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[2018] ZAKZPHC 55
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KwaZulu-Natal Law Society v Mathe (9327/2013) [2018] ZAKZPHC 55 (31 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Reportable
CASE
NO: 9327/2013
In
the matter between:
KWAZULU-NATAL
LAW SOCIETY
Applicant
and
MBONGENI
FREDERICK MATHE
Respondent
Delivered: 31 October
2018
JUDGMENT
MBATHA
J (Jappie JP concurring)
[1]
The applicant seeks an order for the striking off of the name of the
respondent from the roll of attorneys, that he be interdicted
and
restrained from practicing and / or holding himself out as an
attorney of this court, whilst his name is so struck off from
the
roll of attorneys, that he surrenders and delivers to the Registrar
of this Court the Certificate of Enrolment as an attorney
of this
court and that the respondent pay the costs of this application on an
attorney and client scale. The relief sought by the
applicant is
opposed by the respondent.
[2]
The background to this application is as follows: The respondent was
admitted and enrolled as an attorney in the High Court,
KwaZulu-Natal
Division on 26 November 2004 as a non-practicing attorney in terms of
section 15 of the Attorneys Act 53 of 1979
(the Act). Subsequently
thereafter the charges for fraud, alternatively theft, were laid
against the respondent and he was convicted
in the Regional Court,
Durban, under case number 41/02368/2005 for theft of R11 000.
[3]
On 4 May 2007 he was sentenced to three years imprisonment. The court
further ordered that he could be placed under correctional
supervision in terms of section 276(1)(i) of the Criminal Procedure
Act (the CPA), directing that a period of one year imprisonment
be
suspended for a period of one year on condition that the respondent
compensates the complainants in terms of section 297 of
the CPA.
[4]
The respondent appealed against his conviction and sentence to the
High Court KwaZulu-Natal Division, Pietermaritzburg under
case number
AR100/2010. On 30 April 2013 the appeal court confirmed the
conviction of theft, but reduced the amount from R11 000
to
R10 000. The appeal against sentence succeeded to the extent
that the sentence was set aside and altered to read that ‘the
accused is sentenced to 3 (three) years imprisonment, 1 (one) year of
which is suspended on condition that the accused repays the
sum of
R10 000.00 to the complainants within the period of suspension
in terms of section 297 of Act 51 of 1977. The provisions
of section
276(1)(i) shall apply to the terms of imprisonment imposed.’
The sentence was antedated to 15 June 2007.
[5]
The theft charges arose when the respondent was employed as a
magistrate in the Pinetown Magistrates’ Court, where he
handled
the affairs in the Estate Late Sikhumbuzo Emmanuel Ndlovu. An estate
enquiry was held, where the deceased’s mother,
Cynthia Jili
(Jili), the deceased’s sister, and the representatives of the
deceased’s minor children (their mothers)
appeared before him.
At this enquiry he directed Jili to withdraw the invested funds in
the sum of R15 000 for purposes of
distribution to the
beneficiaries of the estate. On 13 January 2003, Jili handed over the
sum of R15 000 to the respondent.
He distributed the sum of
R5 000 to the representatives of the deceased’s minor
children and kept R10 000. He informed
the deceased’s
relatives and the mothers of the minor children that he will deposit
the sum of R10 000 at the cash hall at
the Pinetown Magistrates’
Court, where it will be invested for the benefit of the deceased’s
minor children. When the
minor’s representatives and Jili
sought maintenance from the said funds, it transpired that no funds
were ever deposited
by the respondent at the cash hall or elsewhere.
The respondent made several promises to repay the funds, but failed
to do so.
The Hawks were approached by the beneficiaries of the
estate, which finally led to his arrest, trial and conviction. The
respondent’s
defence at the time of the trial was that he had
instructed a clerk by the name of Zondi to deposit the sum of R10 000
at the cash
hall, was rejected by both the Regional Court and the
Full Bench of the High Court, sitting as a court of appeal.
[6]
On the basis of this conviction and sentence the applicant submitted
that the respondent is not a fit and proper person to remain
on the
roll of attorneys. This submission by the applicant is made against
the assertions by the respondent that he has petitioned
the Supreme
Court of Appeal to further appeal his conviction and sentence. The
applicant rejected that assertion as the conviction
and sentence has
not been set aside since the dismissal of his appeal by this court.
[7]
The respondent’s main contention in opposing the application
was that the misconduct which formed the basis of the application
was
committed before he was admitted and enrolled as an attorney, that
the applicant has failed to conduct an enquiry into his
conduct in
line with rule 50.6.2.1 or rule 50.6.2.2,
[1]
i.e. to call upon him to appear before an enquiry to determine his
misconduct, and that there is a pending petition before the
Supreme
Court of Appeal in terms of
section 18(5)
of the
Superior Courts’
Act, 10 of 2013
. Therefore the application before the court is
premature. In the light of the aforegoing it was submitted that
misconduct on the
part of the respondent has not been established.
[8]
The application was brought in terms of section 22(1)(d) of the Act
which provides that:
‘
22(1)
Any person who has been admitted and enrolled as an attorney may on
application by the society concerned be struck
off the roll or
suspended from practice by the court within the jurisdiction of which
he practises -
.....
(d)
if he, in the discretion of the court, is not a fit and proper person
to continue to practise as an attorney.’
According
to
Jasat
v Natal Law Society
,
[2]
the court held that section 22(1)(d) envisages a three stage enquiry.
The court must consider: first, whether
the
alleged offending conduct has been established on a balance of
probabilities which is a factual enquiry;
secondly,
whether
the person concerned, in the discretion of the court, is not a fit
and proper person to continue to practice;
and
thirdly, the court must inquire
whether
in all circumstances the person in question is to be removed from the
roll of attorneys or whether an order suspending him
from practice
for a specified period would suffice.
[9]
It is trite that such proceedings are
sui
generis
in nature as they involve a disciplinary element at the same time,
involve the weighing up of the conduct complained of against
the
conduct expected of an attorney and, to this extent, is a value
judgment. It is required that the applicant as the
custos
moraes
of the legal profession has to gather the facts which it considers
serious enough for a strike off or suspension and place them
before
the court to exercise its discretion. The main focus should be for
the protection of the public.
[3]
[10]
In dealing with the first requirement as set out in
Jasat
the conduct of the respondent, which is the basis of the application
before this court, arises from the following facts which are:
The
respondent was admitted as a non-practicing attorney on 26 November
2004, was convicted of theft on 4 May 2007 and his conviction
and
sentence were confirmed by the Full Bench of this Division on 30
April 2013. It is common cause that all these undisputed facts
occurred after his enrolment and admission as an attorney. The date
of the theft of the funds is immaterial as it falls outside
the
period of his admission as an attorney. The conviction and sentence
which falls post his admission still stands. The court
was informed
from the bar that he did not disclose that he was being investigated
for criminal charges before his admission, which
was not disputed by
counsel for the respondent.
[11]
In consideration of whether he is a fit and proper person, I have
considered various authorities including the judgment in
Kaplan
v Incorporated Law Society Transvaal
,
[4]
which aptly described the expression ‘fit and proper person’
to relate to the personal qualities of the applicant.
This can only
mean that consideration should be given to the nature of the
misconduct committed and whether the respondent lacks
the qualities
of an attorney. Theft is an act of dishonesty. The theft in this case
was committed against three minor children
who were deprived of the
very little inheritance that their father left for them. The
respondent was then employed as a magistrate,
who had no reason to
steal from the poor people. His conduct had severe repercussions for
the family. Jili suffered a stroke whilst
giving evidence in court in
the trial of the respondent. This is an indication of stress that was
borne by the family. This kind
of conduct is not required in the
profession which requires honest and high moral standards. This court
finds the respondent’s
conduct to be at odds with what is
expected from an attorney whether practicing or non-practicing.
[12]
The judgment on appeal was handed down on 30 April 2013, five years
later the respondent is still asserting that he is pursuing
a
petition for leave to appeal to the Supreme Court of Appeal. The time
frame for such a process was twenty one days from the date
of
judgment in terms of the Supreme Court Act and thirty days in terms
of the
Superior Courts Act. The
respondent has kept the applicant
waiting for over five years. It was only at the enquiry of the
attorneys of record for the applicant,
that the applicant received a
letter dated 15 June 2018 from the Registrar of the Supreme Court of
Appeal stating that it appears
that there is no such case registered
and pending at the Supreme Court of Appeal. Pursuant to this
revelation the respondent filed
an additional affidavit to this
application stating that he has briefed counsel as of 6 July 2018 to
re-instate his petition to
the Supreme Court of Appeal. It is clear
to me that the respondent was resting on his laurels, as the delay
did not only afford
him an opportunity to remain on the roll of
attorneys, but also kept him away from the prison doors. I accept
that
section 18(3)
of the
Superior Courts’ Act automatically
suspends the operation of a court order. However, the court can
enforce the operation of the order in exceptional circumstances
in
terms of
section 18(1)
of the
Superior Courts’ Act. Corbett
JA
described the test in
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
,
[5]
the main consideration being whether it is just and equitable in all
circumstances. The petition has been pending since 2013, five
years
later it has not been prosecuted. The respondent has not taken this
court into his confidence, about the reasonable prospects
of success
of his petition to the Supreme Court of Appeal, which may persuade
the Supreme Court of Appeal to grant condonation
for filing the
petition after five years. I am inclined to accept that this is
dilatory and opportunistic conduct on the part of
the respondent.
[13]
As to the challenge by the respondent that an enquiry ought to have
preceded the application before us, I refer to the provisions
of
section 71(1) of the Act which provides as follows:
‘
(1)
A council may in the prescribed manner inquire into cases of alleged
unprofessional or dishonourable or unworthy conduct or
contravention
of any law repealed by section 35 of the Attorneys Amendment Act,
2014, on the part of or by any attorney, notary
or conveyancer whose
name has been placed on the roll of any court within the area of
jurisdiction of its society, whether or not
he or she is a member of
such society, or of any person serving articles of clerkship or a
contract of service with a member of
its society, or of any former
candidate attorney referred to in section 8(4).’
The
new rule 50.6.2, referred to by the respondent state that ‘where
it is of the opinion [of the Council] that a
prima
facie
case of unprofessional or dishonourable or unworthy conduct on the
part of the member concerned is or may be made out’, an
enquiry
may be held to explain, elucidate or discuss the matter.
[6]
[14]
In the case of the respondent, I find that there is no
prima
facie
case to be answered by him. His conduct has already been determined
by the Regional Court and the Full Bench of the High Court.
The new
rule and the old section refer to matters of conduct, where the
member concerned has to answer to unproven allegations
against him
not where a court of law has already determined the merits of a
misconduct on a standard beyond a reasonable doubt.
There is nothing
to be determined by an enquiry in the respondent’s case as his
conduct has been fully determined by the
courts, hence the
application before the court.
[15]
Lastly, in the exercise of the court’s discretion whether the
respondent is a fit and proper person to practice as an
attorney and
whether his conduct requires to be sanctioned by a strike off
or a suspension, I have taken into account the
objectives of the law
society in section 58, amongst others being: to maintain and enhance
the prestige, status and dignity of
the profession; to regulate the
exercise of the profession; to encourage and promote efficiency and
responsibility in relation
to the profession; to deal with all
matters relating to the interest of the profession and to protect
those interests; to uphold
the integrity of the profession. I have
also taken into account the nature of the misconduct, which is gross
and that the public
needs to be protected from persons like the
respondent who abuse their positions of trust. The court, as
stated in
Malan
& another v Law Society, Northern Provinces
,
[7]
has exercised its discretion, which involves a value judgment in
determining whether the respondent should be removed from the
roll of
attorneys or not. In that regard I find in favour of the applicant.
[16]
Accordingly, I propose the following order:
(a)
That the respondent’s name, M
bongeni
Frederick Mathe, be struck off from the roll of attorneys of this
Honourable Court and that the respondent be and is hereby
interdicted
and restrained from practising and / or holding himself out as an
attorney of this Honourable Court whilst the respondent’s
name
is so struck off the roll.
(b)
That the respondent be and is hereby ordered to surrender and deliver
to the Registrar of this Court his Certificate of Enrolment
as an
attorney.
(c)
That the respondent pays the costs of this application on an attorney
and client scale.
MBATHA
J
JAPPIE
JP
Date
of hearing : 19 October 2018
Date
delivered : 31 October 2018
Appearances
:
For
the Appellant : Mr SN Chetty
Instructed
by : Siva Chetty & Co
378 Langalibalele Street
Pietermaritzburg
For
the Respondent : Mr S Mhlanga
Instructed
by : Mhlanga Inc
407
Anton Lembede Street
[1]
Attorneys’ Act (53/1979): Rules
for Attorneys’ Profession,
Government
Gazette
39740, dated 26
February 2016.
[2]
2000 (3) SA 44 (SCA).
[3]
Jasat
v Natal Law Society
2000
(3) SA 44 (SCA).
[4]
1981 (2) SA 762
(T) at 783G-H.
[5]
1977 (3) SA 534
(A) at 544H-546B.
[6]
Attorneys’ Act (53/1979): Rules
for Attorneys’ Profession,
Government
Gazette
39740, dated 26
February 2016.
[7]
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) para (4).