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[2019] ZAGPPHC 123
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Law Society of Northern Provinces v Mashaba and Others (23258/2018) [2019] ZAGPPHC 123 (4 April 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
Case Number:
23258/2018
4/4/2019
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
DATE:
………………………
SIGNATURE:
.…………………………………………………
In
the matter between:
THE LAW
SOCIETY OF THE NORTHERN PROVINCES
Applicant
and
MAFANELA
PETRUS MASHABA
First
Respondent
MASHABA
(M) INCORPORATED ATTORNEYS
Second
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
This
is an application for the striking of the first respondent’s
name from the roll of attorneys on the basis that the first
respondent’s conduct fell foul of the conduct expected of a
duly admitted and practicing attorney.
Parties
[2]
The
applicant, the Law Society of the Northern Provinces (“the Law
Society”), has been succeeded by the Legal Practitioners
Council Gauteng, which council was established in terms of the
provisions of the Legal Practice Act, 28 of 2014 (“the Act”).
In terms of the provisions of section 116(2) of the Act, all
proceedings instituted prior to the commencement of the Act,
must be
continued and concluded as if the Attorneys Act, 53 of 1979 has not
been repealed by the Act.
[3]
The
first defendant is Mafanela Petrus Mashaba who was admitted as an
attorney of this Court on 26 August 2004. The first respondent
is
currently practising as a single practitioner under the name and
style of the second respondent, Mashaba (M) Incorporated Attorneys.
[4]
The
complaints
in
casu
pertain
to the period that the first respondent was practising as a partner
at the firm Lindsay Keller Attorneys (“the Firm”).
The
first respondent resigned as a partner of the Firm on 16 July 2012.
[5]
The
application concerns only the first respondent and for ease of
reference the first respondent will hereinafter be referred to
as
“the respondent”.
FACTS
[6]
This
application emanates from a complaint received by the Law Society on
23 August 2012 from the respondent’s erstwhile Firm.
The Firm
accused the respondent of unprofessional and dishonest conduct.
[7]
It
appears that, whilst the respondent was a partner at the Firm, he
acted as attorney of record for the Road Accident Fund (“the
Fund”) in litigation emanating from the Fund’s
responsibility in terms of the
Road Accident Fund Act, 56 of 1996
.
[8]
To
this end the respondent regularly briefed counsel to represent the
Fund in court proceedings. Upon the conclusion of the court
proceedings the relevant counsel submitted an invoice in respect of
the work performed on behalf of the Fund.
[9]
The
Firm prepared attorney and client bills in respect of each matter,
which bills reflected the amount invoiced by counsel in respect
of a
particular matter. Ms Mutch, the RAF practice manager at the Firm,
stated in an affidavit attached to the complaint, that
she was
responsible to submit the attorney and client bills to the Fund.
[10]
Ms
Mutch’s affidavit reveals the following:
“
4
.
I was quite surprised when, after submitting our bill in the
Jankowitz matter, file
number:
RAF/R7665
,
for the amount of R101, 586.92, the RAF paid an amount of
R109, 186.92 into our trust account on 20 February 2012 (a
difference
of R7, 600.00).
5.
It then emerged that an invoice for the amount of R7, 600.00 had been
posted
against this account in Winlaw, our accounting program.
6.
At the time of me sending our bill to the RAF, no advocate’s
invoice was
posted in Winlaw.
7.
After receiving the aforesaid funds from the RAF, I obtained a copy
of advocate
Ngobeni’s invoice from our accounts department.
8.
According to our electronic file however, an advocate W Louw had been
appointed,
but at the date of me submitting our attorney & client
bill to the RAF, no account had been received from this advocate.
9.
Since we now had an invoice from an advocate Ngobeni, I was quite
suspicious
and took my findings to our Practice Manager, Mr M Mutch
.”
[11]
Mr
Mutch, the Firm’s practice manager, deposed to an affidavit and
explained which steps he took upon receipt of Ms Mutch’s
query:
“
3
.
Once N Mutch’s suspicions had been raised, I, myself, looked at
advocate Ngobeni’s
invoices that had been received in various
matters and it appeared that the contact telephone number/s, physical
addresses and
e-mail addresses were inconsistent. Also, no invoice
number ever appeared on any of the invoices.
4.
I then requested my accounts department to contact this advocate and
request
him/her to furnish us with amended invoices, reflecting
invoice numbers.
5.
Elsa, in accounts was however never able to contact him on any of the
contact
numbers reflected on the invoices.
6.
Mr Mashaba, who had briefed Advocate Ngobeni, was then requested to
request the
advocate to contact us.
7.
On 22 March 2012, Elsa received a call from the alleged advocate who
advised
that he is moving offices again and is also in the process of
changing his service provider. It was agreed that no invoices would
be paid until we were in possession of amended invoices reflecting
the correct contactable details.
8.
On 25 March 2012, M Mashaba received an e-mail from the advocate,
reflecting
the advocate’s new e-mail address.
9.
At the beginning of July 2012, while I was doing routine filing in Mr
Mashaba’s
personnel file, I came across his Discovery Health
application to add dependants form. From this I ascertained that his
wife’s
maiden name was Ngobeni and her first names are Reneilwe
Dinah. I also noted her identity number on the Legal Provident
nomination
of beneficiary form.
10.
At this point, I suspected that Advocate R D Ngobeni, who was not
listed in the 2012 edition
of the Hortors, was Mr Mashaba’s
wife.
11.
On my request, Elsa contacted FNB, gave them the bank account number
which was reflected
on the advocate’s invoices as well as the
identity number of R D Ngobeni, as reflected on Mr Mashaba’s
Legal Provident
nomination of beneficiary form, 8104090126089.
12.
FNB confirmed that this account indeed belonged to an R D Ngobeni.”
[12]
Ms
van Deventer, the “Elsa” referred to by Mr Mutch, deposed
to an affidavit and confirmed Mr Mutch’s version.
[13]
The
events that followed the above discovery, were revealed during a
disciplinary meeting held by the Law Society on 27 February
2013. Mr
Adams, as he then was, a partner of the Firm testified as follows:
“
EXAMINATION
BY MS VAN ZYL
:
Mr Adams, what is your current position at the firm Lindsay Keller?
MR
ADAMS
:
Mr Chairman, I am the managing partner of Lindsay Keller.
MS
VAN ZYL
:
Now, Sir, was this incident being brought to your attention, how did
you become aware of this matter?
MR
ADAMS
:
Mr Chairman, during July of last year, I do not know the exact date,
my senior partner, Mr Danie Weideman, convened
an urgent meeting and
he in fact asked me to attend the meeting with Malcolm Mutch, our
practice manager. I was blissfully unaware
of what the meeting was
about. I went to his office, it was myself, Malcom Mutch and Danie
Weideman at the meeting. Mr Mutch pointed
out that certain
irregularities and discrepancies had been brought to his attention,
in particular that Advocate R.D. Ngobeni,
who supposedly was an
advocate being briefed by Mr Mashaba, who was a partner in the firm
at the time, was non-existent. They had
made enquiries to establish
whether or not this counsel existed and in the end it was established
that this counsel does not exist,
Advocate R.D. Ngobeni. He has also
made enquiries with the bank into which we had paid amounts in
respect of invoices and it turned
out that this account was in fact
in the name of….the account number belonged to the wife of Mr
Mashaba. So that is how
it came, how this whole thing came about.
MS
VAN ZYL
:
And did you confront Mr Mashaba with this evidence?
MR
ADAMS
:
Immediately after we had the full picture as explained to us by the
office manager, we then resolved there and then
that this is
something that we should not leave for much longer. Mr Mafa Mashaba
was in the office a few doors down from Mr Weideman’s
office.
Danie Weideman called Mr Mashaba and he asked him to immediately come
to his office. Mr Mashaba then came into the office
and we
confronted…in fact, Mr Weideman confronted him in my presence
with these allegations and for a few minutes there
was a stunned
silence and Danie said to Mafa, what do you say about this and he was
quiet for a few minutes and after a few minutes
he said, look, words
to the effect that I admit that I did it. Mr Weideman then asked him,
you know, why did you do this, this
is so unlike you, how can you do
something like this and his response, not in any particular order was
as follows:
Ø
that
he did it because a lot of other people are doing it; and secondly,
Ø
he
was aggrieved by the fact that despite the good work that we do for
the Road Accident Fund, they do not appreciate the good work
that we
did
and this was his way, I
suppose of punishing them for being their clients. Ja, but there was
no doubt that he admitted that he had
committed these irregularities.
We then said to him, look, in the circumstances we have every
intention of taking disciplinary
action against you, but we will give
you the option, in fairness to you, to just resign from the firm and
to save face. That he
did. On the same day he submitted, I think it
was on the same day, on 16 July 2012, he submitted his official
resignation letter
dated 16 July, addressed to the partners, Lindsay
Keller in Rosebank and it says:
‘
Dear
Sir, Madam
RESIGNATION
Be advised that I
forthwith tender my resignation letter with immediate effect.
Kind regards
Yours faithfully
(Sgd) MAFANELA MASHABA’
and
we accepted that resignation.
”
[14]
It,
furthermore, emanated from Mr Adam’s testimony that the Firm
refunded the Fund in an amount of R 134 000, 00 which
amount
represented the fraudulent claims. The R 134 000, 00
was deducted from bonuses still owing to the respondent
upon his
resignation. A further amount of R 140 000, 00 that
was still due to “advocate” Ngobeni was
reversed in the
accounting system.
[15]
The
respondent, during cross-examination of Mr Adams, denied that he
admitted any wrongdoing. According to the respondent the only
admission he made is that he had briefed his wife. Mr Adams denied
this and stated that the respondent’s wife is in any event
not
an advocate.
[16]
Mr
Mashaba stated that she was. When asked by Mr Erasmus, the chair of
the committee, at which Bar “advocate” Ngobeni
was
practising, the respondent answered as follows: “
I
do not...I know that she is in the Johannesburg Bar, with the
independent Bar”.
[17]
When
asked whether he had proof of his wife’s admission, the
respondent deflected the answer and insisted that he only admitted
to
having briefed his wife, “advocate” Ngobeni.
[18]
Mr
Adam’s response to the aforesaid statement by the respondent is
telling:
“
Mr
Chairman, I am quite happy to answer the question and I will answer
it like this: This is news to me, Mr Mashaba was my partner
for, I
think it was three, four years. I do not know that his wife is an
advocate, I have…that was never…this is
the first time
ever that I hear that his wife is an advocate, but in addition to
that, this is not what he said at the meeting.
He accepted that it
was a fictitious counsel that had been created, payments were made to
a fictitious counsel, there was no that
the work had never been done
by this counsel and we at the time thought that…..because his
wife’s maiden name apparently
is Ngobeni, but the whole thing
was a fraud, there was no work done by counsel, be it his wife or any
other counsel. He accepted
that as a fact that he had defrauded, or
defrauded the firm and/or the Road Accident Fund from these payments
that we have made,
but I have to emphasize, this is the first time
that I hear that Mr Mashaba’s wife is an advocate and I do not
accept that
for one minute.”
[19]
The
respondent, once again, endeavoured to diminish the import of his
admission by stating that he never admitted to “
having
defrauded anyone or stealing anything”
.
[20]
Mr
Adams responded as follows to the respondent’s assertion that
he never admitted any wrongdoing:
“
But
what you have admitted is that R 134 000, 00 was inappropriately
misappropriated and hence the agreement that we will set
off whatever
was due to you.”
[21]
Significantly,
the respondent did not deny the reasons he proffered for his conduct
at the meeting with his partners.
[22]
The
respondent’s version in his answering affidavit pertaining to
the question whether he knew, at the time of briefing his
wife,
whether she was an admitted advocate or not, differed substantial
from the evidence he presented at the disciplinary inquiry.
In fact,
the respondent gave two contradictory versions. Save to note that
these contradictions, is a further cause for concern,
it does not
really advance the inquiry into the respondent’s conduct much
further.
[23]
The
admission by the respondent pertains to
fictitious
invoices submitted to the Fund in respect of work that was not done.
In whose name the respondent chose to issue these invoices
is
inconsequential.
[24]
The
respondent’s only defence to the allegations against him, is
that Mr Adams did not tell the truth.
[25]
If
the respondent’s version of what transpired during the meeting
with his partners is correct, it defies all logic that he,
on his own
version, immediately tendered his resignation. According to the
respondent, he did nothing untoward.
[26]
The
respondent, furthermore, admits that R 134 000, 00 was deducted
from monies due to him by the Firm and that the said amount
was paid
to the Fund. Why would a seasoned and honest attorney forfeit R
134 000, 00, if the amount represented fees for work
that was
actually done.
[27]
A further problem the respondent faces is the fact that the invoices
submitted by “advocate”
Ngobeni were produced on his
computer.
[27]
The
respondent’s explanation in respect of the invoices on his
computer is rather curious. According to the respondent, he
always
had all the invoices of counsel that he regularly briefed on his
computer. The reason being that he needed to change the
invoices in
the event that the Fund paid a lesser amount than the amount
reflected on the invoice.
[28]
Save
to state that it is highly irregular to change an account that was
already submitted to the Fund, the respondent’s version
does
not account for the fact that only his wife’s invoices appeared
on his computer.
[29]
The
respondent’s version of events is highly improbable and I have
no hesitation to reject his version out of hand.
[30]
In
the result, I am satisfied that the fraudulent conduct of the
respondent has been established on a balance of probabilities.
[31]
I
pause to mention, that the Law Society referred to a further
complaint received from the Sheriff of Johannesburg in respect of
an
over payment it made to the respondent. It appears that the complaint
is the subject matter of litigation and I do not deem
it necessary to
refer thereto in these proceedings.
LEGAL
REQUIREMENTS
[32]
It
is trite that an inquiry into the fitness of an attorney to remain on
the roll of attorneys envisage three stages.
Factual
inquiry
[33]
The first stage involves a factual inquiry to establish whether the
offending conduct had been
established on a balance of probabilities.
I have already found that it did. [
Jasat v Natal Law Society
2000
(3) SA 44
SCA]
Fit
and proper
[34]
Secondly, the court should inquire whether the offending conduct
disqualifies the practitioner
concerned to continue practicing, in
other words is the practitioner still a fit and proper person to
practise as an attorney.
[33]
This
stage of the inquiry involves a value judgment, which in turn
involves the weighing up of the fraudulent conduct of the respondent
against the conduct expected of an attorney.
[34]
The
conduct expected of an attorney was succinctly summarised by
Eksteen JA in
Vassen
v Law Society of the Cape of Good Hope
[1998] ZASCA 47
;
1998
(4) SA 532
(SCA) at page
537F-G
of the judgment:
“
In
this regard it must be borne in mind that the profession of an
attorney, as of any other officer of the Court, is an honourable
profession which demands complete honesty, reliability and integrity
from its members; and it is the duty of the respondent Society
to
ensure, as far as it is able, that its members measure up to the high
standards demanded of them. A client who entrusts his
affairs to an
attorney must be able to rest assured that that attorney is an
honourable man who can be trusted to manage his affairs
meticulously
and honestly. When money is entrusted to an attorney or when money
comes to an attorney to be held in trust, the general
public is
entitled to expect that that money will not be used for any other
purpose than that for which it is being held, and that
it will be
available to be paid to the persons on whose behalf it is held
whenever it is required. Here once again the respondent
Society has
been created to ensure that the reputation of this honourable
profession is upheld by all its members so that all members
of the
public may continue to have every confidence and trust in the
profession as a whole.
”
[35]
The
respondent’s fraudulent conduct does not only fall dismally
short of the high standard of conduct expected of an attorney,
it
also amounts to criminal conduct.
[36]
The
respondent is clearly no longer a fit and proper person to continue
as an attorney of this court.
Sanction
[37]
Having found that the respondent is no longer a fit and proper person
to practice as an attorney,
the third stage of the inquiry requires
the court to consider an appropriate sanction.
[37]
Mr
Groome, the legal practitioner on behalf of the Law Society,
submitted in his heads of argument that the court in considering
an
appropriate sanction, is not first and foremost imposing a penalty,
the main consideration should be the protection of the public.
[38]
The
public, no doubt, should be protected from engaging the services of
an unscrupulous attorney. The respondent’s dishonest
conduct
reflects on his personal integrity and poses a serious threat to his
engagement with his clients, his colleagues and more
importantly, the
court.
[39]
More
disconcerting, is the fact that the respondent did not hesitate to
discredit his erstwhile partner, Mr Adams, who is presently
a judge
of this division, during the disciplinary inquiry.
[40]
The
respondent, after initially admitting wrongdoing, did a direct
turnabout and employed every conceivable tactic to escape the
consequences of his conduct. In so doing he had no hesitation in
being dishonest and deceitful. This is not conduct befitting an
officer of court and an order confirming the aforesaid should follow.
ORDER
[41]
In
the premises, I propose the following order:
1.
That
Mafanela Petrus Mashaba (the First Respondent) be struck from the
roll of attorneys of this Honourable Court.
2.
That
the First Respondent immediately surrenders and delivers to the
Registrar of this Honourable Court his certificate of enrolment
as an
attorney and conveyancer of this Honourable Court.
3.
That in the event of the First Respondent failing to comply with the
terms of
this order detailed in the paragraph 2 hereof within two (2)
weeks from the date of this order, the sheriff of the district in
which the certificates are, be authorised and directed to take
possession of the certificates and to hand it to the Registrar of
this Honourable Court.
4.
That the First Respondent be prohibited from handling or operating on
his trust
accounts as detailed in paragraph 5 hereof.
5.
That Johan van Staden, the head : members of 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 accounts of the First
Respondent, including accounts relating to insolvent and deceased
estates and any deceased estate and any estate under curatorship
connected with the first Respondent’s practice as an attorney
and including, also, the separate banking accounts opened and kept by
the first respondent at a bank in the Republic of South Africa
in
terms of section 78(1) of the Attorneys Act, 53 of 1979 and/or
any separate savings or interest-bearing accounts as contemplated
by
section 78(2) and/or section 78(2A) of the Attorneys Act,
53 of 1979, 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 following powers and duties:
5.1
immediately
to take possession of the First Respondent’s accounting
records, records, files and documents as referred to in
paragraph 6
and subject to the approval of the board of control of the attorneys
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 First Respondent was
acting at the date of this order;
5.2
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 undermentioned trust accounts, to cover and receive and, if
necessary in the
interests of persons having lawful claims upon the
trust account(s) and/or against the First Respondent in respect of
monies held,
received and/or invested by the First Respondent in
terms of section 78(1) and/or section 78(2) and/or section
78(2A)
of the Attorneys Act, 53 of 1979 (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 First 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);
5.3
to ascertain from First Respondent’s accounting records the
names of all persons on
whose account the First Respondent appears to
hold or to have received trust monies (hereafter referred to as trust
creditors);
to call upon the First 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 names, addresses and
amounts due to all trust creditors;
5.4
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 First
Respondent and,
if so, the amount of such claim;
5.5
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;
5.6
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;
5.7
in the event of there being any surplus in the trust account(s) of
the First 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 78(3) of the Attorneys Act, 53 of 1979 in respect of any
interest
therein referred to and, secondly, without prejudice to the
rights of the creditors of the First Respondent, the costs, fees and
expenses referred to in paragraph 10 of this order, or such portion
thereof as has not already been separately paid by the First
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 First Respondent, if he is solvent, or,
if the First
Respondent is insolvent, to the trustee(s) of the First Respondent’s
insolvent estate;
5.8
in the event of there being insufficient trust monies in the trust
banking account(s) of
the First 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 Attorneys Fidelity Fund;
5.9
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
5.10
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 First
Respondent has/have been dealt with, until such time as the board
notifies him that he may regard
his duties as curator as terminated.
6.
That the First Respondent immediately delivers his accounting
records, records,
files and documents containing particulars and
information relating to:
6.1
any monies received, held or paid by the First Respondent for or on
account of any person
while practising as an attorney;
6.2
any monies invested by the First Respondent in terms of section 78(2)
and/or section 78(2A)
of the Attorneys Act, 53 of 1979;
6.3
any interest on monies so invested which was paid over or credited to
the First Respondent;
6.4
any estate of a deceased person or an insolvent estate or an estate
under curatorship administered
by the First Respondent, whether as
executor or trustee or curator or on behalf of the executor, trustee
or curator;
6.5
any insolvent estate administered by the First Respondent as trustee
or on behalf of the
trustee in terms of the
Insolvency Act, 24 of
1936
;
6.6
any trust administered by the First Respondent as trustee or on
behalf of the trustee in
terms of the Trust Properties Control Act,
57 of 1988;
6.7
any company liquidated in terms of the Companies Act, 61 of 1973,
administered by the First
Respondent as or on behalf of the
liquidator;
6.8
any close corporation liquidated in terms of the
Close Corporations
Act, 69 of 1984
, administered by the First Respondent as or on behalf
of the liquidator, and
6.9
the First Respondent’s practice as an attorney of this
Honourable Court, to the curator
appointed in terms of paragraph 5
hereof, provided that, as far as such accounting records, records,
files and documents are
concerned, the First Respondent shall be
entitled to have reasonable access to them but always subject to the
supervision of such
curator or his nominee.
7.
That should the First 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 First
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.
8.
The curator shall be entitled to:
8.1
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;
8.2
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 the First
Respondent and/or the First Respondent’s
clients and/or fund in respect of money and/or other property
entrusted to the First
Respondent provided that any person entitled
thereto shall be granted reasonable access thereto and shall be
permitted to make
copies thereof;
8.3
publish this order or an abridged version thereof in any newspaper he
considers appropriate;
and
8.4
wind-up of the First Respondent’s practice.
9.
That the First Respondent be and is hereby removed from office as –
9.1
executor of any estate of which the First Respondent has been
appointed in terms of
section 54(1)(a)(v)
of the
Administration
of Estates Act, 66 of 1965
or the estate of any other person referred
to in
section 72(1)
;
3.8
1cm; text-indent: -1.48cm; margin-top: 0.25cm; margin-bottom: 0cm">
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
section 85 of the Administration Estates Act, 66 of 1965;
9.3
trustee of any insolvent estate in terms of
section 59
of the
Insolvency Act, 24 of 1936
;
9.4
liquidator of any company in terms of
section 379(2)
read with
section 379(e) of the Companies Act, 61 of 1973;
9.5
trustee or any trust in terms of section 20(1) of the Trust
Property Control Act, 57
of 1988;
9.6
liquidator of any close corporation appointed in terms of section 74
of the Close Corporation
Act, 69 of 1984; and;
9.7
administrator appointed in terms of
section 74
of the
Magistrates’ Courts Act, 32 of 1944
.
10.
That the First Respondent be and is hereby directed:
10.1
to pay, in terms of section 78(5) of the Attorneys Act, 53 of
1979, the reasonable costs of the inspection
of the accounting
records of the First Respondent;
10.2
to pay the reasonable fees of the auditor engaged by the Applicant;
10.3
to pay the reasonable fees and expenses of the curator, including
travelling time;
10.4
to pay the reasonable fees and expenses of any person(s) consulted
and/or engaged by the curator as aforesaid;
10.5
to pay the expenses relating to the publication of this order or an
abbreviated versions thereof; and
10.6
to pay the costs of this application on an attorney and client scale.
11.
That if there are any trust funds available the First Respondent
shall within six (6) months
after having been requested to do so by
the curator, or within such longer period as the curator may agree to
in writing, shall
satisfy the curator, by means of the submission of
taxed bills of costs or otherwise, of the amount of fees and
disbursements due
to him (the First Respondent) in respect of his
former practice, 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.
That a certificate issued by a director of the Attorneys Fidelity
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.
N. JANSE
VAN NIEUWENHUIZEN
JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I agree and
it is so ordered.
S.A.M.
BAQWA
JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE
HEARD
12
February 2019
JUDGMENT
DELIVERED
4
April 2019
APPEARANCES
Counsel
for the Applicant:
Mr.
L Groome
(012
452 4024)
Instructed
by:
Rooth
& Wessels Inc
(012 452
4000)
Ref:
A BLOEM/rd/MAT31650
Counsel
for the Respondent:
Mr
K.M. Röntgen (Senior)
(
083 391
6666/012 481 3638)
Instructed
by:
Röntgen
& Röntgen
(012 481
3555)
Ref:
KM Röntgen Sr/Nela/R10056/MAS43/1)