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[2018] ZAGPPHC 746
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Samuels v Law Society of the Northern Provinces (12992/2017) [2018] ZAGPPHC 746 (12 March 2018)
IN THE HIGH COURT OF SOUTH AFRICA
CASE
NUMBER:12992/2017
12/3/2018
In
the matter between:
PAULOS
LEPEKOLA SAMUELS
APPLICANT/ RESPONDENT a
quo
and
THE
LAW SOCIETY OF THE NORTHERN
RESPONDENT/
APPLICANT a
quo
PROVINCES
APPLICATION
FOR LEAVE TO APPEAL- JUDGMENT
TLHAPI
J
[1]
This is an application for leave to appeal an order of 23 March 2017
and is based
on the amended application for leave to appeal dated 6
September 2017, to the full bench of this court. The order for which
leave
was sought relates to Part A of the Notice of Motion and the
order reads:
"1.
The respondent is suspended from practice pending the finalization of
an Application
in Part B of the Notice of Motion and the relief set
out in 1.3 to 1.12"
[2]
The application was based on the following grounds that the findings
were erroneous
in several respects and that there were reasonable
prospects that another might find differently:
"1
... erred in failing to place any or sufficient weight on the fact
that
the respondent had in a letter of 11 January 2016 , replied
substantially to the applicant's previous letters.
2
..
. .erred in finding that the applicant proved that there was
misappropriation of trust funds and a trust deficit.
3
...
..erred in failing to place any or insufficient weight on the fact
that on 18 November 2016 the appellant had undertaken to
hold its
file in abeyance
4
...erred
in failing to place any or insufficient weight on the fact that
contrary to what was stated by the applicant in the founding
affidavit, the respondent had accounted to Ms Mabaso and paid her the
balance due after deducting his fees
5
....erred
in failing to place any sufficient weight on the fact that the
respondent had given notice of taxation to Ms Mabaso
6
...
erred in failing to place any or insufficient weight on the
respondent's version which could not be disputed, that Ms Mabaso
had
rejected the contingency fee agreement and that the respondent was
accordingly entitled to deduct his fees from the amounts
recovered
from the fund
7
Another
court may reasonably find that the respondent's conduct was justified
in light of the communication from the applicant of
18 November 2016
. In this regard the learned judge erred in finding that the
respondent was not entitled to rely on the letter
for the holding of
an inspection in abeyance until the action was finalised between him
and Ms Mabaso
8
...
.erred in ordering the relief sought in paragraph 1.3 to 1.12 of the
notice of motion, which is final in effect and which is
inconsistent
with an order of suspension from practice pending an application to
strike off
9
....erred
in finding that the respondent's reliance on the letter written by
Mrs Van Zyl would negate the purpose for which the
application was
established and failed to place any weight on the respondent's
acceptance of that letter as excusing him from further
action until
the issues between him and Ms Mabaso had been finalised.
10
..
. erred in finding that the respondent had attempted to thwart and
frustrate the inspection of his trust account.
11
..
. erred in finding that the respondent had admitted that there was a
misappropriation of trust funds and that there existed a
trust
deficit when in fact no such admission was made;
12
...
..erred in finding that the respondent had failed to satisfy the
court that the applicant 's allegations of misappropriation
of trust
funds and a trust deficit were not justified
13
.....erred
in finding that the matter was urgent and in not striking it from the
roll with costs especially when Ms Mabaso's complaint
had been
pending since October 2015 and the applicant a year later had
indicated to the respondent that the applicant would pend
its file.
14
Another
court may reasonably find that the matter was not urgent and the
respondent ought to have been afforded a proper opportunity
to deal
with the allegation, especially when the respondent's career and
profession was at stake.
15
...
erred in finding that the application was urgent on the basis that
the respondent delayed and frustrated the process of inspection
and/or investigation.
16
....
.erred in finding that since the applicant did not have the advantage
of a full report by Mr Faris it would be appropriate
to suspend the
respondent from practice on an urgent basis to enable a full
inspection to be engaged for the purpose of determining
his removal
from the roll of practicing attorneys as envisaged in Part B of the
Notice of Motion
[3]
Counsel for the applicant submitted that
the first issue to determine was whether the order granted was
appealable. He contended
that having regard to the relief sought in
paragraphs 1.3 to 1.12 of Part A of the notice of motion, although
the order was an
interim one it was 'final in effect and not
susceptible to alteration by the court of first instance; it was
inconsistent with
an order for suspension from practice pending an
application to strike off; that the order granted definite and
distinctive relief
and that it had the effect of disposing of at
least a substantial portion of the relief claimed in the main
proceedings. The order
he argued satisfied the test laid down in
paragraph [25] in
JR 209 Investments
(Pty) Ltd and Another v Pine Villa Country Estate (Pty) Ltd; Pine
Villa Country Estate Pty Ltd v JR 209 Investments
(Pty)
2009
(4) SA 302
(SCA);
South African
Informal Traders Forum and Others v City of Johannesburg and Others
2014 (4) SA 317
(CC) paragraphs [20]
and [30];
Zweni v Minister of Law and
Order
1993 (1) SA 523
(A) at 532 to
5338 .
[4]
Counsel for the respondent was not in
agreement that the order stood on all fours with the test and argued
that the application
ought to be dismissed. He referred to two 2006
matters which were heard in the Mahikeng division where the points
in
limine
were upheld, Maseka v Law
Society of the Northern Provinces 443/2006 ZANWHC 53 and Mogami and
Mabuse v The Law Society of the Northern
Provinces 2006. He contended
that the interim order was not final in effect because the entire
order was repeated in Part B and
that the order was susceptible to
alteration by the court of first instance; the interim order did not
finally dispose of any relief
in Part 8 . Having regard to the orders
in Part A it is my view that some of the orders sought were final in
effect and this shall
be addressed below in dealing with the
inspection of the accounting records prior to the launch of this
application.
[4]
Both counsel were in agreement on the
law applicable being Council's statutory right of inspection of the
trust accounts of practitioners
and of the practitioner's duty and
obligation to comply with directions in terms of section 70 of the
Act. A refusal to comply
constitutes unprofessional conduct and
entitles the Council of the Law Society to investigate, Maseka
supra;
Mothuloe Incorporated Attorneys v Law Society of the Northern
Provinces and another .
In
South
African Informal Traders Forum and Others, supra,
paragraph
[20] the court stated that each consideration of the appealability of
an interim order depended upon the factual setting,
whether the
hearing of the appeal will serve the interests of justice.
[5]
It was contended that having instituted
defamatory action against Ms Mabaso it was reasonable for him to have
assumed that the matter
between himself and the respondent was
sub
Judice
and that an investigation
into his records was premature. It is further contended that the
applicant held this view because of the
communication from Mrs Van
Zyl from the respondent's office, that the enquiry into his
accounting records would be held in
abeyance
pending the finalization of the defamation action. It was also
contended for the
applicant that the
respondent had failed to launch an application to compel the
applicant to produce his accounting records and
that a refusal to
permit inspection did not justify the inspection. Counsel for the
respondent contended that Council did not agree
to hold the matter in
abeyance and that it followed through with a decision of council to
launch this application subsequent to
Mrs Van Zyl's letter.
[6]
In my view Counsel for the respondent
was correct in arguing that the civil action had no connection to the
investigation, however,
in considering how other matters were dealt
with and as a result of Mrs Van Zyl's letter another court may find
that the applicants
view was justified. In Maseka
supra
there launching of the application
to suspend was preceded by an application to compel his account
records. In the initial hearing
among the complaints was a refusal by
Mr Maseka to have his books inspected, and it was suspected as a
result of complaints that
he had misappropriated trust funds. In
Mathuloe
supra
when
he tried to prevent the inspection of his accounting records, the Law
Society countered with an application to compel the production
of his
records. In these circumstances the orders as sought in Part A would
have been justified because the inspection had established
a
prima
facie
case of impropriety .
[7]
As contended by counsel for the
applicant, the nature of the orders sought in Part A of this
application were final in effect. In
my view they are suggestive of
an inspection having been established first, that the court was
placed in a position where it could
engage the three stages of
enquiry and be proof had to be on a balance of probabilities before a
decision to suspend was given,
The
Law Society of the Northern Provinces v Mogami
&
Mabuse 2010(1)SA 186 (SCA) at
paragraph [4].
In my view another
court may find that it necessary to have conducted an inspection
first and that was not appropriate to suspend
the applicant prior to
such inspection being conducted.
[7]
In the result the following order is
given:
1.
The
applicant is granted leave to appeal his order of suspension to the
full bench of this division.
2.
Costs to be in the appeal.
V.V Tlhapi
Judge of the High Court Gauteng,
Pretoria
Appearances:
For
the applicant/ respondent: Adv. Strathern SC
Adv. Comuzio
For the respondent / applicant: L.
Groome
Instructed by: PL Samuels
Attorneys
Date
heard: 06 September 2017
Date delivered: 12 March 2018