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[2019] ZAGPPHC 265
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South African Legal Practice Council v Prinsloo (61165/2018) [2019] ZAGPPHC 265 (28 June 2019)
IN
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: 61165/2018
28/6/2019
In the matter between:
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
Applicant
and
CHRIS
WILMER PRINSLOO
Respondent
JUDGMENT
THE COURT:
[1]
This is an application by the Law
Society of the Northern Provinces (now "The South African Legal
Practice Council") for
the suspension of the respondent ("Mr
Prinsloo") from practice as an attorney
alternatively
,
that his name be removed from the Roll of Attorneys. The application
was served on the respondent personally on 30 August 2018.
The
respondent entered an appearance to oppose the application on 10
September 2018. He did not file an answering or opposing affidavit.
The notice of set down was served on Mr Prinsloo's attorney of record
on 30 October 2018 after a notice of application for a court
date was
served on his attorney on 18 October 2018. The applicant's practice
note and heads of argument was served on Mr Prinsloo's
attorney of
record on 5 June 2019. When the matter was called before us we were
handed an affidavit deposed to by Mr Prinsloo on
11 June 2019 the
purpose of which is stated in paragraph 2 of the affidavit as
follows:
"2.
AD PURPOSE
OF THIS AFF/DAVIT
2.1
The
purpose of this affidavit is to humbly seek the relief of and
intervention from the Above Honourable Court to postpone the above
matter to the Opposed Motion Court Roll.
2.2
Moreover,
to be in
a
position
to prepare,
serve
and
file a proper Answering Affidavit, and to state relevant facts that
contributed to a personal breakdown and the reasons form
(sic) most
of the incidents recorded in the Applicant's Founding Affidavit."
[2]
An application for postponement was
moved on behalf of Mr Prinsloo. We refused the application for
postponement and indicated that
the reasons for the refusal would
follow.
[3]
Following the refusal of the application
for a postponement the main application was argued. Counsel for Mr
Prinsloo informed us
that she was not in a position to argue the
merits of the main application despite our invitation to do
so.
[4]
In proceedings of this kind the
applicant litigates as
custos
morum
of the attorneys'
profession. The attorneys' profession is a controlled profession. It
is regulated by legislation, regulations
promulgated in terms of the
legislation and the rules of the professional body, the applicant. .
Our Courts oversee the regulated
attorneys' profession and
applications of this kind are considered by our Courts as
sui
generis.
[5]
When the applicant contends that the
conduct of a practitioner must be enquired into, a threefold enquiry
has to take place. At
first it must be decided as a matter of fact
whether the offending conduct relied on by the applicant has been
established. If
so satisfied, a value judgment must be made whether
the person concerned is a fit and proper person or not to practise as
a legal
practitioner.
[1]
If a Court finds that the legal practitioner concerned is not a fit
and proper person to practise as a legal practitioner it must
exercise its discretion whether, taking into account all the
circumstances, his name should be removed from the roll or whether
he
should be suspended from practice.
[2]
[6]
In exercising its discretion a Court
should consider all the facts proved in the proceedings. No facts may
be considered in isolation.
[3]
[7]
Our Courts expect from a legal
practitioner to scrupulously comply
with all statutory requirements imposed on him
or..her as a practitioner. In the present application it is alleged
by the applicant
that Mr Prinsloo failed to lodge unqualified audit
reports for the periods ending February 2016 and February 2017. His
failure
to submit the said reports caused him not to be issued with a
Fidelity Fund Certificate for the year that commenced during January
2016.
[8]
The applicant also alleges that Mr
Prinsloo failed to complete the required legal practice management
course mentioned in section
13(8) of the Attorneys Act. His failure
in that regard resulted in him not being issued with a Fidelity Fund
Certificate. Breaches
of the Attorneys Act and Regulations by Mr
Prinsloo remain unanswered and it seems to us that he practised
unlawfully as an attorney
for his own account.
[9]
The applicant appointed Mr Van Rooyen, a
management consultant to conduct an investigation into Mr Prinsloo's
practice. Mr Van Rooyen
supplied the applicant with a report attached
to the founding papers as annexure "A19". The body of the
report reads
as follows:
"OUTSTANDING FORM
OF
ASSURANCE REPORT:
PRINSLOO C WA TTORNEYS
-
PRETORIA
I refer to your mandate dated 6 February
2017 and wish to reply with the following letter.
On 8 February 2017 I opened
a
file for this matter and perused the
firm and member profile that was received with the mandate. According
to your records there
are seven unresolved complaints from 2014 to
2017 on record.
I telephoned the office telephone number,
012 809 0175, and the cell phone number, 082 093 5601, according to
the firm and member
profile, attached
as
addendum A1-2, without any success
as
the telephones just kept ringing.
After reporting the situation to you I was
instructed to forward an
e
mail
as
a
last resort, and if there is no
reply to visit the attorney at his offices as per your records, Blok
78, Unit 5, Tijger Valley Office
Park, Silver Lakes Street, Pretoria.
On 15 February 2017 I drafted and sent the attached addendum B e-mail
to the attorney without
getting
a
reply.
I visited the premises on 20 February 2017.
At the gate
a
certain,
Bongani,
a
security
guard, informed me that Mr. Prinsloo had evacuated the premises
during 2016, and that the forwarding address is now 789
Park Street,
Hatfield.
At the new address I found it to be the
offices of Uys Coetzee Attorneys. At reception I asked to speak to
Mr. Prinsloo. He entered
reception and took me to an office.
Mr. Prinsloo informed me that on 20 February
2016 I man tried to shoot himself in his old office. This had such a
tremendous effect
on him that he could not sleep. His medical
practitioner prescribed sleeping tablets, which he became addicted
to. When he was
institutionalised his wife found out about his
addiction and started divorce proceedings. He thus did not practise
for the whole
of 2016. Management of his previous premises locked him
out of his office due to the fact that he was in affears with his
rent.
He however did get his files. His accounting records, according
to him is intact
as
it
is backed up by Lexpro.
He also informed me that Mr. Uys of the firm
Uys Coetzee Attorneys agreed 'to help him to get back on his feet
again. When I asked
him whether his cell phone number has changed he
said no, but he does not want to answer it, if he does not know the
number
as
all
his creditors are driving him crazy. He agreed to put my name on his
cell phone so that he will answer mv calls in futu
r
e.
As he pointed out to me that Mr. Uys was
willing to assist him I recommended that he tries to get Mr. Uys's
auditor to assist him
to get his accounting records up to date
as
soon as possible. He requested that I
give him two weeks to try and get his accounting records in order and
the report issued.
I reported same to you and diarized my file
for 13 March 2017.
I received the attached WhatsApp Chat from
Mr. Prinsloo on 13 March 2017, which I printed out and which is
attached hereto as addendum
C.
I also forwarded a message to
him requesting that he request his medical practitioner to provide
him with a medical certificate.
I again requested
a
medical certificate on 14 March 2017
to which I also did not receive a reply.
As Mr. Prinsloo is now requesting extension
until 24 April 2017 to file his Form of Assurance Report, which we
know nobody can agree,
to I reported the situation to you and was
requested to file an interim report.
In view of the information provided to me
by the Law Society and Mr. Prinsloo It appears that he may have
abandoned his practise
as the Law Society was not informed about the
change of address and it is not sure whether his clients were
notified of the situation.
As appears that this matter may well be
dealt with administratively by the Law Society due to the situation,
I thank you for the
mandate and I
am
temporarily closing my file in this
matter.
"
[10] In addition
to the complaint by the applicant that Mr Prinsloo failed to obtain
the required
Fidelity Fund Certificates (and failed to comply with
the other statutory provisions mentioned above) it is alleged that he
is
guilty of unprofessional conduct set out in the complaints by Mr
Fourie, Maree Attorneys and Conveyancers, D&K Attorneys and
Dawie
Beyers Attorneys. Those complaints are factual and may be disputed by
Mr Prinsloo. In his affidavit presented in support
of the application
for a postponement it is alleged that Mr Prinsloo suffers from
"an
emotional breakdown and deterioration".
That affidavit,
however, implies that Mr Prinsloo can and does practise as an
attorney
"under the proverbial wing of my mentor and
employer, Mr. Marius Uys".
No affidavit of Mr Uys was,
however, tendered in evidence. We are mindful of the fact that an
order suspending Mr Prinsloo from
practice or removing his name from
the roll of attorneys would have a material adverse effect on his
ability to make a living.
We are of the view that the facts set out
in the founding affidavit should, as mentioned in
Summerley
(supra)
not be considered in isolation. Mr Prinsloo's affidavit
presented in support of the application for postponement suggests
that he
has been or is ill. He further indicated that he would very
soon be in a position to present an affidavit of a qualified
psychologist
or psychiatrist to present evidence that might provide
some answer to the charges levelled against him. We are, therefore,
not
prepared to exercise our discretion without the benefit of that
evidence to decide whether Mr Prinsloo should be suspended from
practice or struck from the roll of attorneys. We are however
concerned about Mr Prinsloo's conduct and his refusal to cooperate
with the applicant to investigate the affairs of his practice (which
now seems to be no longer in existence). In that regard we
consider
it necessary to order that the applicant's representatives be given
access, with the cooperation of Mr Prinsloo, to his
trust account and
other records of his practice. We enjoy that authority in terms of
section 44
of the
Legal Practice Act, No 28 of 2014
.
[11] We are
further of the view that Mr Prinsloo should be afforded approximately
one month to file
his answering affidavit in answer to the relief
sought in paragraph 1 of the notice of motion. Postponement of the
matter when
it was called and without granting the appropriate relief
in terms of
section 44
of the·
Legal Practice Act would
have
meant that Mr Prinsloo can practise for his own account and without
granting the applicant access to the records of his erstwhile
practice. In our view that should not be allowed as such conduct is
unlawful and at this stage Mr Prinsloo will enjoy the benefit
of the
doubt that his conduct may have been caused or influenced by illness,
but that is for him to show in the proceedings for
the relief sought
in terms of prayer 1 of the notice of motion and for that court to
consider.
Under
the circumstances we make the following order:
1.
The
respondent is prohibited from handling or operating a trust account
detailed below and from practising for his own account pending
finalisation of the relief sought by the applicant in terms of
paragraph 1 of the notice of motion dated 21 August 2018 or any
amendment thereof;
2.
The
respondent is afforded until Monday 22 July 2019 to file his
answering affidavit, if any, in answer to the application for the
relief claimed in paragraph 1 of the notice of motion dated 21 August
2018;
3.
That
the respondent be prohibited from handling or operating on the trust
accounts as detailed in paragraph 4
infra;
4.
That
Johan van Staden, the Head: Legal Practitioners' Affairs of the
applicant or any person nominated by him, be appointed as
curator
bonis
("curator") to
administer and control the trust accounts of the respondent,
including accounts relating to insolvent and
deceased estates and any
deceased estate and any estate under curatorship connected with the
respondent's practice as a legal practitioner
and including, also,
the separate banking accounts opened and kept by the respondent at a
bank in the Republic of South Africa
in terms of
section 86(1)
and
(2) of Act No 28 of 2014 and/or any separate savings or
interest-bearing accounts as contemplated by section 86(3) and/or
section 86(4) of Act No 28 of 2014, 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 hereinafter
referred
to as "the trust accounts"), with the following powers and
duties:
4.1.
immediately to take possession of the
Respondent's accounting records, records, files and documents as
referred to in paragraph
6 and subject to the approval of the Legal
Practitioners' Fidelity Fund Board of Control (hereinafter referred
to as the fund)
to sign all forms and generally to operate upon the
trust account(s), but only to such extent and for such purpose as may
be necessary
to bring to completion current transactions in which the
Respondent was acting at the date of this order;
4.2.
subject to the approval and control of
the Legal Practitioners' Fidelity Fund Board of Control 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 Respondent in respect of monies
held, received and/or invested by the
Respondent in terms of section
86(1) & (2) and/or section 86(3) and/or section 86(4) of Act No
28 of 2014 (hereinafter referred
to as trust monies), to take any
legal proceedings which may be necessary for the recovery of money
which may be due to such persons
in respect of incomplete
transactions, if any, in which the Respondent was and may still have
been concerned and to receive such
monies and to pay the same to the
credit of the trust account(s);
4.3.
to ascertain from the Respondent's
accounting records the names of all persons on whose account the
Respondent appear to hold or
to have received trust monies
(hereinafter referred to as trust creditors) and to call upon the
Respondent to furnish him, within
30 (thirty) days of the date of
service of this order or such further period as he may agree to in
writing, with the names, addresses
and amounts due to all trust
creditors;
4.4.
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 Legal Practitioners' Fidelity Fund Board of
Control, to determine whether
any such trust creditor has a claim in
respect of monies in the trust account(s) of the Respondent and, if
so, the amount of such
claim;
4.5.
to admit or reject, in whole or in part,
subject to the approval of the Legal Practitioners' Fidelity Fund
Board of Control, 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;
4.6.
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 Legal Practitioners'
Fidelity Fund Board of Control;
4.7.
in the event of there being any surplus
in the trust account(s) of the Respondent after payment of the
admitted claims of all trust
creditors in full, to utilise such
surplus to settle or reduce (as the case may be), firstly, any claim
of the fund in terms of
section 86(5) of Act No 28 of 2014 in respect
of any interest therein referred to and, secondly, without prejudice
to the rights
of the creditors of the Respondent, the costs, fees and
expenses referred to in paragraph 10 of this order, or such portion
thereof
as has not already been separately paid by the Respondent to
the Applicant, and, if there is any balance left after payment in
full of all such claims, costs, fees and expenses, to pay such
balance, subject to the approval of the Legal Practitioners' Fidelity
Fund Board of Control, to the Respondent, if he is solvent, or, if
the Respondent is insolvent, to the trustee(s) of the Respondent's
insolvent estate;
4.8.
in the event of there being insufficient
trust monies in the trust banking account(s) of the Respondent, in
accordance with the
available documentation and information, to pay
in full the claims of trust creditors who have lodged claims for
repayment and
whose claims have been approved, to distribute the
credit balance(s) which may be available in the trust banking
account(s) amongst
the trust creditors alternatively to pay the
balance to the Legal Practitioners' Fidelity Fund;
4.9.
subject to the approval of the chairman
of the Legal Practitioners' Fidelity Fund Board of Control, to
appoint nominees or representatives
and/or consult with and/or engage
the services of legal practitioners, counsel, accountants and/or any
other persons, where considered
necessary, to assist him in carrying
out his duties as curator; and
4.10.
to render from time to time, as curator,
returns to the Legal Practitioners' Fidelity Fund Board of Control
showing how the trust
account(s) of the Respondent has/have been
dealt with, until such time as the board notifies him that he may
regard his duties
as curator as terminated.
5.
That
the Respondent immediately deliver the accounting records, records,
files and documents containing particulars and information
relating
to:
5.1.
any monies received, held or paid by the
Respondent for or on account of any person while practising as a
legal practitioner;
5.2.
any monies invested by the Respondent in
terms of section 86(3) and/or section 86(4) of Act No 28 of 2014;
5.3.
any interest on monies so invested which
was paid over or credited to the Respondent;
5.4.
any estate of a deceased person or an
insolvent estate or an estate under curatorship administered by the
Respondent, whether as
executor or trustee or curator or on behalf of
the executor, trustee or curator;
5.5.
any insolvent estate administered by the
Respondent as trustee or on behalf of the trustee in terms of the
Insolvency Act, No 24 of 1936
;
5.6.
any trust administered by the Respondent
as trustee or on behalf of the trustee in terms of the Trust
Properties Control Act, No
57 of 1988;
5.7.
any company liquidated in terms of the
provisions of the Companies Act, No 61 of 1973 read together with the
provisions of the
Companies Act, No 71 of 2008
, administered by the
Respondent as or on behalf of the liquidator;
5.8.
any close corporation liquidated in
terms of the
Close Corporations Act, 69 of 1984
, administered by the
Respondent as or on behalf of the liquidator; and
5.9.
the Respondent's practice as a legal
practitioner 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 Respondent
shall be entitled
to have reasonable access to them but always
subject to the supervision of such curator or his nominee.
6.
That
should the Respondent fail to comply with the provisions of the
preceding paragraph of this order on service thereof upon him
or
after a return by the person entrusted with the service thereof that
he has been unable to effect service thereof on the Respondent
(as
the case may be), the sheriff for the district in which such
accounting records, records, files and documents are, be empowered
and directed to search for and to take possession thereof
wherever they may be and to deliver them to such curator.
7.
That
the curator shall be entitled to:
7.1.
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;
7.2.
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 Respondent
and/or the Respondent's clients
and/or fund in respect of money
and/or other property entrusted to the Respondent provided that any
person entitled thereto shall
be granted reasonable access thereto
and shall be permitted to make copies thereof;
7.3.
publish this order or an abridged
version thereof in any newspaper he considers appropriate; and
7.4.
winding-up of the Respondent's practice.
8.
That
the Respondent be and is hereby removed from office as:
8.1.
executor
of any estate of which the 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)
;
3cm
; margin-right: 0.12cm; text-indent: -1.75cm; margin-top: 0.16cm; margin-bottom: 0cm; line-height: 150%">
8.2.
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, No 66 of 1965
;
8.3.
trustee
of any insolvent estate in terms of
section 59
of the
Insolvency Act,
No 24 of 1936
;
8.4.
liquidator
of any company in terms of
section 379(2)
read with 379(e) of the
Companies Act, No 61 of 1973 and read together with the provisions of
the
Companies Act, No 71 of 2008
;
8.5.
trustee
of any trust in terms of section 20(1) of the Trust Property Control
Act, No 57 of 1988;
8.6.
liquidator
of any close corporation appointed in terms of section 74 of the
Close Corporation Act, No 69 of 1984; and
8.7.
administrator
appointed in terms of Section 74 of the Magistrates Court Act, No 32
of 1944.
9.
That the Respondent be and is hereby
directed:
9.1.
to pay, in terms of section 87(2) of Act
No. 28 of 2014, the reasonable costs of the inspection of the
accounting records of the
Respondent;
9.2.
to pay the reasonable fees of the
auditor engaged by applicant;
9.3.
to pay the reasonable fees and expenses
of the curator, including travelling time;
9.4.
to pay the reasonable fees and expenses
of any person(s) consulted and/or engaged by the curator as
aforesaid;
9.5.
to pay the expenses relating to the
publication of this order or an abbreviated version thereof; and
9.6.
to pay the costs of this application on
an attorney-and-client scale.
10.
That
if there are any trust funds available the Respondent shall within 6
(six) months after having been requested to do so by the
curator, or
within such longer period as the curator may agree to in writing,
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 the 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.
That
a certificate issued by a director of the Legal Practitioners'
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.
12.
The
respondent is ordered to pay the costs of the proceedings of 11 June
2018 on an unopposed scale which costs shall be taxable
on a scale as
between attorney and own client.
T
A N MAKHUBELE
JUDGE
OF THE HIGH COURT
PRETORIA
H
F JACOBS
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
[1]
Kaplan v Incorporated Law Society. Transvaal
1981
(2)
SA
762
(A).
[2]
Jasat v Natal Law Society
2000 (3) SA 44 (SCA).
[3]
Summerley v Law Society Northern Provinces
2006 (5) SA
613
(SCA).