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[2018] ZAGPPHC 702
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Law Society of the Northern Provinces v Malange (Reasons) (20371/2017) [2018] ZAGPPHC 702 (26 January 2018)
REPUBLIC OF
SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA,
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 20371/2017
26/1/2018
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN PROVINCES
Applicant
and
SIFELANE
MALANGE
Respondent
REASONS
FOR GRANTING THE ORDER
TEFFO J:
[1]
The above matter came before me on 11
April 2017 by way of urgency. I noted that the respondent was not
before court. It is the
view of the court that before an attorney
admitted by this court could be struck off the roll, the application
should be preceded
by timeous notification and a proper inquiry held
by the Law Society to establish the veracity of the allegations.
[2]
Ordinarily applications to strike off or
remove an attorney's name from the roll of attorneys come before two
Judges in the Appeal
Court and require time for careful
consideration.
[3]
In the light of these factors, I took
the view that it would be in the interest of justice that the
respondent be suspended from
practising to prevent any further
misappropriation of funds but to allow the Law Society to complete
its investigations and properly
investigate those aspects in which
they could not get the cooperation of the respondent. A complete
investigation will enable the
Law society to place full facts before
court in an application for the removal of the respondent's name from
the roll of attorneys.
[4]
I therefore grant the order of
suspension in terms of the attached draft order marked
'x'.
M J TEFFO
JUDGE OF THE HIGH COURT
APPEARANCES
FOR
THE APPLICANT
TA Mothle
INSTRUCTED
BY
Mothle Jooma Sabdia Inc
FOR
THE RESPONDENT
No appearance
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA]
PRETORIA
THIS 11
th
DAY OF APRIL 2017
BEFORE
THE HONOURABLE JUSTICE
CASE NO:
20371/2017
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN PROVINCES
Applicant
and
SIFELANI
MALANGE
Respondent
DRAFT
ORDER
After
having heard counsel and having read the papers filed on record:-
IT
IS ORDERED THAT:-
1.
The
Applicant's non-compliance with the forms and service provided for in
the Uniform Rules is condoned and this application is
treated as one
of urgency in terms of Rule 6(12)(a).
2.
The
Respondent,
SIFELANI MALANGE,
is
hereby suspended from practising as an attorney on an urgent basis
pending the finalisation of the application for the removal
of his
name from the roll of attorneys.
3.
The
Respondent surrender and delivers his certificate of enrolment as an
attorney to the Registrar of this Honourable Court.
4.
In
the event of the Respondent failing to comply with the terms of this
order detailed in paragraph 3 (three)
supra
within two (2) weeks from the date
of this order, the sheriff of the district in which the certificate
is, be authorised and directed
to take possession of the certificate
and to hand it to the Registrar of this Honourable Court.
5.
The
Respondent is prohibited from handling or operating on his trust
accounts as detailed in paragraph 6
(six)
infra.
6.
JOHAN
VAN STADEN,
the head: members'
affairs of Applicant or any person nominated by him, be appointed as
curator bonis
(curator)
to administer and control the trust accounts of Respondent, including
accounts relating to insolvent and deceased estates
and any deceased
estate and. any estate under curatorship connected with Respondent 's
practice as an attorney and including, also,
the separate banking
accounts opened and kept by Respondent at a bank in the Republic of
South Africa in terms of Section 78(1)
of Act No 53 of 1979 and/or
and 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 subsections 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 an duties:
6.1.
immediately
to take possession of the Respondent's accounting records, records,
files and documents as referred to in paragraph
7
infra
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 purposes as
may be necessary
to bring to completion current transactions in which
Respondent was acting at the date of this order.
6.2.
subject
to the approval and control of the board of control of the fund 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 Respondent in respect of monies held,
received and/or invested by Respondent in terms of section
78(1)
and/or section 78(2) and/or section 78(2A) 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 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).
6.3.
to
ascertain from Respondent's accounting records the names of all
persons on whose account Respondent appears to hold or to have
received trust monies (hereinafter referred to as trust creditors)
and to call upon 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.
6.4.
To
call upon 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 Respondent, and if so,
the amount of such claim.
6.5.
To
admit, 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 creditor
's right of access to the civil courts.
6.6.
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.
6.7.
In
the event of there being any surplus in the trust account(s) of
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(2) 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 Respondent, the costs, fees and expenses referred to in
paragraph 13 of this order, or such portion thereof
as has not
already been separately paid by 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 Respondent, if he is
solvent, or, if Respondent is insolvent, to the trustee (s) of
Respondent's insolvent estate.
6.8.
In
the event of there being insufficient trust monies in the trust
banking account(s) of 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.
6.9.
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
6.10.
To
render from time to time, returns to the board of control of the fund
showing how the trust account(s) of Respondent has/have
been dealt
with, until such time as the board notifies him that he may regard
his duties as curator as terminated.
7.
The
Respondent immediately delivers his accounting records, records,
files and documents containing particulars and information
relating
to:
7.1.
Any
monies received, held or paid by Respondent for on account of any
person while practising as an attorney;
7.2.
Any
monies invested by Respondent in terms of section 78(2) and/or
section 78(2A) of Act No 53 of 1979.
7.3.
Any
interest on any monies so invested which was paid over or credited to
Respondent.
7.4.
Any
estate of a deceased person or an insolvent estate or an estate under
curatorship administered by Respondent , whether as executor
or trust
or curator or on behalf of the executor, trustee or curator.
7.5.
Any
insolvent estate administered by Respondent as trustee or on behalf
of the trustee in terms of the
Insolvency Act No 24 of 1936
.
7.6.
Any
trust administered by Respondent as trustee or on behalf of the
trustee in terms of the Trust Properties Control Act, No 57
of 1988.
7.7.
Any
company liquidated in terms of the Companies Act, No 61 of 1973,
administered by Respondent as or on behalf of the liquidator.
7.8.
Any
close corporation liquidated in terms of the
Close Corporations Act,
69 of 1984
, administered by Respondent as or on behalf of the
liquidator; and
7.9.
The
Respondent's practice as an attorney of this Honourable Court, to the
curator appointed in terms of paragraph 6 (six)
supra,
provided that, as far as such
accounting records, records, files and documents are concerned,
Respondent shall be entitled to have
reasonable access to them but
they always subject to the supervision of such curator of his
nominee.
8.
Should
the Respondent fail to comply with the provisions of the preceding
paragraph of this order on service upon him, or after
return by the
person entrusted with the service thereof that he has been unable to
effect service on 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 .
9.
The
Curator shall be entitled to :
9.1.
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.
9.2.
Require
from the persons referred to in paragraph 9.1
supra
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 Respondent property
entrusted to Respondent provided that any person entitled thereto
shall be granted
reasonable access and shall be permitted to make
copies thereof.
9.3.
Publish
this order or an abridged version thereof in any newspaper he
considers appropriate; and
9.4.
Wind-up
of the Respondents practice.
10.
The Respondent be and is hereby removed
from office as:-
10.1.
Executor
of any estate of which 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).
2.5c
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10.2.
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
.
10.3.
Trustees
of any insolvent estate in terms of
section 59
of the insolvency Act,
No 24 of 1936.
10.4.
Liquidator
of any company in terms of section 379(2) read with 379(e}of the
Companies Act, No 61 of 1973.
10.5.
Trustee
of any trust in terms of section 20(1) of Trust Property Control Act,
No 57 of 1988;
10.6.
Liquidator
of any close corporation appointed in terms of section 74 of the
Close Corporation Act, no 69 of 1984; and
10.7.
Administrator
appointed in terms of Section 74 of the Magistrate's Court Act, No 32
of 1944.
11.
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 him (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.
A certificate issued by a director of
the Attorney's 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.
13.
The Respondent be and is hereby
directed:
13.1.
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
Respondent ;
13.2.
To
pay the reasonable fees of the auditor engaged by the Applicant.
13.3.
To
pay the reasonable fees and expenses of the curator , including
travelling time which are computed at a rate agreed to between
the
Law Society and the Attorneys Fidelity Fund and
prima
facie
proof whereof shall be
sufficiently constituted by way of a certificate purporting to be
signed by the Curator and specifying expenses
and the length of time
during which the Curator was engaged in the performance of the duties
of Curator.
13.4.
The
costs of the Sheriff employed in terms of paragraphs 4 and 8 supra.
13.5.
To
pay the reasonable fees and expenses of any person(s) consulted
and/or engaged by the curator aforesaid.
13.6.
To
pay the expenses relating to the publication of this order or an
abbreviated version thereof; and
13.7.
the
costs of and incidental to this application on an attorney and client
scale.
BY ORDER OF
THE COURT
REGISTRAR
Appearance for the Applicant: Mr T Mothle.
Appearance for the Respondent: