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[2017] ZAGPPHC 909
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Law Society of the Northern Provinces v Monama (6838/2014) [2017] ZAGPPHC 909 (24 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
6838/2014
24/03/2017
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
Applicant
and
LLENGA
PAULUS
MONAMA
Respondent
JUDGMENT
BASSON,
J
[1]
This is an application for the removal of the Respondent's
name from the roll of attorneys following his suspension from
practice
as an attorney by order of this court dated 29 July 2014.The
Respondent is still on the roll of attorneys of this Court.
Background
[2]
The application was served on the Respondent personally on 11
February 2014. He opposed the application on 18 February 2014. The
Respondent, however, failed to file his answering affidavit and the
matter was set down for hearing on 29 July 2014. At the hearing
of
the matter on 29 July 2014 the Respondent was suspended from practice
as an attorney. The court ordered the Respondent to file
his
answering affidavit by 28 August 2014. The respondent later filed his
answering affidavit.
[3]
Subsequent to the order of 29 July 2014, the Law Society
received approximately 29 further complaints pertaining to the
conduct
of the Respondent. This necessitated the Applicant to file a
supplementary affidavit. The Respondent has not filed an answering
affidavit in respect of the new complaints lodged against him.
[4]
The notice of set down was served on the Respondent on 22
January 2016. At the hearing of the matter on 29 July 2016, the
Respondent
sought yet a further (third) postponement in order to file
a supplementary answering affidavit in respect of the Law Society's
supplementary affidavit. The matter was postponed
sine die
and
the Respondent was ordered to file his supplementary answering
affidavit by 22 August 2016.
[5]
Notwithstanding the court order of 29 July 2016, the
Respondent has to date failed to file his supplementary answering
affidavit.
The notice of set down was served on the Respondent on 28
September 2016. No heads of argument was filed by or on behalf of the
Respondent.
Application
for postponement
[
6]
At the commencement of the hearing the Respondent - appearing
in person - from the bar brought an application for yet another
postponement.
In his address he tendered facts from the bar as to why
he should be granted yet another opportunity to file a supplementary
answering
affidavit to the Law Society's supplementary affidavit. One
of the reasons why a postponement was sought was because, according
to the Respondent, he did not have all the files pertaining to the
additional complaints referred to in the Law Society's supplementary
affidavit. The Respondent, when questioned by this Court, could,
however, not provide a satisfactory explanation as to why he did
not
comply with the Court order dated 29 July 2016 in which he was
expressly ordered by the Court to file his supplementary answering
affidavit on or before 22 August 2016. In her reply, Ms Margadie on
behalf of the Law Society disputed the facts tendered from
the bar by
the Respondent and indicated to the Court that the Respondent is in
fact in possession of the large majority of the
files that he now
says he does not have. She also pointed out to the Court that the
Respondent did nothing to obtain the three
files that are in fact in
possession of the Law Society apart from one letter sent to the
attorneys acting on behalf of the Law
Society requesting some files.
Despite the fact that the Law Society responded to the letter the
attorneys acting on behalf of
the Respondent did not even bother to
reply to the letter.
[7]
The
law regarding applications for postponement is settle and I can do no
better to quote at length from a decision of the Supreme
Court of
Appeal setting out the legal principles relating to these
applications:
Magistrate
Pangarker v Botha and another.
[1]
“Legal
principles in respect of postponements
[23] Where a postponement
is sought. it is determined at the court's discretion. A party
seeking a postponement must demonstrate
'a full and satisfactory
explanation of the circumstances grounding the indulgence'. A
magistrate is empowered to grant a postponement
mero motu where the
'circumstances justify it and the further time required by the
applicant is fully and adequately explained
[and] refusal of the
postponement should lead to an injustice being done to the party
seeking it'…
[24]
Van Zyl J in
Thirion
said
'Of course no court would
feel the urge to come to the assistance of a litigant who has been
the author of his own misfortune and
has suffered injustice by his
own conduct. Cognisance must, therefore, be taken of all the relevant
facts and circumstances giving
rise to such misfortune and injustice
If he has been careless, dilatory or in bad faith (mala fide), he
cannot expect the courts
to come to his assistance.'The legal
principles governing the grant and refusal of postponements are well
established In
Carephone (Pty) Ltd v Marcus NO and Others
Froneman
DJP held 'In a court of law the granting of an application for
postponement is not a matter of right. It is an indulgence
granted by
the court to a litigant in the exercise of a judicial discretion.
What is normally required is a reasonable explanation
for the need to
postpone and the capability of an appropriate costs order to nullify
the opposing party's prejudice or potential
prejudice.'
[25]
In
Take and Save Trading
CC
v Standard Bank of SA
Ltd
Harms JA said 'One of the oldest tricks in the book is the
practice of some legal practitioners, whenever the shoe pinches, to
withdraw
from the case (and more often than not to reappear at a
later stage), or of clients to terminate the mandate (more often than
not
at the suggestion of the practitioner) to force the court to
grant a postponement because the party is then unrepresented.
Judicial
officers have a duty to the court system, their colleagues,
the public and the parties to ensure that this abuse is curbed by, in
suitable cases, refusing a postponement. Mere withdrawal by a
practitioner or the mere termination of a mandate does not, contrary
to popular belief, entitle a party to a postponement as of right.'
[26]
The Constitutional Court held in
Lekolwane and Another v
Minister of Justice and Constitutional
Development:
'The postponement of a
matter set down for hearing on a particular date cannot be claimed as
a right. An applicant for a postponement
seeks an indulgence from the
court. A postponement will not be granted unless this court is
satisfied that it is in the interests
of justice to do so. In this
respect the applicant must ordinarily show that there is good cause
for the postponement. Whether
a postponement will be granted is
therefore in the discretion of the court. In exercising that
discretion, this court takes into
account a number of factors
including (but not limited to) whether the application has been
timeously made, whether the explanation
given by the applicant for
postponement is full and satisfactory, whether there is prejudice to
any of the parties, whether the
application is opposed and the
broader public interest...
[34] The right to legal
representation is a corollary of the right of access to justice. The
denial of this right has wide-ranging
consequences for the nature and
experience of justice. Nevertheless, a litigant may not benefit from
his own misconduct or otherwise
careless approach to legal
proceedings It is apparent from the record that AB had ample time to
avail himself of a legal representative
who was both well apprised of
the dispute and available to attend the court proceedings. Despite
this he failed to secure such.
AB insisted that he would not have any
legal representative other than Mr Derris. The high court took the
view that he was entitled
to an attorney of his own choice. This was
an incorrect approach when regard is had to the history of the matter
and the rights
of the other party. The trial had been postponed three
times at his instance. CB's rights were completely disregarded by the
high
court."
[8]
Various important principles emerge from this
dictum
that are
pertinent to this matter: The granting of an application for
postponement is not a matter of right: It is an indulgence
sought
from the Court. As such an applicant for a postponement should
provide a proper explanation for the need to postpone to
enable a
Court to decide whether there is a need for a postponement. In the
present matter no proper application served before
the Court. In
addition, the Respondent sought from the bar to justify why the
matter should be postponed by referring to a host
of facts which were
disputed by Ms Magardie. What makes matters worse is the fact that
the Respondent has been an attorney since
1999 and despite having
practiced as an attorney for many years, displayed a total disregard
for proper procedures in this Court
by moving an application from the
bar. This application should be viewed against the fact that this
would have been the third postponement
of a matter that has been
dragging on since 2014. The Respondent has been suspended from
practice as far back as 29 July 2014.
On the two previous
appearances, the matter was postponed to allow the Respondent to file
his opposing papers. On the first occasion
the Respondent, although
belatedly, did file his opposing papers. On the second occasion the
Respondent was ordered in terms of
a Court order to file his
supplementary answering affidavit. Months went past and the
Respondent simply disregarded this court's
order and up until today
has not made an effort to file his supplementary answering affidavit.
[9]
The Court has considered the application and has dismissed the
application and ordered that the matter proceed on the merits.
[10]
The
Respondent was granted an opportunity to respond to the submissions
made on behalf of the Law Society but indicated that he
could not
address the Court because he was not prepared and did not have legal
representation. In this regard I reiterate what
the Supreme Court of
Appeal in
Magistrate
Pangarker
[2]
held namely that although the right to legal representation is
undoubtedly an important right, a litigant may not benefit from
his
own careless approach to legal proceedings. The Respondent had ample
time to file his supplementary answering affidavit but
instead
displayed a disrespectful approach to a matter that has a history of
postponements. The Court also takes into account that
the Respondent
in this matter has been suspended from practice for very serious
transgressions. As will be pointed out herein below,
the number of
claims lodged with the Attorneys Fidelity Fund has substantially
increased since the Law Society has filed its supplementary
founding
affidavit. It is thus of critical importance and in the public's
interest that this Court proceed with the matter brought
against the
Respondent and finalise the matter. I will return to this latest
attempt to prevent this Court to deal with very serious
transgressions where I discuss the sanction that should be imposed on
the Respondent.
Proceedings
before the Court
[11]
It is trite law that applications of this nature are
sui
generis
and
of a disciplinary nature. The Law Society as
custos
morum
of
the profession merely places facts before the Court for
consideration.
[3]
[12]
In proceedings such as this the enquiry is threefold: The Court must
first decide as a matter of fact whether the alleged offending
conduct by the attorney has been established. Secondly, if the Court
is satisfied that the offending conduct has been established,
a
valued judgment is required to decide whether the person concerned is
a fit and proper person to practise as an attorney.
[4]
Lastly, if the Court decides that the attorney concerned is not a fit
and proper person to practise as an attorney, it must decide
in the
exercise of its discretion whether in all the circumstances of the
case the attorney in question is to be removed from the
roll or
merely suspended from practice. Ultimately this is a question of
degree.
[5]
The Court's
discretion must be based upon the facts before it. The facts in
question must be proved on a balance of probabilities.
[6]
The facts upon which the Court's discretion is based should be
considered in their totality.
[13]
It is trite that an attorney must scrupulously comply with the
provisions of the Attorneys Act and the Applicant's Rules promulgated
thereunder especially in relation to the money of a client which is
placed into his/her custody and control. Trust money does not
form
part of the assets of an attorney. The very essence of a trust fund
is the absence of risk and the confidence created thereby.
The
unjustifiable handling of trust money is totally untenable and not
only violates the legal requirements relating to trust money
but also
undermines the principle that a trust account is completely safe in
respect of money held therein by an attorney on behalf
of another
person.
[14]
An attorney must further also always prefer the interest of his/her
clients above his/her own and must exercise the highest
degree of
good faith is his/her dealings with his/her clients. In this regard
the law expects from an attorney
uberrima tides
- the highest
possible degree of good faith - in his/her dealings with his/her
client.
The
Respondent's contraventions
[15]
The Law Society received approximately 45 complaints against the
Respondent for conduct which relates to the Respondent's failure
to
answer to correspondence; his failure to give proper attention to the
affairs of his client and without lawful cause or excuse,
failed to
perform work with such a degree of skill, care or attention, as in
the opinion of the council may reasonably be expected:
the Respondent
failed to pay over funds to clients and failed to account to clients
and delayed payment of trust money to clients;
the Respondent failed
to pay the fine imposed by the Applicant's Disciplinary Committee;
and misrepresented to clients that he
is a conveyancer.
[16]
In amplification of these complaints, the Law Society sets out in
fair detail the nature of the complaints received against
the
Respondent. I do not deem it necessary to refer to all of these
complaints and will suffice with a reference to some of the
complaints.
[17]
Mr S Manana paid the Respondent an amount of R10 000.00 and
instructed him to act on his behalf against Nedbank Ltd following
the
repossession of his trucks. The Respondent failed to execute the
mandate given to him by the complainant. The Respondent also
failed
to answer to this complaint when the Law Society requested him to do
so. In his answering affidavit the Respondent does
not attach any
proof that he had executed his mandate.
[18]
Ms Lebakeng purchased an immovable property from Mr and Mrs Zulu and
instructed the Respondent to attend to the transfer of
the property
into her name. The complainant paid the Respondent a total amount of
R25 326.00. The Respondent has failed to effect
transfer of the
property and has also failed to report to the complainant regarding
the progress of the matter. He also failed
to answer to this
complaint. Of particular concern is the fact that the Respondent
fraudulently created the impression to members
of the public that he
is a conveyancer when such is not the case.
[19]
In regard to the Respondent's misrepresenting to the public that he
is a conveyancer, the Court was referred to a number of
sale
agreements where it is expressly recorded that the transfer of the
property would be effected by LP Manama Attorneys. In a
letter to the
Respondent, De Wet, Lyell, Nel and Maeyane Inc specifically records
that they have been informed that the Respondent
had been instructed
to effect the transfer of the property referred to in the letter.
Furthermore, in a letter on his own letterhead
to the Law Society,
the Respondent expressly admitted that his firm was attending to the
transfer of this particular property.
[20]
Mr JH Leoka likewise purchased a property and the Respondent was
nstructed to assist him in obtaining the title deed of the
immovable
property. He paid the Respondent an amount of R9 650.00. The
Respondent failed to execute the mandate given to him and
attempts to
contact him proved fruitless. The Respondent also failed to answer to
this complaint. Again the Respondent fraudulently
created the
impression to members of the public that he is a conveyancer when
such is not the case.
[21]
Ms E Mpinda instructed the Respondent during 2009 to institute a
claim on behalf of her children against the estate of her
late
husband. The Respondent failed to execute the mandate given to him
and attempts to contact him proved fruitless. The Respondent
also
failed and/or neglected to answer to this complaint.
[22]
Mr B S Kgomongwe instructed the Respondent and an estate agent to
attend to the sale of his immovable property for an amount
of R110
000.00. According to him the Respondent has failed to effect payment
of the proceeds of the sale in his favour and has
failed and/or
neglected to answer to this complaint. The Respondent also failed to
attend a disciplinary hearing in respect of
this complaint.
[23]
Norman Berger & Partners Incorporated on behalf of Rodel
Financial Services (Pty) Ltd lodged a complaint with the Law Society.
According to the firm, the complainant bridged finance for payment of
rates and levies during November 2012 which funds were paid
into the
bank account of the Respondent. The Respondent failed to furnish the
complainant with progress reports and attempts to
get hold of the
Respondent proved fruitless. The Respondent also failed and/or
neglected to answer to this complaint.
[24]
The Respondent failed to effect payment of a fine that was imposed on
him following a disciplinary hearing which was held on
22 June 2011.
[25]
Ms Maphfumo conducted an investigation into the affairs of the
Respondent's firm. She visited the firm on 23 February 2012,
29 March
2012, 03 May 2012 and 21 August 2012. On 21 August 2012 the
Respondent advised Mapfumo that he was still in the process
of
updating the firm's 2009 accounting records. During this visit the
firm's current accounting records were also still with the
firm's
bookkeeper. The Respondent only furnished Mapfumo with bank
statements for the period 28 February 2009 until 28 February
2010.
She confirmed that separate trust and business banking accounts were
conducted at Standard Bank, Vereenging Branch. A bank
statement of
the firm·s trust account dated 27 February 2010 reflected a
balance of R567 495.34. No further practice bank
accounts were in
operation. Mapfumo could not determine the trust position of the firm
as no accounting records and lists of trust
creditors were made
available for her inspection.
[26]
An attorneys firm - Grimbeek Van Rooyen & Partners - acting on
behalf of Ms Phalatsi lodged a complaint with the Law Society.
It
appears that during March 2009 the Respondent represented the
complainant in her divorce matter which matter later became settled.
An amount of R 94 000.00 was paid out in the trust account of the
Respondent's firm in respect of settlement. According to Grimbeek
Van
Rooyen & Partners Mrs Phalatsi only received an amount of R 17
000.00 and proceeded to demand that the Respondent pay over
the
outstanding amount of R 77 000.00 into their trust account for the
benefit of Mrs Phalatsi. Various letters were sent to the
Respondent
but no response was forthcoming. The Respondent then claimed that he
did pay more amounts over to Mrs Phalatsi
inter alia
an amount
of R 7 000.00 which he paid to her in cash at a Sasol Filling
station. Finally in October 2011 the Respondent sent a Bill
of Costs
to Mrs Phalatsi stating that she owed him fees in the amount of R 52
052.64. In the Bill of Costs it is indicated that
she owed him R 39
241.67 for the High Court divorce matter. Mrs Phalatsi disputed the
bill of costs stating that the Respondent
had informed her that the
total legal fees until finalisation of her divorce matter would not
exceed R 15 000.00.
[27]
Mapfumo further found that that if she had regard to Mrs Phalatsi's
ledger account against the bank statements, it showed that
that at
times the firm did not keep the money in the trust banking account
and that it was apparent to her that the firm was rolling
funds
creating a risk to the Attorneys Fidelity Fund.
[28]
In her report dated 5 September 2012, Mapfumo concluded that the
Respondent has contravened the following provisions of the
Attorneys
Act and the Rules: Rule 68.4.2 in that the firm did not ensure that
the accounting records are kept at no other place
than its main
office: Rule 69.7.1 in that the firm did not, at intervals of not
more than three months, extract a list of trust
creditors and
compared the total of the list with its trust bank balance: and
Section 78(1) of the Act read with Rule 69.3.1 in
that the Respondent
has failed to keep sufficient funds in the trust banking account to
meet his obligations to trust creditors.
[29]
Mapfumo conducted a further visit to the Respondent's firm on 30 July
2013 following various complaints the Applicant received
against the
Respondent. She experienced difficulty in meeting with the
Respondent. During her visit to the Respondent again advised
that the
firm's accounting records were not at the firm but with the firm's
bookkeeper. The Respondent undertook to deliver the
accounting
records at the Law Society's offices but he failed to do so.
[30]
In a further report dated 14 October 2013, Mapfumo expressed the view
that the Respondent has contravened the following provisions
of the
Attorneys Act and the Rules: Rule 68.4.2 in that the firm did not
ensure that the accounting records are kept at no other
place than
its main office; Rule 69.7.1 in that the firm did not. at intervals
of not more than three months, extract a list of
trust creditors and
compared the total of the list with its trust bank balance; Section
78(1) of the Act read with Rule 69.3.1
in that he has failed to keep
sufficient funds in the trust banking account to meet his obligations
to trust creditors; and Rule
70.3 in that the firm did not ensure
that the accountant's report to be furnished by an accountant in
terms of Rule 70.4 is so
furnished within or at the required time.
[31]
The Respondent, although belatedly, answered to these allegations.
The Respondent admitted some of the allegations but denied
others. In
respect of some of the complaints the Respondent merely noted the
allegations without tendering an explanation.
Further
complaints
[32]
I have already referred to the fact that since the answering had been
filed, a further 18 complaints against the Respondent
came to light.
Despite having been afforded an opportunity to answer to these
complaints, the Respondent has elected not to do
so.
[33]
From these further complaints lodged against the Respondent, it
appears that the Respondent continued to masquerade as a conveyancer
to various clients.
[34]
The Respondent also persisted in failing to execute mandates given to
him by numerous clients. In the case of Mr George Malefetsane
Mareo
the Respondent was instructed on 30 April 2014 to assist him with his
divorce matter. An amount of R9 500.00 was paid to
the Respondent.
The Respondent failed to attend at court and therefore failed to
attend to the matter.
[35]
Ms M J Chapatso instructed the Respondent to assist her in retrieving
her motor vehicle from her brother. The vehicle was registered
in the
name of the complainant. The complainant paid the Respondent an
amount of R3 800.00 but the Respondent failed to attend
to the
matter. The Respondent also failed to report to the complainant
regarding the progress of the matter and attempts to get
hold of him
proved fruitless.
[36]
In 2005 Mr Patrick Mofokeng instructed the Respondent to
assist him in the administration of the estate of his late father and
to
attend to the transfer of immovable property into the name of the
complainant and his siblings. The Respondent failed to execute
the
mandate given to him. The complainant has since lodged a claim with
the Attorneys Fidelity Fund.
[37]
In addition to this claim with the Attorneys Fidelity Fund,
the Law Society has received a further 12 from the Respondent's
clients.
These claims were submitted to the Attorneys Fidelity Fund
in terms of the provisions of section 26 of the Attorneys Act and
pertain
to the misappropriations of trust funds on the part of the
Respondent.
[38]
During the hearing, Ms Magardi informed the Court that since
the supplementary founding affidavit had been filed, the number of
complaints lodged with the Attorneys Fidelity Fund has increased from
12 to 32. In this regard she handed up a schedule summarizing
how
many payments have to date been paid out to complainants; how many
claims have not been proceeded with and how many claims
are still
under investigation. The following appears from this schedule:
Fifteen complaints are still under investigation. Six
complaints have
not been proceeded with. Eleven complainants have received payments
from the Fund, many as a result of the Respondent
masquerading as a
conveyancer in circumstances when he was not even admitted as a
conveyancer. The amounts paid out to complainants
vary from as little
as R 1164.77 to an amount of R 147 321.75. A total amount of
approximately R 413 396.94 has thus far been paid
out to
complainants.
Evaluation
of the evidence
[39]
There is little doubt on the papers before this Court that the
Respondent has contravened various Rules of the Law and the
provisions of the Attorneys Act. The Respondent has not even
attempted to dispute the additional charges levelled against him all
of which are serious. Taking into account the totality of the
Respondent's infractions there is little doubt that the Respondent
has conducted himself in a dishonourable, unprofessional an unworthy
manner. The Court has also taken into consideration the fact
that the
Respondent was uncooperative not only in the early stages of the
investigation but that he had displayed a totally uncooperative
attitude towards this Court. In this regard the Respondent was
pertinently ordered by this Court on 29 July 2016 to file a
supplementary
answering affidavit in respect of the Law Society's
supplementary affidavit. In order for him to do so, the matter was
postponed
sine die.
Despite having been afforded an
opportunity to explain his conduct, he declined to do so.
[40]
The
Respondent has through his conduct displayed a total contempt for the
attorneys profession, which is a honourable profession
and one which
is based on the principles of trust, integrity and professionalism.
The manner in which the Respondent has deal with
his clients and with
his trust account is simply put, reprehensible. The Respondent has
further displayed a total disregard for
the interests of his clients
and for the Law Society. The Respondent's conduct seen as a whole has
brought the attorneys profession
in disrepute. See in this regard
also:
Law
Society of the Northern Provinces v Mametsa:
[7]
"[8] One of the
important principles enshrined in the Attorneys Act is the principle
that trust money does not form part of
the assets of an attorney. It
is furthermore trite that the unjustifiable handling of trust monies
is untenable and undermines
the principle that the trust account is
completely safe in respect of money held therein by an attorney on
behalf of another person.
Furthermore, an attorney is a member of a
learned, respected and honourable profession and, by entering it,
he/she pledges himself/herself
with total and unquestionable
integrity to society at large, to the court and to the profession.
The law therefore expects from
an attorney uberrima fides - which is
the highest possible degree of good faith - in his/her dealings with
his/her clients."
[41]
I have already dealt with the further application for a postponement
that was launched from the bar at the commencement of
the proceedings
before this Court. The manner in which the Responded launched the
application and the further desperate attempt
to prevent this Court
from dealing with serious misconduct on the part of the Respondent
is, in my view, a further indication that
he is not a fit and proper
person to continue to practise as an attorney.
See
in this regard: Prokureursorde aan Transvaal v Kleynhans.
[8]
"Verder moet dit nie
uit die oog verloor word nie dat die Hof te doen het met 'n ondersoek
van 'n dissiplinere aard wat
sui generis
is Hieruit volg dit
dat van 'n respondent verwag word om mee te werk en die nodige
toeligting te verskaf waar nodig ten einde die
voile feite voor die
Hof te plaas. Blote bree ontkennings. ontwykings en obstruksionisme
hoort nie tuis by dissiplinere verrigtinge
nie
See also
Law
Society of the Northern Provinces v Sonntag.
[9]
“
[18] The conduct
of the respondent in defending the charges brought against her was
wholly unsatisfactory. She attacked the appellant
for referring to
further complaints against her, accused it of unprofessional and
unethical conduct, and sarcastically questioned
its ability to
distinguish between different kinds of offers of settlement. This was
uncalled for. But the matter goes further.
Far from disclosing at the
outset fully and openly all the circumstances of her relationship
with Van Schalkwyk and Swanepoel,
the truth emerged only gradually.
Initially she repeatedly denied that she and Van Schalkwyk shared
fees. It was only in her affidavit
responding to the appellant's
replying affidavit that she admitted that this had occurred. But her
admission was not unconditional
but an attempt to justify her actions
in some or other way. She admitted to Ms Geringer that Van Schalkwyk
at some or other stage
had shared an office with her. He did and
indeed kept the third party files there. In her answering affidavit
however, she emphatically
denied that this had been the position. But
she admitted in her affidavit responding to Ms Geringer's report that
Van Schalkwyk
came and went to her offices as he liked until she
stopped him in 2005. The minutes of the staff meeting of 5 October
2005 make
clear references to Van Schalkwyk's office. Her denials
that he had an office are simply not credible. The respondent denied
that
she had ‘purchased’ third party claims. She denied
that she had advertised the services of Van Schalkwyk. She denied,
during her interview with Geringer, that she had paid the touts
employed by her. All these denials have been shown to be untruthful.
She never informed the court of the real extent of the third party
work undertaken by her firm, the fees earned and amounts paid
to her
touts. The fact that her trust account was properly kept is
irrelevant. Her plea of guilty does not assist her for she attempted
to withdraw it. It has been observed that '(t)he attorneys'
profession is an honourable profession, which demands complete
honesty
and integrity from its members'. The various defences and the
manner in which they were raised by the respondent cannot be said
to
evince complete honesty and integrity. The court below misdirected
itself by not considering these factors.”
[42]
This brings me to the final question namely whether the
conduct of the Respondent warrants an order that he be removed from
the
role.
[43]
Having regard to the totality of the evidence. I am of the
view that the Respondent has violated the highest possible degree of
good faith that is expected from an attorney. As already pointed out,
the attorney's profession is an honourable profession which
demands
complete honesty and integrity from its members. The Respondent has
repeatedly acted in a manner towards his clients that
can only be
described as disgraceful.
[44]
I am therefore of the view that the transgressions in this
matter are so serious that it warrants the striking-off of the
Respondent.
[45]
In respect of the issue of costs, it is trite that in applications of
this nature, there is no
lis
between the Law Society and the
Respondent and that the Law Society is performing its statutory
function of placing facts before
this Court to exercise its
disciplinary powers over truant practitioners. As such the Law
Society is entitled to costs.
Order
[46]
In the event the Draft Order marked "Annexure X" is made an
order of court.
____________
AC
BASSON
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered:
____________
MANYATHI
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the applicant
: Ms
Magardie
Instructed
by : Damons
Magardie Richardson Attorneys
For
the
respondent : In
person
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 6838/2014
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
Applicant
And
LLENGA
PAULUS
MONAMA
Respondent
DRAFT
ORDER OF COURT
Having
read the papers filed of record and having heard the attorney for the
Applicant,
IT
IS ORDERED
1.
That the name of
LLENGA PAULUS MONAMA
(hereinafter referred to
as the Respondent) be removed from the roll of attorneys of this
Honourable Court;
2.
That Respondent hands and delivers his certificate of enrolment as an
attorney to the Registrar of this Honourable Court;
3.
That in the event of the Respondent failing to comply with the terms
of this order detailed in the previous paragraph within
two (2) weeks
from the date of this order, the sheriff of the district in which the
certificate is, be authorised and directed
to take possession of the
certificates and to hand it to the Registrar of this Honourable
Court;
4.
That Respondent be prohibited from handling or operating on his trust
accounts as detailed in paragraph 5 hereof;
5.
That Johan van Staden, the head: members affairs of applicant or any
person nominated by him, be appointed as
curator bonis
(curator)
to administer and control the trust accounts of Respondent, including
accounts relating to insolvent and deceased estates
and any deceased
estate and any estate under curatorship connected with Respondent's
practice as an attorney and including, also,
the separate banking
accounts opened and kept by respondent at a bank in the Republic of
South Africa in terms of section 78(1)
of Act No 53 of 1979 and/or
any separate savings or interest-bearing accounts as contemplated by
section 78(2) and/or section 78
(2A) of Act No. 53 of 1979, in which
monies from such trust banking accounts have been invested by virtue
of the 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:
5.1
immediately to take possession of Respondent's accounting records,
records, files and documents as referred to in paragraph
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 respondent was acting at
the date of this order;
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 persons having lawful claims
upon the
trust account(s) and/or against respondent in respect of monies held,
received and/or invested by respondent in terms
of section 78(1)
and/or section 78(2) and/or section 78(2A) of Act No 53 of 1979
(hereinafter referred to as trust monies), to
take any legal
proceedings which may be necessary for the recovery of money which
may be due to such persons in respect of incomplete
transactions, if
any, in which respondent was and may still have been concerned and to
receive such monies and to pay the same
to the credit of the trust
account(s);
5.3 to ascertain from
Respondent's accounting records the names of all persons on whose
account respondent appears to hold or to
have received trust monies
(hereinafter referred to as trust creditors) and to call upon
respondent to furnish him, within 30 (thirty)
days of the date of
service of this order orsuch further period as he may agree to in
writing, with the names, addresses and amounts
due to all trust
creditors;
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 respondent and, if so, the amount
of such claim;
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 creditor's or creditors' right of
access to the civil courts;
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 control of the fund;
5.7 in the event of there
being any surplus in the trust account(s) of respondent after payment
of the admitted claims of all trust
creditors in full, to utilise
such surplus to settle or reduce (as the case may be), firstly, any
claim of the fund in terms of
section 78(3) of Act No 53 of 1979 in
respect of any interest therein referred to and, secondly, without
prejudice to the rights
of the creditors of respondent, the costs,
fees and expenses referred to in paragraph 10 of this order, or such
portion thereof
as has not already been separately paid byrespondent
to applicant, and, if there is any balance left after payment in full
of all
such claims, costs, fees and expenses, to pay such balance,
subject to the approval of the board of control of the fund, to
respondent,
if he is solvent, or, if respondent is insolvent, to the
trustee(s) of respondent's insolvent estate;
5.8 in the event of there
being insufficient trust monies in the trust banking account(s) of
respondent, in accordance with the
available documentation and
information, to pay in full the claims of trust creditors who have
lodged claims for repayment and
whose claims have been approved, to
distribute the credit balance(s) which may be available in the trust
banking account(s) amongst
the trust creditors alternatively to pay
the balance to the Attorneys Fidelity Fund;
5.9 subject to the
approval of the chairman of the board of control of the fund, to
appoint nominees or representatives and/or consult
with and/or engage
the services of attorneys, counsel, accountants and/or any other
persons, where considered necessary, to assist
him in carrying out
his duties as curator; and
5.10 o render from time
to time, as curator, returns to the board of control of the fund
showing how the trust account(s) of respondent
has/have been dealt
with, until such time as the board notifies him that he may regard
his duties as curator as terminated.
6.
That respondent immediately delivers his accounting records, records,
files and documents containing particulars and information
relating
to:
6.1 any monies received,
held or paid by respondent for or on account of any person while
practising as an attorney;
6.2 any monies invested
by respondent in terms of section 78(2) and/or section 78 (2A) of Act
No 53 of 1979;
6.3 any interest on
monies so invested which was paid over or credited to respondent;
6.4 any estate of a
deceased person or an insolvent estate or an estate under curatorship
administered by respondent, whether as
executor or trustee or curator
or on behalf of the executor, trustee or curator;
6.5 any insolvent estate
administered by respondent as trustee or on behalf of the trustee in
terms of the
Insolvency Act, No 24 of 1936
;
6.6 any trust
administered by respondent as trustee or on behalf of the trustee in
terms of the Trust Properties Control Act, No
57 of 1988;
6.7 any company
liquidated in terms of the Companies Act, No 61 of 1973, administered
by respondent as or on behalf of the liquidator;
6.8 any close corporation
liquidated in terms of the
Close Corporations Act, 69 of 1984
,
administered by respondent as or on behalf of the liquidator; and
6.9 respondent's practice
as an attorney of this Honourable Court, to the curator appointed in
terms of paragraph 5 hereof, provided
that, as far as such accounting
records, records, files and documents are concerned, respondent shall
be entitled to have reasonable
access to them but always subject to
the supervision of such curator or his nominee.
7.
That should respondent fail to comply with the provisions of the
preceding paragraph of this order on service thereof upon his
or
after a return by the person entrusted with the service thereof that
he has been unable to effect service thereof on respondent
(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.
8.
That the curator shall be entitled to:
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 disbursements
due to the firm
8.2 require from the
persons referred to in paragraph 8.1 to provide any such
documentation or information which he may consider
relevant in
respect of a claim or possible or anticipated claim, against him
and/or respondent and/or respondent's clients and/or
fund in respect
of money and/or other property entrusted to respondent provided that
any person entitled thereto shall be granted
reasonable access
thereto and shall be permitted to make copies thereof;
8.3 publish this order or
an abridged version thereof in any newspaper he considers
appropriate; and
8.4 wind-up of the
respondent's practice.
9
That Respondent be and is hereby removed from office as:
9.1 executor of any
estate of which Respondent has been appointed in terms of
section
54(1)(a)(v)
of the
Administration of Estates Act, No 66 of 1965
or
the estate of any other person referred to in
section 72(1)
;
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
;
9.3 trustee of any
insolvent estate in terms of
section 59
of the
Insolvency Act, No 24
of 1936
;
9.4 liquidator of any
company in terms of
section 379(2)
read with 379(e) of the Companies
Act, No 61 of 1973;
9.5 trustee of any trust
in terms of section 20(1) of the Trust Property Control Act, No 57 of
1988;
9.6 liquidator of any
close corporation appointed in terms of section 74 of the Close
Corporation Act, No 69 of 1984; and
9.7 administrator
appointed in terms of Section 74 of the Magistrates Court Act, No 32
of 1944.
10
That Respondent be and is hereby directed:
10.1 to pay, in terms of
section 78(5) of Act No 53 of 1979, the reasonable costs of the
inspection of the accounting records of
respondent;
10.2 to pay the
reasonable fees of the auditor engaged by Applicant;
10.3 to pay the
reasonable fees and expenses of the curator, including travelling
time;
10.4 to pay the
reasonable fees and expenses of any person(s) consulted and/or
engaged by the curator as aforesaid;
10.5 to pay the expenses
relating to the publication of this order or an abbreviated version
thereof; and
10.6 to pay the costs of
this application on an attorney-and-client scale.
11.
That, if there are any trust funds available the respondent shall
within 6 (six) months after having been requested to do so
by the
curator, or within such longer period as the curator may agree to in
writing, shall satisfy the curator, by means of the
submission of
taxed bills of costs or otherwise, of the amount of the fees and
disbursements due to him (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 creditor(s) concerned for payment or recovery
thereof;
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;
BY
ORDER OF THE COURT
REGISTRAR
[1]
2015 (1) SA 503 (SCA)
[2]
Ibid
at
[34] and [35]
[3]
See
Hassim
vs Incorporated Law Society of Natal
1977(2)
SA 757(A) at 767C-G and
Law
Society Transvaal vs Matthews
1989
(4)
SA 389(T)
at 393 E.
[4]
See Kaplan
vs
Incorporated Law Society Transvaal 1981
(2) SA page 762 at page 782 A - C.
[5]
Jasat v
Natal Law Society
2000
(3) SA 44
(SCA) at 51 B-1.
[6]
Summerley
vs Law Society Northern Provinces
2006(5)
SA 613(SCA) at 615 B-F.
[7]
2015 JDR 1231 (GP)
[8]
1995 (1) SA 839
(T) at 3421 - 343A.
[9]
2012 (1) SA 372
(SCA).