Law Society of the Northern Provinces v Morabadi (15293/2016) [2017] ZAGPPHC 43 (9 February 2017)

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[2017] ZAGPPHC 43
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Law Society of the Northern Provinces v Morabadi (15293/2016) [2017] ZAGPPHC 43 (9 February 2017)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO. 15293/2016
DATE:
9/2/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN PROVINCES
Applicant
(Incorporated
as the Law Society of the Transvaal)
And
PULE
ABRAM MOROBADI
Respondent
JUDGMENT
NOCHUMSOHN
(AJ)
1.
This is an application for the striking of the Respondent's name from
the Roll of Attorneys together with ancillary relief.
2.
Applications of this nature are
sui
generis
and
of a disciplinary nature. There is no
lis
between
the parties. The Applicant, as custodian of the profession, merely
places the facts before the court, for its consideration.
[1]
3.
In terms of Section 22(1)(d) of the Attorneys Act No. 53 of 1979
("the Act"), any person who has been admitted and
enrolled
as an attorney may on application by the society concerned be struck
from the Roll or be suspended from practice by the
court within the
jurisdiction in which he practises, if, in the discretion of the
court, he is not a fit and proper person to continue
to practise as
an attorney.
4.
There are several criteria for the satisfaction of the relief,
viz:
4.1. It must be decided
on the facts, whether the alleged offending conduct has been
established.
4.2. In such event, the
court must impose a value judgment upon such conduct to enable a
decision as to whether or not such conduct
renders the attorney fit
and proper to remain in practice as an attorney.
[2]
4.3. If in its
discretion, the court determines that the attorney concerned is no
longer a fit and proper person to remain in practice,
it must decide,
whether in all the circumstances, the attorney is to be removed from
the Roll or merely suspended from practise.
Such decision would turn
on the severity and degree of the misconduct.
[3]
4.4. The Court's
discretion must be based upon the facts and such facts must be
established on a balance of probabilities.
[4]
4.5. Moreover, the facts
upon which the Court's discretion is based should be considered in
their totality rather than the consideration
of each issue
separately.
[5]
5.
THE OFFENDING CONDUCT
5.1. There were two
complaints lodged with the Applicant in relation to the conduct of
the Respondent. Arising out of these complaints,
the Applicant
dispatched a chartered accountant and auditor in the employ of its
monitoring unit, certain Mr A Reddy ("Reddy"),
who
conducted an investigation, pursuant to which Reddy filed a Report
with the Applicant which was annexed to the Founding Affidavit
("the
Reddy Report"). Reddy deposed to a confirmatory affidavit, which
was annexed to the Applicant's founding papers,
in which he confirmed
the contents of his report.
5.2. In the Reddy Report,
Reddy summarised the basis of the two complaints and unearthed a
third instance of misconduct, all of
which we will deal with
hereinbelow.
5.3.
THE FIRST
COMPLAINT
5.3.1.   The
first complaint was lodged with the Applicant by Attorneys Haasbroek
& Boezaart, acting on behalf of
certain doctor Kgarume
("Kgarume") who had instructed the Respondent to attend to
the administration of the estate of
the late Ponky Kgarume.
5.3.2.
Kgarume and the Respondent had signed a document purporting to be a
contingency fee agreement on 16 May 2010
for the purposes of the
administration of the estate of the said Ponky Kgarume, at an agreed
fee percentage of 15%.
5.3.3.   The
Respondent ought to have known that the entering into of a
Contingency Fee Agreement under the aegis of the
Contingency Fees Act
No. 66 of 1997
, for the administration of a deceased estate, would be
inappropriate, as payment of a contingency fee must be contingent
upon the
success of the matter. It is trite that there cannot be a
question of success or failure in relation to the administration of a

deceased estate.
5.3.4.   The
prevailing position is that an executor may charge 3.5% of the gross
asset value of a deceased estate, as
an estate administration fee,
and no more, unless specifically authorised by the Master of the High
Court.
[6]
Such tariff is
prescribed in accordance with
Section 51(1)(b)
of the
Administration
of Estates Act 66 of 1965
.
5.3.5.   In the
Answering Affidavit, the Respondent endeavours to justify the excess
charged, by averring that in addition
to having been mandated to
attend to the administration of the estate of the late Ponky Kgarume,
he was also instructed to claim
the deceased's pension from the
Government Employees Pension Fund, over and above the administration
of the said estate.
5.3.6.   From
the voluminous annexures attached to the papers, it is apparent that
the estate's claim against the Pension
Fund was pursued by the
Respondent, by way of correspondence. There is no evidence on the
papers that legal proceedings were instituted
by the estate against
the pension fund.
5.3.7.   In the
normal course of events, any executor in a deceased estate would
pursue the recovery of claims in favour
of an estate, by way of
correspondence.
5.3.8.   The
writing of letters to secure claims in favour of a deceased estate
would equate to no more than the discharge
of an executor's function
in the administration of a deceased estate. An executor is vested
with the duty to collect all monies
and/or claims due to the estate,
to reflect same in the Liquidation and Distribution Account and to
transfer such monies and/or
cede such claims to the heir. This is the
function of an executor, for which the prescribed tariff of 3.5%
prevails.
5.3.9.   Unless
extraordinary steps are taken by the executor in the pursuance of
claims, which would necessitate the
institution of legal proceedings,
there would be no basis for additional charges to be raised over and
above the prescribed tariff
of 3.5%.
5.3.10.The Respondent
stepped into the shoes of the executor, inasmuch as Kgarume had been
appointed by the Master of the High Court
as executor and had
executed a Special Power of Attorney in such capacity, in favour of
the Respondent, authorising and instructing
the Respondent to take
all such steps on his behalf for the effective administration of the
estate.
5.3.11.Whilst an executor
is bound by the prescribed tariff and may only deviate therefrom, if
consent is granted by the Master
in accordance with
Collie NO v
The Master of the High Court
1972 (3) SA 63
(AO) supra,
an
attorney who administers a deceased estate under a Special Power of
Attorney granted in his favour by the executor is not bound
by the
tariff and may charge a reasonable amount as may be agreed to between
the executor and his attorney.
5.3.12.One would expect
that other than in extraordinary cases, an attorney administering a
deceased estate on behalf of an executor
whilst acting under a
Special Power of Attorney granted by an executor, as was the case in
this instance, would not charge a rate
excessively in excess of the
legislated tariff and would look to such tariff as a guideline.
5.3.13.From the
Liquidation and Distribution Account which was annexed to the
founding papers, it is apparent that the gross asset
value in the
estate of the late Ponky Kgarume totalled R835 652.99, 3.5% of which
equates to R29 247.85.
5.3.14.Item number 3 of
such Liquidation and Distribution Account reads
"Executor's
fees 3.5%
on R835 652.99
-
R25
069.58". Whilst
nothing much turns on the obvious arithmetical error between R29
247.85 and R25 069.58, the clear intention
was to lodge a Liquidation
and Distribution Account on the basis that the executor's
remuneration would be reflected at the legislated
tariff.
5.3.15.The only
additional fees reflected in such Liquidation and Distribution
Account appear at item number 4, which reads
"Morobadi
Attorneys Incorporated transfer costs Erf 1217
-
R9 604.
20".
This fee is clearly a conveyancing fee for the transfer to the heir
of the estate's immovable property reflected at item
number 1 of such
Liquidation and Distribution Account.
5.3.16.The two fees
reflected of R25 069.58 and R9 604.20 total R34 673.78. It is
approximately this amount which one would have
expected the
Respondent to have charged, for both the administration of the
deceased estate as well as for the associated conveyancing,
which is
always charged for in addition to the legislated executor's
remuneration.
5.3.17.From the Reddy
Report it is apparent that a cumulative amount of R67 726.80 was paid
to the Respondent as fees for services
rendered in the administration
of the estate of the late Ponky Kgarume.
5.3.18.The illegitimate
Contingency Fee Agreement provided for payment to the Respondent of a
fee equating to 15% of the gross asset
value of the estate. 15% would
have equated to the sum of R125 347.94. However, the Respondent
charged substantially less, being
the aforesaid amount of R67 726.80.
This notwithstanding, the latter amount is almost double the amount
which the legislated tariff
plus the aforesaid conveyancing charge
would have yielded. To this end, it is quite apparent that the
Respondent has over-reached
his client, Dr Kgarume.
5.3.19.A further factor
which militates against the Respondent, lies in his transgression of
Section 51(4)
of the
Administration of Estates Act 66 of 1965
, which
prevents an executor from receiving any remuneration before the
estate has been distributed as provided for in
Section 34(11)
or
35
(12), as the case may be, unless payment of such remuneration has
been approved in writing by the Master of this Court.
5.3.20.Far more
disturbing than the entering into of the ill-conceived Contingency
Fee Agreement, the said over-reaching and the
breach of
Section 51(4)
of the
Administration of Estates Act, is
the fact that a cumulative
amount of R48 000.00 was paid by the Respondent out of the funds of
the estate of the late Ponky Kgarume
(over and above the fees of R67
726 .80) into the Respondent's business account. The Respondent
admits these cumulative payments
but ascribes such payments to a loan
to his firm.
5.3.21.The Respondent, in
his Answering Affidavit, avers that he was
"swimming in debt
at that time and was experiencing serious cash flow problems".
He was in arrears with his rental and other operational expenses
such as telephone bills, had borrowed monies from family and friends

to keep the practice running, was finding it difficult to survive
taking into account that operational costs and sundries had to
be
paid in order for the practice to function. Even though he had
debited fees of R67 726.80, he avers that the amount was not
enough
to cover the amounts due by his practice, in terms of arrear and
current expenditure. He found himself, as a young practitioner
at the
time, in an undesirable situation where he had to
"loan"
money from the estate late account.
5.3.22.The Respondent
avers further that he had at that stage invoiced Dinokeng Tsa Taemane
Municipality for services rendered and
was expecting the payment, his
intention being that when he
"loaned"
the money from
the estate late bank account, he would repay the
"loan"
as soon as he received payment from the municipality.
5.3.23.The Respondent
averred further that when the payment was not made by the
municipality he, of his own volition, informed his
client, who was a
close member of his family, that he had
"loaned'
the
money and undertook to repay same. The Respondent set out in his
papers he had learnt a lesson from this conduct, for which
he was
deeply sorry. The Respondent showed deep remorse for this conduct,
faced financial ruin at a very early stage of opening
his practice,
was without funds or solutions to his problems, and clearly had every
intention of effecting the repayment of these
funds against receipt
of monies from Dinokeng Tsa Taemane Municipality.
5.3.24.Whilst these
admissions by the Respondent are mitigating and from the papers it is
clear that the Respondent has repaid the
R48 000.00 and has shown
substantial remorse, the Court is still nevertheless faced with an
attorney having helped himself to R48
000.00 from a deceased estate
bank account under his control, without the knowledge or consent of
his client, the executor.
5.3.25.Financial
misconduct on the part of an attorney is the most serious breach of a
fiduciary relationship that an attorney has
with his client. Such
conduct completely erodes the very trust which the public ought to be
in a position to place in the legal
practitioners who represent them
and undertake their affairs.
5.3.26.Out of all the
rules, codes of conduct, ethical standards and norms applicable to
the attorneys' profession, the most sacrosanct
are those pertaining
to the handling of trust monies. Whilst monies in a deceased estate
under the care and control of an attorney
are not regulated in the
same manner as trust funds in an attorney's trust account, from the
attorney's perspective, such monies
require the same nurturing and
care as trust funds and are for all intents and purposes, inseparable
from trust funds. Thus the
helping himself to the cumulative amount
of R48 000.00 without the knowledge or consent of his client is a
very serious factor
militating against the Respondent.
5.3.27.The mitigating
factors for the Respondent, in relation to this complaint, lie in the
following facts:
5.3.27.1.
before the complaint was lodged with the Law Society, the Respondent
approached his client and admitted
to what he had done and undertook
to repay the money and did so repay the money;
5.3.27.2.
this incident took place some six years ago and there has been no
further evidence of any misappropriation
of trust funds or any estate
funds under the Respondent's control;
5.3.27.3.
the Respondent was a very young practitioner at the time that he
entered into the contingency fee agreement
and did not have the
benefit of years of experience to have known that it was incompetent
to enter into a contingency fee agreement
in relation to the
administration of a deceased estate;
5.3.27.4.
the Respondent did not charge the full 15% provided for in the
contingency agreement and limited himself
to half of what the
agreement provided.
5.4.
MISCONDUCT
UNEARTHED BY REDDY
5.4.1.   In the
course of his investigation, Reddy unearthed conduct on the part of
the Respondent, in relation to certain
DK Manganya, whom the
Respondent represented in a claim against the Road Accident Fund.
Pertinent to note: at no time did Manganya
report the Respondent to
the Applicant for any form of misconduct.
5.4.2.   Reddy
ascertained that:
5.4.2.1. Manganya had
signed a Contingency Fee Agreement with the Respondent, stipulating a
fee equating to 25% of the capital amount
to be retained, on success
of Manganya's claim against the Road Accident Fund.
5.4.2.2. On 5 June 2014,
the Respondent's firm received into its trust account an amount of R1
352 780.00. Upon 25 June 2014, a
further amount of R103 781.59 in
respect of taxed costs was received.
5.4.2.3. The trust ledger
account of Manganya, in the Respondent's books of account reflected
that a cumulative amount of R591 976.59
was paid out of the
Respondent firm's trust account into its business account.
5.4.2.4. Reddy noted that
the Respondent charged Manganya a fee amounting to R338 195.00,
equating to 25% of the capital in accordance
with the Contingency Fee
Agreement and had also retained the party and party costs of R103
781.59, in lieu of recovering disbursements.
5.4.3.
Applying simple arithmetic, the 25% fee to which the Respondent was
entitled in the sum of R338 195.00 plus the
taxed costs recovered of
R103 781.59 plus the sum of R150 000.00 equals the amount of R591
976.59 which was paid out of the Respondent's
trust account, drawn
against the ledger account of Manganya and paid into the Respondent's
business account.
5.4.4.   The
Respondent avers that he was entitled to retain the taxed costs
recovered of R103 781.59 in lieu of recovering
disbursements from his
client and that the amount of R150 000.00 was a gratuitous amount
paid by Manganya, as an expression of
his satisfaction for good
service. The Respondent attached a Confirmatory Affidavit to his
Answering Affidavit by Manganya to this
effect. The relevant
paragraphs of such Affidavit read as follows:
"2.
I willingly
and personally out of my own will offered and gave Mr Pule Morobadi
of Morobadi Incorporated the amount of R150
000.00
on top of
the
25%
which was due to his Law Firm.
3. I confirm that Mr
Pule Morobadi of Morobadi Incorporated had explained to me that he
was only entitled to
25%
as per our agreement however I still
decided to add more to thank him."
In addition, the
Respondent annexed to his answering affidavit, a letter addressed by
him to Manganya, dated 28 May 2014, the relevant
portions of which
read:
"We confirm that
Mr Manganya was informed of the fact that he was only liable to pay
25%
of the claim as our professional fees and he understands
same. He offers this as
a
gesture of
thankfulness for
the overwhelming effort he has experienced from our service
intervention in assisting him. By signing this letter,
he confirms
that the amount of R150 000.00 be paid to Mr P Morobadi, in his
personal capacity,
as a
way of showing appreciation for the
diligent service offered. He confirms that he signs this letter with
no undue influence and
is happy to do
so
voluntarily. He
releases
these funds with no intention to reclaim the monies
back from Mr Pule Morobadi, and indemnifies Mr Morobadi against any
future claims."
It is important to note
that this letter bears the signature of both the Respondent and
Manganya and such signature of Manganya
is dated 28 May 2014, below
the words
"confirmed'.
5.4.5.   It is
noteworthy that Manganya's Confirmatory Affidavit is silent upon the
retention by the Respondent of the
taxed costs in the sum of R103
781.59 in lieu of the recovery of disbursements, in circumstances
where one would have expected
the gratuitous client to have been
apprised of his rights to his taxed costs against the recovery of the
actual disbursements incurred.
Had Manganya been aware of his right
to receive his taxed costs and be debited with the actual
disbursements incurred, one would
have expected the Respondent to
have set such facts out in detail in his opposing papers, which
likewise ought to have been confirmed
by Manganya.
5.4.6.   The
failure to have dealt with this issue in Manganya's affidavit gives
rise to the suspicion that Manganya had
not been informed of his
right to recovery of his taxed costs, with the result that his
gratuity, without his knowledge, would
have been in excess of the
R150 000.00, to the extent of the difference between the taxed costs
and the actual disbursements incurred,
which were not quantified in
the papers.
5.4.7.   Whilst
the Respondent has breached the
Contingency Fees Act by
retaining the
taxed costs of R103 781.59 in lieu of the recovery by him of the
actual disbursements incurred, there was some doubt
as to the norms
of practice within the organised attorney's profession in relation to
the retention of taxed costs. Mr Molele for
the Respondent drew to
our attention that in the minute of the meeting of the council of the
Applicant, in which it was resolved
that the Application be launched,
one Mr Janse Van Rensburg was recorded to have said that there was a
general misconception amongst
members in relation to costs and
suggested that members be alerted of the correct position by way of a
Newsflash, which proposal
was accepted.
5.4.8.   Mr
Molele argued further that the accepting of the further R150 000.00
may have been undesirable and could strike
at the conscience of a
practitioner, but could not be viewed as a contravention of the
Contingency Fees Act, given
that same was paid on a gratuitous basis
by the client, with knowledge of the fee limitation.
5.4.9.   The
mitigating factors for the Respondent lie in the following:
5.4.9.1. Manganya had not
reported any form of misconduct to the Applicant, the issues in
relation to whom were raised by Reddy;
5.4.9.2. from the minute
of the Council of the Applicant, filed of record, there was
uncertainty at the time as to the position
in relation to the
retention of taxed coasts, necessitating the dispatch of a news
flash;
5.4.9.3. Manganya was
aware of the fee limitation of 25% and chose to pay the additional
R150 000.00 as a gift to the Respondent.
5.5.
THE SECOND
COMPLAINT
5.5.1.   On 23
July 2015, the Applicant received a complaint from Moses Mpendulo
Radebe ("Radebe"), the Deputy-Director
of the Anti­Fraud
and Corruption Unit of the Gauteng Province, Department of Human
Settlements ("the Department").
5.5.2.   The
nub of the complaint was that the Respondent was refusing to meet
with the Department to review both the
work which the Department had
appointed him to undertake, as well as the payments received by him
pursuant to such work.
5.5.3.   The
Respondent replied to the complaint, which response was accompanied
by a letter from one Advocate Dineo Gomba,
the senior legal adviser
and Deputy Information Officer at the Gauteng Department of Human
Settlements ("Gomba") dated
21 August 2015. In such
response, the Respondent states that Gomba indicated that the mandate
given to him was performed to her
satisfaction. The Respondent went
on to add that there was therefore no reason to bring the matter to
the Law Society.
5.5.4.
Moreover, Gomba, in the said letter of 21 August 2015 adds that the
inquiry to the Law Society was premature
as the matter was internal
and the complainant, Radebe, did not have the authority to contact
the Applicant, especially when proper
internal processes had not been
followed.
5.5.5.   The
said letter is signed by Gomba in her capacity as Senior Legal
Adviser and the Deputy Information Officer
of the Complainant.
5.5.6.   Gomba,
in the aforesaid letter masquerades as a higher form of authority in
the house of the complainant over
that of Radebe, who lodged the
complaint on its behalf. The letter was clearly written with a view
to inducing the Applicant into
withdrawing the complaint against the
Respondent.
5.5.7.   On 7
September 2015, Radebe notified the Applicant that Gomba had been
suspended for
"amongst other things her response to the
Northern Province Law Society".
5.5.8.   On 19
November 2015, Ms Papadi Makhetha, the director of the Anti-Fraud and
Corruption Unit of the Gauteng Province,
Human Settlements addressed
a lengthy letter to the Applicant (attached to the Founding Affidavit
as Annexure 9). Such letter sets
out, in summary, the following:
5.5.8.1. On 1 April 2015,
the Bid Adjudication Committee ("BAC") held a meeting to
consider a request for approval of
payment to the Respondent, for
services rendered, which request had been presented by Gomba.
5.5.8.2. The Respondent
had been mandated to draft the Department's Promotion of Access to
Information Manual, its Records Management
Policy and to institute
litigation process for cancellations of title deeds due to fraud,
which last service emanated from an investigation
conducted by the
Anti-Fraud and Corruption Unit.
5.5.8.3. Concerns were
raised by the BAC who noted that exorbitant fees had been charged by
the service provider, in circumstances
where Legal and Advisory
Services could not provide reasons why the fees were not capped. In
addition, it was noted that there
were excessive fees with regard to
the cancellation of one title deed, where Gomba had provided an
estimate of approximately R300
000.00.
5.5.8.4. After
investigation, the Department found that Gomba had prepared invoices
on behalf of the Respondent, who was required
to choose and insert
the date on the invoice, place them on a letterhead and re-send them
to Gomba to process payment.
5.5.8.5. The Department's
findings regarding invoices 1021 to 1023 were that the Respondent was
paid an amount of R1 409 969.00
in October 2014 under invoices 1016
to 1018 dated April and May 2014 for doing similar work. The
supporting documentation attached
to both set of invoices 1016 to
1018 and invoices 1021 to 1023 are identical, inferring that the
Respondent had invoiced the Department
twice using the same
supporting documents for services he supposedly rendered.
5.5.8.6. The Department's
findings on its Digital Forensic Analysis were that Gomba colluded
with the Respondent to defraud the
Department in an amount of R1 687
844.00 already paid to the Respondent and to further defraud the
Department in an amount of R1
226 194.40 in relation to invoices
submitted to the BAC for payment.
5.5.8.7. The Department
recommended that its Legal and Advisory Services Directorate should
instruct the State Attorney to institute
legal proceedings to recover
an amount of R1 687 844.00 from Gomba and the Respondent, jointly, in
respect of payments for services
not actually rendered by the
Respondent.
5.5.8.8. Regarding a
legal opinion purportedly prepared and submitted by the Respondent,
the opinion was allegedly prepared and
sent to Ms Gomba by Malebye
Motaung Mtembu Attorneys ("MMM Attorneys") in May 2012, was
plagiarised and illegally appropriated
from MMM Attorneys by the
Respondent, with identical footnotes, case law and everything in the
document.
5.5.9.   The
Applicant set out the entire complaint by the Department of Human
Settlements in paragraph 16 of the Founding
Affidavit and attached
the correspondence referred to above as annexures. Annexed to such
correspondence was a copy of an affidavit
deposed to by the said
Papadi Makhetha in litigation between the Department of Human
Settlements and certain Lisa Nkonjane and
others, as well as letters
from MMM Attorneys.
5.5.10.One would have
expected the Respondent to have dealt with these paragraphs in great
detail in his Answering Affidavit. Yet,
against these damning
allegations, the Respondent merely avers that he did receive
instructions from the Department to render legal
services for the
preparation of a manual, which he prepared, completed, submitted and
drafted Affidavits as well as legal opinions
for the Department.
5.5.11.When probed by us
in the course of argument, as to the reasons for the Respondent's
failure to have dealt with these serious
allegations, Mr Molele
submitted that on the Respondent's version, he did the work for the
Department, presented his invoices and
was paid for the services
rendered.
5.5.12.The Respondent
delivered a notice in terms of
Rule 35(12)
, in which he called for,
inter alia copies of:
5.5.12.1.
All documents from the Disciplinary Department calling upon the
Respondent to appear for an Inquiry
under Section 71 of the Act;
5.5.12.2.
The Record of the inquiry proceedings against the Respondent;
5.5.12.3.
Council's or committee's judgment against the Respondent;
5.5.12.4.
Written Report of the findings of the Committee to the Council
together with recommendations that the
Respondent be removed from the
roll of practitioners;
5.5.12.5.
The minutes of the meeting that was held at the offices of the Law
Society on 19 November 2015 with
the complainant Radebe and his
senior Ms Papadi Makhetha;
5.5.12.6.
The digital forensic analysis report upon which the Bid Adjudication
Committee of the Department of
Human Settlements made its findings;
5.5.12.7.
The Record of the proceedings in which the Council considered all the
facts available to it concerning
the Respondent;
5.5.12.8.
The Record of the proceedings in which it was concluded by the
Council of the Applicant that the Respondent
had made himself guilty
of unprofessional or dishonourable or unworthy conduct;
5.5.12.9.
The Minutes of the meeting of the Council of 27 November 2015.
5.5.13.The Applicant
filed a reply to the Respondent's Notice in terms of Rule 35(12),
from which it was apparent that there was
no Disciplinary Inquiry in
terms of Section 71 of the Act. Moreover the Applicant attached a
copy of the Reddy Report and a memorandum
from Jalo Heroldt of the
Disciplinary Department ("Heroldt") to the Council,
requesting that the Council take steps to
remove the Respondent from
the roll of attorneys, as well as the minutes of the Council meeting,
in which it was resolved to launch
this application. Attached to the
memorandum by Heroldt is a document headed
"Recommendation by
the Disciplinary and/or investigating committee chaired by CR Ou
Plessis",
in which it was recommended that the Respondent
appears before a Disciplinary Committee, to answer charges of
inter
alia,
Fraud. Furthermore in such reply, the Applicant states that
it is not in possession of the digital forensic analysis report on
which
the Bid Adjudication Committee of the Department of Human
Settlements had made its findings.
6.
In his answering affidavit, the Respondent takes issue with the
Applicant for having ignored the recommendation of the Disciplinary

and/or Investigating Committee, by failing to have taken steps to
orchestrate a disciplinary inquiry. The Respondent avers that
by such
failure, the Council of the Applicant bypassed its own process in
terms of its own rules and ignored the recommendation,
rendering the
Application to this Court, for the removal of his name from the Roll,
as unlawful and illegal.
7.
In argument, Mr Molele raised that Heroldt did not have the authority
to make a recommendation and by doing so, she was usurping
the
function of the committee, which cuts across the principles of
legality. In accordance with such principles, it was argued
that by
making such recommendation, Heroldt was acting beyond her powers and
that such conduct was
ultra vires.
8.
In response to this argument raised by the Respondent, the Applicant
avered in its replying affidavit that this court is empowered
to
grant the relief sought, in terms of Section 72(6) of the Attorneys
Act, which reads:
"(6) The
provisions of this section shall not affect the power of-
(a)
a
society to apply in terms of the provisions of this Act for the
suspension from practice or the striking from the roll of any

practitioner against whom an enquiry
is
being or
has
been
conducted in terms of this Act in respect of the conduct which forms
or formed the subject matter of such enquiry.
(b)
a
competent court, at the instance of the society concerned, to suspend
any practitioner from practice or to strike him from the
roll."
9.
In the normal course of events, the disciplinary process of the
Applicant would be to convene an enquiry in terms of Section
71 of
the Act. In terms of Section 71(1) of the Act, the Council of the
Applicant
MAY
{my
emphasis}
enquire into cases
of alleged unprofessional, or dishonourable or unworthy conduct on
the part of any attorney. Such enquiries are
usually conducted by
committees of the Council, formed under Section 67 of the Act.
10.
Such enquiries are held in accordance with the Rules of the
Applicant. The Rules of the Applicant, made under authority of
Section 74(1) of the Act and promulgated in Government Gazette No.
7164 of 1 August 1980 and all the subsequent amendments thereto,
were
repealed in
toto,
and replaced by the
Rules for the
Attorneys' Profession,
published in Government Gazette No. 39740,
26 February 2016, being Notice 2 of 2016 and approved by the Chief
Justice of South Africa
in consultation with the Judges President of
the Gauteng and North West Divisions of the High Court in terms of
Section 74(2) of
the Act, and such rules came into effect upon 01
March 2016. The upshot is that the Rules applicable to the case
in
casu
would have been the prior rules which were repealed by
publication of the notice aforesaid, the application having been
issued
prior to 01 March 2016.
11.
The applicable prior rule governing disciplinary proceedings was Rule
95 (replaced by the present Rule 50), which empowered
the council
through a committee formed under Section 67 of the Act to either
prosecute an offender by way of a formal disciplinary
enquiry,
alternatively to call upon a member to appear before an investigative
committee, in order to elucidate and explain the
particulars
surrounding any complaint. Such investigating committee, after
hearing all submissions, would then consider the matter,
and either
recommend that the complaint be dismissed or that the attorney be
formally charged under the rules and brought before
a formal
disciplinary enquiry.
12.
If brought before a formal disciplinary enquiry, the member would be
called upon to face a detailed charge, to appear before
a
disciplinary committee, to plead to the charge and to present oral
evidence. Witnesses are called by both the complainant as
well as the
member and evidence is adduced under oath. In many ways, such enquiry
resembles a quasi-trial, the purpose of which
is for the disciplinary
committee to determine the guilt or innocence of the member upon the
charges brought.
13.
The most important rule governing the procedure in circumstances
where a member is convicted of a charge and it is sought to
have the
member suspended from practice or struck from the roll, is rule 101
which reads:
"101.1  Should
an enquiry be held before
a
committee appointed by the council
in terms of Section 67 of the Act, and at the conclusion of the
enquiry, the practitioner be
found guilty of unprofessional, or
dishonourable or unworthy conduct, in terms of Section
72
of
the Act, the committee may impose any punishment in respect thereof
which
is
permitted in terms of Section
72
of the Act;
provided that if at any
stage
during the enquiry, the
committee
is
of the opinion that the conduct of the
practitioner
is
such
as
to warrant an application by
the society in terms of the Act for suspension from practice or the
striking from the roll of the practitioner,
it shall:
101.1.1
as
soon
as
possible submit a written report on its findings to the
council, together with its recommendations regarding the suspension
from
practice or the striking from the roll of the practitioner;
101.1.2at the
same
time deliver a copy of its report and recommendations to the
practitioner and call upon the practitioner to furnish the council
with representations in writing, within such period
as
the
committee considers reasonable, but in an event within not
less
than seven days, why application should not be made for suspension
from practice, or
as
the
case
may be, for the striking
from the roll of the practitioner.
101.2
On
receipt of the report and written recommendations of the committee,
in terms of rule 101.1.1, and the written representations
of the
practitioner, in terms of rule 101.1.
2,
the council shall
consider the matter and shall:
101.2.1if it shall
decide to proceed with an application for suspension from practice or
for striking from the roll, advise the
practitioner accordingly and
take such further steps
as
may be necessary in that regard; or
101.2.2if it shall
decide not to proceed with an application for suspension from
practice or for striking from the roll, refer back
to the committee,
together with
a
copy of the written representations of the
practitioner, for the committee to dispose of
as
it
sees
fit; or
101.2.3if it considers
it appropriate, call upon the practitioner, upon not
less
than
seven days' notice, to appear before the council at such time and
place
as
the council may determine to show cause why
application should not be made for suspension from practice or for
striking from the
roll of the practitioner; provided that if the
practitioner
does
not furnish written representations to the
council
as
requested, or fails to appear before the council,
as
the
case
may be, the council shall be entitled to
consider the report and recommendations of the committee, in the
absence of such representations,
or in the absence of the
practitioner.
14.
It is clear from the annexure to the memorandum by Herholdt of 06
November 2015, comprising a recommendation that the respondent
be
summoned before a disciplinary committee to answer charges of,
inter
alia,
fraud, that the presiding committee was no more than an
investigative committee in terms of Rule 95, who recommended that
formal
charges be brought before a disciplinary committee.
15.
The question that then begs to be asked is whether it was competent
for Herholdt to request, as she did, that the Applicant
moves to
launch this striking application, or whether the Applicant was duty
bound to follow the recommendation of the investigative
committee by
proceeding with a formal disciplinary enquiry.
16.
Had the Applicant followed the recommendations of its investigating
committee and called upon the respondent to appear before
a
disciplinary committee, such committee would have been in a position
to probe the serious allegations made by the department
of Human
Settlements, under oath. It would have been possible to call both Ms
Papadi Makhetha and Radebe to testify at such enquiry,
under oath. It
may have been possible for such parties to adduce the said forensic
analysis report, upon which the findings of
the Bid Adjudication
Committee were based. The Respondent would in those circumstances
have had an opportunity to cross examine
such witnesses and adduce
evidence of his own in response to the serious allegations made.
17.
Moreover, had such process been followed and in the event that such
disciplinary committee may have convicted the Respondent
and sought
to bring about his striking from the roll or suspension from
practice, it would have been necessary to follow the detailed
process
set out in the Applicant's Rule 101. Had such rule been followed, it
would have been incumbent upon such disciplinary committee
to submit
a written report, together with its recommendations to the council,
who would have been duty bound to invite the Respondent
to make his
representations in writing to the council, before the council would
have been able to decide whether or not to proceed
with this
application.
18.
Perhaps the answer to the question as to whether Herholdt could have
made the recommendation which she did, to the council and
whether the
council could have acted thereon without following its aforementioned
process, lies in an analysis of Section 67, as
read with Section
72(6) of the Act. In terms of Section 67, the Council
may
[my
emphasis] appoint committees to assist with the carrying out of its
functions. Specifically, in terms of Section 67(2), a Council
would
not be divested of any power which it may have assigned to a
committee and may amend or withdraw any decision of such committee,

provided that if the committee has been assigned to enquire into a
case of alleged unprofessional, or dishonourable or unworthy
conduct,
the council may not amend or withdraw any decision arrived at by such
committee.
19.
We can find no merit in the Respondent's argument that the Applicant
was bound by the decision of its committee. In the first
instance,
the committee was not a disciplinary committee, but rather an
investigative committee and moreover, the decision was
not a decision
in the form of a finding with the implementation of a punitive
measure, but was no more than a mere recommendation
to escalate the
matter to a formal charge before a disciplinary committee.
20.
In the circumstances, it was not peremptory for the council to have
pursued a formal charge before a disciplinary committee,
if in the
opinion of the council, the Respondent was no longer considered to be
a fit and proper person to remain in practice as
an attorney. The
Applicant passed a resolution to bring an application for the relief
sought in these proceedings, as it was entitled
to do, in accordance
with Section 72(6) of the Act, (as read with Section 22(1)(d) ),
which specifically provides that the provisions
of Section 72, which
sets out the Council's disciplinary powers, would not affect the
power of the applicant to apply for the suspension
from practice or
the striking from the roll of any practitioner against whom an
enquiry is being or has been conducted in terms
of the Act, in
respect of the conduct which forms or formed the subject matter of
such enquiry.
21.
There was nothing
ultra vires
in the actions of Heroldt.
Heroldt is a legal official in the employ of the Applicant, who did
not recommended that this application
be launched. She merely
requested that the Applicant proceed with an application to have the
Respondent's name struck from the
roll. Whilst the request was not
ultra vires,
we would discourage the Applicant from acting
upon requests of this nature, as by doing so, the perception would be
created that
the council of the Applicant could be persuaded to place
a higher emphasis and act upon the requests of its staff members,
rather
than the requests and recommendations of its investigative
and/or disciplinary committees.
22.
Having regard to the aforegoing, it stands to reason that the council
of the Applicant was entitled to pass a resolution for
the launching
of these proceedings, without the convening of a formal disciplinary
enquiry, which the Applicant would be fully
entitled to do, in
suitable cases, which require the immediate attention of the court.
However, by sidestepping its process and
rules and by resolving to
launch an application of this nature in terms of Section 72(6) of the
Act, the Applicant acts at its
own peril if the facts and
circumstances giving rise to the relief sought are untested and no
more than allegations which have
not been made on affidavit and in
respect of which the probative value may be questionable without
having followed due process.
23.
Whilst the allegations against the Respondent by Ms Papadi Makhetha
are serious and damning, which if proved would undoubtedly
leave the
Respondent in the position that he would then no longer be a fit and
proper person to remain on the roll of practitioners,
we cannot
accept such evidence, unchallenged, which was not adduced under oath
in these proceedings, least of all without the benefit
of any oral
evidence having been led under oath before a disciplinary committee,
without the findings of a disciplinary committee,
without a report
under Rule 101, without the Respondent having been given an
opportunity to respond to such report, without the
council having
considered any such report or the respondents responses thereto. It
seems grossly harsh to strike the Respondent
from the roll, or
suspend him from practice upon the basis of nothing more than a
letter which is not supported by any affidavit
or any evidence under
oath in these proceedings. At the very least, the Applicant could
have obtained a confirmatory affidavit
from Ms Papadi Makhetha,
confirming the correctness of her letter dated 19 November 2015 as
well as the copy of the affidavit which
was annexed, against Lisa
Nkonjane. Without this much, in relation to the complaint the
Applicant cannot be said to have passed
the first leg of the test
required for the relief sought and that is that on the facts
presented the alleged offending conduct
has not been sufficiently
established in accordance with acceptable laws of evidence, to mete
out a conviction in terms of the
Applicant's own rules. Without it
having been peremptory, had the Applicant followed its disciplinary
process, these damning allegations
may have been established with
sufficient a degree of certainty to meet the first leg of the test.
24.
Accordingly, when all of the other conduct is cumulatively assessed,
it draws us to the conclusion that it certainly was unprofessional

and dishonourable, if not unworthy on the part of a practitioner, for
the Respondent to have taken and used for his own account,
R48 000.00
out of the Estate of the Late Kgarume, without the knowledge of the
executor, to have overcharged the estate as he did,
to have taken his
fee prematurely, as he did, and to have retained the taxed bill of
costs of Mr Manganya. Had the Respondent been
called before a
disciplinary enquiry on these charges, he would probably have been
fined or reprimanded in accordance with Section
71 (a) of the Act and
it is doubtful that any committee would have considered such conduct
to be sufficiently serious so as to
warrant a suspension from
practice or a striking from the roll, given all of the mitigating
factors referred to above.
25.
All aspects considered, and upon application of the applicable tests,
enunciated above, upon the facts, cumulatively assessed
and correctly
contextualised as presented, there is insufficient offending conduct
established to motivate a striking from the
roll or suspension from
practice. This may not have been so, had the allegations made by the
Department of Human Settlements been
proven facts. Given the
mitigating factors in relation to the other conduct, even though such
conduct is dishonourable, when imposing
a value judgement upon such
conduct, we do not consider same to be such so as to render the
Respondent unfit to remain in practice
as an attorney.
26.
Accordingly, whilst it was competent for the Applicant to sidestep
its disciplinary procedures and to launch this application,
in these
particular circumstances, it was undesirable for the Applicant to so
conduct itself, as by doing so, the Applicant was
unable to prove its
case with sufficient degree of certainty to establish the necessary
facts. There may be many other instances
where the immediate
launching of an application of this nature is warranted without the
Applicant undergoing its usual disciplinary
procedures and the
remarks made in this judgement are not to be construed as a
limitation of the Applicant's power to so conduct
itself in future
matters. However, the Applicant ought to exercise utmost care and
discretion in considering when to launch applications
of this nature,
without following its usual disciplinary procedures.
27.
Whilst in terms of the principles enshrined in
Prokureursorde
van Transvaal v Klevnhans 1995 (1) SA
,
the Applicant
would be entitled to costs, on the scale as between attorney and own
client, irrespective as to the outcome of the
proceedings, we are
vested with a discretion in relation to costs and do not believe that
it would be just or equitable to visit
the Respondent with the burden
of having to pay the Applicant's costs.
28.
In all of the circumstances, we make the following order:
28.1. The application is
dismissed;
28.2. Each party is to
bear its own costs.
____________________
NOCHUMSOHN, G
ACTING JUDGE OF THE HIGH
COURT
I AGREE
_____________________
MOLOPA-SETHOSA, LM
JUDGE OF THE HIGH COURT
On
behalf of Applicant: Attorney P Moonsamie
Instructed
by: Iqbal Mahommed Attorneys
On
behalf of the Respondent: Adv SN Molele
Instructed
by: Victor Mabe Attorneys
Date
of Hearing: 01 December 2016
[1]
Hassim
v Incorporated Law Society
of
Natal
1977(2) SA 757 (A) at 767 C
-
G;
Law
Society
of
Transvaal v Matthews
1989 (4) SA 389
Tat 393
E;
Cirota
&
another v Law Society Transvaal
1979 (1)
SA 172
(A) on 187 H; Prokureursorder van Transvaal v Keynhans
1995(1) SA 839 (2) on 851 E
-
F
[2]
Law
Society of the Cape of Good Hope v C 1986 (1) SA616(A) at 637 C to
A; Av Law Society of the  Cape of Good Hope 1
989 (1) SA 849
(A)
at 851 A to E; Law Society Transvaal v Matthews  supra at 393 I
to J
[3]
Jussit
v Natal Law Society
2000 (3) SA 44
(SCA) at 51 B to/; LawSociety of
the Cape of Good Hope vs Budricks
2003 (2) SA 11
(SCA) at 13 (I) and
14 A to B; Malan v The Law Society of the Northern Provinces
(568/2007)
(2008} ZASCA 90
(12/09/2008) at (4- 9)
[4]
4
Law
Society Transvaal v Matthews supra at 393 I to J; Olivier v Die
Kaapse Balie-Raad
1972 (3) SA 485
(A) at 496 F-
G;
Summerley
v Law Society Northern Provinces
266 (5) SA 613
(SCA) at 615 B-F.
Malan v Law Society of the Northern Provinces (568/2007)
(2008}
ZASCA 90
(12/09/2008) at (9)
[5]
Law
Society Transvaal v Matthews supra at 393 I to J; Olivier v Die
Kaapse Balie-Raad
1972 (3) SA 485
(A) at496 F-
G;
Summerley
v Law Society Northern Provinces
266 (5) SA 613
(SCA) at 615 B-
F;
Malan
v Law Society of the Northern Provinces (568/2007)
(2008} ZASCA 90
(12/09/2008) at (9)
[6]
Collie
NO v The Master of the High Court
1972 (3) SA 63
(AD)