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[2018] ZALMPPHC 55
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Law Society of the Northern Provinces v Mankoe and Another (7772/2017) [2018] ZALMPPHC 55 (12 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NUMBER: 7772/2017
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES APPLICANT
And
MODITI
LUCAS
MANKOE 1
ST
RESPONDENT
MANKOE
INCORPORATED 2
ND
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The first respondent Moditi Lucas Mankoe was admitted as an attorney
on 29
th
August 1995 and initially practised as a partner
at Mankoe and Magabane Attorneys. During 2002 he left the aforesaid
firm and commenced
practising for his own account under the name and
style Mankoe Incorporated, the second respondent.
[2]
The applicant received complaints from Johanna Mmaleho Molepo,
Mbulaheni Julia Malungudzi,Tshililo Emily Muthali, Florah Makoma
Buthelezi, Mokgadi Linah Nongovela and Mulidzi Makhado. The
complaints were to the effect that the first respondent has failed
to
account to complainants in respect of his trust account. This
prompted the applicant to conduct an inspection of the respondents’
records and practice. The inspection was conducted by Ms Phossina
Kaserera (Kaserera) an auditor employed in the applicant’s
monitoring unit.
[3]
According to the applicant, Kaserera on her first visit to the
respondents did not find the firms accounting records but was
told
that they were with firm’s auditor. On her second visit the
first respondent furnished her with limited accounting records
and
undertook to furnish additional records, but has failed to do so.
[4]
The applicant alleges that Kaserera found that the first respondent
was conducting separate trust and business banking accounts.
The
trust bank statement as at 29
th
February 2016
reflected a balance of R115-20. The first respondent informed
Kaserera that there were no other banking accounts
in operation.
[5]
The applicant further alleges that the first respondent failed to
furnish Kaserera with the firm’s cashbooks. On scrutinising
the
firm’s trust bank statement, she found that money deposited
into the firm’s trust account was immediately transferred
into
the firm’s business account. Kaserera also found that ledger
accounts were written in such a way as to conceal the excessive
transfers of trust accounts to business account. Excessive transfer
from trust to business were recorded as fees due to the firm.
On
scrutinising the firm’s fees journal and debit notes, she could
not place any reliance on them.
[6]
According to the applicant, Kaserera was not furnished with a list of
trust creditors. The list which was furnished to her showed
that the
respondents did not have any trust creditors. Two complainants Ms
Muthali and Ms Molepo were jointly owned R115 227-00
by the
respondents as at 29
th
February 2016. The applicant
therefore contends that as at 29
th
February 2016 the
respondents had a trust shortage of R115 227-00. The
respondents’ audit report for the year ending
29
th
February 2016 was not qualified, and therefore no reliance could be
placed on it.
[7]
With regard to the complaint of Ms Muthali the applicant alleges that
Road Accident Fund (RAF) paid R19 278-30 into the
respondents’
trust on the 17
th
July 2015. On the 18
th
and
22
nd
July 2015 amounts of R18 000-00 and R1000-00 were
respectively transferred to the firm’s business account. In the
ledger
account the transfer has been recorded as fees due to the
firm. The first respondent furnished Kaserera with proof of payment
to
the complainant by way of a bank guaranteed cheque. However, the
origin of the funds paying the complainant could not be established
and she was not paid out of the respondents’ trust account.
[8]
Regarding the complaint of Ms Molepo, according to the applicant, the
first respondent conceded delaying payment to the complainant
as his
party and party costs have not yet been paid by RAF. RAF paid
R128 060-00 into the respondents’ trust account
on the
16
th
November 2013. The respondents immediately debited
their fees. The complainant was paid R96 000 on the 25
th
May 2016. However, as at 18
th
February 2015 the
respondents’ trust account had a balance of R95-43.
[9]
Turning to the complaint of Ms Malungudzi, according to the
applicant, RAF paid the capital amount of R19 169-17 into the
respondents’
trust account on the 10
th
January 2008
together with an amount of R39 502-20 for taxed party and party
costs. The complainant was paid during June 2014.
According to the
applicant, the first respondent’s explanation was that he
forgot to pay the complainant after receipt of
payment of the party
and party costs.
[10]
With regard to the complaint of Ms Makhado, according to the
applicant, the first respondent has informed Ms Kaserera that
the
complainant was a client of Mankoe and Magabane Attorneys. The claim
was settled during the year 2000, and when the partnership
between
him and Mr Magabane was dissolved, the complainant’s file was
transferred to Mr Magabane. The first respondent did
not have any
records pertaining to that complaint, and Mr Magabane has since
passed away.
[11]
Regarding the complaint of Ms Buthelezi, the applicant received a
complaint on the 4
th
August 2015. The complainant was
alleging that she paid an amount of R112 000 into the
respondents’ trust account on
the 2
nd
September
2014. The payment was for the purchase and transfer of immovable
property belonging to a certain deceased estate. According
to the
applicant, the first respondent delayed in effecting transfer of the
immovable property. As a result of that, the complainant
cancelled
the deal on the 15
th
July 2015. The respondents delayed in
refunding the complainant, but only refunded her on the 15
th
September 2015, but failed to pay the interest accrued to the capital
amount.
[12]
Regarding the complaint of Ms Nengovela, the applicant alleges that
it forwarded the complaint to the first respondent for
his comment on
the 3
rd
September 2014 and 7
th
November 2014.
The first respondent replied on the 3
rd
December 2014
informing the applicant that the matter has been resolved and
attaching an affidavit by the complainant withdrawing
the complaint.
The complaint was about a RAF claim of which R49 042-00 was paid
into the respondents’ trust account
on the 7
th
June
2007. The complainant was paid R36 781-50 on the 31
st
August 2016.
[13]
According to the applicant, the respondents have contravened the
relevant provisions of the Attorneys Profession by failing
to retain
the firms’ accounting records, and all files and documents
relating to matters dealt with by the firm on behalf
of its clients
for at least five years from date of last entry; failed to update and
balance its accounting records monthly; did
not ensure that the
accounting records of the firm fully explain the transactions and
trust position of the firm; refused to comply
with a directive to
produce the firm’s accounting record for inspection;
failed to pay the amount due to clients within
a reasonable time;
failed to ensure that any withdrawal from the firm’s trust
account was made only in respect of a trust
creditor and also in
respect of money due to the firm; failed to ensure that under no
circumstances shall trust money be deposited
into the business bank
account; failed to ensure that no account of any trust creditor
is in debit; failed to ensure that
the total amount of money in the
trust account shall not be less than the total amount of credit
balances of the firm’s trust
creditors; first respondent failed
to ensure that he performed professional work or work of a kind
commonly performed by a practitioner
with such a degree of skill,
care or attention or of such quality or standard; and that the first
respondent failed within a reasonable
time after the performance or
earlier termination of his mandate, account to his clients in
writing.
[14]
As a result of what I have stated above, the applicant resolved to
approach the court for an order removing the first respondent’s
name from the roll of attorneys, alternatively that he be suspended
from practice as an attorney, and also sought associated orders
including the appointment of a curator.
[15]
The first respondent has filed his answering affidavit. In his
answering affidavit he is stating that the second respondent
has been
deregistered and he now practices as a sole proprietor under the name
and style Mankoe Attorneys. He denies having contravened
the
provisions of the Attorneys Act and the Rules for the Attorneys
Profession. However, his answering affidavit does not contain
substantive answers to the allegations raised by the applicant. With
the exception of the complaint of Ms Makhado, the first respondent
contends that he had resolved the complaints with the complainants as
encouraged by the letters from the applicant. After settling
the
disputes with the complainants he submitted signed affidavits from
complainants withdrawing their complaints in compliance
with the
directive from the applicant.
[16]
Regarding the complaint of Ms Makhado, according to the first
respondent the complainant and her minor child were involved
in a
motor vehicle accident. The claim of Ms Makhado was settled whilst
the firm was still operating under the name Mankoe and
Magabane
Attorneys. In 2002 the late Magabane opened his own practice and took
over the file of Ms Makhado as the claim of the
minor child has not
yet been finalised. The first respondent’s contends he is not
having details of that file.
[17]
The first respondent is therefore of the view that his conduct does
warrant the removal of his name from the roll of attorneys.
He
submits that such a decision should be taken as the last resort in
the absence of any other appropriate sanctions.
[18]
The matter was set down for hearing on the 3
rd
August
2018. On that date, counsel for the first respondent applied for
postponement of the matter, and his application was refused.
After
his application for postponement was refused, counsel for the first
respondent informed the court that he did not have instructions
to
argue the matter on the merits. He remained in court when the
applicant’s counsel moved its application.
[19]
Counsel for applicant submitted that the first respondent has
contravened numerous provisions of Attorney’s Act and the
applicant’s Rules. She submitted that these offences are
serious as it is a fundamental duty of an attorney to ensure that
trust money held on behalf of clients are kept safe. She further
submitted that the conduct of the first respondent amounts to
such a
material deviation from the standards of professional conduct and
therefore, he is not a fit and proper person to continue
to practise
as an attorney. In her view the first respondent’s name should
be removed from the roll of attorneys.
[20]
It is trite that this court exercises its discretion when it
determines whether an attorney is a fit and proper person to remain
on the roll of attorneys. If it is established that indeed, the
attorney is not a fit and proper person to practice as such, what
this court must decide is whether the attorney be struck off the roll
or suspended from practice. The applicant is a regulatory
body of the
attorneys’ profession and has a duty to protect the public and
the integrity of the profession.
[21]
Applications of this nature are regulated by section 22(1) (d) of
Attorneys Act 53 of 1979 (“the Act”) and it reads
as
follows:
“
22(1) any
person who has 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 with the jurisdiction of which
he practices.
(d) If he in the
discretion of the court, is not fit and proper to continue to
practice as an attorney…”
[22]
It settled law that the application in terms of s 22(1) involves a
three stage enquiry. The first enquiry is aimed at determining
whether the law society has established the offending conduct upon
which it relies on a balance of probabilities. The second question
is
whether, in the light of the misconduct thus established, the
attorney concerned is not a fit and proper person to continue
to
practice as an attorney, and this requires a value judgment. The
third enquiry yet again requires the court to exercise a discretion,
and determine whether the person who has been found not to be a fit
and proper person to practice as an attorney deserves the ultimate
penalty of being struck from the roll or whether an order of
suspension from practice will suffice. (See
Jasat v Natal Law
Society
2000 (3) SA 44
(SCA)
in
para 10 and Summerley v Law
Society of Northern Provinces 2006 (5) 613 (SCA) at para 2)
[23]
The applicant on receipt of the complaints forwarded them to the
first responded for his comment. The applicant seems to be
using a
template when forwarding complaints to the first respondent for his
comment. The covering letter attaching the complaints
sent the first
respondent reads as follows:
“
A complaint has
been made against at this office by the abovementioned complainant. A
copy thereof is attached hereto, for your
information.
Please: (1)
acknowledge receipt of this letter and;
(2) Furnish us with
your comments to the allegations against you on or before __
(3) Note further the
provisions of rules 95.2 and 89.25 which state that:
‘
Unprofessional
or dishonourable or unworthy conduct on the part of a practitioner
shall include:
95. 2 the failure to
provide an answer in elucidation or explanation in the said matter;
89.25 the failure to
comply with an order, requirements or request of the council or
request of the secretary.’
You might be facing a
charge against you for ignoring these rules. Please let us hear from
you by return post on/before __as time
is of the essence in the
investigation of complaints; and
(4) Note that you are
free to resolve the matter with the
complainant
but this should not serve as an interruption of the date of the
requested response; and
(5) In the event that
the matter is resolved between yourself and the complainant we
require the complainant to provide our offices
with a
written withdrawal of said complaint
.”
[24]
The simple interpretation of the abovementioned letter is that it
encouraged the first respondent to settle the complaints
with the
complainants. After settling complaints the complainant was required
to file a written withdrawal of the complaint with
the applicant.
However, the process of the first respondent negotiating with the
complainant does not interrupt the date on which
he had to furnish
the applicant with his response, unless he had applied for an
extension of time.
[25]
The first respondent took advantage of clause 4 and 5 of the
applicant’s letter and was able to settle all complaints
against him with the exception of that of Ms Makhado. He also
provided the applicant with affidavits of the complainants
withdrawing
their complaints against him. Despite that the applicant
still required the first respondent to furnish it with a proper
response
to the complaints. However, that was not a condition that
was included in the covering letter attaching the complaints sent to
the first respondent.
[26]
Paragraph 5 of the applicant’s covering letter attaching the
complaint is clear. It requires the complainant to provide
the
applicant with a written withdrawal of the complaint, of which in my
view once the withdrawal has been furnished, that is the
end of the
matter. If despite the withdrawal of the complaints, the applicant
still needed the first respondent to furnish it with
a proper
response to the complaints that were withdrawn, it should have
specifically stated that on its letter. In my view in relation
to the
five complaints, the first respondent had adequately dealt with the
complaints as per the applicant’s directive, and
I don’t
find any reason why he should be penalised for what he was encouraged
to do.
[27]
With regard to the complaint of Ms Makhado, the first respondent has
furnished the applicant with a reasonable explanation.
The applicant
seems to have accepted that explanation as the applicant in its
replying affidavit on this issue has simply noted
the first
respondent’s version.
[28]
However, that is not the end of the matter. There is the report of
Kaserera which is damning on the first respondent. The first
respondent in his answering affidavit has not challenged the findings
of Kaserera.
[29]
In her report, she found that the firms accounting records were not
regularly updated and also not properly updated to reflect
the true
trust position. That in my view is contravention of Rule 35.5 which
obliges an attorney to keep complete and accurate
accounting records
in accordance with the generally accepted accounting practice.
[30]
Kaserera reported that the first respondent did not furnish her with
all the accounting records and also did not co-operate
with her. That
is contravention of section 78(5) of the Act that empowers the
applicant through its nominee to inspect the accounting
records of
any attorney in order to satisfy itself that the provisions of the
Act relating to keeping of trust banking accounts
and maintaining of
proper accounting records relating to trust monies have been
observed.
[31]
Of more serious, and not to say that the other transgressions were
not serious, she found that as at 29
th
February 2016 there
existed a trust shortage of at least R115 227-00. Even though
the trust creditors who make up that shortage
were later paid by the
first respondent from other sources, it does not cure the trust
shortage as at the 29
th
February 2016, but merely mitigate
the risk against the Fidelity Fund. The trust creditors were supposed
to have been paid from
the trust account. What happened in this case
is that the first respondent had borrowed himself trust money, which
is nothing but
theft of trust money.
[32]
Kaserera also found that the first respondent has delayed in paying
the trust creditors and in some instances had taken years
to pay them
without any plausible explanation.
[33]
With regard to the first requirement, I am satisfied that applicant
has proved that the first respondent has delayed in paying
trust
creditors; a trust shortage existed as at 29
th
February
2016; the first respondent failed to furnish Kaserera with all the
firm’s accounting records when requested to do
so, and has also
not adhered to keeping the firms accounting records with the
generally accepted accounting practice. Therefore,
in my view, the
applicant has satisfied the first requirement.
[34]
With regard to second requirement, the applicant was admitted as an
attorney on the 29
th
August 1995. As at the 29
th
February 2016 he had practised for about 21 years as an attorney. He
had also practised as an attorney in partnership with the
late
Magabane. He therefore had vast experience in the attorney’s
profession. He had devised a sophisticated scheme of transferring
trust money to his business account which made it difficult even for
his auditors to pick it, as for the past years he was getting
an
unqualified audit certificate. In other words all his deeds were well
planned. Despite not substantially disputing the serious
allegations
levelled against him, he does not concede to having made a mistake or
error. In my view, his actions were deliberate
and well planned. His
actions is not expected of an attorney of his years of experience. He
is not alleging that he was inexperienced
in handling the trust
account or offer a plausible explanation for his actions. He simply
does not have any explanation for his
conduct. Therefore, in my view,
the applicant has satisfied the second requirement. The court
therefore find that in the light
of the misconduct, he is not a fit
and proper person to continue to practise as an attorney.
[35]
I turn to the third enquiry, whether the first respondent should be
struck from the roll or whether an order of suspension
from practice
will suffice. Striking him from the roll is a severe penalty.
However, as I have already found that by borrowing
himself trust
money amounted to theft, it follows that his transgression has an
element of dishonesty. It is trite that where dishonesty
is involved,
removal from the roll should follow, unless there are exceptional
circumstances, which in the present case are non-existent.
(See
Law
Society of Northern Provinces v Sontag
2012 (1) SA 372
(SCA)).
The
first respondent was involved in his scheme for over a period of
several years without acknowledging his error. He paid the
complainants only after they have lodged complaints with the
applicant.
[36]
Under the circumstances in my view, the only suitable sanction is the
removal of the first respondent’s name from the
roll of
attorneys. No exceptional circumstances have been shown to justify a
lesser penalty.
[37]
In the result the following order is made:
ORDER
37.1 That the name
of the first respondent Moditi Lucas Mankoe is removed from the roll
of attorneys.
37.2 That the first
respondent immediately surrenders and deliver to the registrar of
this Honourable Court his certificate
of enrolment as an attorney of
this Honourable Court.
37.3 That in the
event of the first respondent failing to comply with the terms of
this order detailed in the previous paragraph
within two (2) weeks
from the date of his order, the sheriff of the district in which the
certificate is, be authorised and directed
to take possession of the
certificate and to hand it to the Registrar of this Honourable Court.
37.4 That the
respondents be prohibited from handling or operating on the trust
accounts as detailed in paragraph 37.5 hereof.
37.5 That Johan van
Standen, the head: members affairs of applicant or any person
nominated by him, be appointed as a
curator bonis
(curator) to
administer and control the trust accounts of Respondents, including
accounts relating to insolvent and deceased estates
and any deceased
estate and any estate under curatorship connected with respondents’
practice as an attorney and including,
also, the separate banking
accounts opened and kept by respondents 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 provisions of the said
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:
37.5.1 immediately to
take possession of respondents accounting record, records files and
documents as referred to in paragraph
37.6 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 Respondents was acting at the date of this
order;
37.5.2 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 recover and receive and, if
necessary in the interests of person having lawful claims
upon the
trust account(s) and /or against the respondents in respect of monies
held, received and /or invested by the respondents
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 Respondents 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);
37.5.3 to ascertain from
the respondents’ accounting records the names of all persons on
whose account the respondents appears
to hold or to have received
trust monies (hereinafter referred to as trust creditors) and to call
upon the First 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 the names, addresses and amounts due to all
trust creditors;
37.5.4 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 the respondents and, if so, the
amount of such claim;
37.5.5 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 creditors or creditors’
right of access to the civil courts;
37.5.6 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 the fund.
37.5.7 in the event of
there being any surplus in the trust account(s) of the respondents
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 53 of 1979
in respect of any interest therein referred to
and, secondly without prejudice to the rights of the creditors of the
respondents,
costs, fees and expenses referred to in paragraph 37.10
of this order, or such portion thereof as has not already been
separately
paid by the respondents to applicant, and if there is any
balance left after payment in full of such claims, costs, fees and
expenses,
to pay such balance, subject to approval of the board of
control of the fund, to the first respondent, if he is solvent, or,
if
the first respondent is insolvent, to the trustee(s) of the first
respondent’s insolvent estate;
37.5.8 in the event of
being insufficient trust monies in the trust banking account(s) of
the respondents, in accordance with the
available documentation and
information, to pay in full the claims of trust creditors who 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;
37.5.9 subject to
approval of the chairman of the board of control of the fund, to
appoint nominees or representative and /or consult
with and /or
engage the services of the attorneys, counsel, accountants and/or any
other persons, where considered necessary, to
assist him in carrying
out his duties as curator; and
37.5.10 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 respondents has/have been
dealt with, until such time as the board notifies him that he may
regard his duties as curator as
terminated.
37.6 that the respondents
immediately delivers the accounting records, records files and
documents containing particulars and information
relating to:
37.6.1 any monies
received, held or paid by the respondents for or on account of any
person while practising as an attorney;
37.6.2 any monies
invested by the respondents in terms of
section 78(2)
and /or
section 78(2A) of Act No 53 of 1979;
37.6.3 any interest on
monies so invested which was paid over or credited to the
respondents;
37.6.4 any estate of a
deceased person or an insolvent estate under curatorship administered
by the respondents, whether as executor
or trustee or curator or on
behalf of the executor, trustee or curator;
37.6.5 any insolvent
estate administered by the respondents as Trustee or on behalf
of the trustee in terms of the
Insolvency Act, No 24 of
1936
;
37.6.6 any trust
administered by the respondents as trustee or on behalf of the
trustee in terms of the
Trust Properties Control Act, No 57 of
1988;
37.6.7 any company
liquidated in terms of the
Companies Act, 61 of 1973,
administered by the respondents as or on behalf of the liquidator;
37.6.8 any close
corporation liquidated in terms of the
Close Corporations
Act, 69
of 1984
, administered by the respondents as or on behalf of the
liquidator and;
37.6.9 the first
respondent’s practice as an attorney of this Honourable Court,
to the curator appointed in terms of paragraph
37.5 hereof, provided
that, as far as such accounting records, records, files and documents
are concerned, the respondents shall
be entitled to have reasonable
access to them but always subject to the supervision of such curator
or his nominee.
37.7 That should the
respondent fail to comply with the provisions of the preceding
paragraph of this order on service thereof upon
him or after a return
by the person entrusted with the service thereof that he has been
unable to effect service thereof on the
respondents ( as the case may
be), the sheriff for the district in which such accounting records,
records, files and documents
are, be empowered and directed to search
for and to take possession thereof wherever they may be and to
deliver them to such curator.
37.8 That the curator
shall be entitled to:
37.8.1 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 of fees and disbursement
due to the firm;
37.8.3 publish this order
or an abridged version thereof in any newspaper he considers
appropriate; and
37.8.4 wind-up of the
respondent’s practice.
37.9 That the first
respondent be and is hereby removed from office as:
37.9.1 executor of any
estate of which the first respondent has been appointed in terms of
section
54(1)(a)(v)
and section
85
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%">
37.9.2 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 of Estates
Act, No 66 of 1965
;
37.9.3 trustee of any
insolvent estate in terms of section
379(2)
read with 379(e)
of the Companies
Act, No 61 of 1973;
37.9.4 liquidator of any
company in terms of section
379(2)
read with
397(e)
of
the Companies
Act, No 61 of 1973;
37.9.5 trustee of any
trust in terms of section
20(1)
of the Trust Property Control
Act, no 57 of 1988’
37.9.6 liquidator of any
close corporation appointed in terms of section
74
of the
Close Corporation Act,
no 69 of 1984;
and
37.9.7 administrator
appointed in terms of section
74
of the Magistrate Court Act,
No 32 of 1944;
37.10 That the
respondents be and is hereby directed:
37.10.1 to pay, in terms
of section
78(5) of Act 53 of 1979
, the reasonable costs of
the inspection of the accounting records of the respondents.
37.10.2 to pay the
reasonable fees of the auditor engaged by applicant
37.10.3 to pay the
reasonable fees and expenses of the curator, including travelling
time;
37.10.4 to pay the
reasonable fees and expenses of any persons consulted and /or engaged
by the curator as aforesaid;
37.10.5 to pay the
expenses relating to the publication of this order or an abbreviated
version thereof; and
37.10.6 to pay the costs
of this application on an attorney and client scale.
37.11 That if there are
any trust funds available the respondents shall within six(6) 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 satisfy
the curator, by means of the
submission of taxed bills of costs or
otherwise, of the amount of the fees and disbursement due to the
first respondent in respect
of his former practice, and should he
fail to do so, he shall not be entitled to recover such fees and
disbursements from the curator
without prejudice, however, to such
rights (if any) as he may have against the trust creditors(s)
concerned for payment or recovery
thereof;
37.12 That 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 be authorised to issue a writ of execution on the strength
of such certificate
in order to collect the curator’s costs.
MF.
KGANYAGO J
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION,
POLOKWANE
I
agree
__________________________
GC
MULLER
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION,
POLOKWANE
APPEARANCE:
Counsel
for the applicant: Magardie SL
Instructed
by:Damons Magardie
Richardson
Attorneys
Counsel
for the respondents : in default
Instructed
by: indefault
Date
of hearing: 3
rd
August 2018
Date
of judgment: