About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 606
|
|
Johannesburg Society of Advocates v Kajee (35095/2018) [2018] ZAGPJHC 606 (24 October 2018)
Links to summary
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 35095/2018
In
the matter between:
THE
JOHANNESBURG SOCIETY OF
ADVOCATES APPLICANT
And
KAJEE
HASSAN
EBRAHIM RESPONDENT
J
U D G M E N T
MOKGOATLHENG
J
[1]
In this urgent application the applicant seeks an order to suspend
the respondent from practicing as an advocate pending the
final
outcome of:
(i) an enquiry into the
respondent’s professional conduct in the case of Kunene v
Minister of Police and Others, case number
2015/32422
(ii) an enquiry into the
fees raised by the respondent in respect of work performed for the
office of the State Attorney over the
period 1 April 2017 to 21
September 2018 and such other periods as may be included;
(iii) an enquiry into the
relationship between the respondent and the State Attorney
Johannesburg, existing over the period 1 April
2017 to 21 September
2018 and such other periods as may be included, and the respondent’s
conduct in matters handled on behalf
of the State Attorney over these
periods;
(iv) an application to
have the respondent’s name struck off the roll of advocates
flowing from (i),(ii) and (iii) above.
[2]
This application’s genesis stems from a judgment by Mudau J in
Kunene v MIniste of Police
handed down on 15 August 2018. In
that matter the court dealt with an application to stay a writ of
execution issued against Minister
of Police pursuant to orders
granted by Tsoka J and Matojane J in respect of the purported
agreements between the parties allegedly
in settlement of the merits
of a claim instituted by Kunene in respect of assault, unlawful
arrest and detention and on a purported
stated case in terms of which
damages were awarded to
Kunene
damages in the amount of
R34,077,000.00. Further The Minister’s Chief Litigation Officer
alleges that although the respondent
was purportedly only instructed
on 30 August 2018 when the matter was allegedly settled, the
respondent charged a combined fee
of R392.375.00 over the period 1
April 2017 to 21 September 2018 in respect of the Kunene matter.
[3]
In the said application, the Minister alleges that the merits and
quantum in the Kunene matter were settled contrary to his
instructions to the State Attorney to defend the claim. Further, the
respondent and the State Attorney tendered a statement of
agreed
facts which concluded that the Minister had tendered the aforesaid
amount when in fact that was not the case. Mudau J rescinded
these
two orders and because of the serious allegations raised against both
the respondent and the state attorney Lekabe in the
said application
he referred his judgment to the applicant to investigate the conduct
of the respondent.
[4]
On 6 September 2018 the applicant addressed a letter to the
respondent wherein it referred to the judgment of Mudau J in Minister
of Police v AI Kunene, NG Lekabe, Minister of Police and Correctional
Service, Adv. H E Kajee and the Sheriff of Pretoria Central.
In that
application before Mudau J, the respondent was personally cited as
the 4
th
respondent but despite the serious allegations
levelled against him, he did not oppose the application nor did he
file an Answering
Affidavit contesting these serious allegations
raised against him. Mudau J made certain findings against the
respondent amongst
which are:
“
[8] The
applicant is equally concerned that, clearly, the first respondent
only received written instructions on 14 February 2018,
some two
weeks prior to the trial date of 28 February 2018, as supported by
the instruction letter marked “FA22”. However,
if one has
regard to the invoice billed to the state attorney by the fourth
respondent, he commenced to charge for more than 60
days in
succession, from 18 December 2017, for his perusal and opinion at
rate of R2500 per hour under circumstances where he clearly
did not
consult the members of the SAPS who were in attendance at court when
the matter was settled”;
“
[16] The
allegations made by the applicant in support of its application, are
not only serious, but are made against officers of
the court. The
underlying causa of the judgment debt is vehemently contested by the
applicant. The deafening silence of the second
and fourth respondents
in the face of these damning allegations to my mind speaks volumes.
Importantly, this involves allegations
of apparent collusion or
fraudulent conduct involving millions of public monies. I
purposefully refrain from commenting on the
merits or otherwise of
the pending rescission application since I am not seized with matter.
However, in my prima facie view, the
applicant has prospects of
success”;
“
In paragraph
5.1. of the latter the applicant state’ First, the finding by
the Learned Judge that you charged for more than
sixty days in
succession for your perusal and opinion at a rate of R2,500.00 per
hour in circumstances where you only received
written instructions
some two weeks before the trial date;
5.2. Second, the
requirements of chapter 6.14 of the practice manual in relation to
orders of court being made by consent were not
satisfied, otherwise
the Minister of Police would not have launched the application in
which Mr Justice Mudau handed down judgment
on the 15 August 2018.”
5.3 Third, the fact
that the application brought by the Minister of Police was not
opposed by yourself, with the result that
you did not contest the
allegations against you;
5.4 Fourth, the
suggestions that there may have been collusion or fraudulent conduct
involving millions of rands of public monies.”
6.” You are
hereby requested to provide, as soon as possible, but in any event
not later than 16h00 on Monday 10 September
2018, an explanation to
the Professional and Fees Committee regarding the following;
6.1 The finding
made by Mr Justice Mudau regarding the fees charged by you in the
matter;
6.2 Your failure to
oppose the application brought by the Minister of Police, and your
failure to challenge the allegations made
by the Minister;
6.3 Your apparent
failure to comply with the provisions of the practice manual, quoted
above;
6.4 On what
authority the order made on the 02 March 2018 was consented to.”
7.” In
addition to the explanation required, you are requested to furnish a
formal, written undertaking to the Bar Council
by no later than 16h00
on Monday 10 September 2018 that you will refrain from practicing as
an advocate, pending the finalisation
of an inquiry in to your
conduct as counsel in the matter of Kunene v The Minister of Police.
8. Should you fail
to furnish the required undertaking, The Johannesburg Society of
Advocates reserves the right to apply to Court
on an urgent basis for
an order suspending you from practice pending finalisation of an
enquiry into your conduct”.
[5]
On 7 September 2018 the respondent acknowledged receipt of the
applicant’s letter dated 6 September 2018 and requested
a
postponement until 14 September 2018 to respond thereto. On 14
September 2018, the respondent in response to the applicant’s
queries stated that he did not oppose
Part A
of the
application of the
Kunene v The Minister of Police
matter
because in essence the application sought a stay of the writ of
execution; he stated that he will oppose
Part B
of the
application. However, because the respondent did not enter a notice
of intention to oppose either Part A or Part B of the
said
application he is consequently in default which means that the
serious allegations raised against the respondent remain undisputed.
[6]
The applicant also contends that the fees raised by the respondent
from the state attorney in the Kunene v Minister of Police
matter
from 18 December 2017 to 22 February 2018 total an extraordinary
amount of R935 000.00 at an excessive rate of R2500-00
per hour
which is a rate in excess of the rate normally charged by experienced
senior counsel in respect of work performed for
the state attorney.
Further the invoices raised by the respondent, which the state
attorney allowed the respondent to charge and
the speedy payment
within three days of submitting same are clearly indicative of an
unusual collusive relationship between the
respondent and the state
attorney.
Urgency
[7]
The applicant contends that having regard to the irregular
astronomical payment of R34.392 375-00to the respondent with the
collusion of the state attorney over a period from 1 April 2017 to 30
August 2018 which implies that the respondent raised an amount
of
R66,522,96 as fees per day for 517 consecutive days which translates
to 26.6 hours per day, the matter is manifestly urgent
and the
possibility of the continuing utilisation of the same
modus
operandi
in the five other below
referred to matters wherein there is a possibility of irregularly
settling same without the
Minister of Police’s
instructions as in the Kunene matter, also the refusal by the State
Attorney to terminate the respondent’s
brief in the case of
Mbetheni v Minister of Police case no:
41428/2016
, the only inference is that the
State Attorney and the respondent are intent on perpetrating further
fraud on the State and Fiscus
in pursuance of their fraudulent
modus
operandi
which would result in the public and
the advocate’s profession suffering irreparable prejudice
should the respondent be permitted
to continue to practice as an
advocate before the outcome of the applicant’s enquiry into the
conduct of the respondent and
the possible sanction flowing
therefrom. The applicant contends that the matter is urgent because
should interim relief not be
granted, the nature of the respondent’s
conduct is such that it could recur or would recur and would:
“
Tarnish the legal profession, impede
the administration of justice, the public interest and bring he
justice system and trust therein
into disrepute, expose the public
fiscus to irreparable harm, flowing from the fraudulent and dishonest
conduct of the respondent.”
[8]
The respondent did not dispute that this application is urgent in
fact he conceded urgency. Because of the urgency of this matter
the
applicant’s Notice of Motion was issued on 21
st
September 2018.Therein the applicant afforded the respondent until 25
September 2018 to file his Notice of Intention to Oppose
by 26
September 2018 at 12h00 to file his answering affidavit and the
applicant to file a replying affidavit if any
by 12h00 the 27
September 2018. The hearing was set down on 2 October 2018 at 10h00.
At this hearing the respondent acquiesed that
an order suspending him
from practising as an advocate should be authorised by the court
[9]
The respondent did not file an answering affidavit in terms of these
time frames, instead on 26 September 2018, he tendered
his
resignation as a member of the applicant with immediate effect. On 28
September 2018, the applicant delivered an amended Notice
of Motion
incorporating an order to compel the respondent to deliver his
original fee book, invoices rendered to the State Attorney,
bank
statements and other relevant documents.
[10]
On 1 October 2016, the respondent launched an application for a
postponement. On the same day the respondent filed a Notice
of
Intention to oppose, and answering affidavit. In his postponement
application, the respondent pleaded to be granted a 20 days
postponement to file his answering affidavit .The applicant opposed
the respondent’s application for a postponement
on 2
October 2018, the applicant appeared in person to argue the
postponement application. He pleaded for 20 days for file an
answering affidavit. The court was not amenable to his request for an
extended time period of 20 days for several reasons. The application
was brought on an urgent basis and was served on the respondent on
the 21 September 2018. The respondent had 10 days to file his
answering affidavit by the 1
st
October 2018. Twenty days
would have relegated this urgent application into an ordinary
application as it would have afforded the
respondent the normal time
to file opposing papers under circumstances where he has not provided
any satisfactory explanation why
he needed an extended period of time
to file his answering affidavit.
[11]
In his founding affidavit the respondent has not proffered a full
account of his efforts towards preparing opposing papers
since been
served with the application on 21 September 2018. The respondent was
aware of the pending investigation as early as
6 September 2018 when
the applicant called on him to respond to the serious allegations
raised in the judgment of Mudau J. The
respondent’s bald
explanation that he is facing serious allegations and that due to the
recess period he has not been able
to obtain legal advice was not
accepted by the court under these circumstances as it had no merit.
We sympathise with the respondent
regarding the death of his mother
on the 14 September 2018 but his mother’s passing cannot by
itself serve as a decisive
reason for the respondent not to comply
with the court’s order that he should file his answering
affidavit on 4
th
October 2018.
[12]
On 2 October 2018 in court the respondent consented to an order for
his immediate suspension to practice as an advocate. This
aspect is
later addressed in this judgment. The respondent, however would not
consent to an order compelling him to surrender his
fee book,
invoices rendered to the state or his bank statements because
according to him, he had resigned as a member of the applicant
on the
27 September 2018 and therefor the applicant no longer had
jurisdiction over him consequently he had no obligation to surrender
the requested documents to the applicant.
[13]
Despite opposition by the applicant against the respondent’s
application for a postponement, given that the Amended Notice
of
Motion was only served on the respondent on 28 September 2018, the
court acceded to the respondent’s request for a postponement
to
Friday 5 October 2018 in order to allow the respondent to file his
Answering Affidavit by 16h00 on Thursday 4 October 2018.
The
respondent did not comply with this court’s order. When the
court resumed on 5 October 2018, he persisted with his plea
for more
time without proffering any substantive, cogent or satisfactory
reasons to be afforded a postponement indulgence.
[14]
When the court postponed the application to 5 October 2018 to allow
the respondent time to file an answering affidavit it was
pertinently
clear from the applicant’s attitude that he had no intention to
comply with the court’s directive. He kept
the applicant’s
attorney and counsel waiting for his answering affidavit on 4 October
2018. It was only when the applicant’s
attorney called him that
he informed him that he would not be filing his answering affidavit
as directed by the court. He did not
have to wait until 4pm to inform
the applicant’s attorney of his intentions because he knew much
earlier that he would not
be complying with the court’s
directive.
[15]
A court has discretion whether it should grant an application for a
postponement or not. An applicant must show good cause
that is, he or
she must furnish a full and satisfactory explanation for the
circumstances predicating the application and must
also show that his
or her ungreediness to proceed with the case is
bona fide
and
not due to, delaying tactics and tactical manoeuvring or for purpose
of gaining and advantage which he or she is not legitimately
entitled
to. The respondent has had adequate time to prepare and settle an
answering affidavit to place his version before court.
But because of
unsubstantiated or unexplained reasons the respondent has failed to
proffer full, cogent and satisfactory reasons
why he should be
granted a postponement. Because of the potential prejudice which
could be caused by such an unmotivated postponement
application there
is a possibility that the administration of justice, the interest of
the profession and the public interests
would be brought into
disrepute
[16]
A litigant should not benefit from his own intransigence, deception,
carelessness or negligent unexplained stratagems in seeking
a
postponement especially where the interests of the public, and the
advocate’s profession is affected. On the 5
th
October 2018 the respondent failed to give any satisfactory
explanation why he did not comply with the court’s directive
but instead informed the court that he deserves more time.
Consequently the application for the postponement was dismissed.
Effectively,
the remainder of the interim relief sought by the
applicant remains unopposed. Counsel for the applicant made
submissions in respect
of the compelling order to which the
respondent did not respond despite having been afforded sufficient
time and opportunity to
do so from the bar.
[17]
Section 7(d)
of the
Admission of Advocates Act
74 of 1964
empowers this court to suspend any
person practising as an advocate or to order that his or her name be
struck off the roll of
Advocates “
if the
court is satisfied that he or she is not a fit and proper person to
continue to practise as an advocate.”
It is the applicant’s role to bring evidence of a
practitioner’s misconduct to the court’s attention
because
it was the court which admitted the practitioner as an
advocate after it was satisfied that such person was a fit and proper
person
to practice as an advocate. Consequently, the court exercises
its disciplinary powers for the protection of the profession and the
public interest depending on the gravity of the misconduct. See
Society of Advocates of South Africa
(Witwatersrand Division) v Edeleng
1998 (2) SA 852
at 859 and Van der
Berg v General Council of the Bar of South Africa
[2007] 2 ALL SA 499
(SCA) at paragraph 50.
[17A]
The respondent’s resignation from the applicant does not affect
the applicant’s
locus standi
to launch an application
for the respondent’s suspension from practising as an advocate
or to apply for an order to strike
off the respondent’s name
from the roll.
Further
the respondent’s resignation does not imply that the applicant
cannot launch any enquiry into the respondent’s
professional
misconduct, the fees the respondent charged or the relationship
between the respondent and the State Attorney Johannesburg.
See
De
Freitas and Another v Society of Advocates Natal and Another
2001(6)BCLR 531SCA at paragraph 5
which
states: “
the court has inherent
disciplinary power over practitioners in cases of misconduct. The
court’s interference is clearly justified
where there has been
gross non discharge or dishonest of professional duty per Innes C J
De Villiers and Another v Mc Luintyre
NO
1920 AD 425
at 435.
Consequently the applicant’s role also in such an instance even
through the respondent is not bound by the rules of the applicant
is
to bring these proceedings not as an ordinary adversarial litigant
but rather to bring evidence of a practitioner’s misconduct
to
the attention of the court in the interest of the profession and the
public at large to enable the court to exercise its disciplinary
powers. The applicant has the
locus standi
to request further documentation from the respondent to ensure a
proper enquiry and investigations of the issues to be determined
by
this court
[18]
“These proceedings are instituted by the applicant in terms of
section 7(2)
of the Admission of Advocate’s Act 74 of 1964
pursuant to a resolution of the applicant’s Bar Council adopted
on 11 September 2018. The applicant has approached this court
as the
co-custos morum
of the profession and the public at large. The
applicant has the jurisdiction to investigate complaints relating to
professional
misconduct by its members and also in general regarding
the advocate’s profession at large and to bring such evidence
to
this court in order that it should exercise its disciplinary
powers against any advocate who has committed misconduct. Further
these proceedings are those of this court which has the inherent
right to exercise, control and discipline over advocates practising
within its jurisdiction. These proceedings are sui generis and are a
statutory process of a disciplinary nature and are strictly
speaking
not civil proceedings and are not subject to all strict rules of the
adversarial processes.”
[19]
The respondent’s resignation from the applicant does not affect
the applicant’s
locus standi
to launch an application
for the respondent’s suspension from practising as an advocate
or to apply for an order to strike
off the respondent’s name
from the roll.
Further
the respondent’s resignation does not imply that the applicant
cannot launch any enquiry into the respondent’s
professional
misconduct, the fees the respondent charged or the relationship
between the respondent and the State Attorney Johannesburg.
See
De
Freitas and Another v Society of Advocates Natal and Another
2001(6)BCRL 531 SCA at paragraph 5
which
states: “
the court has inherent
disciplinary power over practitioners in cases of misconduct and the
court’s interference is clearly
justified where there has been
gross non discharge or dishonest of professional duty per Innes CJ De
Villiers and Another v Mc
Luintyre NO
1920 AD 425
at 435.
[20]
Consequently the applicant’s role also in such an instance even
through the respondent is not bound by the rules of the
applicant is
to bring these proceedings not as an ordinary adversarial litigant
but rather to bring evidence of a practitioner’s
misconduct to
the attention of the court in the interest of the profession and the
public at large to enable the court to exercise
its disciplinary
powers. The applicant has the
locus standi
to request further documentation from the respondent to ensure a
proper enquiry and investigations of the issues to be determined
by
this court.
See
General Council of The Bar of South Africa v Geach and others
2013
(2) SA 52
(SCA)
[21]
The allegations facing the respondent are of a very serious nature
involving large sums of public money, fraudulent, disgraceful
and
deceitful conduct. The respondent and the state attorney are alleged
to be inextricably involved in the fraud , the deception
and
misleading of judges Tsoka and Matojane to issue fraudulent court
orders. The applicant contends that; “
The
papers before court sets out prima facie evidence of gross
dishonesty, unprofessional conduct, over reaching and over charging
and that consequently, the respondent is prima facie not fit to
practice as an advocate pending an application to have his name
struck of the roll of advocates.
The
respondent
has not put up a version to these
serious allegations. He initially did not give an undertaking to
refrain from practicing as an
advocate pending an investigation into
his conduct only to consent to an order suspending him from practice
in court. On the eve
of the hearing of the urgent application the
respondent resigned as a member of the applicant with immediate
effect, a move calculated
to frustrate the applicant’s
jurisdiction over him and consequently to thwart the pending
investigation.
[22]
The applicant also contends that it is evident that the invoices
rendered to the state attorney by the respondent do not constitute
tax invoices which suggests that the respondent is not registered as
Value Added Tax vendor in terms of
section
23(1) of the Value Added Tax Act 89 of 1991 and
which also is indicative that the respondent does not pay Value Added
Tax. The applicant states that the respondents conduct in
this regard
constitutes a criminal offence pursuant to
section
58 (C) of the Vat Added Tax Act
because the
respondent’s fees are accordingly VAT inclusive but he does not
account to the South African Revenue Services
regarding the vat
collected because of non-registration to avoid the payment of VAT to
SARS and this constitutes criminal and dishonest
conduct.
[23]
What is disquieting according to the applicant is that the respondent
and State Attorney Lekabe on the 27 February 2017 did
not have the
authority to concede the liability claim on the merits in the case of
Kunene v The Minister of Police
on the 7 February 2017 due to
the fact that express instructions were given to the State Attorney
to defend the claim of Kunene
because the Minister of Police had a
valid and
bona fide
defence based on the merits of the claim
in respect of the shooting incident and the alleged claim for
unlawful arrest and detention
and malicious prosecution. Yet despite
these valid defence against Kunene’s claim the respondent and
State Attorney Lekabe
purportedly representing the Minister of Police
conceded the merits and quantum before Judges Tsoka and Matojane in
direct conflict
of the written instructions given by the Minister of
Police’s Chief State Litigation Officer that this claim had to
be defended.
[24]
In the following paragraphs the applicant sets out the chronology of
the alleged transgressions ascribed to the respondent’s
alleged
professional misdemeanours and misconduct. I can do no better but
repeat the litany of the respondent’s alleged misconduct
“
On
13 September 2018 Adv. Green SC on behalf of applicant met with the
Chief State Litigation Officer Beukes and was furnished with
report
of a list of payments made by the State Attorney Lekabe to the
respondent from the 1 April 2017 to 30 August 2018. The payee
in each
instance was reflected as the respondent at an account held with the
First National Bank at the Fordsburg Branch and over
the same period
a total amount of R34 211 875.00 was paid into the
respondent’s account by the state. The invoices
were captured
and authorised for payment on the same day, which is indicative of an
irregular fraudulent conduct at play. Reduced
to payment per day, it
shows that the respondent was paid R66 522.96 per day every day
for 517 consecutive days inclusive
of weekends and public holidays.
The only reasonable conclusion is that there exists a corrupt and
collusive relationship between
the respondent and the State Attorney
Johannesburg.
[24]
The Brigadier Beukes states that she has discovered five other
matters where the quantum is a R1000 000.00 and above in
which
the respondent has been briefed by the State Attorney, these are
namely,
(1) Ndudla v Minister
of Police Case Number 17176/2015.
(R2405 000.00)
(2) Mbetheni v
Minister of Police Case Number 41428/2016 (R4 152.000.00)
(3) Mbhele v Minister
of Police Case Number 14459/2015 (R1 230 000.00)
(4) Mohlala v Minister
of Police Case Number 44365/2014 (R1000 000.00)
(5) Morule v Minister
of Police Case Number 4160/2014 (R2 760 800.00)
[25]
The applicant states that in all these matters the modus operandi is
the same as in the Kunene matter, where a memorandum motivating
a
proposed settlement is handed in shortly before the trial or on the
day of the trial thus not affording the Minister of Police
sufficient
time to consider the settlement proposal which would be made an order
of court despite the CHIEF LITIGATION OFFICER’S
instructions to
the contrary;
[26]
the Minister’s founding affidavit demonstrates that, firstly,
the merits of the claim was conceded contrary to the instructions
furnished by the Minister whereafter, despite having no instructions
to this effect, the respondent and the State Attorney agreed
a
statement of agreed facts which concluded that the Minister tendered
the said amount to the plaintiff, which amount was acceptable
to the
plaintiff; and
[27]
based on the statement of agreed facts, a draft order was prepared
which was ultimately made an order of court in terms of
which the
Minister was rendered liable for a sum in excess of R34 million.
[28]
The respondent was given an opportunity to respond to the concerns
raised by Mudau J. The respondent’s responses were
however
unsatisfactory. It has since transpired that the respondent utilised
an almost “stock standard” memorandum
titled “memorandum
on quantum and advice on settlement thereof” to motivate the
conclusion of settlement agreements
in matters in which the Minister
and other Organs of State are party.
[29]
The same modus operandi was followed by the respondent, in
conjunction with the State Attorney, in at least five (5) other
matters:
(29.1) Shortly before
the trial of a matter, the State Attorney that had been dealing with
the matter up to that point, would be
replaced;
(29.2) The respondent
would be placed on brief a couple of days before the trial;
(29.3) The respondent
would, at the eleventh hour, furnish a memorandum motivating a
settlement of the matter;
(29.4) The memorandum
would be sent either shortly before the trial or on the day of the
trial, affording insufficient time to consider
the content thereof;
(29.5) Despite
instructions to the contrary, settlement would be concluded.
[30]
The dishonesty and impropriety in the respondent’s conduct is
manifest.Despite having had the opportunity, on at least
five
occasions, of providing answers to these serious allegations raised
against him, the respondent has failed to do so.
[31]
The evidential material needed by the respondent in order to rebut
the allegations against him, and the material facts relevant
thereto,
fall within his peculiar knowledge. Despite this,the respondent has
refused and refrained from disclosing his version
in an answering
affidavit to this court.
[32]
The respondent has not in essence disputed the applicant’s
assertions that he has exhibited dishonest professional conduct
for
which he has not offered any explanation thereof.
[33]
On the 21 September 2018, the applicant addressed a letter to the
respondent requesting that in terms of Uniform Rules of Professional
Conduct Rule 7.4, which decrees that counsel is obliged to keep fee
books, showing a record of the fees earned, the briefing attorneys
and sufficient detail to identify the matter and the nature of the
work performed, the respondent was requested to hand over and
make
available his fee book and invoices from the period 1 January 2017 to
31 August 2018 by the 26 September 2018.
[34]
On 26 September 2018, in response, the respondent addressed an email
to the applicant advising of his forthwith resignation
as a member of
the applicant effective as at 16h00. The respondent did not address
the issue of handing over his fee book and invoices
to the applicant
by the 26 September 2018 as requested. On 2 October 2018, the
respondent filed an application seeking a postponement
to file an
Answering Affidavit.
The
Applicant’s Supplementary Affidavit
[35]
According to the applicant the amendment of its Notice of Motion is
predicated on the discovery of further invoices raised
by the
respondent to the State Attorney Johannesburg in respect of the
matters of
Sithole Minister of Health
Case…42101/2016 and Besil Read v Minister of Police Case
Number 23007/2017.
The timeframes of the
invoices rendered in that matter and the
Kunene
v the Minister of Police
matter overlap and
they also with the
Sithole v Minister of
Police
matter. The fees charged in respect of
each matter are duplicated in the other three matters namely,
Kunene
& Sithole & Basil Read
matters and
vice versa, which conduct demonstrates that the respondent is guilty
of overcharging.
[36]
The respondent has refused to surrender his fee book and invoices
even before he resigned as a member of the applicant which
prompted
the applicant to amend the relief sought and in addition to include
an order seeking the respondent’s suspension
pending the full
outcome of an application to strike off the respondent’s name
from the roll of advocates and the delivery
of the respondent’s
fee book, invoices and copies of bank statements for the period 1
January 2015 to 26 September 2018.
The applicant submitted that based
on the facts contained in the Founding Affidavit and the
Supplementary Affidavit the respondent
is
prima
facie
guilty of gross dishonesty,
overreaching and serious unprofessional misconduct and is
prima
facie
not fit and proper person to continue
to practice as an advocate pending the application to strike his name
from the roll of advocates.
Effectively the remainder of the interim
relief sought remains unopposed. The amended relief, will enable the
applicant to place
all relevant facts before the court when is seized
with the application to strike the respondent’s name off the
roll. The
application for the amendment of the Notice of Motion was
consequently granted
[37]
The respondent has had five opportunities to answer the serious
allegations raised against him and to place his version before
court
through an answering affidavit but he has refused to do despite being
accorded ample opportunity to do so consequently there
is only the
applicant’s version before court from which it has to conduct
an enquiry to determine pursuant thereto whether
the respondent is
not a fit and proper person to continue to practise as an advocate.
[38]
There are three stages into the enquiry whether such action should be
taken:
1. First is whether the
impugned conduct has been established;
2. Second is whether the
individual is fit and proper to continue to practice as an advocate
and if not;
3. Third whether the
individual is to be removed from the roll of advocates or be
suspended from practising as an advocate.
[39]
In the determination of these three stages of enquiry whether such
action to either suspend or strike off an advocate from
the roll, the
court is obliged to properly exercise its discretion judiciously and
the exercise of this discretion involves two
enquiries; firstly it is
to determine whether the material facts have been established,
secondly, it is to evaluate those facts
and apply them towards the
correct objective.
See
Kekana v Society of Advocates of South Africa 1998(4) SA 649 (SCA)
[40]
The court is obliged to protect the public and the interests of
justice and the advocate’s profession and where an advocate
exhibits dishonesty and palpable fraudulent misconduct, the inference
may be reasonable and irresistible that to allow
such a
tainted advocate to continue to practice, the possibility cannot be
excluded that such fraudulent conduct or dishonesty
attributable to
such tainted advocate would recur, which misconduct would place the
administration of justice and the advocate’s
profession and
public interest into disrepute.
[41]
Consequently, if the court is satisfied that the material facts are
established, then the court has to evaluate those facts
towards the
correct objective, which is to protect the profession, the public
interest and the administration of justice and if
after evaluating
the material facts and the possibility that if such tainted advocate
is allowed to practice the impugned misconduct
may recur, only in
that possibility or because of that reasonable possibility is this
court obliged ordinarily to bar such tainted
advocate from continuing
to practice. See
General Council of the Bar of SA v Geach and
Others
2013 (2) SA 52
(SCA).
[42]
In the present matter the respondent was accorded ample opportunity
to respond to the serious allegations of fraudulent misconduct
raised
against him by Modau J, the applicant on oath through senior
advocates Green and Rossouw, and also by the Chief Ligation
Official
Beukes in the office of the Minister of Police. The respondent has
not disputed those allegations of overcharging, of
fraudulently
settling the Kunene matter without a mandate, and of fraudulently
raising invoices against the State Attorney in the
amount of about
R34.4 million for the period 18 December 2017 to February 2018.
[43]
But most crucially the respondent is accused of fraudulently
misleading Judges Tsoka and Matojane by submitting fraudulent
settlement agreements to the detriment of the Fiscus, the Minister of
Police, the advocate’s profession and the interests
of justice.
This brazen deception of the court and the misrepresentation
of the facts by the respondent to the Judges
infringe the tenets and
core of the advocate’s profession which is predicated on
integrity, truthfulness and honesty. The
abiding tenant of an
advocate’s word his or her badge of honour and the court has to
implicitly rely thereon because an advocate
as an officer of court,
his or her conduct must at all times be clothed with an unblemished
and irreproachable reputation and character
because of the fact that
the advocate’s profession is predicated on strict ethical
rules, absolute integrity,scrupulous honesty
and demeanour.
[44]
The SCA in dealing with a recalcitrant and obstructive advocate who
was not prepared to surrender his fee book ,invoices and
bank
statements, its admonition of such an advocate as applied in the case
of Kekana also applies in equal measure in the
present matter
where the SCA stated “ in respect of the misconduct the
respondent is accused of refusing to surrender his
books and invoices
because in the absence of proper work that was done as the case may
be, there is no foundation for determining
whether the fees
were reasonable. In terms of court, it is incumbent upon an advocate
who is alleged to have charged excessive
fees to provide sufficient
detail of the work that was performed to enable the fee to be
assessed and in appropriate cases, cross
examination might be called
for to establish the true facts, further Nugent J remarked at
paragraph 45
“
Turning to the
appeal of Bezuidenhout, unlike the seven advocates I have death with;
he was uncooperative, even obstructive in dealing
with allegations
against him. He denied the evidence of Ellis SC and at the flatly
refused to produce his records but that denial
can be summarily
dismissed. He was one of those who claimed their right to privacy
when they became aware that Bar Counsel was
once more in search of
the books which is hardly
consistent with an
intention to disclose his books. Moreover, the court below recorded
that he failed to comply with a request by
the bat council to place
certain of his records before the court. When he was compelled to do
so by the court they reflected that
his transgressions were
continuing, obliging the court to order his suspension until the
outcome of the application”.
SEE
GENERAL COUNCIL OF THE BAR OF SOUTH AFRICA v GEACH AND OTHERS
2013
(2) SA 52
(SCA)
[45]
The respondent’s concession or acquiescence to accede to be
suspended from practising as an advocate pending the finalisation
of
the investigation into his alleged misconduct is of no moment and is
not decisively indicative of his
bona fide
to co-operate with
the intended investigation because it is negated by his refusal to
surrender his fee books, invoices and bank
statements for the period
stipulated to the applicant.
[46]
The suspension of an advocate from practising is inherently a power
which reposes in the court and is not delegatable either
to the
applicant or to the respondent who mero motu offered to suspend
himself from practicing as an advocate without admitting
the serious
allegations raised against him albeit from the bar because of his
failure to file his answering affidavit. The court
cannot suspend an
advocate from practising if there is no prima facie proof of
misconduct established in the material facts pertaining
to such
an impugned advocate, it is only if there are established
material facts of misconduct proven against
an impugned
advocate that the court would, only then because of the irrefutable
and satisfactory proven material facts either
suspend the impugned
advocate from practicing alternatively strike the said tainted
advocate’s name from the
roll.
[47]
The allegations of fraud, theft, overreaching and deceit and the
misleading of judges to grant fraudulent orders are substantiated
under oath and by documentary evidence. Although the respondent
elected not to file an answering affidavit, it is patent that he
has
read the serious allegations raised against him and same remain
undisputed and are consequently
accepted as established
material
evidence of misconduct proven against the respondent,
which irrespective of his gesture in acquiescing to the
order of
suspension from practicing as an advocate, in our view such
unsolicited concession to be suspended from practising as
an advocate
ineluctably confirms the truthfulness and irrefutability of the
said serious allegations of misconduct raised
against the respondent
. Consequently this court endorses the respondent’s suspension
predicated on the undisputed established
material facts.
[48]
The suspension of an advocate is not for the asking the court despite
the respondent’s concession to an order suspending
him from
practicing as an advocate, still has to bring its unbiased objective
analytical mind and exercise its discretion judiciously
in order to
determine the veracity and authenticity of these established material
facts impugning the character and person of the
respondent and
determine whether these established material facts thereafter justify
the characterisation of the respondent’s
conduct as inimical to
that of a person who is said to be a fit and proper person entitled
to practice as an advocate. The court
having considered all the
material established facts and after objectively and judiciously
applying its mind and exercising its
discretion, irrevocably finds
that it has been established that the respondent is not a fit and
proper person to continue to practise
as an advocate.
In
the premises the following order is made:
1.
The order issued in suspending the respondent
form practising as an advocate pending the final outcome of an
investigation into
his professional misconduct and or the application
to have the respondent’s name struck off the roll of advocates
2
nd
of October
2018 is confirmed.
2.
The respondent is ordered to forthwith furnish
the applicant with the following documents:
2.1
The respondent’s original fee book for the
period 1 January 2015 to 26 September 2018;
2.2
The respondent’s invoices (or true or
duplicate original copies thereof) for the period 1 January 2015 to
26 September 2018;
2.3
True copies of bank statements in respect of the
current account held with First National Bank, Fordsburg Branch,
under account
number […]55 for the period 1 January 2015 to 26
September 2018;
2.4
The details of any other bank accounts in which
the respondent received deposits form the Johannesburg State
Attorney, and true
copies of bank statements in respect of such
additional bank accounts for the period 1 January 2015 to 26
September 2018.
2.5
The respondent shall pay the applicant’s
costs of this application, limited to the costs incurred by the
applicant incurred
in respect of services rendered by its attorneys
of record.
3.
The Registrar is ordered to furnish a copy of
this judgement with immediate effect to:
3.1
The Commissioner of South African Revenue
Service;
3.2
The Commissioner of the South African Police
Service;
3.3
The Chairperson of the Law Society of the
Northern Provinces.
_______________________
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
APPEARENCES:
Counsel
for the Applicant: Adv Wessels SC
Instructed
by: LANHAM-LOVE ATTORNEYS
Counsel
for the Respondent: In person
Date
of Hearing: 05 October 2018
Date
of Judgment: 24 October 2018
MODIBA,
J
:
[1]
I agree to the order proposed by my brother Mokgoatlheng J but for
different reasons. My reasons for the order are set out hereunder.
[2]
The applicant initially sought an urgent interim order suspending the
respondent from practice as an advocate, pending an investigation
into his conduct in the matter of
Kunene
v The Minister of Police
[1]
,
an enquiry into the fees he raised in respect of work performed for
the state attorney, his relationship with the state attorney,
as well
as an application to have his name struck off the roll of advocates.
[3]
All references to the state attorney in this judgment are to the
state attorney, Johannesburg.
[4]
The relief initially sought by the applicant was overtaken by events,
prompting the applicant to file an amended notice of motion,
persisting with the suspension order pending the outcome of an
application to have the respondent’s name struck off the roll
of advocates but seeking a final order compelling the respondent to
furnish the applicant with his accounting records. The said
events
are:
[4.1] the applicant
obtained a report from the state attorney in respect of the
respondent’s invoices to the state attorney
and payments made
on such invoices; and
[4.2] the respondent’s
resignation from the applicant’s membership.
I
elaborate on these events in paragraph 8 and 11 below.
[5]
This application stems from a judgment by Mudau J in
Kunene,
handed down on 15
August 2018. There the court dealt with an application to set aside a
writ of execution issued in respect of the
quantum order in
Kunene,
pending an application for the rescission of both the order in
respect of the merits and quantum. In the application to set aside
the writ, the Minister of Police (“the Minister”) alleged
that the merits in respect of unlawful assault and unlawful
arrest
and detention were settled contrary to his instructions to defend the
matter. Further, the respondent and the state attorney
tendered a
statement of agreed facts which concluded that the Minister tendered
an amount of R34, 077,000.00 in settlement of Kunene’s
claim
when that was not so.
[6]
Mudau J rescinded these two orders and expressed concerns in respect
of the propriety of the relationship between the respondent
and the
state attorney. For that reason, Mudau J referred the judgement to
the applicant to investigate the respondent’s
conduct in
Kunene.
[7]
According to the applicant, Mudau J’s judgment was considered
by the applicant’s Professional and Fees Subcommittee
on 5
September 2018. The subcommittee resolved to call on the respondent
to provide an explanation in respect of the concerns raised
by Mudau
J and to give an undertaking that the respondent will refrain from
practicing as an advocate pending an investigation
into his conduct.
On 6 September 2018, the applicant sent a letter to this effect to
the respondent giving him until 10 September
2018 to respond. The
respondent sought and was granted an extension until 14 September
2018 due to the ill-health of his mother.
On 11 September 2018, the
applicant resolved to bring this application.
[8]
On 13 September 2018, the applicant addressed a request to the state
attorney for a report on payments by the latter to the
respondent
from 1 April 2017 to 30 August 2018. On 20 September 2018 the state
attorney furnished the said report to the applicant.
It reflects that
during this period, the state attorney made payments in the amount of
R34, 392,875 to the respondent in respect
of fees. Invoices relating
to these payments were captured and paid promptly when generally, the
state attorney does not promptly
honour payments to practitioners.
The report also reflects that the state attorney paid the respondent
R935, 000 in respect of
his fees in
Kunene
for the period 18
December 2017 to 22 February 2018. From this report the applicant
contends that the following conclusions ought
to be drawn:
[8.1] a corrupt and
collusive relationship exists between the respondent and the state
attorney;
[8.2] the respondent may
be guilty of overreaching and over charging or dishonesty and theft
in that he charged for work that was
not performed or overcharged in
that his fees translate to R66,522.96 per day inclusive of weekends
and public holidays or R97,428.82
per day exclusive of weekends and
public holidays. Given that according to invoices he rendered to the
state attorney, the respondent
charged R2, 500 per hour; to charge
the said fees, he would have worked 517 consecutive days for 26.6
hours a day in the former
scenario or 38.9 hours per day in the
latter scenario, which is impossible.
[8.3]
the respondent’s invoices to the state attorney do not
constitute Value Added Tax (“VAT”) invoices, apparently
because he is not registered as a VAT vendor as required in terms of
the VAT Act
[2]
,
a punishable offence.
[9]
On 14 September 2018, the respondent provided an explanation which
the applicant found unsatisfactory.
[10]
The applicant’s first notice of motion in respect of this
application is dated 21 September 2018. It was issued on the
same
date. Therein the applicant afforded the respondent until 25
September 2018 to file the notice of intention to oppose and
until
12h00 on 26 September 2018 to file his answering affidavit to allow
the applicant time to file a reply if any and to paginate
and index
the papers by 12h00 on 27 September 2018 ahead of the hearing on 2
October 2018.
[11]
The respondent did not file opposing papers by these timeframes.
Instead on 27 September 2018, he tendered his resignation
as a member
of the applicant with immediate effect. This prompted the applicant
on 28 September 2018 to deliver an amended notice
of motion
incorporating an order to compel the respondent to deliver the
following documents for the period 1 January 2015 to 26
September
2018: his original fee book, invoices rendered to the state attorney,
bank statements and details of other bank accounts
in which he
received deposits from the state attorney as well as bank statements
in respect of the said bank accounts.
[12]
On 1 October, the respondent filed a notice of intention to oppose as
an annexure to a postponement application. In the postponement
application, he pleaded for more time to file his answering
affidavit. The applicant filed an answering affidavit to this
application
on the same day.
[13]
On 2 October 2018, the respondent appeared in person. Only then did
he concede to an order for his suspension from practice
as an
advocate. He also made submissions in respect of the postponement of
the remainder of the relief sought by the applicant.
He pleaded for
twenty days to file an answering affidavit. The court was not
amenable to his request for several reasons. The application
was
brought on an urgent basis. Twenty days would relegate the
application to an ordinary application as it would give the
respondent
the normal time to file opposing papers under
circumstances where he did not oppose the urgency of the application
and failed to
provide a satisfactory explanation why he needs an
extended time.
[14]
In the postponement application, he did not account for his efforts
towards preparing opposing papers since he was served with
the
application. He has been aware of the pending investigation as early
as 6 September 2018 when the applicant called on him to
account for
his conduct. His bald explanation that he is facing serious
allegations and that due to the recess period he has not
been able to
obtain legal advice was not accepted by the court under these
circumstances. So is his attempt to use his mother’s
illness
and subsequent passing as the reason why he has not filed opposing
papers. The court also found this reason to be bald
and
unsubstantiated.
[15]
Given that the amended notice of motion was only delivered on 28
September 2018 and further that it did not set out timeframes
for the
filing of opposing papers, the court stood the matter down until
Friday 5 October 2018 to allow the respondent to file
his answering
affidavit by 16h00 on Thursday 4 October 2018. The respondent again
did not comply with this directive. When the
court resumed on 5
October 2018, he persisted with his plea for more time. The court
granted an order dismissing his postponement
application.
[16]
Effectively, the application brought by the applicant served before
this court unopposed. Counsel for the applicant made submissions
in
respect of the compelling order to which the respondent did not
respond, despite being afforded an opportunity to do so.
[17]
The allegations facing the respondent are of a serious nature
involving large sums of public money. Two officers of the court
namely the respondent and the state attorney are implicated. I am
very concerned about how the respondent responded to these
allegations
starting from the proceedings before Mudau J. His
response does not reflect a cooperative attitude. He rather displays
an elusive
and dilatory attitude as well as disregard for the
Uniforms Rules of Court and the directives of this court.
[18]
Despite the fact that the basis for the application to set aside the
writ in
Kunene
cast him in a negative light, he did not respond to the application
by filing opposing papers or if he did not wish to oppose it,
by
filing a notice to abide and/ or an affidavit placing his version
before the court. When the present application was argued,
he had
still not filed any papers in respect of part B for the rescission of
the orders in respect of the merits and quantum in
Kunene.
[19]
In his letter of 14 September 2018, he insubstantially denied any
wrongdoing in
Kunene
and expressed his intention to oppose part B of the application that
served before Mudau J. Notably, there too he is out of time
for
filing opposing papers. He refused to give an undertaking to refrain
from practicing as an advocate pending an investigation
into his
conduct. He contended that it is inappropriate for him to give
such an undertaking given that Kunene has applied
for leave to appeal
Mudau J’s order. As already stated, on the eve of the hearing
of the present application, he resigned
from the applicant’s
membership with immediate effect, a move probably calculated to
frustrate the applicant’s jurisdiction
over him and
consequently to thwart the prospects of an application to have his
name struck off the roll of advocates.
[20]
When this application was heard, as already stated he had still not
placed a version before this court because he had not filed
an
answering affidavit. He rather opted to devote time to prepare a
substantive postponement application. He filed his notice of
intention to oppose late and sought no condonation its late filing.
His purported reasons for not filing an answering affidavit
if valid,
would not justify why he failed to file this simple notice timeously.
[21]
When the court stood the matter down until 5 October 2018 to allow
him time to file an answer, it was pertinent from his attitude
that
he had no intention to comply with the court’s directive. He
continued to argue for more time after the directive was
given. He
kept the applicant’s attorney and counsel waiting for his
answering affidavit on 4 October 2018. It was only when
the
applicant’s attorney called him that he informed him that he
would not be filing his answering affidavit as directed
by the court.
He did not have to wait until 4pm to inform the applicant’s
legal representatives of his intentions because
he knew much earlier
that he would not be complying with the court’s directive. The
two presiding judges were also waiting
for his answering affidavit.
He afforded them no courtesy to let them know that he would not be
filing it.
[22]
On 5 October 2018 he again failed to give satisfactory reasons why he
did not comply with the court’s directive but instead
informed
the court that he deserves more time. His disregard for court rules
and court directives as set out above is alarming
given his status as
an officer of this court of over twenty years standing.
[23]
The only issue that remained to be determined when the application
was ultimately argued on 5 October 2018 is whether the applicant
has
made out a case for an order compelling the respondent to furnish his
accounting records. On the said date the respondent sought
to place
urgency in dispute. In my view he was clutching at straws. He took no
issue with urgency in respect of the order for his
suspension from
practice as an advocate. The basis for that order is the serious
allegations set out in the applicant’s papers,
which raise
serious questions about his fitness and propriety to continue
practicing as an advocate. As I demonstrate below, the
urgency of the
order for his suspension is inseparable from the urgency of the order
compelling the respondent to furnish his accounting
records.
[24]
Although the applicant’s papers in respect of the order to
compel accounting records address an interim order, the amended
notice of motion is not only couched in final terms, if granted the
order to compel will be final in its effect. The requirements
for
this relief are: (a) a clear right, (b) an injury committed or
reasonably apprehended and (c) the absence of a satisfactory
alternative remedy. I am satisfied that the applicant meets these
requirements.
[25]
It is trite that in applications of this nature, to succeed the
applicant is not required to establish a
prima
facie
right because it is not asserting a right in terms of the
Admission
of Advocates Act
[3
]
.
Its role is to bring the applicant’s conduct to the attention
of the court to enable the court to exercise its disciplinary
powers.
This is well within the applicant’s duty as the
custos
morum
of the advocates’ profession.
[26]
The respondent has a professional duty to keep the records sought by
the applicant and to furnish them on request. He has failed
to do so.
Mokgoatlheng J deals at length with the respondent’s duty to
furnish the applicant with these records at paragraphs
17 to 19 of
his judgment. I align myself to the contents of these paragraphs.
That he has resigned as a member of the applicant
does not absolve
him from this duty. It is common cause that he was a member of the
applicant when he perpetrated the alleged conduct.
Hence the
probability expressed in paragraph 19 above, that his resignation may
be inspired by an attempt to avoid accounting for
his alleged
conduct.
[27]
His failure to furnish records would in any event frustrate the
applicant’s exercise of its role as the
custos
morum
of the
advocates’ profession. This role extends beyond the applicant’s
membership. Without access to the respondent’s
accounting
records even as a non-member of the applicant, the applicant’s
efforts to place facts before this court to determine
whether the
respondent continues to be a fit and proper person to practice as an
advocate would be futile. He has consented to
an order for his
suspension. The suspension order is interim in nature, pending an
application to have the respondent’s name
struck off the roll
of advocates. Without the compelling order, the applicant would lack
the necessary information to prepare the
application to have the
respondent’s name struck off the roll of advocates. It would
therefore render the respondent’s
suspension nugatory. It is
for this reason that the urgency in respect of the suspension order
and the compelling order are intertwined.
[28]
If the applicant did not take the measures it took following the
judgment by Mudau J, the respondent would still be practicing
as an
advocate without accounting for his alleged conduct. He would have
probably continued to settle other matters in a manner
prejudicial to
the fiscus as he is alleged to have done in
Kunene
and other matters. Further, he would have probably continued to
charge fees as he is alleged to have done in Kunene and other matters
to the prejudice of the fiscus.
[29]
In this application the applicant sets out five other matters in
respect of which it alleges that the respondent together with
the
state attorney used a similar strategy used in
Kunene
to finalize matters between various plaintiffs and the Minister. The
alleged strategy is as follows: shortly before trial, the
official in
the office of the state attorney who has been dealing with the matter
is replaced. The respondent would be briefed
shortly before the
trial. He would prepare a memorandum motivating the settlement of the
merits and quantum. It would be sent to
the Minister shortly before
the trial denying him sufficient time to consider its contents.
Contrary to the Minister’s instruction
the matter would be
settled as was done in
Kunene
.
[30]
The applicant also alleges that in the pending matter between
Mbetheni
v the Minister of Police and the National Director of Public
Prosecutions
[4]
where the plaintiff is claiming R4, 152, 000, the respondent is on
brief. The Minister has requested the state attorney to debrief
him.
The state attorney has not acceded to this request. For this reason,
the applicant alleges that if the respondent is not suspended
from
practice, the matter may be disposed of using the same strategy used
in
Kunene
and other matters.
[30]
Prima facie
:
[30.1]
the respondent’s conduct in respect of the manner in which the
merits and quantum were settled in
Kunene
as alleged by the applicant and in respect of which Mudau J expressed
concerns as well as a
prima
facie
view;
[5]
[30.2] the
applicant’s allegations against the respondent in respect of
the manner in which the merits and quantum were
settled in other
similar matters referred to above;
[30.3] the
applicant’s allegations against the respondent in respect of
fees paid by the state attorney to the respondent
in
Kunene
as
well as in other matters -
establish
harm to the fiscus. The application for leave to appeal the judgment
in
Kunene
does not neutralize the allegations referred to in paragraph 30.1
above because these allegations remain subject to the rescission
application which is still pending.
[31]
Further the applicant’s allegations against the respondent in
Mbetheni
establish an apprehension of further harm to the fiscus.
[32]
It is in the interest of the public and the advocates' profession
that the applicant has expeditious access to the respondent’s
accounting records, lest the purpose for which the order suspending
the respondent from practice as an advocate, is rendered ineffective.
[33]
The applicant does not have another suitable remedy. The respondent
has an obligation to maintain a fee book and to make it
available to
the applicant on request. As already stated, this obligation relates
to the period of the respondent’s membership
with the applicant
and is not negated by his resignation. The applicant’s role as
custos morum
is not affected by the respondent’s resignation from the
applicant’s membership. For that reason, its role as
custos
morum
would be
frustrated by lack of access to the respondent’s accounting
records. The applicant has no other means of obtaining
the
respondent’s fee book.
[34]
As far as invoices to the state attorney and the respondent’s
bank statements are concerned, although the applicant may
obtain
these documents from third parties, such a resort would not be a
suitable remedy. The documents are personal to the respondent
and are
in his possession. Bank records are confidential by nature. The bank
is unlikely to make them available to the applicant
without a court
order. There is no reason why the applicant should go through the
process of obtaining another court order to obtain
the respondent’s
bank statements. Although nothing precludes the applicant from
obtaining the respondent’s invoices
to the state attorney from
that office, there is also no reason why the applicant should endure
the trouble of approaching that
office when the respondent has a
professional duty to account to the applicant in respect of his
conduct during his period of membership
with the applicant. Putting
the applicant in this position would essentially deny it satisfactory
redress.
[35]
In the premises, I agree to the order as proposed by Mokgoatlheng J.
________________________________________
L T MODIBA
JUDGE OF
THE HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
[1]
Case
Number: 25544/2018
[2]
Act 89 of 1991.
[3]
74 of 1964.
[4]
Case number: 41428/2016.
[5]
See paragraph 16 of the judgment in Kunene.