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[2021] ZAKZPHC 61
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KwaZulu-Natal Law Society v Khan and Others (10205/18P) [2021] ZAKZPHC 61 (3 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 10205/18P
In
the matter between:
KWAZULU-NATAL
LAW
SOCIETY APPLICANT
and
AZGAR
ALLY
KHAN 1
ST
RESPONDENT
FIRSTRAND
BANK
LIMITED 2
ND
RESPONDENT
THE
STANDARD BANK OF SOUTH AFRICA LTD 3
RD
RESPONDENT
ORDER
1. The
rule nisi
issued on 6 November 2018 is discharged with costs,
such costs to include costs of senior counsel where so employed.
JUDGMENT
Delivered on:
Mngadi
J: (Van Zyl J concurring in a secondary judgment)
[1] The
applicant seeks, by means of a
rule nisi,
an order for the
name of the first respondent to be struck off the roll of attorneys,
and pending the outcome thereof, that he be
suspended from practising
as an attorney. The first respondent opposes the application.
[2] The
applicant is the KwaZulu-Natal Law Society, an association of
attorneys, notaries and conveyancers admitted
and enrolled in
KwaZulu-Natal, and a juristic person in terms of section 56 of the
Attorneys Act 53 of 1979 (the Act). The first
respondent is Mr Azgar
Ally Khan a major male, and an admitted and practising attorney in
KwaZulu-Natal. The second respondent
is Firstrand Bank Limited, a
company with limited liability, duly registered and incorporated in
accordance with the company laws
of the Republic of South Africa,
conducting the business of a bank. The third respondent is The
Standard Bank of South Africa Limited,
a company with limited
liability, duly incorporated in terms of the company laws of the
Republic of South Africa, conducting the
business of a bank.
[3] The
first respondent conducts his trust banking account, relating to his
practice as an attorney, with the
second and third respondents. Both
the second and third respondents have been joined in these
proceedings for compliance purposes.
They have not taken part in the
proceedings.
[4] The
applicant launched proceedings on 6 September 2018 for the
rule
nisi
to be heard on 6 November 2018. On 6 November 2018 the
rule
nisi,
with interim relief suspending the first respondent from
practice, was issued and remains extant until confirmed or
discharged.
On 2 May 2019 the first respondent filed his answering
affidavit, and on 8 August 2019 the applicant filed its replying
affidavit.
On 28 May 2020 the matter was heard when the first
respondent, as agreed between the parties, was cross-examined. After
the parties
dispensed with oral arguments, the matter was postponed
for judgement, and for filling of supplementary heads of arguments,
which
has been done.
[5] The
relief sought by the applicant is in terms of section 22(1) of the
Act, which provides as follows:
'(1) Any
person who has been admitted and enrolled as an attorney may on
application by the society concerned be struck
off the roll or
suspended from practice by the court within the jurisdiction of which
he or she practices-
(a) .
..
(b) .
..
(c) .
..
(d)
if he or she, in the discretion of the court,
is not a fit and proper person to continue to practise as an
attorney'.
The
Legal Practice Act 28 of 2014
repealed the Act.
Section 116(2)
of the
Legal Practice Act provides
that any proceedings for the removal of
the name of any person from the roll of attorneys, instituted in
terms of any law repealed
by this Act, which have not been concluded
at the date of commencement, must be continued and concluded as if
that had not been
repealed. The parties agree that this application
falls to be determined in terms of the Act since the
Legal Practice
Act commenced
on 1 November 2018.
[6] In
Jasat v Natal Law Society
2000 (3) SA 44
(SCA) at 51B-H;
[2000] 2 All SA 310
at 315C-H, it was held that section 22(1) of the
Act prescribes a three-stage inquiry:
'First, the Court must
decide whether the alleged offending conduct has been established on
a preponderance of probabilities. The
second inquiry is whether the
person concerned "in the discretion of the Court" is not a
fit and proper person to continue
to practise. The third inquiry is
whether in all the circumstances the person in question is to be
removed from the roll of attorneys
or whether an order suspending him
from practice for a specified period will suffice.'
It
was held in
Botha v Law Society, Northern
Provinces
2009 (3) SA 329
(SCA) at 3320 that:
'The first stage of the inquiry involves a purely factual finding
whereas both the second and third stages
involve the exercise of a
discretion'.
[7] Ms
Pearl Dawn Mfusi (Ms Mfusi) deposed to the founding affidavit. She
states that she is a director of the
applicant. It is part of her
duties,
inter alia,
to ensure that members of the applicant
comply with the rules made by the council of the applicant in terms
of section 74(1) of
the Act. The affairs of the applicant are managed
and controlled by its council. She states that the first respondent
was admitted
and enrolled as an attorney on 21 July 2009. He
practises as such from that date. She states, as reasons for the
application, that
the applicant receives three complaints against the
first respondent, namely: a complaint from Mrs Ngwenya (Mrs Ngwenya's
complaint),
a complaint from Coralhead Investment (Pty) Ltd
(Coralhead's complaint), and a complaint from the Universal Islamic
and Cultural
Trust (UIC Trust's complaint).
[8] Ms
Mfusi states that pursuant to the receipt of the three complaints,
the applicant appointed an inspection
committee in respect of each
complaint. The inspection committee in respect of the UIC Trust's
complaint concluded that that there
was
prima facie
evidence
that the first respondent had misappropriated trust funds. The
applicant adopted the view of the inspection committee,
and found
that first respondent misappropriated trust monies and deserves the
sanction of the court. In respect of Coralhead's
complaint, the
inspection committee found that the first respondent paid over the
complainant's money, which ought to have been
held in trust, without
any mandate to release those funds thus transgressing the rules. The
inspection committee in respect of
Mrs Ngwenya's complaint found that
the money was not in the trust account of the first respondent from
the date it was deposited.
[9] Ms
Mfusi concludes that the applicant's attitude to the UIC Trust's
complaint was the following:
'1.
An
enquiry in this matter will produce no other response other than a
denial by the complainant that they authorise the payments
made by
the first respondent.
2. Indeed,
it is extremely negligent of the first respondent to deal with such
large amounts
of trust money in such a cavalier and casual manner.
3. Not
maintaining any written mandate nor written instructions or notes of
such payments leads
to irresistible conclusion that the monies
utilised by the first respondent were not on the complainant's
instructions but, as
the Inspection Committee determined, it was
utilised for other purposes.
4. This
amounts to nothing more than a misappropriation of trust monies and
deserve the sanction
of the court.'
[10] Ms
Mfusi attached to her affidavit, in respect of each complaint,
extracts of the minutes of a meeting of
the council, the complaint by
each complainant, and the inspection committee's report. In my view,
most of these annexures were
for consideration by the applicant. The
applicant's findings constitute the basis of the application. The
contents of the annexures
do not constitute proof against the first
respondent except if admitted or not denied, but they do show the
material that was before
the applicant and which informed its
decision.
[11] The
details of Mrs Ngwenya's complaint was that the first respondent
misappropriated the complainant's money
in the sum of R300 000. The
money was compensation, which was received from the Road Accident
Fund. The Road Accident Fund deposited
the amount into the trust
account of the first respondent. The first respondent had claimed
compensation for the loss suffered
by Mrs Ngwenya's son, after he was
so instructed by Mrs Ngwenya. The first respondent advised Mrs
Ngwenya that compensation has
been received. Mrs Ngwenya requested
the first respondent to account to her but the first respondent
failed to do so, so goes the
complaint. The first respondent's
response to the complaint is the following: He received the
compensation into his trust account.
A few days after the receipt of
the money, he noticed that the money had been paid out of his trust
account. He investigated, and
discovered that an employee of his
accountant stole the money from the trust account by manipulating the
first respondent's internet
banking arrangement. The accountant
reported the theft to the police. The police subsequently arrested
the employee and the accountant
paid back the stolen money. Mrs
Ngwenya and her son, who had in the meantime become a major, could
not agree to whom the money
should be paid. The dispute was resolved
and the money was paid to Mrs Ngwenya, where after Mrs Ngwenya
withdrew the complaint.
In my view, the applicant, having accepted
the first respondent's version, has not claimed nor shown any
offending conduct on the
part of the first respondent relating to Mrs
Ngwenya's complaint.
[12] The
gist of Coralhead's complaint was the following: The purchaser of a
franchise business, after arranging
with the seller, deposited R420
000 (which was part of the purchase price) into the trust account of
the first respondent. The
seller, a long-standing client of the first
respondent, advised the first respondent of the deposit, and
requested the first respondent
to pay the money over to him. The
first respondent, after having verified the deposit, paid the deposit
to the seller. The purchaser
complained that the first respondent had
paid the deposit to the seller before the conditions stipulated in
the sale agreement
were fulfilled. The purchaser furnished the first
respondent with a copy of the sale agreement, whereupon the first
respondent
advised the seller to return the money paid to him. After
a delay, the seller indeed returned the money. The purchaser withdrew
the complaint. The purchaser, in my view, ought to have advised the
first respondent of the conditions relating to the payment
of the
purchase price into the trust account when the payment was made. The
first respondent ought to have been more cautious by
confirming with
the owner of the money whether it could be paid over to the
purchaser. However, the applicant has not pointed out
a contravention
of any particular rule. Therefore, I am of the view that nothing
turns on this complaint.
[13] The
first respondent raised a number of points
in limine.
The
applicant adopted the attitude that these were technical points, and
had no substance, without dealing with them in detail.
It attributed
the raising of the points
in limine
to ignorance on the part
of the first respondent, which demonstrated his unfitness to be an
attorney. The gist of the first respondent's
view is that the
applicant is pursuing a vendetta against him. Individuals within the
structures of the applicant are settling
their own personal scores
with the first respondent through the mechanism of the applicant. In
that regard, it was important that
the applicant demonstrates that
the first respondent's concerns are unfounded, and that it dealt with
the matter strictly in terms
of the law. Ms Mfusi in her affidavit
states that Mrs Ngwenya lodged the complaint by way of an affidavit
dated 6 October 2016,
Coral head on 26 April 2017 and the UIC Trust
on 15 March 2018. However, the UIC Trust was alleging
misappropriation of trust funds
during November 2016. It is not clear
whether the nature of the complaints justified seeking a drastic
measure of immediate suspension
from practice of the first
respondent.
[14] The
first respondent's sub-points
in limine
are the following:
(a) Ms
Mfusi's authority to depose to a founding affidavit is challenged by
the first respondent. In
my view, it must be taken into account that
Ms Mfusi is a senior employee of the applicant, and that the
applicant is a juristic
person and acts through its employees and
officers. Further, Ms Mfusi is involved in the management and control
of the affairs
of the applicant. The matters referred to in the
founding affidavit are within the scope of her duties. In my view,
there is no
merit in the objection to Ms Mfusi deposing to a founding
affidavit. The applicant can decide to use an affidavit deposed to by
any person who is knowledgeable about the facts averred in the
founding affidavit.
(b) The
confirmatory affidavits were deposed to prior to the dates of the
founding affidavit being
deposed to. In my view, this is undesirable.
It conveys the impression that the confirmatory affidavit is a mere
step of compliance.
The explanation provided that drafts were seen
before the confirmatory affidavits were signed does not hold water.
It means that
the confirmatory affidavits are confirming the contents
of the draft affidavit, which is not the issue. In my view, these
confirmatory
affidavits are not of any importance since they seek to
confirm what happened during the investigations of the complaints,
which
investigations do not form the basis of any complaint.
[15] The
main point
in limine
is the following: The application and the
inspections were not properly authorised. The first respondent
contends that he is a member
of the society. The relief sought in the
application has the effect of terminating his membership of the
society, whereas the society
has not taken a resolution to terminate
his membership. The applicant responds that the resolutions, on which
the application was
instituted, are how the council of the applicant
carries out its work. Ms Mfusi makes it clear that the application to
have the
name of the first respondent struck off the roll is based on
a resolution by the council, and that the inspection committees were
appointed as per the decision by the president of the council. These
following sections of the Act are of importance:
(a) Section
70(1) provides that
'(1) A
council may for the purposes of an enquiry under section 71 of or in
order to enable it to decide whether or
not such an enquiry should be
held, direct any practitioner to produce for inspection, either by
the council itself or by any person
authorized thereto by the
council, any book, document, record or thing which is in the
possession or custody or under the control
of such practitioner and
which relates to his or her practice or former practice.
(2) The
refusal or failure by a practitioner to comply with a direction . . .
shall constitute unprofessional
conduct.'
(b) Section
71 provides that a council may, in the prescribed manner, enquire
into cases of alleged
unprofessional or dishonourable or unworthy
conduct on the part of an attorney, and for that purpose, it may
summon any person
who is in the opinion of the council able to give
material information relating to the subject matter of the enquiry,
to appear
before it to be interrogated under oath or to produce a
book, document, record or thing.
(c) Section
72 provides that a council conducting an enquiry in terms of section
71 may find the person
concerned guilty of unprofessional conduct,
and may impose an appropriate sanction.
(d) Section
22, as quoted above, provides that any person who has been admitted
and enrolled as an
attorney, may on application by the society
concerned be struck off the roll or suspended from practice by the
court, if he or
she is not fit and proper person to continue to
practise as an attorney.
[16] The
applicant seeks to justify the taking of a decision by the president
of the council to conduct the inspection,
by referring to a standing
resolution of the council dated 13 November 2008 wherein the council
delegated its powers to its president
or vice president. Section
70 grants the power to order an inspection to the council. The
council, in relation to the first
respondent, did not exercise the
power given to it. The president of the council purported to exercise
the power given to council
by the Act. The council did not give
itself the power. The creator of the power entrusted the power to
council. There is no provision
in the Act, that apart from giving the
power to council, council was given the power to delegate it. In my
view, council delegated
the power given to it without authority. It
is a primary rule of administrative law, that a discretionary power
may not be delegated
to another body or person, in the absence of an
express or implied statutory authority. The prohibition on delegation
is contained
in the rule
delegatus delegare non potest.
The
rule implies that where an administrative organ has been empowered to
perform an act, and the performance of this act is accompanied
by a
discretionary power, the function or task may not be delegated to
another organ unless the organ has been expressly authorised
to do
so. Section 67 of the Act does not cover power to take a decision.
[17] Ms
Mfusi, as having authority to apply for the striking off the roll of
the applicant, relies on a resolution
of council dated 26 June 2018.
The council resolved that an application be made for the first
respondent to be struck off the roll
of attorneys, and pending the
determination of the application, that he be suspended from practice.
The council again took a similar
resolution on 31 July 2018. There is
no explanation why a second resolution was taken, and why it relied
on the resolution taken
on 26 June 2018 and not on the one taken on
31 July 2018. Section 22 empowers the society, not the council, to
apply for the striking
off the roll of an attorney. The applicant
relies on section 60 of the Act as authority that the council was
empowered to bring
the application. If the applicant is correct, it
would mean, as is clear from the above quoted section, that to give
different
powers to the society and the council has achieved no
purpose. It also means that there is no distinction between the
council and
the society. In that case, why is the council not
applying for the striking off in its name? Section 22 does not
authorise the
society to delegate the power given to it by this
section. Section 60 provides that the affairs of a society shall be
managed and
controlled by a council, which may, subject to the
provisions of subsection 2, exercise the power of the society. It
will not make
sense to elevate the sub-phrase 'the council may
exercise the power of the society' to trump other clear provisions of
the Act.
It will also result in the absurd situations referred to
above. The result is that the council, without being authorised to do
so, has assumed the power given to the society. The power given to
the society in section 22 by the Act is a power that the society
has
not been authorised to delegate, and it has not delegated it.
Likewise, the power given to the council by section 70 is the
power
that the council has not been authorised to delegate. The society and
the council are two different structures. It would
not make sense
that the Act would create different structures, and grant them
different powers to interpret provisions in such
a manner that a
power given to a particular structure is exercise by a completely
different structure. See Yvonne Burns
Administrative Law under the
1996 Constitution
(1999) at 143; and
Chairman, Board on
Tariffs and Trade,
&
others v Teltron (Pty) Ltd
1997
(2) SA 25
(A) at 34C-D. In
Attorney-General, OFS v Cyril Anderson
Investments (Pty) Ltd
1965 (4) SA 628
(A) at 639C-D, Botha JA
explained the reason for the principle as follows:
'The maxim
delegatus
delegare non potest
is based upon the
assumption that, where the legislature has delegated powers and
functions to a subordinate authority, it intended
that authority
itself to exercise those powers and to perform those functions, and
not to delegate them to someone else, and that
the power delegated
does not therefore include the power to delegate. It is not every
delegation of delegated powers that is hit
by the maxim, but only
such delegations as are not, either expressly or by necessary
implication, authorised by the delegated powers'.
[18] The
council did not exercise the power given to it by section 70. The
first respondent was deprived of the
right to have the complaints
against him investigated by inspection committees appointed in terms
of section 70. Irregularly appointed
inspection committees
investigated him and irregular recommendations were considered
against him, forming the basis of the application
to have his name
struck off the roll of attorneys.
[19] With
regard to the UIC Trust's complaint, the applicant in its conclusion
states that to deal with large amounts
of money in such a cavalier
and casual manner as the first respondent apparently did, amounts to
nothing more than misappropriation
of trust funds. In my view, this
is indicative of muddled thinking on the part of the applicant. If
the cavalier and casual manner
was a contravention of the rules of
the applicant, it was supposed to point out the actual rule(s)
transgressed, and make such
transgression(s) part of the grounds for
the strike off application. It does not help to point out in reply
and in argument, the
various rules and various statements allegedly
constituting transgressions, which were not part of the case made out
in the founding
affidavit. See
Tiffy's Bar and Bottle Store (Pty)
Ltd v ABC Garage (Pty) Ltd
&
others
1974 (4) SA 362
(T) at 369A-B.
[20]
The
details of the UIC Trust's complaint are the following. It emanates
from the sale of a property. The seller was Jacbar Trust,
and the
purchaser was the UIC Trust. The purchase price of the property was
R3 250 000, payable by the purchaser to the seller
upon registration
of the transfer of the property into the name of the purchaser. The
sale agreement was concluded on 14 May 2016.
Possession of the
property was given to the purchaser on 1 August 2016. The UIC Trust,
a long-standing client of the first respondent,
arranged as it used
to do, that the purchase price of the property would be paid to the
first respondent. The first respondent
would thereafter pay it over
to the conveyancing attorneys when called upon to do so. Over a
period of time, the UIC Trust had
concluded various transactions,
making payments through the trust account of the first respondent.
The UIC Trust claims to have
paid the full purchase price by making
instalment payments to the first respondent. The first respondent,
although admitting to
receiving various payments from the UIC Trust
for other transactions, claims that for the transaction in question,
he received
only R1 000 000, which he paid over to conveyancing
attorneys. The first respondent explains that the balance of the
purchase price,
namely R2 250 000 was, as arranged by the UIC Trust,
to be paid to his trust account from Turkey. Indeed, the transfer did
come
through, but before the money was cleared by his bank, the South
African Reserve Bank seized it as it related to contraventions
of
Foreign Exchange regulations. The sum that was seized was USD200 000.
After the seizure of the money, he advised the UIC Trust,
and sought
its cooperation to have the money released. The Reserve Bank sought
verification of the source of the funds. The first
respondent engaged
with the Reserve Bank with regard to where the money was going to,
but the UIC Trust failed to furnish any documentation
relating to the
source of the funds. Eventually, the money was declared forfeited to
the State.
[21] From
the beginning, and at all times, the first respondent contends that
he could not pay the balance of the
purchase price to the
conveyancing attorneys nor could he account for it to the UIC Trust
because the funds were seized. The founding
affidavit states that the
UIC Trust did not accept that excuse as no proof of seizure was
produced. If the UIC Trust had nothing
to do with the funds sent from
Turkey, then why it was interested in the proof of the seizure, is
not explained. The full purchase
price was payable in October 2016,
and the UIC Trust became aware that it had not been paid to the
seller. Inexplicably again,
the UIC Trust took no action against the
first respondent and only did so when it instituted a claim with the
Attorneys Fidelity
Fund, two years after it paid over the money. The
inspection committee never confronted the first respondent with a
claim that
the UIC Trust was claiming that the seized funds, if there
were seized funds, did not belong to the UIC Trust. The nub of the
complaint
was not pointedly raised with the first respondent. The
result is that the case made out in the replying affidavit is a new
case.
All along, the first respondent prepared himself to meet a case
that the applicant and the UIC Trust were claiming that he
misappropriated
the money as they were denying that the funds meant
for the balance of the purchase price were seized.
[22] The
UIC Trust produced no documents or evidence to show what each payment
to the first respondent was meant
for. In fact, the UIC Trust did not
know the exact payments it made to the first respondent; it had to be
corrected by the first
respondent. It was only in reply, when the UIC
Trust attempted to set out in full the payments it claimed related to
the purchase
price of the property, which differed from the amounts
it earlier stated. The first respondent, except to testify that all
the
monies paid to him by the UIC Trust were disbursed in accordance
with instructions of the UIC Trust, by paying them to the payees'
bank accounts from his trust account, and he produced no other
documentation. The applicant did not investigate with the first
respondent's bankers to determine the details of the payees of the
money paid from the first respondent's trust bank account. The
applicant did not investigate with the bank or the Reserve Bank to
determine the details of the money seized, namely: for whom
it was
meant, and the details of where the money came from. Initially, both
the UIC Trust and the applicant disputed the seizure
and forfeiture
of the money. When this became irrefutable due to publication of the
seizure and the forfeiture order in the Government
Gazette, number
41625 on 11 May 2018, the UIC Trust claims that it was not its money
which was seized. The UIC Trust is through
its attorneys, pursuing a
claim against the Attorneys Fidelity Fund. It lodged a claim on 15
May 2018, although the full purchase
price of the property ought to
have been paid by October 2016. The UIC Trust does not dispute that
it was advised by the first
respondent that the funds were seized. It
is strange that the first respondent would advise the UIC Trust of
the seizure of funds
if it had no interest in the funds. It is even
more strange that the UIC Trust would then not claim its own money
because of the
seizure of the funds, funds it had no interest in
them.
[23] The
onus is on the applicant to prove the offending conduct on the
preponderance of probabilities. The applicant
opted not to institute
an enquiry envisaged in section 71 of the Act to enable it to
determine whether the version of the first
respondent or the version
of the UIC Trust was the truth. It decided to proceed against the
first respondent by motion proceedings,
being well aware of the
factual dispute, which related to the proof of the offending conduct.
It did not apply for a referral of
the issue to trial. The
cross-examination of the first respondent merely confirmed his
confidence in his version, and showed the
applicant to be on fishing
expedition. It is trite that motion proceedings are not appropriate
for deciding real and substantial
disputes of fact. It is neither
appropriate nor competent for purposes of deciding real and
substantial questions in disputes that
properly fall for decision by
an action procedure. If there is a real and substantial dispute of
fact, probabilities may not be
relied upon for a decision since
established facts determine probabilities. In
Sewmungal
&
another, NNO v Regent Cinema
1977 (1) SA 814
(N) at 820E-F it
was held that the court should not 'be tempted to settle disputes of
fact solely on the probabilities emerging
from the affidavits without
giving any or due consideration to the advantages of
viva voce
evidence'.
In
Administrator, Transvaal,
&
others v Theletsane
&
others
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at 197A-C it was held that:
·... in motion
proceedings, as a general rule, decisions of fact cannot properly be
founded on a consideration of the probabilities,
unless the Court is
satisfied that there is no real and genuine dispute on the facts in
question, or that the one party's allegations
are so far-fetched or
clearly untenable as to warrant their rejection merely on the papers,
or that
viva voce
evidence
would not disturb the balance of probabilities appearing from the
affidavits.'
[24] Misappropriation
of trust money is a serious allegation with dire consequences, and is
not lightly to be assumed.
See
Olivier v Die Kaapse Balieraad
1972
(3) SA 485
(A) at 496G-N. The principle enunciated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634-635 by Corbett JA is that:
'... where in proceedings
on notice of motion disputes of fact have arisen on the affidavits, a
final order, whether it be an interdict
or some other form of relief,
may be granted if those facts averred in the applicant's affidavits
which have been admitted by the
respondent, together with the facts
alleged by the respondent, justify such an order. The power of the
Court to give such final
relief on the papers before it is, however,
not confined to such a situation. In certain instances the denial by
respondent of
a fact alleged by the applicant may not be such as to
raise a real, genuine or bona fide dispute of fact ... [and despite
the denial]
the Court [may be] satisfied as to the inherent
credibility of the applicant's factual averment, it may proceed on
the basis of
the correctness thereof and include this fact among
those upon which it determines whether the applicant is entitled to
the final
relief... where the allegations or denials of the
respondent are so far-fetched or clearly untenable that the Court is
justified
in rejecting them merely on the papers... '
In
my view, the applicant has failed to prove the offending conduct on
the part of first respondent. Further, the investigation
against the
first respondent and the institution of these proceedings were not
properly authorised.
[25] It
is trite that applications for the striking off the roll of an
attorney's name are not ordinary civil proceedings,
they are
proceedings of a disciplinary nature and are
sui generis.
The
law society is the
custos morum
of the legal profession; it
merely gathers facts and places them before court for consideration.
Its motivation should be to carry
out its statutory duties in order
to protect members of the public. However, the high standard expected
from its members is also
expected from it in the manner in which it
handles the strike off applications of its members, and their
suspension from practice.
It must proceed in a fair and objective
manner in the investigation of complaints, and in the presentation of
facts. Where there
are indications of being remiss in the manner the
investigation was done, in my view, the court should not hesitate to
point that
out and to make an appropriate costs order.
[26] I,
accordingly, make the following order:
The
rule
nisi
issued on 6 November 2018 is discharged
with costs, such costs to include costs of senior counsel where so
employed.
Mngadi,
J
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NUMBER: 10205/2018P
In
the matter between:
KWAZULU-NATAL
LAW
SOCIETY Applicant
and
AZGAR
ALLY
KHAN First
Respondent
FIRSTRAND
BANK
LIMITED Second
Respondent
THE
STANDARD BANK OF SOUTH AFRICA LIMITED Third
Respondent
JUDGMENT
VAN
ZYL, J.:-
[1] This
is a secondary judgment. I have had the privilege of reading and
considering the main judgment by my brother
Mngadi, J. After
considerable reflection I have concluded that my own approach to the
matter differs to the extent where it is
desirable to set out my
views by way of a separate secondary judgement.
[2] The
applicant society instituted proceedings against the first
respondent, at the time a practicing attorney
and a member of the
applicant, as well as the second and third respondents, both banking
institutions used by the first respondent
as his bankers. The second
and third respondents have taken no active part in these proceedings
and as a matter of convenience
the first respondent is herein
referred to simply as the respondent, unless otherwise indicated.
[3] The
proceedings thus instituted took the form of application proceedings
wherein the applicant sought, at the
outset, the suspension of the
applicant from practice pending a decision to strike his name from
the roll of attorneys.
[4] In
the result and on 6 November 2018 the applicant obtained a
rule
nisi
with interim relief suspending the respondent from practice
pending the final determination of the application to strike his name
from the roll of attorneys. However, the respondent opposed the
striking off application. On 15 March 2019 and by consent the rule
was extended until confirmed or discharged and the respondent
directed to deliver his answering affidavits on or before 18 April
2019 with respondent also to pay the costs of the adjournment.
However the respondent's answering affidavits were only delivered
on
or about 2 May 2019 and the applicant's replying affidavit on 8
August 2019.
[5] Subsequently
the matter was enrolled for opposed argument but, because of
factually conflicting versions relevant
to the three complaints
against the respondent it was postponed and scheduled for the hearing
of
viva voce
evidence.
[6] At
the hearing which, commenced on 28 May 2020 the applicant did not
call any further witnesses. The respondent
was required to and
submitted to cross examination, where after the parties agreed to
submit written argument for consideration
by the court
[7] Although
the respondent had raised certain issues
in limine
in his
answering affidavit, these were not persisted with at the hearing and
did not form part of the argument later submitted for
consideration.
Ultimately the disputes between the parties related to the three
areas of complaint upon which the applicant relied.
The
Complaint by Mrs Ngwenya:
[8] The
first of these related to a complaint lodged with the applicant by a
Mrs Ngwenya. The complainant had been
a client of the respondent's
practice. It was alleged that although her claim against the Road
Accident Fund had been settled and
payment made by it to the
respondent's practice, there had been a failure to account to her for
the proceeds.
[9] In
response thereto the respondent admitted that there had been a delay
in accounting to the complainant. The
respondent explained that what
had occurred was that an employee of the firm of accountants employed
by his practice had misappropriated
the money recovered on behalf of
the complainant. The matter was reported to the police and efforts
were made to recover the loss
from the accountants whom the
respondent held vicariously responsible for the misconduct. The
employee involved had in the meantime
absconded. After some delay the
accountants refunded the misappropriated sum to the respondent's
practice. Payment was thereafter
made to the complainant and
according to the respondent the matter was considered as resolved.
The respondent complained that this
complaint was unfairly revived by
the applicant some fifteen months later to form part of the
proceedings instituted against him.
There was no rebuttal of the
respondent's allegations by the applicant in reply.
The
Complaint by Coralhead Investments (Pty) Ltd:
[10] The
complaint arose from an agreement which the complainant company as
purchaser had entered into for the
acquisition of a fried chicken
franchise and in respect of which a deposit of R420 000-00 was
payable. The seller nominated the
respondent's practice for payment
thereof and the complainant concern duly paid the deposit to it by
way of electronic transfer
into the practice trust account. The sale
agreement was, however, subject to the suspensive conditions that the
franchisor approved
of the purchaser as franchisee and that the
purchaser secured a suitable lease for the premises where the
business was conducted
from. These suspensive conditions failed,
inter alia
by reason of the franchisor rejecting the purchaser
as a franchisee. The purchaser accordingly considered the purchase
agreement
as having lapsed and requested return of its deposit.
[11] When
this was not forthcoming correspondence ensued, also between the
attorneys for the complainant and those
acting for the erstwhile
seller who advised that the seller intended instituting legal
proceedings against the franchisor to compel
it to accept the
complainant as franchisee. In the process the seller's attorneys
requested the complainant's assistance in the
contemplated legal
proceedings and its consent to the retention of the deposit which
they said they had been advised had been paid
to the respondent's
firm. Curiously, the attorney dealing with the matter on behalf of
the seller was Mr Attorney Siva Chetty who,
in the present
proceedings, represented the applicant and who cross examined the
respondent with regard to this complaint. However,
no objection to Mr
Chetty representing the applicant in these proceedings was raised on
behalf of the respondent.
[12] The
respondent admitted that the aforementioned deposit was
electronically paid into his firm's trust banking
account. The
respondent explained that the seller had been a client whose
integrity and financial standing he had no reason to
doubt at the
time. After his firm had closed for the Christmas recess period he
had been telephonically advised of the deposit.
Subsequently the
seller advised that the transaction had been satisfactorily concluded
and requested that payment of the deposit.
thus received in trust, be
made to the seller. The respondent explained that he complied in good
faith on the strength of the representation
made by his client, the
seller. At the time he had not had sight of the agreement of sale and
he had not been involved in the transaction,
other than as recipient
of the trust deposit.
[13] According
to the respondent he had been misled by the seller. Had he known at
the time that the conditions
for payment to the seller of the monies
he had received had not been satisfied, he would not have effected
payment. Once the complainant
requested repayment of the deposit from
the respondent's firm the respondent sought to obtain repayment from
the seller. However,
the latter initially failed to comply before
eventually making repayment to the respondent, who then in turn
repaid the complainant.
According to the respondent this matter was
also considered resolved some twelve months prior to being revived by
its inclusion
when the present application was launched.
The
Universal Islamic and Cultural Trust (the Trust) Complaint:
[14] The
complaint in this regard also arose out of an agreement of purchase,
but in this instance the purchase
of land. The Trust alleged that it
had paid the purchase price for certain immovable property it
purchased to the respondent who
was tasked with attending to the
registration of transfer from the name of the seller into the name of
the Trust. Registration
of transfer was due to take place in
Bloemfontein, Free State and the respondent issued a letter of
undertaking (guarantee) to
the conveyancers for the payment of the
balance of the purchase price upon registration of transfer. However,
when called upon
to make good on his undertaking and to pay, the
respondent failed to do so. According to the Trust he had
misappropriated portion
of the purchase price for the property which
the trust had previously paid to his firm.
[15] The
respondent denied having misappropriated any funds, either as alleged
or at all. He explained that he
had had a long standing relationship
with the Trust and had attended to various significant matters on its
behalf prior to the
transfer in issue.
In
the process he had, from time to time, received large sums of money
from or on behalf of the Trust in relation to such matters.
He
admitted having issued the guarantee in respect of the transfer, but
said that he did so on the strength of assurances that
when the time
came to honour the undertaking, the Trust would ensure that he was
placed in sufficient funds to effect the required
payment.
[16]
The
respondent explained that the shortfall in respect of which the
guarantee was issued related to a payment of two hundred thousand
United States Dollars (US$ 200 000-00) which, at the then prevailing
exchange rates, amounted to about R2,2 million and which was
transferred to his firm for the benefit of the Trust from a source in
Turkey. However, the transfer was seized by the South African
Reserve
Bank who demanded an acceptable explanation as to the origin of funds
before the funds would be released. In this regard
the respondent
referred to the letter from the Reserve Bank dated 3 July 2017 and
where, in para 4 thereof, the Divisional Head
confirmed that a block
had been placed upon the said sum in the respondent's trust account.
The letter went on to warn of its forfeiture
should any
representations be unsuccessful.
[17]
The
respondent claimed that despite repeated requests to the Trust, the
Trust failed to provide any information as to the origins
of the
transfer and effectively disowned the foreign payment, which was then
forfeited to the State. By reason thereof the respondent
said that he
was unable to effect payment in terms of his undertaking to the
conveyancers and he suggested that the reason for
the complaint
against him was to enable the Trust to recover its loss from the
Attorneys' Fidelity Fund.
[18]
The
respondent also asserted that various other sums, paid to his firm by
or on behalf of the Trust, related to other matters in
which he had
acted for the Trust and not to the transfer in issue. In the
circumstances he denied any misappropriation of monies
belonging to
the trust.
[19] In
reply the complainant provided additional financial figures and
calculations, which arguably were open
to interpretation, but no
expert or other witness was called to give
viva voce
evidence
in regard thereto in order to contradict the version of the
respondent. An illustration of the lack of accounting clarity
occurred when counsel for the applicant suggested to the respondent
under cross examination that the payment of 1R million, admittedly
made to the conveyancers in Bloemfontein, was suspicious because it
had been made from a Nedbank account while the respondent had
no
trust account with Nedbank. When the respondent pointed out to
counsel that annexure G154, the document relied upon, was in
fact a
receipt issued by Nedbank as the recipient's bankers, counsel
abandoned that line of cross examination.
[20] In
the final analysis there remained unresolved a number of material
factual conflicts between the versions
of events as contended by the
applicant and that averred by the respondent. Insofar as the striking
from the roll is concerned,
the
process of adjudication
comprises a three stage enquiry
(Jasat v Natal
Law Society
2000 (3) SA 44
(SCA) at par 10;
Malan v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009
(1) SA 216
(SCA) at par 4).
[21]
The
first stage involves a factual enquiry as to whether the conduct
attributed to the respondent has been established on a preponderance
of probabilities. If so, then the second stage involves the weighing
the conduct of the respondent against what is expected of
an attorney
in order to decide whether (in court's discretion) the respondent is
still a fit and proper person to practice as an
attorney. Depending
upon the finding in the second stage, the third stage involves a
decision whether, in the circumstances of
matter, the respondent's
name should be struck from the roll of attorneys, or whether the
lesser sanction of being suspended from
practice, or some other
penalty such as a fine, should be imposed.
[22]
Turning
to consider the first stage of the enquiry relevant to proof of the
factual allegations relied upon by the applicant, the
onus or duty to
establish the conduct complained of rests upon the applicant. Where,
as here, there are factual conflicts, the
usual approach in
application matters apply, namely that these conflicts are to be
decided on the respondent's version
(Malan v
Law Society (supra) at
par 12;
Botha
v Law Society, Northern Provinces
[2008] ZASCA 106
;
2009 (1) SA
227
(SCA) in para 4 at 2310).
[23]
In
the present matter the applicant sought to resolve the factual
conflicts, not by seeking to take the matter on trial, or identifying
the specific conflicts and seeking to lead evidence in regard
thereto, but merely exercised its right to cross examine the
respondent.
The process of cross examination covered limited ground
and achieved no decisive result because the respondent was resolute
in
maintaining his version as per his answering affidavit. He did not
materially contradict himself, nor did he impress as a poor witness,
bearing in mind that demeanour is not necessarily a reliable
indicator of truthfulness
(Allie v Foodworld
Stores Distribution Centre (Pty) Ltd
2004 SA
433
(SCA) at par 37 to 41).
[24] However,
the respondent's evidence was not inherently improbable, so that the
factual enquiry into the conduct
attributed to him essentially needs
to be resolved upon his version of events. With regard to the first
complaint it was common
cause that there was a delay in payment to
the complainant. On the respondent's version this was caused, in the
first instance
by the theft perpetrated by his accountant's employee
and the tardiness of his accountant to repay the proceeds of the
theft. A
further delay was occasioned, according to the respondent,
by a dispute between the complainant and her son, a minor at the time
the claim for compensation was instituted, but who had attained his
majority by the time the claim had been settled and the proceeds
paid
to the respondent's practice. The dispute involved who as between the
mother and son should give instructions as to the disposal
of the
monies held in trust. The respondent said that this dispute had been
dealt with by one of his staff at his Pietermaritzburg
office and
that he himself had not dealt with the clients personally. No
misappropriation of funds in this regard by the respondent
was
established.
[25] With
regard to the second complaint the respondent likewise denied any
misappropriation or dishonest conduct.
On his version the deposit
involved in the abortive sale of the franchise was electronically
paid into his trust account during
the December recess period and
whilst he was on holiday. When he was subsequently advised by his
client, the putative seller, that
it was in order for him to pay over
the deposit and he did so in good faith because he had no reason to
doubt his client's instruction.
When it appeared that his client had
misinformed him as to the position, he was not able to effect
repayment to the complainant
until the sum concerned had been
refunded by his client. The delay was attributable, according to him,
to the endeavors of his
client to save the sale and its failure to
refund the deposit to the respondent, or to the complainant directly.
When his client
did finally repay the deposit to the respondent, the
latter repaid the complainant. In the circumstances he denied any
misappropriation.
[26]
With
regard to the third complaint the crux of the respondent's
explanation related to the US$200 000 interdicted and ultimately
confiscated by the SA Reserve Bank from the respondent's trust
account for want of any plausible explanation as to the source of
the
funds which originated in Turkey. On the respondent's version he did
not know and could not explain the source of the funds
and the
complainant trust, for whatever reason, declined to do so. According
to the respondent and but for the loss of this foreign
transfer, he
would have been able, in compliance with his instructions and the
undertaking he gave to the conveyancers, to have
paid the balance of
the purchase price of the property purchased by the trust. He denied
misappropriating the amount involved in
the transfer from Turkey, or
indeed any of the other funds paid to him from time to time by or on
behalf of the complainant trust.
[27] In
my view no misappropriation of trust funds as alleged by applicant
was established. The respondent's versions
relevant to the three
complaints were not so far-fetched or clearly untenable that the
Court would be justified in rejecting them
merely on the papers
(Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 635C). As already indicated, the limited cross
examination of the respondent did not resolve the existing factual
conflicts.
[28] That
is not to say that the respondent's conduct was free from criticism.
Far from it. With regard to the
first complaint he was lax in his
supervision and control of the accounting system of his practice.
When he eventually established
that there was a shortfall and that
his accountant's employee had misappropriated his client's monies
from his trust account he
was not justified in withholding repayment
until he had recouped his loss from his accountant, whom he held
vicariously liable.
He should forthwith have refunded the shortfall
in his trust account from his own resources. As regards resolving the
alleged dispute
between the complainant and her son he was equally
tardy in addressing the issue, instead leaving it to an employee in
his Pietermaritzburg
office to resolve.
[29] With
regard to the second complaint the respondent was remiss in the
casual manner in which he dealt with
the unexpected deposit into his
trust account. Not only did he not open a file or even a ledger, or
enquire into the nature of
the transaction, but he also took no steps
to verify the reason for the deposit, or the conditions relevant to
his holding or dealing
with the amount thus held in trust. He was
grossly negligent in simply accepting his client's statement and oral
instruction to
pay over the trust deposit without confirming with the
complainant. Once he realized the payment was unauthorized, he was
obliged
to repay the complainant forthwith from his own resources and
recover from his client in due course thereafter. In relation to the
complainant the respondent was at fault in paying out the trust
amount when not authorised to do so and was not entitled to delay
repayment until he had recouped the amount from his client.
[30] With
regard to the third complaint the respondent was again grossly
negligent. Not only did he fail to keep
proper and detailed records
of the various instructions he received from the complainant trust in
relation to the particular, as
well as other transactions, but on his
own version he acted and effected payments in terms of oral
instructions which were later
disputed. Even more serious, he issued
as attorney a guarantee to the conveyancers for payment upon the
registration of transfer
when he was not assured that he would have
sufficient financial cover from his client to honour the guarantee
when called upon
to do so, once transfer had been registered. To
issue such a guarantee and then default on payment undermines the
entire system
of trust in terms of which immovable property transfers
operate. It is no justification to say that he believed that his
client
would provide him with sufficient financial cover when the
time came. The issue of the guarantee was not only grossly negligent,
but bordered upon the reckless.
[31] It
should nevertheless be noted that the court's supervisory powers over
the conduct of legal practitioners,
including attorneys, involve
firstly the imposition discipline and the punishment of errant
practitioners. Secondly, to protect
members of the public and in
particular where trust funds are concerned (
Summerley v Law Soc
NPs
2006 (5) SA 613
(SCA) at par 19). In the present matter
serious dishonesty attributable to the respondent has not been
established, but his conduct
nevertheless calls for sanction.
[32] The
issue to be decided at the second stage of the enquiry is then
whether, in the light of the factual position
as discussed above, the
respondent remains a fit and proper person to practice as an
attorney. After anxious consideration I have
come to the conclusion
that the conduct of the respondent, whilst both negligent and
unprofessional, deserves disapproval, but
not a sanction as drastic
as the striking of his name from the roll of attorneys.
[33] Considered
holistically, I would have suspended the applicant from practice for
a considerable period of time
in order to bring home to him that
discipline in the practice of an attorney is one of the necessary
attributes required in order
to protect the interests of the clients
of his practice. The slap-dash manner in which he conducted his
practice and which gave
rise to the complaints against him resulted,
on his own version, from his inattention to detail, his lack of
dedication to a disciplined
approach to the conduct of his clients'
affairs and his inadequate and tardy responses to shortfalls in his
trust accounts, when
the shortfalls came to his notice.
[34] However,
given the passage of time which has elapsed since the respondent was
suspended from practice by virtue
of the interim order, in my view no
purpose would be served at this point in time in imposing upon him a
further suspension from
practice. Effectively he has already served a
sufficient period of time suspended from practice as a sanction for
his misconduct
and would hopefully have learnt from the experience. I
have therefore come to the conclusion and respectfully agree with my
colleague,
but for different reasons, that the most appropriate order
in the circumstances would be simply to discharge the rule
nisi
in
terms of which the respondent was suspended from practice.
[35] There
remains, however, the issue of costs. It is clear that the applicant
did not succeed in its approach
that the respondent's name should be
struck from the roll of attorneys. That being so the question arises
what costs order would
be appropriate where the applicant, while
acting as
custos morem
of the attorneys' profession, was
nevertheless not substantially successful.
[36] On
behalf of the respondent it was submitted that the applicant should
be ordered to pay the costs of the
application on the punitive scale
as between attorney and client. In
Botha v Law Society, Northern
Provinces (supra)
at para 22 the court held that the preferable
order, where the law society was unsuccessful, would be to make no
order as to costs.
The relevant passage from the judgment of Cloete,
JA reads as follows:
"I nevertheless
prefer to follow the approach of Tindall J (Solomon J concurring) in
Incorporated Law Society v Taute [Society
v Taute
1931
TPD 12]
where it
was
held that where
a
law
society fails to prove charges against an attorney and the society's
conduct
is
not open to
criticism, the correct order
is
no
order
as
to
costs."
[37] My
colleague, however, has adopted the view that in this matter costs
should follow the result. In the circumstances
it becomes necessary
for me to consider whether I am persuaded that this is indeed the
correct costs order to issue in all the
circumstances of this matter.
[38]
It
is not without significance that Tindall J (as he then was) in
Taute
(supra) limited the approach that an
unsuccessful law society should not be mulcted in costs to cases
where
"the society's conduct is
not open to criticism".
In
the present matter it appears to me that the conduct of these
proceedings by the applicant was indeed open to criticism.
[39] At
the outset some of the affidavits relied upon by the applicant were
defective. The founding affidavit of
Ms Mfusi was deposed to on 20
August 2018 while the supporting affidavits of Messrs SJ Taverner and
RS Green, both purporting to
have read the affidavit of Ms Mfusi,
were deposed to on 7 and 3 August 2018 respectively. After the
respondent had drawn attention
to these defects and in reply Mr Green
explained that despite the express wording of his earlier affidavit,
he had deposed thereto
on the assumption that Ms Mfusi was deposing
to her affidavit on the same day. The applicant also tendered in
reply a document
styled as an affidavit by Mr Taverner which merely
noted, but without explanation, that his affidavit was signed prior
to that
of Ms Mfusi and then purported to confirm that he
subsequently read her affidavit. However, the
"replying
affidavit'
by Mr Taverner is unsigned, so that no value can be
attached thereto. All in all these documents speak of poor attention
to detail
in the presentation of the applicant's case.
[40] More
significantly, however, was the conduct of the proceedings when the
matter was heard. Applicant was intent
upon obtaining an order
striking the name of the respondent from the roll of attorneys,
primarily on grounds of dishonesty by misappropriating
to himself
monies of clients held in his trust account. The respondent
vigorously disputed these allegations and the conflicting
factual
allegations emerging from the affidavits were obvious. Nevertheless,
when the matter initially came before court to be
argued as an
opposed motion, counsel for the applicant wanted to argue the matter
on the papers. However, after the difficulties
arising from the
factual conflicts were drawn to his attention, the matter was
postponed for the hearing of evidence.
[41] When
the matter was called for the hearing all that the applicant required
was to cross examine the respondent.
It called no countervailing
witnesses, nor did the respondent deviate materially from his version
as set out in his answering affidavit.
In my view counsel for the
applicant demonstrated a fundamental lack of appreciation with regard
to the approach to conflicts of
fact on affidavits as explained,
inter alia,
in
Plascon Evans Paints
(supra).
[42] In
the applicant's initial written argument the stance adopted was that
there were no material conflicts of
fact arising with regard to any
of the three complaints relied upon. The cross examination of the
respondent at the later hearing
did not resolve the conflicts which
manifestly existed in the absence of counter veiling witnesses. In
Law Society of the Cape of Good Hope v
C
1986 (1) SA 616
(A)
at
635-C
the court was concerned with a conflict of fact
between the versions on affidavit of the respondent and one Martin.
The appellant
(applicant in the court a
quo)
did not call
Martin as a witness after the respondent had given evidence. It was
held that
"the Court
a
quo was not justified, in the
absence of viva voce evidence from Martin, in finding that respondent
was
a
liar''
(at 636C-D).
[43] At
the end of the day the applicant's quest to strike the name of the
respondent from the roll of attorneys
was unsuccessful and its
conduct of the proceedings are subject to criticism. Cost orders
adverse to professional societies such
as the applicant in this
instance, whilst uncommon, are not unknown. In
Law Society of the
Cape of Good Hope v C
(supra) it was held that the Law Society
had failed and its appeal was dismissed, with costs including the
costs of two counsel.
In
Summerley v Law Society of the Northern
Provinces
(supra) the practitioner's appeal against an order
striking his name from the roll of attorneys succeeded, with costs
and an order
of suspension for a limited period was imposed. In
Kwazulu-Natal Law Society v Sharma and Ano
[2017] 3 All SA 264
(KZP), a judgment of the Full Court of this Division, a costs order
adverse to the Law Society and including the costs of two counsel
was
made upon an unsuccessful application for leave to appeal against the
refusal of the court
a
quo
to make a costs order on an
unsuccessful application to strike the practitioner's name from the
roll.
[44] In
these circumstances and after considerable reflection I have been
persuaded that the costs order adverse
to the applicant, including
the costs of senior counsel where employed and as proposed by my
colleague, would be appropriate in
this matter. I therefore concur,
but for different reasons, in the order proposed by Mngadi,
J.
in the main judgment.
VAN Zyl, J.
APPEARANCES
Case
Number: 10205/18P
For
the Applicant: Mr
Chetty
Instructed
by: Messrs
Siva Chetty & Company
Pietermaritzburg
For
the first respondent: Adv.
M.S. Khan SC
Instructed
by: SG
Attorneys
c/o
Faheim Ebrahim Attorneys.
Pietermaritzburg
Matter
heard on: 28
May 2020
Judgement
delivered on: 03
September 2021