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[2018] ZALMPPHC 24
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Law Society of the Northern Provinces v Willers (1896/2018) [2018] ZALMPPHC 24 (23 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
DATE:
23 MAY 2018
CASE
NO: 1896/2018
BEFORE
THE HONOURABLE: JUDGE PRESIDENT MAKGOBA
BEFORE
THE HONOURABLE: JUDGE KGANYAGO
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES APPLICANT
and
MAGDALENA
WILLERS RESPONDENT
COURT
ORDER
HAVING
HEARD
counsel(s)
for the party(ies) and having read the documents filed of record
;
IT
IS ORDERED THAT:
1.1.
The
honourable court dispenses with the forms and service provided for in
the Uniform Rules in terms of rule 6 (12) (a) and disposes
of this
matter at such time and place and such manner and in accordance with
such procedures as to it seems meet;
1.2.
The
name of
MAGDALENA WILLERS
(respondent) is
struck from the roll of attorneys of this Honourable Court on an
urgent basis.
1.3.
Respondent
hands and delivers her certificate of enrolment as an attorney to the
Registrar of this Honourable Court;
1.4.
In
the event of the respondent failing to comply with the terms of this
order detailed in the previous paragraph within two (2)
weeks from
the date of this order, the sheriff of the district in which the
certificate is, is authorised and directed to take
possession of the
certificate and to hand it to the Registrar of this Honourable Court;
1.5.
The
Respondent is prohibited from handling or operating on her trust
accounts as detailed in paragraph 1.6 hereof
1.6.
Johan van Staden,
the
head: members affairs of applicant or any person nominated by him, is
appointed as
curator
bonis
(curator) to administer and control the trust accounts of the
respondent, including accounts relating to insolvent and deceased
estates and any deceased estate and any estate under curatorship
connected with respondent’s practice as attorney and including,
also, the separate banking accounts opened and kept by respondent at
a bank in the Republic of South Africa in terms of Section
78 (1) of
Act No. 53 of 1979 and/or any separate savings or interest-bearing
accounts as contemplated by Section 78 (2) and/or
Section 78 ( 2A)
of Act No. 53 of
1979, in which monies from such trust banking accounts have been
invested by virtue of the sub-sections or in which
monies in
any manner have been deposited or credited (the said accounts being
hereafter referred to as the trust accounts), with
the following
powers and duties:
1.6.1
immediately to
take possession of the respondent’s accounting records,
records, files and documents as referred to in paragraph
1.7 and
subject to the approval of the board of control of the attorneys
fidelity fund (hereinafter referred to as the fund) to
sign all forms
and generally to operate upon the trust account(s), but only to such
extent and for such purpose as may be necessary
to bring to
completion current transactions in which the respondent was acting at
the date of this order.
1.6.2
subject to the approval and control of the board of control of the
fund and where monies had been paid incorrectly and unlawfully
from
the undermentioned trust accounts, to cover and receive and, if
necessary in the interest of persons having lawful claims
upon the
trust account(s) and/or against the respondent in respect of monies
held, received and/or invested by the respondent in
terms of Section
78(1) and/or Section 78 (2) and/or Section 78 (2A) of Act No 53 of
1979 (hereinafter referred to as trust monies),
to take any legal
proceedings which may be necessary for the recovery of money which
may be due to such persons in respect of incomplete
transactions, if
any, in which the respondent was and may still have been concerned
and to receive such monies and to pay the same
to the credit of the
trust account (s);
1.6.3.
to ascertain from respondent’s accounting records the names of
all persons whose account respondent appears to hold
or to have
received trust monies (hereafter referred to as trust creditors) and
to call upon respondent to furnish him, within
30 (thirty) days of
the date of service of this order or such further period as he may
agree to in writing, with names, addresses
and amounts due to all
trust creditors;
1.6.4.
to call upon such trust creditors to furnish such proof, information
and/or affidavits as he may require to enable him, acting
in
consultation with, and subject to the requirements of, the board of
control of the fund, to determine whether any such trust
creditor has
a claim in respect of monies in the trust account (s) of respondent
and, if so, the amount of such claim;
1.6.5
to admit or reject, in whole or in part, subject to the approval of
the board of control of the fund, the claims of any such
trust
creditor or creditors, without prejudice to such trust creditor’s
or creditors’ right of access to the civil
courts;
1.6.6.
having determined the amounts which he considers are lawfully due to
trust creditors, to pay such claims in full but subject
always to the
approval of the board of control of the fund;
1.6.7
in the event of there being any surplus in the trust account (s) of
the respondent after payment of the admitted claims of
all trust
creditors in full, to utilise such surplus to settle or reduce (as
the case may be), firstly, any claim of the fund in
terms of Section
78 (3) of Act No 53 of 1979 in respect of any interest herein
referred to and, secondly, without prejudice to
the rights of the
creditors of the respondent, the costs, fees and expenses referred to
in paragraph 1.3 of Part B of the notice
of motion of this order, or
such portion thereof as has not already been separately paid by the
respondent to applicant, and, if
there is any balance left after
payment in full of all such claims, costs, fees and expenses, to pay
such balance, subject to the
approval of the board of control of the
fund, to the respondent, if she is solvent, or, if respondent is
insolvent, to the trustee(s)
of the respondent’s insolvent
estate;
1.6.8
in the event of there being insufficient trust monies in the trust
banking account(s) of the respondent, in accordance with
the
available documentation and information, to pay in full the claims of
trust creditors who have lodged claims for repayment
and whose claims
have been approved, to distribute the credit balance (s) which may be
available in the trust banking account(s)
amongst the trust creditors
alternatively to pay the balance to the Attorneys Fidelity Fund;
1.6.9 subject to the approval of the
chairman of the board of control of the fund, to appoint nominees or
representatives and/or
consult with and/or engage the services of
attorneys, counsel, accountants and/or any other persons, where
considered necessary,
to assist him in carrying out her duties as
curator, and
1.6.10.
to render from time to time, as curator, returns to the board of
control of the fund showing how the trust account(s) of
the
respondent has/have been dealt with, until such time as the board
notifies her that he may regard his duties as curator as
terminated.
1.7.
The
respondent immediately delivers her accounting records, records,
files and documents containing particulars and information
relating
to:
1.7.1.
any
monies received, held or paid by the respondent for or on account of
any person while practising as an attorney;
1.7.2.
any
monies invested by the respondent in terms of Section 78 (2) and/or
Section 78 (2A) of Act No 53 of 1979;
1.7.3.
any
interest on monies so invested which was paid over or credited to the
respondent;
1.7.4.
any
estate od a deceased person or an insolvent estate or an estate under
curatorship administered by the respondent, whether as
executor or
trustee or curator or on behalf of the executor, trustee or curator;
1.7.5.
any
insolvent estate administered by the respondent as trustee or on
behalf of the trustee in terms of the
Insolvency Act, No 24 of 1936
;
1.7.6.
any
trust administered by the respondent as trustee or on behalf of the
trustee in terms of the Trust properties Control Act, No
57 of 1988;
1.7.7.
any
company liquidated in terms of the Companies Act, No 61 of 1973,
administered by the respondent as or on behalf of the liquidator;
1.7.8.
any
close corporation liquidated in terms of the
Close Corporations Act,
69 of 1984
, administered by the respondent as or on behalf of the
liquidator, and
1.7.9.
the
respondent’s practice as an attorney of this Honourable Court,
to the curator appointed in terms of paragraph 1.6 hereof,
provided
that, as far as such accounting records, records, files and documents
are concerned, the respondent shall be entitled
to have reasonable
access to them but always subject to the supervision of such curator
or his nominee.
1.8.
Should
the respondent fail to comply with the provisions of the preceding
paragraph of this order on service thereof upon her or
after a return
by the person entrusted with the service thereof that she has been
unable to effect service thereof on the respondent
( as the case may
be), the sheriff for the district in which such accounting records,
records, files and documents are, is empowered
and directed to search
for and to take possession thereof wherever they may be and to
deliver them to such curator.
1.9.
The
curator shall be entitled to:
1.9.1.
hand
over to the persons entitled thereto all such records, files and
documents provided that a satisfactory written undertaking
has been
received from such persons to pay any amount, either determined on
taxation or by agreement, in respect fees and disbursements
due to
the firm;
1.9.2.
require
from the persons referred to in paragraph 1.9.1 to provide any such
documentation or information which he may consider relevant
in
respect of a claim or possible or anticipated claim, against him
and/or respondent and/or respondent’s clients and/or
fund in
respect of money and/or other property entrusted to the respondent
provided that any person entitled thereto shall be granted
reasonable
access thereto and shall be permitted to make copies thereof.
1.9.3.
publish
this order or an abridged version thereof in any newspaper he
considers appropriate.
1.9.4.
wind-up
of the respondent’s practice;
1.10.
Respondent
is hereby removed from office as:
1.10.1
executor of any estate of which respondent has been appointed in
terms of
Section 54
(1) (a) (v) of the
Administration of Estates Act,
No 66 of 1965
or the estate of any other person referred to in
Section 72(1)
;
2.5cm;
margin-bottom: 0cm; line-height: 150%">
1.10.2
curator or guardian of any minor or other person’s property in
terms of
Section 72
(1) read with
Section 54
(1) (a) (v) and Section
85 of the Administration Estates Act, No 66 of 1965
1.11.
If
there are any trust funds available the respondent shall within 6
(six) months after having been requested to do so by the curator,
or
within such longer period as the curator may agree to in writing,
shall satisfied the curator, by means of the submission
of the
taxed bills of costs or otherwise, of the amount of fees and
disbursements due to her (respondent) in respect of her
former
practice, and should she fail to do so, she shall not be entitled to
recover such fees and disbursements from the curator
without
prejudice, however, to such rights (if any) as she may have against
the trust creditor (s) concerned for payment or recovery
thereof;
1.12.
A
certificate issued by a director of the Attorneys Fidelity Fund shall
constitute
prima
facie
proof of the curator’s costs and that the Registrar is
authorised to issue a writ of execution on the strength of such
certificate
in order to collect the curator’s costs.
1.13.
The
costs of this application are paid by the respondent on attorney and
client scale.
BY
ORDER OF THE COURT
REGISTRAR