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[2017] ZAGPPHC 40
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Law Society of the Northern Provinces v Mogale (66778/2015) [2017] ZAGPPHC 40 (13 February 2017)
IN THE HIGH COURT OFSOUTH AFRICA
GAUTENG DIVISION, PRETORIA
13/02/2017
CASE
NO: 66778/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
ln
the matter between:
LAW
SOCIETY OF THE NORTHERN PROVINCES PLAINTIFF
and
RAMOKATANE
JOSEPH
MOGALE DEFENDANT
JUDGMENT
BASSON.J
[1]
This is an application brought by the Law Society of the Northern
·Provinces ("Law Society") for an order removing
the
name of the respondent from the roll of attorneys.
[2]
The respondent Mr Mogale - was admitted as an attorney on 13 June
2001 and practiced under the name and style of Mogale Attorneys.
He
is still on the roll of attorneys.
Rule
70 reports for the period ending February 2013 and February 2014
[3]
Various complaints are levelled against the respondent. The first
complaint against the defendant relates to the fact that he
had
failed to cause his auditor to timeously lodge unqualified audit
reports for the period ending February 2013 and February 2014.
As a
result of this failure the respondent was not issued with a Fidelity
Fund Certificate but nonetheless continued to practice
without such
certificates in contravention of the Attorneys Act and the Rules.
[4]
In terms. of Rule 70.4 read with Rule 70.3 it is required that every
attorney who practices for his own account must cause his
auditor to
lodge a report with the Law Society within six months of the annual
closing of his accounting records. The lodging of
an unqualified
audit report is a prerequisite for an attorney to be issued with a
Fidelity Fund Certificate in terms of section
41 of the Attorney Act.
[5]
The respondent was called to appear before a disciplinary hearing. He
failed to attend the hearing on 13 November 2013 but in
a letter
(dated 13 November 2013) he stated that he found it difficult to
explain why his audit reports had not been submitted.
He also stated
that he would plead guilty to the charges. The Law Society sent
numerous letters to the respondent reminding him
of the outstanding
audit reports. He was also reminded that he was practicing without
being in possession of a Fidelity Fund Certificate
since 1 January
2014.
[6]
Belatedly on 17 October 2014 the Law Society received the
respondent's firm's audit report' for the year ending February 2013
and on 28 November 2013 the· respondent submitted his audit
report for the period ending February 2014. From the audit reports
it
appears that the respondent's firm's account was dormant and as a
result the Law Society accepted the reports. The respondent
was
issued with Fidelity Fund Certificates for the period commencing 1
January 2014 and 1 January 2015. The respondent was not
issued with a
Fidelity Fund Certificate for the year 2016.
Outstanding
subscription fees
[7]
The respondent further failed to pay the required subscriptions for
the year 2013 and also failed to pay the fine imposed on
him
following a disciplinary hearing.
Complaint
by Mr MG Seitsang
[8]
The Law Society also received complaints in that he is accused of
unprofessional, dishonourable and unworthy conduct. ln respect
of the
complaint by Mr MG Seitsang it is not disputed that the respondent
was instructed to institute a claim on behalf of Mr Seitsang
against
the RAF.
[9]
The complainant had advised the Law Society that the respondent had
to pay him an amount of R 70 000.00. An amount of R 10 000.00
was
paid in cash to him and R1O 000.00 was paid with a trust cheque dated
30 June 2012. According to the complainant the respondent
had
undertaken to pay him an amount of R 70 000.00 and retain a fee of R
30 000.00. The respondent failed to account to the complainant
and
also failed to effect payment of the balance due to the complainant.
[10]
A complaint was forwarded to the respondent on 20 August 2014. Only
on 1 December 2014 did the respondent respond to the correspondence
stating that there was a delay in effecting the payment because the
complainant had changed his banking details. At the time an
amount of
R 72 439.00 was still due to the complainant. On 18 May 2015 Scorpion
Legal Protection advised the respondent that the
complainant had only
received R 60 000.00 arid that the respondent had failed to advise
the complaint of the actual amount that
he had received from the RAF.
Complaint
by Mr Seisa
[11] A further complaint was
received from Mr Seisa. It was not disputed that the respondent had
consulted with Mr Seiza on 6 July
2010 to institute a damages claim
on his behalf against a company (Bojanala Fleet Bus Services). Mr
Seisa paid the respondent a
deposit of R 1 500.00.
[12] During June 2012 the
complainant was informed that the matter had become settled and that
an amount of R 74 749.50 was paid
in settlement of the damages. The
respondent, however, failed to account to Mr Seisa and also failed to
effect payment in his favour.
[13] The complaint was then
forwarded to the respondent on 19 September 2012. The respondent
failed to answer to the correspondence.
In November 2012 the
.respondent was cautioned and urged to furnish the Law Society with a
response to the complaint.
[14] Only on 6 December 2012 did
the respondent confirm that he had acted on behalf of Mr Seisa.
According to the respondent an
offer of R 74 000.00 was made to
settle the damages caused to the complainant's vehicle but that the
said offer was initially rejected
by the complainant. The respondent
then issued summons against the company but the complainant later
accepted the initial offer
made by the company. According to the
respondent the legal costs exceeded R 10 000.00. The complaint was
resolved and was withdrawn
against the respondent.
[15] In March 2013 the
respondent was requested to furnish the Law Society with a copy of
the cheque that was issued in favour of
the complainant together with
a proper statement of account in respect of services rendered. In
April, a month later, the respondent
was again reminded to furnish
the documents to the Law Society. The respondent advised the Law
Society that the cheque had not
been returned. The statement of
account, however, showed that an amount of R 9 845.00 was charged for
services rendered. The deposit
of R 1 500 00 is also not reflected on
the statement of account.
[16] The Law Society obtained a
copy of the cheque in the amount of R 60 000.00 issued in favour of
the complainant. The respondent
was thereafter requested to explain
what became of the R 15 000.00 as the settlement was in the region of
R 75 000.00 and also
to explain why the R 1 500.00 that was paid
towards the deposit was not accounted for the respondent failed to
respond to this
request.
Previous
fines imposed on the respondent
[17]
Following a disciplinary hearing that was held on 17 February 2014
relating to a complain of a certain Mr Lesenya, the applicant
was
found guilty and was ordered to pay a total fine with costs amounting
to R 5 607.71. The respondent failed to effect the payment.
Report
by Ms Mapfumo
[18]
Ms Mapfumo (employed as an auditor in the Law Society's Monitoring
Unit) visited the premises of the respondent on two occasions.
The
respondent arrived at the meeting without any of the complainants'
flies. Mapfumo sent various letters to the respondent requesting
documents and proof of payments in respect of both complaints. The
respondent failed to furnish her with the documents. Mapfumo
expressed the view that the respondent was uncooperative.
[19]
Mapfumo also established from the trust bank statements for the
period 1 March 2014 - 31 July 2014 that the respondent withdrew
cash
from the trust account. He also transferred money to clients and/or
the firm's business account through automated teller machines.
When
the respondent was confronted with these allegations, he informed
Maplumo that he was unaware that cash withdrawals from the
trust
account were not allowed. The respondent also admitted that he did
not maintain a fee transfer book. Mapfumo furthermore
established
that no proper fee debiting documents were kept.
Trust
position of the firm
[20]
Mapfumo expressed concerns about the trust position of the firm in
light of the fact that that the list of trust creditors
as at 31
October 2014 did not even reflect the complaints as trust creditors
though they have not been paid in full.
[21]
The respondent has contravened- various provisions of the Attorneys
Act and the Rules in that - (i) The respondent failed and/or
neglected to answer within a reasonable time correspondence which
reasonably required a reply. (iii) He neglected to file his firm's
Rule 70 reports within the required time. (iii) He transgressed
sections 41(1) and 42(2) of the Attorneys Act in that he practiced
without being in possession of a Fidelity Fund Certificate for the
period commencing January 2014 and while practicing he received
and
accepted fees, rewards and disbursements from clients. (iv) The
respondent failed to pay his subscription fees payable to the
Law
Society. (v) The respondent failed within a reasonable time to
account for fees received by him and to account for amounts
due or
owed to complainants.
Proceedings
in terms of section 22 of the Attorneys Act
[22]
The Law Society may apply for the striking of an attorney from the
roll in terms of section 22 of the Attorneys Act. When the
Law
Society brings such an application it performs a public duty.
[1]
[23]
In terms of the three-stage enquiry as set out by the Supreme Court
of Appeal in
Botha v
Law Society of the Northern Provinces
[2]
the
court will firstly decide whether the alleged offending conduct has
been established on a preponderance of probabilities. Secondly,
the
court must consider whether or not the person against whom the
application is brought is a fit and proper person to continue
to
practise as an attorney. Thirdly, the court must inquire whether in
all the circumstances the attorney is to be removed from
the roll of
attorneys or whether an order of suspension would suffice.
[24]
The respondent is not disputing the charges against him and in fact
it appears from the answering affidavit that the respondent
is
admitting all the acts of dishonourable, unworthy and unprofessional
conduct as set out in the founding papers of the Law Society.
The
only issue that the respondent raises is whether such incidences are
sufficient to warrant the removal of his name from the
roll of
attorneys.
[25]
On behalf of the Law Society it was submitted that considering all
the facts and the complaints - especially if they are considered
cumulatively - the respondent has made himself guilty of
unprofessional, dishonourable and unworthy conduct and that he is no
longer a fit and proper person to continue to practice as an attorney
or to act as an officer of this court.
[26]
The respondent submitted that ·he had repaid the monies owed
to the complainants and submitted that he is the only practitioner
at
the service of the entire Northam community.
[27]
Does this excuse the respondent's conduct? I am of the view that it
does not. The fact that the complainants have subsequently
been paid
does not detract from the occurrence of the misconduct itself. The
misconduct remains and it is that infraction that
the Law Society is
entitled to place before this court for a decision.
[28]
The law extracts from an attorney the highest possible degree of good
faith and it is expected from an attorney to scrupulously
observe and
comply with the provisions of the Act in respect of all practice
related matters and especially pecuniary matters.
An attorney also
has the obligation to diligently, guard the interests of his or her
clients. Our courts have also been consistent
in requiring that
attorneys should earn the trust of the public and that they should
exercise their duties with honesty and dignity.
See in this regard:
Kaplan v Incorporated
Law Society, Transvaal :
[3]
"In exercising its
discretion whether or not the applicant is a fit and proper person to
be re-admitted as an attorney, the
Court will have to consider his
personal qualities and decide whether he is fit and proper in
relation to such matters as the prestige,
status and dignity of the
profession, and the integrity, standards of professional conduct and
responsibility of practitioners,
the kind of personal qualities in
respect of which a Law Society has to be satisfied in terms of s 16
as mentioned earlier in this
judgment. "
[4]
The prestige, status and dignity
of the profession in turn relates to the position or image the
profession has in the eyes of the
public in general and in the eyes
of the practioners and the Court in particular. In this connection it
is not to be overlooked···
that the trust and
confidence reposed by the public and by the Court in practitioners to
carry on their profession under the aegis
of the Courts must make the
Courts astute to see that persons who are enrolled as attorneys are
persons of dignity, honour and
integrity.
Whether a person is fit and
proper to be re-admitted is certainly a matter on which the Court
must exercise its discretion on the
evidence placed before it.
It is essential for the
prestige, status and dignity of the profession that practitioners
should not be identified with any form
of dishonesty or dishonourable
conduct in the eyes of the public at large, the Court and those
concerned with the administration
of justice."
[5]
[29]
I am not persuaded that the respondent has shown himself to be a fit
and proper person ·to practice as an attorney.
In this regard
it is apparent from the two complaints referred to the Law Society
that the respondent did not diligently and professionally
guard the
interest of his clients. The respondent also displayed an indifferent
attitude towards requests from the Law Society
for information
regarding the complaints against him. It can also not be disregarded
that the respondent practiced without a Fidelity
Certificate for a
period of time,
[30]
Should the respondent be struck from the roll or should he be
suspend? It is trite that a removal from the roll does not
automatically
follow a finding that the attorney in question is not
fit and proper to practise as an attorney. The court has a discretion
to
consider the appropriate sanction and must do so taking into
account all the circumstances. One of the factors that this court
should consider is whether the imposition of suspension from practice
will not achieve the objectives of the Court's supervisory
powers
over the conduct of attorneys. (See in this regard:
Summerley
v Law
Society
of
the. Northern Provinces.
[6]
)
[31]
Although. the respondent has undoubtedly committed serious offences,
especially to practice without a Fidelity Fund Certificate
following
a failure to submit unqualified audit reports, I am nonetheless of
the view that the conduct of the respondent in this
matter warrants
considering a penalty of suspension. I am of the view that it would
be an appropriate sanction to suspend the respondent
from practicing
as an attorney for one year and to impose certain conditions to his
reenrolment. See also:
Law
Society of
The
Cape of
Good
Hope
v C
.
[7]
"There
have been many cases in which a Court has not found that an attorney
is unfit to practise but has nevertheless suspended
him from practice
and suspended t e suspension order. One such case is
Incorporated
Law Society, Transvaal v
G1953 (4) SA 150 (T) where MURRAY J said
at 160E - F:
'We have come to the conclusion
that the case, although proved against the respondent, is not of such
gravity as to require the
drastic step of removing respondent from
the rolls of the attorneys, notaries and conveyancers of the Court.
At the same time we
entertain a very unfavourable view of his
conduct; his conduct as proved to us passes beyond that which could
appropriately be
dealt with by a reprimand, however severe. It
appears to us that some form of disciplinary action midway between
the drastic step
of striking off and the mere administration of a
reprimand must be imposed."
Other
such cases are to be found in the list of .cases set out in
The
Law of South
Africa
vol 14 at para 357.
If a Court makes an order
suspending an attorney from practice it follows that at the end of
the period of suspension he is automatically
entitled to resume
practice. In making such an order the Court is not necessarily giving
effect to a finding that he is unfit to
practise.
It follows from what has been
said above that the Court has retained its common law power to
suspend an attorney from practice by
reason of unprofessional conduct
falling short of what is required for his striking off. If the
legislation had intended to deprive
the Court of its common law power
to · suspend an attorney (or to suspend such a suspension
order) in cases where it has
not been shown that the attorney is
unfit to practise, the old s 28
bis
and the news 22 (1)
(d)
would
have been differently worded.''
[32]
I accordingly propose the following order:
(i)
Mr Ramokatane Joseph
Mogale is suspended from practicing as an attorney of this Court for
a period of one year.
(ii)
Mr Mogale's re-enrolment
as an attorney is subject to him having · successfully and to
the satisfaction of the Law Society
completed a practical attorneys
bookkeeping course necessary for the keeping of proper accounting
records as contemplated by section
78 of the Attorneys Act 53 of 1979
as amended.
(iii)
The respondent is to pay
the costs of this application on the attorney and client scale.
____________________
AC BASSON
JUDGE OF THE HIGH COURT
I agree
_____________________
L VORSTER
ACTNG JUDGE OF THE HIGH COURT
Appearances:
Heard
on
: 9 February 2017
For
the appellant
: SL Magardi
Instructed
by
: Damons Margardie Richardson Attorneys
For
the respondent
: N Matlala
Instructed
by:
:Maluleke Seriti Makume Matlala Inc.
[1]
Incorporated Law Society of Natal v JJ
&
FM Hillier
1913 (34) NLR 237
at 250-251.
[2]
2009 (3) SA 329
(SCA) para [4].
[3]
1981(2) SA 762 (T). These comments was made in the context of an
application for the readmission as an attorney.
[4]
At790A-B.
[5]
At 792H - 793B.
[6]
Summerley
v Law
Society
Northam Provinces
2006(5) SA
613 (SCA): "[19] Before imposing this severe penalty, the Court
should therefore be satisfied that the lesser
stricture of
suspension from practice will not achieve the objectives of the
Court's supervisory powers over the conduct of attorneys.
These
objectives have been described as twofold: first, to discipline and
punish errant attorneys and, secondly, to protect the
public,
particularly where trust funds are involved (see eg
Budricks
(supra)
at 16E - G)."
[7]
1986 (1) SA 616
(A).