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[2019] ZAGPPHC 374
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Law Society of the Northern Provinces v Adekeye and Another (21758/2018) [2019] ZAGPPHC 374 (2 May 2019)
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case No: 21758/2018
2/5/2019
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN PROVINCES
Applicant
and
BABATUNDE
BAMIDELE ADEKEYE
First Respondent
MKHABELA
HUNTLEY ATTORNEYS
INCORPORATED
Second Respondent
JUDGMENT
D S FOURIE, J:
[1]
This is an application in terms of
section 22(1)(d) of the Attorneys Act. No 53 of 1979 for striking the
name of the first respondent
from the Roll of Attorneys. This Act has
been repealed in terms of
section 119
of the
Legal Practice Act, No
28 of 2014
which came into force on 1 November 2018. In terms of
section 116(2)
thereof any proceedings in respect of the suspension
or the removal of the name of any person from the Roll of Attorneys
which
have been instituted in terms of any law repealed by this Act,
and which have not been concluded at the date when this Act came
into
operation, must be continued and concluded as if that law had not
been repealed. This application was instituted on 23 March
2018 and
therefore the provisions of the now repealed Attorneys Act still
apply to this application.
[2]
The application is opposed by the first
respondent. No relief is sought against the second respondent or its
directors at this stage.
The first respondent raised various points
in limine
which
came before Raulinga J on 8 May 2018. On 17 May 2018 all the points
in limine
were
dismissed with costs. Thereafter the first respondent applied for
leave to appeal, but that application was dismissed on 13
June 2018.
We were given the assurance by both counsel that no other procedure
is pending and therefore this application can now
be finalised.
[3]
The first respondent was admitted as an
attorney on 20 August 1998 and his name still appears on the Roll of
Attorneys. It is common
cause that during the period 1 September 2006
to 30 August 2014 he practised as a director of the second respondent
in Johannesburg.
He commenced practising for his own account as a
single practitioner on 17 January 2017.
[4]
The facts and circumstances which caused the applicant to bring this
application are,
inter alia,
the first respondent's alleged
misappropriation of trust funds which, according to the applicant,
resulted in a trust deficit of
more than R11 million, his failure to
keep proper accounting records and practising as an attorney since 1
January 2018 without
being in possession of a Fidelity Fund
Certificate.
BACKGROUND
:
[5]
After the applicant had received a qualified auditor's report for the
second respondent
in respect of the period ending 28 February 2017, a
legal official in the employ of the applicant was instructed to
conduct an
inspection of the second respondent's accounting records
and practice affairs.
[6]
The legal official executed her mandate
and reported to the applicant in writing on 12 January 2018. In her
report she refers to
the second respondent's auditor's report for the
period 1 March 2016 to 28 February 2017 which was qualified to the
effect that
the second respondent's trust account had a deficit of
R11683 404.44.
[7]
Attached to the auditor's report was a
statement by attorney AL Mkhabela, a director of the second
respondent, in which he informed
the applicant of a trust deficit in
the second respondent's bookkeeping in exactly the same amount as
referred to by the auditor.
According to him the trust deficit was
the result of the misappropriation of trust funds by the first
respondent.
[8]
In his statement the said attorney
explains that one of the longstanding clients of the second
respondent is the Kwezi Group of
Companies. Kwezi instructed the
second respondent to invest an amount of R20 million in an
interest-bearing account and to disburse
the monies in accordance
with its instructions. The first respondent was in charge of this
account. On 8 December 2014 Mr Mkhabela
became aware of the
misappropriation of trust funds by the first respondent in the amount
of R17 210 290.87. He then confronted
the first respondent who
accepted responsibility for the misappropriation. The first
respondent undertook to reimburse the monies
misappropriated, but
only repaid an amount of R6 million. On 30 August 2017 the
outstanding amount in respect of misappropriated
trust funds was R11
683 404.44. The Kwezi Group of Companies subsequently instituted
legal action against the second respondent
in order to recover the
monies misappropriated by the first respondent.
[9]
It is also pointed out by the applicant
that,
as a
result
of the alleged irregularities committed by the first respondent, he
did not qualify for and was not issued with a Fidelity
Fund
Certificate for 2018. Such a certificate is mainly issued on the
strength of an unqualified auditor's report. The purpose
thereof is
to protect the general public. According to the applicant the first
respondent continued to practise as an attorney
from 1 January 2018
without a Fidelity Fund Certificate.
[10]
In his answering affidavit the first respondent explains that he had
been issued with a Fidelity
Fund Certificate for the year ending 31
December 2017. He points out that since 1 January 2018
ul have not
been practising as an attorney
as
I have not applied for nor
being issued with
a
Fidelity Certificate''.
However,
further on in the same affidavit the first respondent admits that "/
have been practising without
a
Fund Certificate, as I have
not yet submitted my trust account audit".
[11]
The first respondent denies that he was
involved in the misappropriation of trust funds. He gives the
following explanation:
"I deny and do not recall Mr Mkhabela
ever confronting me about the misappropriated funds and, I further
deny and do not recall
taking responsibility for the misappropriation
of the funds or undertaking to reimburse the monies misappropriated.
The amount
of R6 million I paid represented payments that have been
made to my personal account or accounts of entities I control which
were
done at the instructions of client. I then paid
a
sum of RS million and R1 million to
the second respondent's trust account as per the client's
instructions and not as an admission
of any liability."
[12]
It is admitted by the first respondent
that he was in charge of the Kwezi account whilst being a director of
the second respondent.
According to him a representative (Mr Mahamba)
of the Kwezi Group of Companies had given him a special power of
attorney
"to deal with the funds
in accordance with instructions of Kwezi".
A
copy of this special power of attorney is attached to the answering
affidavit. The first respondent then states, with reference
to this
special power of attorney, that "a//
payment
requisitions were made under proper instructions and authority of
Kwezi".
SUBMISSIONS
IN THIS COURT:
[13]
Counsel for the applicant submitted that
if a Court finds that an attorney is not a fit and proper person to
continue to practise
as an attorney, that attorney must be removed
from the roll. If the Court however has grounds to assume that after
a period of
suspension the attorney will be fit to practise as an
attorney in the ordinary course of events, it would not remove the
attorney
from the roll but order an appropriate suspension. It was
contended that in this case an order suspending the first respondent
from practising as an attorney would not be an appropriate order and
that his name should be struck from the roll.
[14]
Counsel for the first respondent submitted there is a dispute of fact
on the affidavits filed
and therefore there is not sufficient proof
that the first respondent misappropriated trust funds as alleged. The
matter should
therefore be referred back to the applicant to conduct
a further investigation as regards all the attorneys who were
directors
of the second respondent during the relevant period. It was
contended in the alternative that the first respondent's name should
not be removed from the Roll of Attorneys, but that he should be
suspended from practising as an attorney for a considerable period.
DISCUSSION:
[15] Section
22(1)(d) of the Attorneys Act provides that 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, in the discretion
of the Court, is not a
fit and proper person to continue to practise
as an attorney. In exercising its discretion, the Court is faced with
a three stage
enquiry. The Court first decides as a matter of fact
whether the alleged offending conduct has been established. If the
answer
is yes, a value judgment is required to decide whether the
person concerned is not a fit and proper person as envisaged in
section
22(1). If the answer is again in the affirmative, the Court
must decide in the exercise of its discretion whether, in all the
circumstances
of the case, the person in question is to be removed
from the roll or merely suspended from practice
(Law Society of
the Cape of Good Hope v Budricks
2003 (2) SA 11
(SCA) at 13J
- 14A). The facts upon which the Court's discretion is based, should
be considered in their totality, and the Court
must not consider each
issue in isolation
(
Beyers v Pretoria Balieraad
1966 (2) SA 593
(A) at 6068).
[16]
In deciding on whichever course to
follow, the Court is not first and foremost imposing a penalty. The
main consideration is the
protection of the public
(Malan
v The Law Society of the
Northern Provinces
[2008] ZASCA 90
;
[2009] 1 All
SA 133
(SCA) par 7). The Court in the
Malan
also pointed out (in par 8) the
following:
"Second, logic dictates that if
a
Court finds that someone is not a fit
and proper person to continue to practise as an attorney, that person
must be removed from
the roll. However, the Act contemplates
a
suspension. This means that removal
does not follow as
a
matter
of course. If the Court has grounds to assume that after the period
of suspension the person will be fit to practise as an
attorney in
the ordinary course
of
events
it would not remove him from the roll but order an appropriate
suspension
. ..
(l)t
is implicit in the Act that any order of suspension must be
conditional upon the cause of unfitness being removed. For example,
if an attorney is found to be unfit of continuing to practise because
of an inability to keep proper books, the conditions of suspension
must be such
as
to
deal with the inability. Otherwise the unfit person will return to
practice after the period of suspension with the same inability
or
disability.
"
[17]
An attorney is a member of a learned,
respected and honourable profession and, by entering it, pledges
himself with total and unquestionable
integrity to society at large,
to the Courts and to the profession. The law expects from an attorney
the highest possible degree
of good faith in his dealings with his
client, the public and the Court. This implies that an attorney's
conduct, submissions and
representations must at all times be
accurate, honest and frank.
[18]
The first question now to be considered
is whether the alleged offending conduct has been established? It
relates to the allegation
that the first respondent was practising
without a Fidelity Fund Certificate and that he misappropriated trust
funds. The contention
that there is a dispute of fact and that the
matter should be referred back to the applicant for further
investigation is for two
reasons without any merit. First, the issue
about a dispute of fact has already been considered and dealt with by
Raulinga J on
8 May 201B. Before dismissing it as one of the points
in limine
raised
by the first respondent, the learned Judge said the following in this
regard:
"In essence, the first respondent does
not raise
a
real,
genuine and bona fide dispute which can fit the guidelines in
Plascon
Evans.
He makes bare denials
without making an explanation of the facts in dispute."
[19]
Second, the first respondent has given
an explanation with regard to the alleged offending conduct and has
made certain admissions
in this regard which cannot be ignored. Put
differently, this application can be considered on the first
respondent's own version,
also taking into account the manner in
which he presented his case.
[20]
There appears to be no dispute that the
first respondent was practising as an attorney since 1 January 2018
without being in possession
of a Fidelity Fund Certificate. Although
he attempted to give a different version initially, he later conceded
that
"I have been practising
without
a
Fund
Certificate".
Section 41(1) of
the Attorneys Act provides that a practitioner shall not practise or
act as a practitioner for his own account
or in partnership unless he
is in possession of a Fidelity Fund Certificate. The first respondent
failed to comply with this statutory
requirement and therefore the
alleged offending conduct has been established.
[21]
The second issue to be considered is
whether it has been demonstrated that the first respondent had
misappropriated trust funds.
Notwithstanding his denial in this
regard, the first respondent has admitted that payments in the amount
of R6 million had been
made
"to
my personal account or accounts
of
entities I control".
According
to his own explanation he later paid R5 million and also R1 million
to the second respondent's trust account. No doubt,
this amount of R6
million which he had in his personal account or accounts of entities
under his control was trust money belonging
to his client, the Kwezi
Group of Companies. This clearly appears from his own explanation and
the special power of attorney on
which he relies.
[22]
The special power of attorney was
granted by Kwezi Group (Pty) Ltd as represented by Mr Mahamba, a
director. It clearly stipulates
that an amount of R20 million was to
be received
"into the trust
account of MHA (Mkhabela Huntley Attorneys Incorporated)".
This
special power of attorney did not authorise the first respondent to
receive any trust money into his personal account or that
of entities
under his control. There is a general clause authorising
"other
payments from the funds as we shall direct from time to time in
writing".
No direction in
writing has been produced by the first respondent authorising him to
accept trust money in his personal account
and that of entities under
his control. His explanation that the amount of R6 million was paid
into his personal account or that
of entities under his control
"at
the instructions
of
client"
is a bald and unsubstantiated
statement which should be rejected.
[23]
The fact that R6 million was repaid is a
further indication that trust money had been misappropriated by the
first respondent. His
explanation that"/
deny
and
do
not
recall Mr Mkhabela ever confronting me about the misappropriated
funds"
is incomprehensible. I
find it strange that an attorney who has been confronted about the
misappropriation of trust funds will not
be able
to
recall such an allegation. The first
respondent's version in this regard is so improbable that it can
safely be rejected. No doubt,
it was this confrontation about the
misappropriation of trust funds which motivated the first respondent
to repay the amount of
R6 million.
[24]
I also take into account the manner in
which the first respondent has presented his case. Needless to say,
his explanation is extremely
vague and he has failed to respond
meaningfully with regard to the allegations of the misappropriation
of trust funds. Attorneys
are expected to respond meaningfully and to
furnish a proper explanation of financial discrepancies and a failure
to do so, may
count against them.
(Hepple
&
Others
v Law Society of Northern Provinces,
2014
JDR 1078 (SCA) par 9).
[25]
Section 78 of the Attorneys Act makes
provision for trust accounts. It provides in sub-section (1) that an
attorney shall open and
keep a separate trust banking account
"at
a
banking
institution in the Republic and shall deposit therein"
the
money held or received on account of any person. Sub-section (2)
makes provision for the investment
"in
a
separate
trust savings or other interest bearing account opened by him or
her with any banking institution or building society"
of
trust money which is not immediately required for any particular
purpose. Sub-section (2A) makes provision for the opening of
a
"separate trust savings or other
interest-bearing account"
for
the purpose of investing trust money therein. In both instances the
account concerned shall contain a reference to the applicable
sub-section which means that the money so deposited shall remain
trust money. Section 78 does not authorise an attorney to deposit
or
invest trust money in his personal account or that of entities under
his control. Having regard to all these considerations,
I am
satisfied that the alleged offending conduct with regard to the
misappropriation of trust funds in at least the amount of
R6 million
has been established.
[26]
I now have to consider whether the first
respondent is not a fit and proper person as envisaged in section
22(1) of the Attorneys
Act. A valued judgment is required taking into
account all the proven facts and relevant circumstances. Looking at
them holistically,
the following can be inferred from the conduct of
the first respondent:
(a)
He
unlawfully and deliberately paid trust money into his personal
account and that of entities under his control;
(b)
He
misappropriated trust funds in the amount of at least R6 million and
in doing so he was dishonest;
(c)
At the time of filing his answering
affidavit he refused to accept that he was acting in a dishonest
manner;
(d)
His
conduct indicates that he failed to maintain a professional standard
with regard to his practice and his duty towards his client.
[27]
An attorney is a member of a learned,
respected and honourable profession. The law expects from an attorney
the highest possible
degree of good faith in his dealings with his
clients, the public and the Court. If I compare this requirement with
the conduct
of the first respondent, I am of the view that he is not
a fit and proper person as envisaged in section 22(1) of the
Attorneys
Act.
[28]
That brings me to the final question
whether, in all the circumstances of this case, the first respondent
is to be removed from
the roll or merely suspended from practice. To
exercise my discretion properly, and as a starting point, I take into
account the
following facts and circumstances:
(a)
The first respondent was dishonest;
(b)
There was a trust deficit of at least R6
million;
(c)
He was practising without a Fidelity
Fund Certificate;
(d)
The fact that he refused to admit that
he had misappropriated trust funds.
[29]
Taking into account the relevant facts
and circumstances it does not appear to me that the first
respondent's dishonesty can be
regarded as a lapse, or that there are
exceptional circumstances justifying an order that the first
respondent should be suspended
from practising as an attorney. In my
view the opposite is true. The facts indicate that the first
respondent's character is inherently
flawed. This conclusion
justifies an order that his name should be removed from the Roll of
Attorneys.
ORDER:
I
therefore make the following order:
1.
In
terms of section 22(1)(d) of the Attorneys Act, No 53 of 1979 the
first respondent's name is struck from the Roll of Attorneys.
2.
The
first respondent shall immediately deliver his certificate of
enrolment as an attorney to the Registrar of this Court;
3.
In
the event of the first respondent failing to comply with the terms of
this order detailed in the previous paragraph within two
(2) weeks
from the date of this order, the sheriff of the district in which the
certificate
is, is
authorised
and directed to take possession of the certificate and to hand it to
the Registrar of this Court;
4.
The
first respondent is prohibited from handling or operating his trust
accounts as detailed in prayer 5 hereof and this order will
also
apply to the firm Adekeye Attorneys;
5.
Johan
van Staden, the Head: Members Affairs of applicant or any person
nominated by him, is appointed 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
estate under curatorship connected with the first respondent and the
first respondent's practice as an attorney
and including, also, the
separate banking accounts opened and kept by first respondent at
banks in the Republic of South Africa
in terms of section 78(1) of
Act No 53 of 1979 and/or any separate savings or interest-bearing
accounts as contemplated by section
78(2) and/or section 78(2A) of
Act No 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 the 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 recover 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
Act No 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 accounts;
5.3.
to
ascertain from first respondent's accounting records the names of all
persons on whose account first respondent appears to hold
or to have
received trust monies (hereinafter referred to as "trust
creditors) and to call upon 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 the
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 accounts of 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 accounts 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 Act No 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 12, or such portion thereof as
has not
already been separately paid by the first to sixth respondents to
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 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 accounts 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 accounts
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 her 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 accounts of the first
respondent
have been dealt with, until such time as the board notifies them that
they may regard his duties as curator as terminated.
6.
The
first respondent shall immediately deliver his accounting records,
records, files and documents containing particulars and information
of his practice 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 Act No 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
executors or trustees or curators 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, No 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,
No 57 of
1988;
6.7.
any
company liquidated in terms of the Companies Act, No 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 prayer 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.
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/she 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, is
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 first respondent and/or first respondent's clients and/or
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
the first respondent's practice.
9.
The first respondent is hereby removed
from office as:
9.1.
executor
of any estate of which first respondent has been appointed in terms
of
section 54(1)(a)(v)
of the
Administration of Estates Act, No 66 of
1965
or the estate of any other person referred to in
section 72(1)
;
3.5
cm; text-indent: -2cm; margin-bottom: 0cm; line-height: 150%">
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 of Estates Act, N
o 66 of 1965;
9.3.
liquidator
of any company in terms of
section 379(2)
read with 379(e) of the
Companies Act, No 61 of 1973;
9.4.
trustee
of any trust in terms of section 20(1) of the Trust Property Control
Act, No 57 of 1988;
9.5.
liquidator
of any close corporation appointed in terms of
section 74
of the
Close Corporations Act, No 69 of 1984
; and
9.6.
administrator
appointed in terms of section 74 of the Magistrates Court Act, No 32
of 1944.
10.
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 the fees and disbursements
due to him (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;
11.
A
certificate issued by a director of the Attorneys Fidelity Fund shall
constitute
prima facie
proof
of the curator's costs.
12.
The
first respondent is hereby directed:
12.1.
to
pay, in terms of section 78(5) of Act No 53 of 1979, the reasonable
costs of the inspection of the accounting records of the
first
respondent;
12.2.
to
pay the reasonable fees and expenses of the curator;
12.3.
to
pay the reasonable fees and expenses of any person(s) consulted
and/or engaged by the curator as aforesaid;
12.4.
to
pay the expenses relating to the publication of this order or an
abbreviated version thereof; and
12.5.
to
pay the costs of this application on an attorney and client scale.
D S FOURIE
JUDGE OF THE HIGH COURT.
PRETORIA
I
agree.
W
HUGHES
JUDGE
OF THE HIGH COURT
PRETORIA
APPEARANCES:
For
the applicant
:
L
Groome
For
the first respondent:
J O Rabaji-Rasethaba