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[2018] ZAFSHC 148
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Claassen and Another v The Free State Law Society and Others (5940/2017) [2018] ZAFSHC 148 (12 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
Case
No
: 5940/2017
In
the matter between:
A C CLAASSEN
First
Applicant
JOLUZA
BOERDERY (PTY) LTD
Second
Applicant
and
THE FREE STATE LAW
SOCIETY
First Respondent
F J SENEKAL
Second
Respondent
MATSEPES
INCORPORATED
Third
Respondent
HEARD
ON:
15 MARCH 2018
JUDGMENT
BY
:
LOUBSER, J
DELIVERED
ON
:
12 APRIL 2018
JUDGMENT
[I]
INTRODUCTION
:
[1]
This is an application, filed on an urgent basis, wherein the
Applicants seek the following
relief:
(a)
That the First Respondent is ordered to launch an application within
seven (7) days of this
order to suspend the Second Respondent from
practising as an attorney of this Court, and to take control of the
trust account of
the Third Respondent.
(b)
That the First Respondent be ordered to pay the costs of the
application on an attorney
and client scale.
[2]
The application came before the Court on
17 November 2017
, on
which date the matter was postponed by agreement between the parties
to
14 December 2017
for hearing. The costs of the
postponement were reserved. On
14 December 2017
, the
matter was again postponed to
15
th
March
2018
, with the costs reserved again. In this judgment I
will refer to the First Respondent as “
the Society
”,
to the Second Respondent as “
Senekal
” and to the
Third Respondent as “
Matsepes
”. The First
Applicant is the sole director and shareholder of the Second
Applicant Company. All three the Respondents
oppose the
application.
[II]
THE CASE FOR THE APPLICANTS
:
[3] The
Applicants contend in their founding papers and through submissions
made
by their counsel that Senekal is no longer a fit and proper
person to be practising as an attorney, and that the Society is
failing
to take any steps against him although the Society is
well-informed of this state of affairs. The conduct of Senekal
complained
of, consists in allegations of,
inter alia
,
irregularities including a deficit, found in the trust account of
Senekal and Matsepes during the execution of an Anton Piller
order on
5 October 2017
, of fraudulent and dishonest conduct, of
purgery, of practising as an attorney for a period of time without a
Fidelity Fund Certificate,
and of the misappropriation of estate
funds.
[4] As
for the Society, the Applicants allege that the Society is dismally
failing
to protect the public against Senekal. They point out
that the Society has already resolved to proceed with a striking
application
against Senekal on
18 May 2017
, but that it had
reconsidered that decision on
23 June 2017
in order to afford
Senekal an opportunity to appear before the council to advance
reasons as to why the striking application should
not be proceeded
with. There is no indication whether Senekal had indeed appeared
before the council since, and what the outcome
thereof was, it is
alleged.
[5] It
is further alleged that, more recently, the Anton Piller proceedings
revealed
further irregularities which provided the Society with
irrefutable proof of Senekal’s misconduct, but notwithstanding,
the
Society fails to take immediate action against Senekal to protect
the Applicants and the public in general against further damage.
[III]
THE CASE FOR THE SOCIETY
:
[6] The
Society contends that the application should be dismissed for want of
any
urgency. It further states that it has received the
complaints from the Applicants on
19 October 2017
, and that
its investigations surrounding those complaints have so far revealed
many new facts which should be considered by the
Society. It is
further alleged that the investigations are not complete as yet, and
that it should be allowed to take its
course without prejudice to the
role-players concerned. It also alleges that some of the
information provided by the Applicants
are inaccurate, and that there
is a lack of evidence regarding the allocation of certain amounts and
payments to certain individuals.
[7] It
is further pointed out by the Society in the opposing papers that it
does
not institute any action or civil suit against a member, but
that it merely submits to the Court facts which it contends
constitute
unprofessional conduct, and then leaves it to the Court to
determine how it will deal with the attorney concerned. During
this process, a practitioner should be appraised of the complaint(s)
and afforded the opportunity of answering thereto before such
a
drastic step is taken of bringing him before the Court on allegations
of unprofessional conduct. Also, during this process,
the
complaints first have to be investigated in terms of a specific
procedure to be followed by the Society. This procedure
can
become lengthy and cumbersome in view of the attorney’s rights,
for instance the right to be heard.
[8] At
the hearing of the application, the Court was informed by Mr Grewar,
acting
for the Society, that Senekal will be required to plead to
specific charges before the Society in the near future.
[IV]
CASE FOR SENEKAL
:
[9]
Senekal filed an Opposing Affidavit comprising of some eighty (80)
pages in answer to the
allegations in the Founding Affidavit.
He is also of the opinion that the application was never urgent, and
that it should
be dismissed with costs on a punitive scale. In
this affidavit, he denies all the allegations levelled against him,
and he
provides explanations for the different acts or omissions of
unprofessional conduct he is accused of.
[V]
DETERMINATION
:
[10] On
the face of it, the allegations against Senekal are of a very serious
nature. In
addressing the Court, Mr Janse van Rensburg,
appearing for the Applicants, highlighted the fact that Senekal had
been practising
as an attorney for some six (6) months without a
Fidelity Fund certificate, and that a deficit of some
R48,000.00
has been found in his trust account. The Society, however,
mentions in its opposing affidavit that an even larger deficit
was
found which is currently under investigation. Senekal points
out in his Opposing papers that the alleged shortfall of
R48,000.00
does not reflect a trust shortfall at all, but a shortfall in a
certain bond premium.
[11] No
reference is made in the Founding Affidavit to the issue of the
Fidelity Fund certificate.
This issue only surfaced in the
Replying Affidavit filed by the Applicants, where it is stated that
there is reason to believe
that Senekal is not in possession of such
a certificate for 2018, due to some confusion as to the true identity
of Matsepes, which
confusion has already been reported to the Society
during
November 2017
.
[12] As
pointed out earlier, there are many more complaints against Senekal
than the two discussed
above. According to the Society, these
complaints are in the process of being investigated. In terms
of Section 22(1)
of the Attorneys Act no. 53 of 1979, an attorney may
on application by a Law Society be struck off the roll or suspended
from practice
by the Court. When a Law Society brings such an
application, it does so
custos morum
, as the guardian of
morals of the Attorney’s profession. It merely places
facts for consideration by the Court in the
exercise of its
disciplinary function over attorneys as officers of the Court so as
to enable it to exercise its discretion as
to the appropriateness of
a sanction to be imposed in the event that the commission of the
transgressions is established.
(
SEE
:
LAW
SOCIETY OF THE FREE STATE v WERNER LE ROUX & OTHERS
(UNREPORTED) CASE NUMBER 3039/2014, per MOLEMELA JP at para [11] and
HASSIM v INCORPORATED LAW SOCIETY OF NATAL
1977
(2) SA 757
(A) at 767 C – G
)
[13] In
BOTHA v LAW SOCIETY OF THE NORTHERN PROVINCES
2009
(3) SA 329
(SCA)
the Supreme Court of Appeal reiterated that
Section 22 contemplates a three-stage inquiry by the Court, namely,
the Court must firstly
decide whether the alleged conduct has been
established on a preponderance of probabilities, and secondly, the
Court must decide
whether the person concerned is a fit and proper
person to continue to practise as an attorney. Thirdly, the
Court must decide
whether, in all the circumstances, the attorney is
to be removed from the roll or whether an order of suspension would
suffice.
[14] It
therefore stands to reason that a Law Society has to investigate all
complaints against
an attorney comprehensively and diligently, and to
hear him in disciplinary proceedings, in order for it to decide
whether an application
for striking or suspension is appropriate in
the circumstances, and in order to place sufficient facts before the
Court for consideration
when such an application is eventually
brought. In my view, a Law Society should be allowed to take
such steps without interference
and without undue pressure. In
the absence of any clear indication that the Society is presently
neglecting its duties in
this regard, I am not inclined to deviate
from this view.
[15] In
any event, the relief sought does not make any practical sense.
This application
is not for the suspension or striking of an
attorney, but for an order compelling the Society to make application
to this Court
within seven (7) days for an order suspending Senekal
from practising as an attorney and from taking control of the trust
account
of Matsepes. If such an order is granted, nothing would
prevent the Society, for instance, to mention in its application
papers that they are only filing the application because they were
compelled to do so by the Court, and that they are not quite
ready to
place sufficient facts before the Court to warrant suspension, due to
the fact that the investigations are not yet complete.
[16]
The application as it stands can therefore not succeed. It has
been brought prematurely
and without proper consideration to the
practical effectiveness of the relief sought. It is therefore
not necessary to consider
the issue of urgency in the application.
[17] The
question of costs remains to be decided. As the successful
party herein, the Society
is entitled to its costs on an attorney and
client scale. In view of the findings of the Court, it was not,
strictly speaking,
necessary for Senekal and Matsepes to file an
opposing affidavit to the extent that they did. They are
therefore not entitled
to their costs.
[18] The
following order is therefore made:
1. The
application is dismissed with costs for the First Respondent on an
attorney
and client scale, which costs include the costs incurred in
the postponement on
17 November 2017
and
14 December 2017
.
2.
No order as to costs is made in relation to the Second and Third
Respondents.
P
J LOUBSER, J
On
behalf of the Applicants
: Advocate F G Janse van Rensburg
Instructed
by
: Willers Attorneys, Bloemfontein
On
behalf of First Respondent
: Advocate D M Grewar
Instructed
by
: Azar & Havenga Incorporated, Bloemfontein
On
behalf of Second and Third Respondents
: Advocate J J F
Hefer
Instructed
by
: Matsepes Incorporated, Bloemfontein