Law Society of the Northern Provinces v Mogami and Others (588/08) [2009] ZASCA 107; 2010 (1) SA 186 (SCA) ; [2010] 1 All SA 315 (SCA) (22 September 2009)

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[2009] ZASCA 107
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Law Society of the Northern Provinces v Mogami and Others (588/08) [2009] ZASCA 107; 2010 (1) SA 186 (SCA) ; [2010] 1 All SA 315 (SCA) (22 September 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No:
588
/08
THE LAW SOCIETY OF THE NORTHERN
PROVINCES
Appellant
and
TSHEGOFATSO CHRISTOPHER MOGAMI First
Respondent
NICLAS MODISE DITSHIPI MABUSE Second Respondent
THE LAW SOCIETY OF BOPHUTHATSWANA Third
Respondent
Neutral citation:
Law
Society of the Northern Provinces v Mogami
(588/08
)
[2009] ZASCA 107
(22 SEPTEMBER 2009)
Coram:
HARMS DP, MTHIYANE,
HEHER, MLAMBO AND MAYA JJA
Heard:
03 SEPTEMBER 2009
Delivered:
22
SEPTEMBER
2009
Updated:
Summary:
Attorneys;
disciplinary proceedings
ORDER
On appeal from:
High Court of
South Africa (BPD) GURA J AND MONAMA AJ
as court
of first instance.
The appeal is upheld with costs on the attorney and
client scale.
The order of the full bench is set aside.
In its stead the following order issues against the
respondents, Mr Mogami and Mr Mabuse:
They are reprimanded for their unlawful,
unprofessional and unethical conduct.
They are ordered to account properly to the
complainants Motshephe, Mashilo and Buda within two months of this
judgment, and
to supply the applicant with a report on the
accounting supported by vouchers.
They are ordered to comply with the provisions of
sections 55 and 84A of the Attorneys Act and recognise the
applicant’s jurisdiction.
They are to pay, jointly and severally, the costs of
the applicant on an attorney and client scale, including the
reasonable
costs of the inspection of the accounting records of the
respondents; the reasonable costs of the curator; and the
reasonable
fees and expenses of any person consulted or engaged by
the curator.
JUDGMENT
HARMS DP (MTHIYANE, HEHER, MLAMBO AND MAYA JJA
concurring)
INTRODUCTION
[1] The appellant, the Law Society of the Northern
Provinces (incorporated as the Law Society of Transvaal), launched an
application
against two attorneys, Mr TC Mogami and Mr NMD Mabuse, in
the Bophuthatswana High Court. The application was in two parts. Part

A was for an interim order suspending them from practice as attorneys
pending the final determination of part B, and for ancillary
relief.
Part B was for an order striking them from the roll of attorneys, and
for costs.
[2] The relief sought in part A of the notice of motion
was granted by Hendricks J, but the full bench (Monama AJ in a
judgment
concurred in by Gura J), when dealing with part B, refused
to take any punitive action against the respondents; permitted them
to recommence their practice; and ordered the parties to pay their
own costs. The appeal is against this judgment. As a result of
the
interim order the respondents were effectively suspended from
practising for a period of about ten months.
[3] Although the full bench was able to deliver judgment
on the merits within six weeks the application for leave to appeal
was
handled differently. The application was filed on 15 November
2007; the matter was heard only on 14 March 2008, and it took nearly

seven months to deliver on 3 October 2008 a one page judgment
granting leave. It is inexplicable why such an uncomplicated judgment

took so long to deliver especially in a case such as this which not
only affects the parties but where a public interest element
is
involved (
New Clicks SA (Pty) Ltd v
Tshabalala-Msimang NO; Pharmaceutical Society of SA v Minister of
Health
[2005] 1 All SA 326,
2005 (3) SA 238 (SCA) at para 36-38). Courts are
obliged to deal with
applications for leave expeditiously and systems
ought to be in place enabling courts to hear them soon after having
been filed.
There is also no reason why they cannot be disposed of in
chambers without oral argument.
[4] Applications for the suspension or removal from the
roll require a three-stage enquiry. First, the court must decide
whether
the alleged offending conduct has been established on a
preponderance of probabilities, which is a factual inquiry. Second,
it
must consider whether the person concerned is ‘in the discretion
of the Court’ not a fit and proper person to continue to practise.

This involves a weighing up of the conduct complained of against the
conduct expected of an attorney and, to this extent, is a
value
judgment. And third, the court must inquire whether in all the
circumstances the person in question is to be removed from
the roll
of attorneys or whether an order of suspension from practice would
suffice (
Jasat v Natal Law Society
2000
(3) SA 44
,
[2000] 2 All SA 310
(SCA);
Malan
and Another v Law Society of the Northern Provinces
[2008]
ZASCA 90
;
2009 (1) SA 216
;
[2009] 1 All SA 133
(SCA)
at para 10
)).
[5] The full bench found the
respondents guilty of some offending conduct but either overlooked or
failed to assess the evidence
in regard to the other allegations
properly. In spite of its finding of guilty it did not consider the
second question squarely
but moved immediately to the third, holding
that the period of suspension due to the interim order was a
sufficient penalty for
their transgressions.
THE FIRST ENQUIRY: THE OFFENDING CONDUCT
[6] The respondents were admitted as attorneys of the
Bophuthatswana High Court. They are members of the local law society,
the
Law Society of Bophuthatswana. It was joined as a respondent in
the court below because of its possible interest in the matter and

took part in some of the proceedings but chose not to be involved in
the appeal.
[7] The Attorneys Act 53 of 1979 was amended during 1998
by the Attorneys and Matters Relating to Rules of Court Amendment Act
115
of 1998. In brief, the effect of the amendment was that for
purposes of chapter 2 of the principal Act (the provisions dealing
with the Fidelity Fund) attorneys practising within the former
Bophuthatswana are deemed to be members of the appellant (s 55);
and
the appellant obtained concurrent jurisdiction with the
Bophuthatswana society in relation to disciplinary matters (s 84A).

The powers given to the appellant by s 84A include the jurisdiction
to make rules as to conduct that constitutes unprofessional
or
dishonourable or unworthy conduct; to enquire into any case of
alleged unprofessional or dishonourable or unworthy conduct;
to apply
for the suspension or striking off of an attorney on the ground that
the attorney is not a fit and proper person to continue
to practise
as an attorney; to prescribe the books, records, certificates or
other documents to be kept and inspection thereof;
and to direct any
practitioner to produce for inspection any book, document, record or
thing.
[8] Practitioners of Bophuthatswana and members of the
Bophuthatswana society objected to the fact that the appellant was
given
these powers and refused to comply with the law as it stands.
The society even instructed their members to ignore the law by
refusing
to recognise the appellant’s powers and jurisdiction as
conferred by the Act. The judgment in
Law
Society, Northern Provinces (Inc as the Law Society of the Transvaal)
v Maseka
2005 (6) SA 372 (BH)
is in this regard particularly important. It involved an application
permitting the appellant
to inspect the books of the then chair and
acting administrator of the society. Judgment was delivered on 8
March 2005 and the
court held that the appellant had the powers
referred to in the preceding paragraph (at 378D-G). On 23 May the
society resolved
more or less to ignore the judgment, insisting that
all disciplinary matters against its members should be dealt by it.
Both this
court and the Constitutional Court dismissed applications
for leave to appeal, the latter on 4 October 2005. In spite of this
the
society made common cause with the respondents during May 2006 in
rearguing the same point, namely that the appellant had no locus

standi to (a) investigate complaints against the respondents; (b)
require an inspection of the respondents’ books; and (c) launch
the
present application.
[9] It went further. A council member of the
Bophuthatswana society (Mr R V Matlhare) filed an affidavit on its
behalf. In spite
of the mentioned case law he denied the existence of
the amending Act and made legal submissions that fly in the face of
at least
one judgment of this court. Hendricks J dismissed these
points. He pointed out that this court had, previously, held that the
argument
presented was fallacious (
Mabaso v
Law Society, Northern Provinces
2004 (3) SA 453 (SCA) at para 10). In spite of
this, the society and the respondents sought, again, to appeal
the
matter on the same grounds as had been disposed of in the
Maseka
case. The attempts failed.
[10] The affidavit of Mr Matlhare accused the appellant
of misleading the court and fabricating evidence. The irrefutable
facts
are these.
The respondents were obliged to file their annual
auditor’s report on 31 August 2005. They failed to do so. This is
a contravention
of the appellant’s applicable rule 70. The purpose
of the rule is to satisfy the appellant that an attorney’s
accounting
records are kept in accordance with the Act and the
rules, and that an attorney handles and administers trust money
properly
and responsibly. The respondents nevertheless denied this
failure in their first affidavits while in the second set they
admitted
it but denied without any explanation that they were in
breach of the rule.
The appellant made an attempt to inspect the
respondents’ accounting records on 28 September 2005, but was
refused access. As
mentioned, the appellant has a statutory right to
inspection.
Last, their fidelity fund certificate for the year 2005
lapsed on 31 December 2005. They practised as from 1 January 2006
without
any such certificate. This is in terms of s 41(1) and 83(10)
of the Act a serious criminal offence (
Law
Society of the Northern Provinces v Mamatho
2003 (6) SA 467 (SCA)). On 20 March 2006, the
appellant launched its urgent application, which was primarily
based
on these grounds.
[11] The respondents and the Bophuthatswana society not
only denied that the respondents were practising without fidelity
fund certificate
but also affirmed that they had the necessary
certificates. The point was eventually abandoned but there was never
an explanation
offered for the content of the affidavits. It is
difficult to escape the conclusion that not only the respondents but
also the
Bophuthatswana society sought to mislead the court. It is
bad enough for courts to deal with alleged unprofessional conduct of
practitioners but it is a sad day for the legal profession in
particular and justice in general if a professional body acts
unprofessionally
by ignoring the clear law and judgments of competent
courts, and by presenting spurious evidence.
[12] Unsurprisingly, Hendricks J did not take kindly to
the actions of both the respondents and the Bophuthatswana society.
The
full bench adopted a different approach. It did not address the
unacceptable and dishonest way in which the litigation was conducted

by both the respondents and the Bophuthatswana society as if that
were an irrelevant consideration. It is not (
Botha
v Law Society of the Northern Provinces
[2009] ZASCA 13
;
2009 (3) SA 329
(SCA) at para 18-20).
Instead, the full bench issued a warning to both the appellant and
the Bophuthatswana Society: they may not issue conflicting
instructions to practitioners and they must co-govern. The court did
not take into account that the Bophuthatswana society had issued
an
unlawful instruction nor did it consider that the appellant was
exercising a statutory duty imposed on it by Parliament. A
practitioner is not entitled to hide behind an unlawful instruction.
The respondents, it may be noted, did not state that they were

unaware of the case law set out above. The full bench’s warning
was, as far as the appellant is concerned, uncalled for and
inappropriate.
[13] Although the full bench found that the respondents
had contravened rule 70 (point (a) above), it did not take that fact
into
account when dealing with the rest of the inquiry. As to point
(b), it found that in the light of the instruction of the
Bophuthatswana
society that the respondents’ attitude had not been
‘obstructionist in nature’. This misses the point. They ignored a
legal
demand without legal justification. The respondents are guilty
of this transgression. As to (c), the full bench accepted that the

respondents had been practising without a certificate. According to
the judgment they had admitted that they were wrong in so doing.

However, such an admission is not to be found in their affidavits.
Counsel may have made the concession during the hearing but
there is
no apology or expression of regret or an attempted explanation in
their papers.
[14] In addition to the foregoing the appellant drew the
court’s attention in the founding papers to a number of instances
where,
it was alleged, either respondent had contravened one or more
rule in dealing with clients’ matters. These cases all resulted

from complaints laid by members of the public with the appellant. The
complaints were mostly that the respondents had failed to
account
properly to their clients. The full bench dismissed all the
complaints. On appeal the respondents’ counsel was bound
to concede
that the respondents had in fact failed to account properly to some
clients and that their accounting to the court in
the papers was
insufficient. He argued, however, that the fact that the respondents
had failed to account properly was not a charge
they had to meet
because the complaint was a failure to account and not one to account
‘properly’. I do not believe that the
submission was seriously
made. In what follows I deal with the individual complaints that were
established.
[15] Mrs DS Motshephe:
The
respondents were instructed to collect the sum of R163 173,40 on
behalf of Mrs Motshephe from a debtor. She laid a complaint
that R53
350,00 only had been paid over to her. The respondents were able to
show that they had paid a further sum of R33 000,
which left about
half the amount unaccounted for. Because the complainant had
overstated the amount outstanding the full bench
dismissed her
complaint because, it said, she was not altogether honest in her
complaint. The full bench also misread her evidence
as to what was
due to her and used that as another reason to dismiss the complaint.
[16] The main responsibility in this case was that of Mr
Mabuse. The complainant sent a fax to the firm on 5 April 2005
requesting
proper accounting. The firm did not respond and she
proceeded to lay a complaint. On 27 July, the appellant sent the firm
a letter
‘together with a bunch of documents’ (in the words of
Mabuse) setting out her complaint and asked for a response. He
refused
to give one and returned the documents on 15 August. On 5
December he informed the Bophuthatswana society of the complaint. He
mentioned that he refused to consult with the complainant because the
matter had not been finalised, and that the file had been
sent to a
cost consultant for preparing the firm’s account. He undertook to
prepare a final account and to issue a cheque for
the outstanding
amount. The application was launched on 20 March 2006 and the
respondents deposed to their first answering affidavits
on 31 March.
Mabuse’s answer at the time was that he could not deal with the
complaint because the file was still with the cost
consultant. In
addition, both he and the Bophuthatswana society falsely denied that
the society had a rule requiring proper accounting
[17] In his second affidavit, sworn to on 11 May 2007,
he denied for the first time having received the fax. This denial, in
the
light of the facts, cannot be true. He alleged also that he had
paid more than the amounts mentioned but did not provide any proof.

Instead he put the appellant to the proof that he did not. He also
said that he was unable to respond because the file was attached

pursuant to Hendricks J’s interim order. But that order only became
effective during December 2006 when the application for leave
to
appeal had been put to rest. His bald denial that he failed to pay
trust funds over within a reasonable time is also not credible
taking
into account the common cause dates of receipt (30 August to 10
October) and payment of less than the full amount (18 December
2003).
[18] To conclude on this aspect: on the respondents’
own version they have failed to account fully and the accounting on
the papers
is insufficient and incomplete. The firm knew at least
since August 2005 that it had to account and it did not. There is no
explanation
why between 5 December 2005 and March 2006 the promised
accounting and settlement of accounts did not take place or why, with
the
court order suspended, not before December. Even after the files
were attached the respondents could have inspected them to prepare

their answer. Also, the amounts do not add up. And they have no
answer to the complaint that they failed to answer correspondence
or
delayed payment of trust funds. The full bench should in the light of
these facts have concluded that Mabuse was guilty of three
breaches:
failure to account (rule 68.7); delaying the payment of trust money
(rule 68.1); and the failure to answer correspondence
(rule 89.23).
The corresponding Bophuthatswana rules are 49(1), 51(2) and 76(22).
[19] Mr G Mashilo:
As
a result of a complaint by Mr G Mashilo, the appellant sought
Mabuse’s comments. He responded by letter of 13 October 2003.
The
appellant was dissatisfied with the response and decided to
investigate whether he overcharged his client and failed to account

within a reasonable time. Although properly notified, Mabuse failed
to attend the hearing. His excuse is that he obeyed the
Bophuthatswana
society. I have already indicated that the excuse is
not valid and that Mabuse is accordingly guilty of a contravention of
Bophuthatswana
rule 76(24).
[20] A further problem is that the statement of account
provided in the papers cannot be reconciled with Mabuse’s evidence.
The
firm received R 55 039,50 on behalf of Mashilo from the RAF.
Mashilo was allegedly paid R28 500,00 by means of loans (R 16 000)

and capital (R12 500). According to one statement the fees and
disbursements consisted of the balance, R26 539,00. However, if

Mabuse’s evidence is read with the detailed statement of account
the fees and disbursements amounted to R39 000. The inconsistency
is
not explained and the accounting is accordingly not a proper
accounting. In addition, there is no proof of payment of R12 500
of
the capital amount which the respondents admit was due to the
complainant. It follows that the court should have found Mabuse

guilty of failing to account properly.
[21] Mr JO Buda:
The
complaint of Mr Buda concerns Mogami. The complaint is that Mogami
failed to account properly to Buda. The full bench did not
consider
this complaint, finding that the firm did keep Buda informed of the
status of the matter. The issue is fairly simple.
The statement of
account on which Mogami relies is with the common cause evidence not
a proper detailed statement of account. It
lacks detail with
reference to dates and calculations of interest and of fees and
disbursements and it does not reflect payments
for fees made.
Although not serious in itself, the fact remains that Mogami
transgressed the mentioned rule.
[22]
Ms
MJ Molefe and Mrs Kunene:
The
complaint of Mrs Molefe also relates to Mogami. The complainant’s
minor niece was involved in an accident and the mother instructed
the
firm to handle her claim against the RAF. The mother died and the
complainant took her sister’s children under her care.
The RAF paid
the claim and the firm paid the money into the Guardian’s Fund. Ms
Molefe tried to establish where the money was
but Mogami did not
deign to inform her. He has many justifications and although on his
version he may not have breached any written
rule of ethics I believe
that the application of the basic principles of ubuntu placed an
ethical duty on him to respond to her
queries. Mrs Kunene’s
complaint against Mabuse is not much different and my remarks apply
to that instance as well.
[23] It is clear from this exposition of the complaints
that were lodged with the appellant that the full bench failed to
assess
the facts properly and that its assumption that the
respondents were not guilty of unprofessional, dishonourable or
unworthy conduct
cannot be justified. There were further complaints
levelled against them but these cannot be decided on the papers. The
appellant
submitted that in these circumstances we should refer those
disputed for oral evidence. We cannot comply with the request. An
application
for the hearing of oral evidence must, as a rule, be made
in limine and not once it becomes clear that the applicant is failing

to convince the court on the papers or on appeal. The circumstances
must be exceptional before a court will permit an applicant
to apply
in the alternative for the matter to be referred to evidence should
the main argument fail (
De Reszke v Maras
[2005] 4 All SA 440
,
2006 1 SA 401
(C) at para 32-33). In a case such
as this a Law Society might be able to apply in part A of its
application for an order ordering
the respondent to appear before its
council for an oral enquiry.
THE SECOND ENQUIRY: ARE THE RESPONDENTS FIT AND PROPER
PERSONS TO CONTINUE PRACTISING?
[24] It has been mentioned that the
full bench did not address this issue, at least not explicitly. To
the extent that it may by
implication have exercised a discretion or
value judgment we are nevertheless free to exercise our own because
its discretion was
based on an incorrect assessment of the facts.
[25] I have with reservations concluded that the
respondents are not unfit to continue practising as attorneys. The
particular complaints
dealt with indicate a level either of
incompetence, inattention or inability to do professional work but
the seriousness is not
such as to disqualify them from practising.
More serious were the failure to submit their auditor’s report and
the fact that
they practised without fidelity fund certificates.
These matters were soon rectified – even before part A was heard by
Hendricks
J. Although the respondents did not offer any explanation
or excuse for their transgressions I will give them the benefit of
the
doubt and accept that these were isolated lapses and that it
would appear that it is unlikely that they will be repeated.
[26] Very serious, however, is the respondents’
dishonest conduct of the proceedings. Instead of dealing with the
issues they
launched an unbridled attack on the appellant. It has
become a common occurrence for persons accused of a wrongdoing,
instead of
confronting the allegation, to accuse the accuser and seek
to break down the institution involved. This judgment must serve as a

warning to legal practitioners that courts cannot countenance this
strategy. In itself it is unprofessional. The problem is that
the
respondents’ professional body appears to have instigated their
behaviour and aided and abetted them in making untruthful
denials,
ignoring laws and court judgments, and launching an attack on the
appellant. Had it not been for the invidious role of
their society I
would have had little hesitation to find that the respondents were
not fit to continue practising.
THE SANCTION
[
27]
The
finding that the respondents are guilty of unprofessional conduct but
that they are fit to continue to practise does not mean
that it is
the end of the inquiry. We are entitled to discipline them by
suspending them from practice with or without conditions
or by
reprimanding them (
Malan
and Another v Law Society of the Northern Provinces
[2008]
ZASCA 90
;
2009 (1) SA 216
;
[2009] 1 All SA 133
(SCA)
para 5).
[28] An appropriate sanction would have been a
suspension from practice for a substantial period. As mentioned, the
respondents
were effectively suspended from practice for ten months
under the order of Hendricks J. It is now two years since the
suspension
lapsed. To impose another period of suspension at this
late stage appears to me to be futile.
[29] In my view a serious reprimand is called for. But
that will not suffice. We were repeatedly told by the respondents’
counsel
that as long as the two sections of the Act remain in place
the problem between Bophuthatswana practitioners and the appellant
will recur. In addition, the accounting problems in the cases
mentioned will not have been solved. The reprimand must, accordingly,

be accompanied by an order requiring the respondents to account
properly to those clients and to report to the appellant. It should

also be ordered that the respondents comply with the appellant’s
demands under chapter 2 of the Act as well as s 84A.
[30] I also believe that it is appropriate to reprimand
the Bophuthatswana society. It is a party before us although it chose
not
to appear. In the exercise of our inherent jurisdiction such a
reprimand is justified. The Bophuthatswana society must comply with

the law and it must respect the appellant’s statutory jurisdiction.
The filing of dishonest affidavits cannot be countenanced.
The
responsible members of its executive run the risk of disciplinary
proceedings in the event of a repetition.
COSTS
[31] As mentioned, the full bench, in spite of its
findings that the respondents had failed to file an auditor’s
report and had
practised without a fidelity fund certificate, ordered
the parties to pay their own costs. This is an unusual order. The
appellant
had a statutory duty to approach the court. It did not do
so as an ordinary litigant. The general rule is that a law society is

entitled to its costs, even if unsuccessful. Where there is
dishonesty involved in the litigation, as in this case, the
appropriate
scale should have been that of attorney and client. The
full bench did not have regard to these principles and in my view did
not
exercise its discretion judicially.
ORDER
[32] In the light of the foregoing the following order
is made:
The appeal is upheld with costs on the attorney and
client scale.
The order of the full bench is set aside.
In its stead the following order issues against the
respondents, Mr Mogami and Mr Mabuse:
They are reprimanded for their unlawful,
unprofessional and unethical conduct.
They are ordered to account properly to the
complainants Motshephe, Mashilo and Buda within two months of this
judgment, and
to supply the applicant with a report on the
accounting supported by vouchers.
They are ordered to comply with the provisions of
sections 55 and 84A of the Attorneys Act and recognise the
applicant’s jurisdiction.
They are to pay, jointly and severally, the costs of
the applicant on an attorney and client scale, including the
reasonable
costs of the inspection of the accounting records of the
respondents; the reasonable costs of the curator; and the
reasonable
fees and expenses of any person consulted or engaged by
the curator.
_____________________
L T C HARMS
DEPUTY PRESIDENT
For
Appellant:
A T LAMEY
Instructed
by: ROOTH WESSELS MOTLA CONRADIE INC
PRETORIA
NAUDES
ATTORNEYS
BLOEMFONTEIN
For Respondents: Z P MAKONDO
Instructed by: 1
ST
AND 2
ND
RESPONDENTS:
KGOMO MOKHETLE & TLOU ATTORNEYS
MAFIKENG
MABALANE SEOBE INC
BLOEMFONTEIN
3
RD
RESPONDENT:
MOTLABANI ATTORNEYS
MAFIKENG
MABALANE SEOBE INC
BLOEMFONTEIN