24
April 2017. He is conducting
his practice under the name Mashabela
(Bonang) Attorneys as a sole practitioner. The firm is situated at
Suite 201, Second Floor,
Bank Towers, No 190 Thabo Sehume Street, and
Pretoria. He was mainly dealing with Road Accident Fund
s
claims. Respondent is alleged to have contravened several provisions
of the Legal Practice Act (The LPA), among others, section
84(1) by
practising without a Fidelity Fund certificate and, Rule 54.14.8 of
the LPA by having a trust deficit in his bookkeeping.
He is also
accused of contravention section 87(5)(a) and having committed
an offence in terms of section 93(9) of the LPA
which provides that:
“
Any person who—
(a)
refuses
or fails to produce a book, document or any article in terms of
section 37(2)(a) or (b) or 87(5);
(b)
contravenes
section 37(2)(c) or 87(6); or
(c)
obstructs
or hinders any person in the performance of his or her functions
under those provisions, commits an offence and is liable
on
conviction to a fine or to imprisonment for a period not exceeding
one year
”
.
[4]
The Council also received complaints from the respondent’s
clients regarding their Road Accident
Funds claims, in respect of
which he failed to account and to pay them. Because of such
complaints the Council instructed a Chartered
Accountant and Auditor
Puseletso Hlogoana (Hlogoana) to conduct an inspection of the
respondent’s accounting records and
practice affairs and also
to investigate the complainants. Hlogoana’s investigation
report which was filed reveals that the
respondent was not
co-operative during these investigations
;
and that
he failed to cooperate with the council in its inspection of his
accounting records and practice affairs. He also failed
to comply
with the council’s requests and to reply to its correspondence.
[5]
On 20 April 2020 the Gauteng Provincial Office of the Council
resolved that the attorneys be instructed to
apply to court urgently
for the suspension of the attorney Mr Lucky Bonang Mashabela in his
practice as a legal practitioner and
that the chairperson or any
member of the executive committee be authorised to sign all the
documents necessary to give effect
to the resolution on behalf of the
Council, pending the finalisation of the application.
[6]
On the 28 July 2020 an order for suspension of the respondent pending
the finalisation of this application
was granted by Neukircher, J on
an urgent basis.
[7]
On 11 March 2021, the application for striking of the respondent’s
name from the roll of attorneys
has been heard through virtual
recording by the Court. Mr Mashabela (the
respondent) was present and was acting
in his own defence. He
only argued the issue pertaining to the Fidelity Fund certificate of
the year 2020.
[8]
The facts of the allegations were determined through
investigations conducted by the chartered
accountant and an auditor
Puseletso Hlogoana (Hlogoana) and she reported thereon in writing on
the 21 January 2020 that
:
.
8.1.
The respondent failed to furnish Hlogoana with his
accounting records despite having been timeously notified and
also
given reasonable time to provide same. In doing so, the
respondent contravened Section 87 (5) (a) of the Legal Practice
Act
(The LPA) 28 of 2014 which provides that:
“
Despite
section 37(2)
(a)
,
any attorney or an advocate referred to in section 34(2)
(b)
or an employee of a
trust account practice must, at the request of the Council or the
Board, or the person authorised thereto by
the Council or the Board,
produce for inspection a book, document or article which is in the
possession, custody or under the control
of that legal practitioner
or such employee, which book, document or article 25 relates to the
trust account practice or former
trust account practice of such
attorney or advocate: Provided that the Council or the Board or
person authorised by the Council
or the Board may make copies of such
book, document or article and remove the copies from the premises of
that attorney, advocate
or trust account practice”.
8.2.
The respondent did not utilise any accounting records for purposes of
managing his trust banking account
and accounting for trust funds.
8.3
Respondent failed to update his accounting records and therefore
contravened rule 54 (10) of the Act:
“
A
firm shall update and balance its accounting records monthly and
shall be deemed to comply with this rule if,
inter
alia
, its accounting
records have been written up by the last day of the following month”.
[9]
Hlogoana could not be able to determine the firm’s current
trust position due to the fact that
she was not furnished with trust
bank statement but however she was able to obtain them from the
respondent’s bank, FNB.
Respondent had an amount of R835 498.10
which was available in the account on the 28 February 2019.
[10]
In the supplementary affidavit filed on the 11
th
of
January 2021 it was found that the trust deficit is now R2 577
740.09.
[11]
Respondent’s failure to keep proper account records in respect
of his practice is a contravention of section
87(1) of the LPA and
Rule 54.6 of the LPC. Section 87(1) of the LPA which provides
that:
“
A
trust account practice must keep proper accounting records containing
particulars and information in respect of—
(a)
money
received and paid on its own account;
(b)
any
money received, held or paid on account of any person;
(c)
money
invested in a trust account or other interest-bearing account
referred to in section 86; and any interest on money so invested
which is paid over or credited to it”
Rule 54.6 of the LPC
which provides that:
“
A firm shall keep in an
official language of the Republic such accounting records, which
record both business account transactions
and trust account
transactions, as are necessary to enable the firm to satisfy its
obligations in terms of the Act, these rules
and any other law with
respect to the preparation of financial statements that present
fairly and in accordance with an acceptable
financial reporting
framework in South Africa the state of affairs and business of the
firm and to explain the transactions and
financial position of the
firm including, without derogation from the generality of this rule
54.6.1 records showing all assets
and liabilities as required in terms of sections 87 of the Act;
54.6.2 records
containing entries from day to day of all monies received and paid by
it on its own account, as required
by sections 87(1) and 87(3) of the
Act;
54.6.3 records
containing particulars and information of:
54.6.3.1
all monies received, held and paid by it for and on account of
any person;
54.6.3.2
all monies invested by it in terms of section 86(3) or section
86(4) of the Act;
54.6.3.3
any interest referred to in section 86(5) of the Act which is paid
over
or credited to it;
54.6.3.4
any interest
credited to or in respect of any separate trust savings”
[12]
The respondent’s failure to account to his clients in respect
of the trust funds there by contravenes Rule
10 which provides that:
An
attorney shall within reasonable time reply to all communications
which require an answer unless there is good cause for refusing
an
answer; An attorney shall respond timeously and fully to request from
the Council for information and or documents which he
or she is able
to provide. An attorney shall comply timeously with directions from
the Council.
[13]
It appears form the audit record that the respondent has delayed the
payment of trust funds to his clients in contravention
of Rule 54.12
and 13 of the LPC which provides that:
54.12 Every
firm shall, within a reasonable time after the performance or earlier
termination of any mandate, account
to its client in writing and
retain a copy of each such account for not less than five years.
Each account shall contain
details of:
54.12.1 all amounts
received by it in connection with the matter concerned, appropriately
explained.
54.13 A
firm shall, unless otherwise instructed, pay any amount due to a
client within a reasonable time.
Prior to making any such
payment the firm shall take adequate steps to verify the bank account
details provided to it by the client
for the payment of amounts due.
Any subsequent changes to the bank account details must be similarly
verified.
[14]
The respondent’s failure to reply to his client, Mashaba
Motlatsi‘s correspondence and to communicate
with her or
consult with her, has also been established through the report
compiled.
[15]
The respondent has also conclusively indicates that, the received
proceeds of Mashaba Mtlatsi’s claim in
the amount of R525 000
had been utilised by him for other purposes. In other words he
misappropriated Mashaba Motlatsi’s
monies. It also
appears from the report that the respondent has utilised the trust
monies of one trust creditor in order
to pay another. He “rolled”
the trust fund in order to conceal the trust deficits in his
bookkeeping. The respondent
has admitted to this
misappropriation of Mashaba’s monies.
[16]
In acting as aforesaid, the respondent contravened rule 54 14.14 of
the LPC
Rule
54.14.14 provides that:
Withdrawals from a firm's trust
banking account shall be made only:
54.14.14.1 to
or for a trust creditor; or
54.14.14.2 as transfers to
the firm's business banking account, provided that such transfers
shall be made only in respect
of money due to the firm; and provided
that no transfer from its trust banking account to its business
banking account is made
in respect of any disbursement (including
counsel's fees) or fees of the firm unless:
54.14.14.2.1
the disbursements have actually been made and debited by the firm; or
54.14.14.2.2 a
contractual obligation has arisen on the part of the firm to pay the
disbursement;
54.14.14.2.3
fees and disbursement have been correctly debited in its accounting
records.
[17]
The fact that the respondent’s trust banking account no longer
had Mashaba’s monies resulted in a deficit
as at 31
st
March 2019 of R392 851.90. This is a further contravention
of Rule 54.14.8 of LPC which provides that:
A
firm shall ensure that the total amount of money in its trust banking
account, trust investment account and trust cash at any
date shall
not be less than the total amount of the credit balances of the trust
creditors shown in its accounting records.
[18]
The respondent failed to report the trust deficit in his bookkeeping
to the council which is in contravention of
Rule 54.14.10 of LPC
which provides that:
A firm shall immediately report
in writing to the Council should the total amount of money in its
trust bank accounts and money
held as trust cash be less than the
total amount of credit balances of the trust creditors shown in its
accounting records, together
with a written explanation of the reason
for the debit and proof of rectification
.
[19]
It appears that the respondent practiced as an attorney without being
in possession of fidelity Fund Certificate
from the period 1 January
2019 until the 6 March 2019
.
and again on the period
between 1
st
January 2020 until 5
th
March 2020.
The applicant conceded, however that it was in correct to have stated
that he (the respondent) did not have a
Fidelity Fund
certificate the whole year of 2020. Section 84(1) and (2) of the LPA
provides that :
(1)
Every attorney or any advocate referred to in section 34(2)
(b)
,
other than a legal practitioner
in the full-time employ
of the South African Human Rights Commission
or the State as a state attorney or state advocate and who practises
or is deemed
to practise—
(a)for his or her own account
either alone or in partnership; or
(b)as
a director of a practice which is a juristic entity, must be in
possession of a Fidelity Fund certificate.
(2)
No legal practitioner
referred to in subsection (1) or person employed or supervised by
that legal practitioner may receive or hold
funds or property
belonging to any person unless the legal practitioner concerned is in
possession of a Fidelity Fund certificate.
[20]
However, what the respondent also failed to do was to pay his annual
membership fees to the council and he thereby
contravened Rule 4 of
the LPC which provides that.
Every
legal practitioner who is admitted and enrolled in terms of section
24(1) of the Act as a legal practitioner shall pay an
annual fee to
the Council at such time as may from time to time be fixed by the
Council.
[21]
Additional complaints referred to in the Council’s papers to
which the respondent did not reply to when requested
to comment on by
the investigator are the following:
·
Ms
Msiza.’s claim was finalised and the Road Accident Fund paid.
She was never paid the money. When Lekopane Khumalo Attorneys
took
over the matter and communicated with the respondent, he ignored
them.
·
Mr
Mashiane’s claim was also finalised and the respondent failed
to pay him. Mashiane tried to contact the respondent but
he failed to
account to the where about of the money.
·
Mr
Sallmani ‘s third party claim paid in February 2020 by the RAF
and respondent failed to pay him. He also failed to
account to
the client.
·
Miss
Tlhaka’s claim was paid by the Road Accident Fund but the
respondent delayed the payment and started paying the claimant
in
instalments. He did not pay all the money. The whereabouts of the
money is unknown.
·
Mr
Moleme lodged a claim in 2009 and was never updated about the
progress. Up until now he does not know the status of the claim.
The
respondent contravened Rule 54.12 and 13 of the LPC rules .
[22]
The applicant argued that the respondent‘s conduct reveals a
character which is unacceptable and cannot be
tolerated in the
attorneys’ profession and an officer of the Court. It is
further contended that the respondent is not a
fit and proper person
to practice as a legal practitioner and cannot be allowed to continue
practising as such. The respondent
continuously placed his
trust creditors and the Legal Practitioners Fidelity Fund at risk.
Issue
[23]
The issue to be determined is whether the respondent is a fit and
proper person to practice as a legal practitioner
in the
circumstances of this case.
The
law applicable to the issue
[24
The Council is empowered under section 40 (3) (a) (iv) read with
section 44 (1) of the LPA, to launch an application
with the High
Court for the striking off the roll or suspension from practice of a
legal practitioner. The court has inherent powers
to exercise
disciplinary jurisdiction over the respondent.
[25]
Accordingly, the LPC is not an ordinary litigant in this application.
As
custos morum
of the profession, the LPC places the facts
and its views for this court to take appropriate action in the
exercise of its discretion
using its disciplinary powers. See
A v
Law Society of the Cape of Good Hope
1989 (1) SA 849
(A).
Significantly, the court’s power is inherent in nature over and
above the provisions of the Act.
Law Society of the Transvaal v
Tloubatla
[1999] 4 All SA 59
(D);
Law Society of the Transvaal
v Machaka and Others (No 2)
1998 (4) SA 413
(T) and
Law
Society of the Cape of Good Hope v C
1986 (1) SA 616
(A)
unreported judgement South African Legal Practice Council v Chalom
(18445/2020) ZAGPPHC 663 delivered on the 26 November 2020
[26]
In deciding the issue of a fit and proper person there are three
stages of enquiry namely
1.
The court must decide whether the alleged offending conduct has
been established on preponderance
of probabilities if
so.
2.
It must decide in its discretion whether the person concerned is a
fit and proper person to practice as an
attorney and this require a
value judgment, and if not
3.
The court must in its discretion, which involves yet again a value
judgment determine whether the attorney
should be merely suspended or
struck off the roll.
Discussion
[27]
The above facts are accepted as correct because they have not been
disputed by the respondent. This facts clearly
demonstrate the
respondent‘s conduct in misappropriation of the trust fund to
the disadvantage of his clients. The
respondent admitted to
using the trust money of Motlatsi Mashaba for himself when confronted
by the investigator Hlogoana. The
respondent then advised that he was
going to secure a loan from his partner to repay the money in October
2019. However such money
was never paid till to date. The respondent
has done this to more than five of his clients. This led to trust
fund deficits to
the tune of R2 577 740.09 in January 2021. Because
of these deficits the respondent kept on rolling the trust funds in
order to
hide the misappropriation of the clients trust monies.
[28]
All the above clients whose third party claims paid up, were
never updated of the progress, and to some he
paid their claims in
instalments thereby delaying the payment to others he did not pay
their claims at all. .
[29]
The respondent contravened several provisions of the LPA, the LPC
rules and the code of conduct. He even failed
to cooperate with the
Council in these investigations. He failed to produce accounting
records for inspection or to grant the Council
access to those
records.
[30]
With regard to the issue brought by the Council that the respondent
did not have the Fidelity Fund certificate
when he was practising as
an attorney. Respondent produced the Fidelity Fund certificate which
was issued on the 5
th
of March 2020. It is clear that from
January 2020 until the 4 March the respondent practised without a
certificate. He did not
dispute this. It is therefore accepted that
the respondent contravened Section 84(1) and (2) of the LPA.
[31]
A legal practitioner is a member of a learned, respected and
honourable profession and, by entering it, a practitioner
pledges
himself or herself with total and unquestionable integrity to society
at large to the courts
,
and to the profession. Only
the highest standard of conduct and repute and good faith are
consistent with membership of the legal
profession which can indeed
only function effectively if it inspire the unconditional confidence
and trust of the public. The image
and the standing of the legal
profession are judged by the conduct and reputation of all legal
practitioners and to maintain confidence
and trust all legal
practitioners must exhibit the qualities set out above at all times.
The respondent lacked professionalism,
integrity, and the public
would lose confidence if he continues to practice as a legal
practitioner.
[32] We
have found the misconduct of the respondent proved on a preponderance
of probabilities.
[33]
Having regard to the undisputed numerous and varied contraventions of
the LPA, LPC Rules and Code of conduct that
have been indicated on
the founding and supplementary affidavits, and weighing that against
the standard required of a legal practitioner
as outlined above, we
hold the view that the respondent is not a fit and proper person to
practise as an attorney
[34] The
offending conduct complained of has been repeatedly done. More than
five people have not been paid and no one
knows where the money went
to. It is accepted that the respondent had been covering his deficits
by rolling the money over so that
the misappropriation of the
client’s trust fund could never be detected. This takes a
careful planning to do. Looking at
the fact that so many of his
clients had already fallen victims he intended for it to continue
unabated. This was seen also from
the two letters which he had
written addressed to the Council when he wanted his files back and
hailing all insulting words to
the chairperson of the Council.
[35] The
respondent‘s character shows a person who is unworthy to remain
in the ranks of this honourable profession.
The community must be
protected from a practitioner like the respondent. Therefore, the
Courts and the LPC have a duty to act in
order to protect the public.
The respondent should therefore be struck from the roll in order that
his continued misconduct should
be stopped.
[36] In
the result, the following order is made
1.
The
respondents name is truck from the roll of legal practitioners of the
High Court of South Africa (Gauteng Division) and the
Legal Practice
Council is directed to remove his made from the roll of attorneys.
2.
Costs
on attorney and client scale are to be paid by the respondent for
this application
3.
The
respondent must immediately surrender and deliver to the Registrar of
this Honourable Court his certificate of enrolment as
an attorney of
this Honourable Court.
4.
In the
event of the respondent failing to comply with the terms of this
order detailed in paragraph 2 above within two (2) weeks
from the
date of this order, the sheriff of the district in which the
certificate was issued, be authorised and directed to take
possession
of the certificate and to hand it to the Registrar of this Court.
5.
The
respondent be prohibited from handling or operating his trust
account(s) as detailed in paragraph 6 hereof.
6.
That
Johan van Staden, the Head: Risk Compliance of the applicant or any
person nominated by him, in his capacity as such, remains
a suitable
person to act as
curator
bonis
(curator) to administer and control the trust account(s) of the
respondent, including accounts relating to insolvent and deceased
estates and any deceased estate and any estate under curatorship
connected with the respondent's practice as an attorney and
including,
also, the separate banking accounts opened and kept by the
respondent at a bank in the Republic of South Africa in terms of
section
86 (1) of the Legal Practice Act ("LPA") and/or any
separate savings or interest-bearing accounts as contemplated by
sections 86 (3) and 86 (4) of the LPA, in which monies from such
trust banking accounts have been invested by virtue of the provisions
of the said sub-sections or in which monies in any manner have been
deposited or credited (the said accounts being hereafter referred
to
as the trust accounts), with the following powers and duties:
6.1.
To immediately to take possession of the respondent's accounting
records, records, files and documents as
referred to in paragraph 7
below and subject to the approval of the board of control of the
Legal Practitioners’ Fidelity
Fund (hereinafter referred to as
the Fund) to sign all 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;
6.2
Subject to the approval and control of the board of control of the
Fund and where monies had been paid
incorrectly and unlawfully from
the under mentioned trust accounts, 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 monies
held, received and/or
invested by the respondent in terms of sections
86 (3) and 86 (4) of the Legal Practice Act (hereinafter referred to
as trust monies),
to take any legal proceedings which may be
necessary for the recovery of money which may be due to such persons
in respect of incomplete
transactions, if any, in which the
respondent was and may still have been concerned and to receive such
monies and to pay the same
to the credit of the trust account(s);
6.3
To ascertain from the respondent's accounting records the names of
all persons on whose account the
respondent appears to hold or to
have received trust monies (hereinafter referred to as trust
creditors) and to call upon the respondent
to furnish him, within 30
(thirty) days of the date of service of this order or such further
period as he may agree to in writing,
with the names, addresses and
amounts due to all trust creditors;
6.4
To call upon such trust creditors to furnish such proof, information
and/or affidavits as he may require
to enable him, acting in
consultation with, and subject to the requirements of the board of
control of the Fund, to determine whether
any such trust creditor has
a claim in respect of monies in the trust account(s) of the
respondent and, if so, the amount of such
claim;
6.5
To admit or reject, in whole or in part, subject to the approval of
the board of control of the Fund,
the claims of any such trust
creditor or creditors, without prejudice to such trust creditor's or
creditors’ right of access
to the civil courts;
6.6
Having determined the amounts which he considers are lawfully due to
trust creditors, to pay such claims
in full but subject always to the
approval of the board of control of the Fund;
6.7
In the event of there being any surplus in the trust account(s) of
the respondent 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) of the Act 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 referred to in paragraph 1.3
of part B of the notice
of motion of 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 all such claims, costs, fees and expenses, to pay
such balance, subject
to the approval of the board of control of the
Fund, to the respondent, if he is solvent, or, if the respondent is
insolvent, to
the trustee(s) of the respondent's insolvent estate;
6.8
In the event of there being insufficient trust monies in the trust
banking account(s) of the respondent,
in accordance with the
available documentation and information, to pay in full the claims of
trust creditors who have lodged claims
for repayment and whose claims
have been approved, to distribute the credit balance(s) which may be
available in the trust banking
account(s) amongst the trust creditors
alternatively to pay the balance to the Fund;
6.9
Subject to the approval of the chairman of the board of control of
the Fund, to appoint nominees or
representatives and/or consult with
and/or engage the services of attorneys, counsel, accountants and/or
any other persons, where
considered necessary, to assist him in
carrying out his duties as curator; and
6.10
To
render from time to time, as curator, returns to the board of control
of the Fund showing how the trust account(s) of the respondent
has/have been dealt with, until such time as the board notifies him
that he may regard his duties as curator as terminated.
7.
The
respondent is ordered to immediately deliver to the curator appointed
in paragraph 5 his accounting records, records, files
and documents
containing particulars and information relating to:
7.1
Any monies received, held or paid by the respondent for or on account
of any person while practising
as an attorney;
7.2
Any monies invested by the respondent in terms of sections 86 (3) and
86 (4) of the LPA;
7.3
Any interest on monies so invested which was paid over or credited to
the respondent;
7.4
Any estate of a deceased person or an insolvent estate or an estate
under curatorship administered by
the respondent, whether as
executors or trustees or curators or on behalf of the executor,
trustee or curator;
7.5
Any insolvent estate administered by the respondent as trustee or on
behalf of the trustee in terms
of the
Insolvency Act 24 of 1936
;
7.6
Any trust administered by the respondent as trustee or on behalf of
the trustee in terms of the Trust
Property Control Act 57 of 1988;
7.7
Any company liquidated in terms of the Companies Act 61 of 1973,
administered by the respondent as or
on behalf of the liquidator;
7.8
Any close corporation liquidated in terms of the
Close Corporations
Act 69 of 1984
, administered by the respondent as or on behalf of the
liquidator; and
7.9
The respondent's practice as an attorney of this Court.
8.
Should
the respondent fail to comply with the provisions of the preceding
paragraph of this order on service thereof upon him or
after a return
by the person entrusted with the service thereof that he has been
unable to effect service thereof on the respondent
(as the case may
be), the sheriff for the district in which such accounting records,
records, files and documents are, be empowered
and directed to search
for and to take possession thereof wherever they may be and to
deliver them to such curator.
9.
That the respondent be and is hereby removed from office as-
9.1
Executor of any estate of which the respondent has been appointed in
terms of section54 (1)(a)(v) of
the administration of estate act no66
of 1965 or the estate of any other person referred to in
section
72(1)
;
9.2
Curator or guardian of any minor or other person’s property In
terms of
section 72(1)
read with
section 54(1)(a)(v)
and
85
of the
administration of estate act no 66 of 1965’
9.3
Trustee of any insolvent estate in terms of
section 59
of the
insolvency act no 24 of 1936;
9.4
Liquidator of any company in terms of
section 379(2)
read with 379(e)
of the companies act no 61 of 1973’
9.5
Trustee of any trust in terms of
section 20(1)
of the trust property
control act no 57 of 1988;
9.6
Liquidator of any close corporation appointed in terms of section74
of the close corporation act 69
of 1984; and
9.7
Administrator appointed in terms of
section 74
of the magistrate
court act no 32 of 1944.
10. That the
curator shall be entitled to:
10.1
Hand over to the persons entitled thereto all such records, files and
documents provided that a satisfactory
written undertaking has been
received from such persons to pay any amount, either determined on
taxation or by agreement, in respect
of fees and disbursements due to
the firm;
10.2
Require from the persons referred to in paragraph 8.1 to provide any
such documentation or information which
he may consider relevant in
respect of a claim or possible or anticipated claim, against him
and/or respondent and/or the respondent's
clients and/or Fund in
respect of money and/or other property entrusted to the respondent
provided that any person entitled thereto
shall be granted reasonable
access thereto and shall be permitted to make copies thereof;
10.3
Publish this order or an abridged version thereof in any newspaper he
considers appropriate; and
10.4
Wind-up of the respondent's practice.
11. If
there are any trust funds available the respondent shall within 6
(six) months after having been requested to
do so by the curator, or
within such longer period as the curator may agree to in writing,
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
his former practice(s), and should he
fail to do so, he shall not be entitled to recover such fees and
disbursements from the curator
without prejudice, however, to such
rights (if any) as he may have against the trust creditor(s)
concerned for payment or recovery
thereof.
12. A
certificate issued by a director of the Fund shall constitute
prima
facie
proof of the curator's costs and that the Registrar be
authorised to issue a writ of execution on the strength of such
certificate
in order to collect the curator's costs.
13. The
respondent be and is hereby directed:
13.1
To pay, in terms of section 87 (2) of the Act, the reasonable costs
of the inspection of the accounting records
of the respondent;
13.2
To pay the reasonable fees and expenses of the curator;
13.3
To pay the reasonable fees and expenses of any person(s) consulted
and/or engaged by the curator as aforesaid;
13.4
To pay the expenses relating to the publication of this order or an
abbreviated version thereof; and
M.
M. MUNZHELELE
Acting
Judge of the High Court
Gauteng
Division, Pretoria
I
agree
N. DAVIS
Judge of the High
Court
Gauteng Division,
Pretoria
Appearance
on behalf of the applicant:
Mr L. Groome
Instructed
by
Rooth & Wessels Inc
Appearance
by the respondent in person:
Mr L.B. Mashabela
Virtually
heard on:
11 March 2021
Judgment
delivered
18 May
2021