About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 219
|
|
Law Society of the Free State v Neuman (5501/2016) [2017] ZAFSHC 219 (19 October 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5501/2016
In
the matter between:
THE
LAW
SOCIETY
OF
THE
FREE
STATE
Applicant
and
VERNON
HILSON
NEUMAN
Respondent
CORAM:
RAMPAl, J
et
LEFENYA, AJ
HEARD
ON:
12 OCTOBER 2017
JUDGMENT
BY:
RAMPAl,J
DELIVERED
ON:
19
OCTOBER 2017
[1]
The matter came to court by way of motion proceedings. The main
relief sought by the applicant is the removal of the respondent's
name from the roll of the practising attorneys of this division. The
alternative relief sought is the suspension of the respondent.
The finer details of the ancillary relief sought by the applicant are
fully set out in the notice of motion as amended. Initially
the
application was opposed.
[2]
The respondent's attorney withdrew before the answering affidavit was
filed. Since then the respondent appeared in this court
on previous
occasions. The application was postponed on a few occasions at the
request of the respondent and at the insistence
of the court to
enable the applicant to amend and supplement its papers. The
respondent neglected to file the answering affidavit
despite the
opportunities he was afforded. Although he always appeared in person
in the past, on the last hearing of this application
he did not
attend the court proceedings. Therefore, we proceeded to hear the
matter on an unopposed basis.
[3]
The purpose of this application is to have the name of the respondent
permanently removed from the provincial roll of practising
attorneys.
That is the main relief sought by the applicant. The alternative
relief sought is to have the respondent temporarily
suspended from
practising as an attorney of this court until he has satisfied this
court that he is a fit and proper person to
resume practising law as
an attorney. The applicant also seeks ancillary relief. I deem it
unnecessary to burden this judgment
with details of the ancillary
relief. I shall revert to that part of the relief at the end of this
judgment.
[4]
The applicant launched this application on the respondent. He
signalled his intention to oppose the relief sought by filing
the required notice. The matter was subsequently postponed on
the following dates:
•
8
December 2016, 16 February 2017, 11 May 2017
•
15
June 2017 and 31 August 2017
[5]
Firstly, the application was brought in an endeavour to promote the
execution and furtherance of the objectives of the applicant
in terms
of section 58 Attorneys Act 53 of 1979. Secondly, the application was
also brought in an endeavour to promote the applicant's
domestic
rules relating to professional misconduct. The relevant facts show
that there are two types of complaints levelled against
the
respondent. The first type is a statutory transgression lodged by the
applicant itself. The second type concerns professional
transgressions. There are four of such complaints lodged by the
members of the public.
[6]
I need to give some background to the statutory demeanours complained
of. The respondent has not been issued with a fidelity
fund
certificate. However, he has been practising without such a
certificate for a few years. We were given to understand, by counsel
for the applicant, that on the previous occasion the respondent
indicated to our colleagues that he was on suspension and that
since
his suspension he has not been practising as an attorney. As far as
we are aware this court has not suspended the respondent
in the
meantime. It may well be that a disciplinary hearing was
held and that the respondent was internally suspended.
However,
we cannot comment any further about the matter. It
was not ventilated
in the founding
affidavit or the supplementary affidavit filed by the applicant.
[7]
The respondent's statutory demeanour revolves around his failure to
apply for the fidelity fund certificate. The applicant's
deponent
made the following averments against the respondent in this regard:
7.1
The respondent submitted an audit report for the accounting year
which ended on 28 February 2014 but did not submit the prescribed
application form for the requisite fidelity certificate;
7.2
The respondent did not submit the required audit report for the
auditing period which ended on 28 February 2015;
7.3
The respondent did not submit the required audit report for the audit
year ending 29 February 2016;
7.4
The respondent knew, or ought to have known, that such audit reports
had to be submitted to the applicant every year by no later than 31
August, in other words 6 months, after the end of the accounting
year
concerned;
7.5
The respondent did not ask for any extension of time in order to
submit the required audit reports to the applicant or to give the
applicant any reason why the required reports were not submitted
as
and when they became due.
[8]
On 26 February 2016 the law council of the applicant resolved that
all members with outstanding audit reports should appear
before the
council on the 17 March 2016 to give reason why the applicant should
not proceed with court applications against them
on account of their
failure to submit the required fidelity
certificates. The resolution in
question was brought to
the attention of the defaulting members including the respondent.
[9]
On 28 March 2016, approximately a month later, the law council of the
applicant resolved to grant an extension of time to all
defaulting
members, including the respondent, to submit their applications for
the fidelity certificates. That resolution was brought
to the
attention of the respondent on 4 March 2016. Notwithstanding that
extension of time, the respondent remained in default.
The applicant
did not receive the required application from him for the issue of
the fidelity certificate.
[10]
On 6 June 2016 the applicant addressed a letter to the respondent.
The respondent was called upon to take all necessary steps
within 14
days to ensure that the required fidelity certificate was issued in
his favour. Moreover, he was warned that an application
would be made
to have his name struck off the roll should he fail to act in
accordance with the letter. The applicant caused the
letter to be
served on the respondent by the sheriff. However, the sheriff did not
find the respondent and, therefore, could not
personally serve the
letter on him. Instead the sheriff served the letter on the
respondent's spouse. The respondent did not respond
to the letter.
The 14 day deadline came and went. The respondent did not contact the
applicant in any manner whatsoever.
[11]
The aforegoing completes my summary as regards the statutory
transgression complained of. I also deem it necessary to give
some
background to the professional misdemeanours complained of. The
applicant received four such complaints from four different
members
of the public. Each one of them was a client of
the respondent at some stage.
[12]
The first professional misdemeanour was a complaint which the
applicant
received from Mr Johannes Hermanus Boonzaaier. The
applicant
received his complaint on 22 February 2013. He averred that the
respondent was appointed as an executor of his late mother's
deceased
estate. He complained that the respondent kept him in the dark. He
did not give him regular progress reports relating
to administration
of the deceased estate. There was an immovable property involved in
the deceased estate. He was aware that the
executor had sold the
property. However, the respondent did not give him satisfactory
explanation of what happened to the property.
He turned to the
applicant for assistance.
[13]
The applicant requested the respondent on various occasions to
respond to the first complaint. Notwithstanding those various
requests, the respondent neglected to provide any acceptable response
or explanation to the applicant.
[14]
The second complaint came from Mr Timoleon Augoustides. The
respondent received that second complaint on 23 July 2014. He averred
that he wanted to register a trust. For that purpose, he approached
and instructed the respondent to assist him. However, the respondent
failed to do so. He received no progress reports from the respondent.
He went to the respondent's office on a number of times to
seek an
update. Despite his numerous efforts, he could receive no progress
report from the respondent. He then decided to turn
to The Law
Society for assistance.
[15]
The respondent was requested to answer the complaint. However, the
applicant received no response from the respondent. Despite
various
requests by the applicant, the respondent neglected to provide any
response or explanation. The applicant's various requests
or
inquiries were disregarded.
[16]
The third complaint came from Mrs Matshipe Rosinah Makosholo. The
applicant received a complaint on 13 April 2015. The respondent
advertised a house for sale. Mrs Makosholo became interested in the
residential property in question. She regarded the respondent
as the
seller on behalf of the executor. She bought the immovable property
from him. She paid to him the sum of
R222 782.25.
The figure she paid included the purchase price as well as the
transfer costs. She bought the property in the year
2011. Pending the
registration of the property in her name, she took immediate
occupation thereof and paid occupational rent as
the respondent
demanded from her, notwithstanding the fact that she had already paid
the purchase price in full. The respondent
took a considerable time
to effect the transfer of the property. She made several enquiries
about the matter and the delay. She
made numerous attempts to contact
the respondent because she was not receiving any regular progress
reports. She called the respondent
on countless occasions but the
respondent did not take her calls. She left messages for the
respondent to revert to her but he
did not. Ultimately, after many
years of frustration and delays she approached the applicant for
assistance.
[17]
The applicant took the matter up with the respondent. The respondent
was called upon to respond to the complaint but he did
not. He
neglected to provide the applicant with any response whatsoever let
alone an acceptable explanation, notwithstanding various
requests by
the applicant.
[18]
The fourth complaint came from Mrs CD Vader. The applicant received
her complaint on the 5 August 2015. She averred that she
instructed
the respondent to assist her with the winding up of a trust known as
the Bavistock Trust Fund in favour of beneficiary.
The essence of the
complaint was that the respondent did not keep her informed. She
received no regular progress reports from him
concerning the matter.
She addressed letters to him. She attended his offices. She
telephoned him. Notwithstanding all her attempts,
the respondent did
not attend to her instructions. He neglected the instructions she
gave to him. He refused to provide her with
documentation in his
possession to enable her to appoint another attorney. She too turned
to the applicant to alleviate her frustrations.
[19]
The applicant took the matter up with the respondent. The respondent
was called upon to answer the complaint. He did not. Notwithstanding
various request made by the applicant, the respondent simply
neglected to provide any response whatsoever let alone any acceptable
explanation to the complaints. This completes my summary of the
factual background to each of the professional misdemeanours
complained
of.
[20]
In the first place
I deal with the statutory misconduct
relating to the duty of an attorney to obtain an annual fidelity
certificate. The applicant
is a creature of a statue. It statutory
obligations are set out in section 58 Act No 53 of 1979. The section
provides as follows:
"The
object of a law society shall be:
(a)
to maintain and enhance the prestige, status and dignity of the
profession;
(b)
to regulate the exercise of the profession;
(c)
to encourage and promote efficiency in and responsibility in relation
to the
profession;
(d)
to deal with all matters relating to the interests of the profession
and to
protect those interests;
(e)
to uphold the integrity of practitioners;
(f)
to uphold and improve the standards of professional conduct and
qualifications for practitioners;
(g)
to provide for the effective control of the professional conduct of
practitioners;
(h)
to promote uniform practice and discipline among practitioners;
(i)
to encourage the study of the Jaw;
0)
to initiate and promote reforms and improvements in any branch of the
law, the administration of justice, the practice of the
law and in
draft legislation;
(k)
to represent generally the views of the profession;
(I)
in the interests of the profession in the Republic, to co-operate
with such other societies or bodies of persons as it may deem fit."
[21]
I now turn to the law and the applicable principles. Section 41(1)
provides that a practitioner shall not practise or act as
a
practitioner unless he is in possession of a fidelity fund
certificate. Section 41(2) provides that any
practitioner who practices or acts in
contravention of subsection 1 shall not be entitled to any fee or
reimbursement in respect of anything done by him while so practising
or acting.
[22]
Section 83(10) provides that any person who directly or indirectly
purports to act as a practitioner on his own account or
in
partnership without being in possession of a fidelity fund
certificate shall be guilty of an offence.
[23]
Every attorney knows that a fidelity fund certificate is not there
for the asking. An essential requisite for the issue of
such a
certificate is an audit certificate. Again every attorney knows that
an audit certificate can only be issued once an auditor
has audited
an attorneys trust books of account. It is the basic obligation of an
attorney and not his law society to see to it
that his trust books of
accounts are annually audited. Although appointed by an attorney an
auditor is a
de jure
representity of a law society. A law
society depends on the unqualified audit certificate in order to
issue a fidelity certificate
to an attorney.
The audit certificate is an assurance
by an auditor
to the law society that an attorney properly complies
with his accounting obligations to his clients. The latter is a
promissory
note by a law society to the public that an attorney is a
man of integrity who can be trusted by the public. I cannot elucidate
the importance of the two certificates better than this. It follows
therefore that an uncertificated attorney cannot objectively
be
regarded as a lawyer if integrity who can be trusted to render
professional services to the public.
[24]
It was held at the turn of the century that an attorney who
practices without the requisite fidelity certificate commits a
serious
criminal offence in a serious breach of an attorney's duty.
Law Society of the Northern Provinces v Mamatho
2003
(6) SA 467
SCA. The gravity of such a criminal offence was
subsequently stressed a decade later in the
Law Society of the
Cape of Good Hope v
Adams
2013 ZAWCHC 87.
That then is
the law as relates to the statutory duty of an attorney to be
licensed in order to practice law.
[25] As
regards the statutory duty of an attorney to account to clients the
law is also clear. The law obliges an attorney to maintain
a separate
trust account and to deposit therein money held or received in trust
by him on account of any person - Section 76, and
section 78(1). The
law criminalises contravention of the provisions relating to these
trust accounts held in terms of section 78(1).
The law also provides
that a practitioner who contravenes the provisions of the section as
regards the investment of trust money
would be guilty of
unprofessional conduct and liable to be struck off the roll or
suspended from practice - section 83(13).
[26]
"Failure
to
keep proper books of
account
is
serious contravention and renders an attorney
liable
to
be struck
off
the roll of practitioners
or
liable
to
suspension; and the courts have repeatedly warned
practitioners of the
seriousness
of such contravention"
see
Law Society of Transvaal v Matthews
1989 (4) SA
389
(TPD) at 395E. It can, therefore, be appreciated that the duty of
an attorney to account is not just important. It is more than
that.
In essence it is fundamental to the honour of being a lawyer.
See
Cirota and Another v Law Society of Transvaal
1979
(1) SA 172
(A) at 193f-g as well as
Law Society of the Northern
Provinces v Moima
2013 ZAGPPHC 213.
[27]
Any person who has been admitted and enrolled as an attorney may, on
application by the law society, be struck off the roll
or suspended
from practice by the court in whose jurisdiction he practices if, in
the discretion of the court, he is no longer
a fit and proper person
to continue to practise as an attorney - section 22 (1)(d). The
section provides the sanction for delinquent
attorneys. The fitness
or otherwise of a practising attorney to continue practising as such
has been considered in many decisions
in the past.
[28]
In
Nyembezi v the Law Society Natal
1981 (2) SA 752
(A)
at 756H - 757A the court held per Gillie JA:
"When
a law society applies for an attorney to be struck off the roll, it
places before the Court facts which, in its submission,
show that the
respondent is no longer a fit and proper person to continue in
practice as an attorney. The respondent replies with
explanations and
other facts to show the contrary. The Court, after considering the
facts and hearing argument, decides on a balance
of probability
whether the respondent's alleged offending conduct or acts have been
established and, if so, whether they show that,
by reason of his
character or otherwise, the respondent is or is not a fit and proper
person to practise as an attorney. Although
that may sometimes
necessitate making a value judgment to some extent, the Court's
function is, in essence one of making an objective
finding of facts,
and not the exercise of a discretion."
Therefore,
the test as to whether an attorney is a fit and proper person to
practise as such is an objective one. It is factual
and not
discretionary in a narrow sense.
See
Law Society of the Eastern Cape v Qoboshiane
2013
(ZAECGHC) 35.
[29]
The structure of the judicial inquiry into the fitness or otherwise
of an attorney to continue holding that office was authoritatively
described and ventilated in the year 2000. The applicable section
22(1)(d) contemplates a three-stage inquiry:
"First,
the court must first decide whether the alleged offending conduct has
been
established on
a
preponderance of
probabilities....
The
second enquiry is whether, with reference
to
this conduct, the
attorney
is
a
fit and proper person to continue
to
practice as an attorney. This is expressed as being a discretion
but in reality involves
a
weighing up
of
the conduct
complained of against the conduct expected of an attorney, this being
a
value judgment.
The
third enquiry is whether in all the circumstances the person should
be removed
from
the
roll
or
whether an
order suspending him
from
practice
for
a
specified
period
will
suffice.
This
is
also
a
discretionary matter
in
which
relevant
factors
include
the
nature of the
offending conduct, the extent to which it reflects upon the person's
character or shows
him
to
be
unworthy
to
remain
in
the ranks
of
an honourable
profession, the likelihood or otherwise of
a
repetition of the
offending conduct,
and the need to protect the public.
Ultimately it is
a
question of
degree."
Jasat
v Natal Law Society
2000 (3) SA 44
(SCA) at (10] per Scott
JA.
[30]
In
Malan and Another v Law Society Northern Provinces
2009
(1)
SA 216 (SCA) at [7] the court held per Harms ADP:
"[7]
First, in deciding on whichever course to follow the court is not
first and foremost imposing a penalty. The main consideration
is the
protection of the public."
See
also
Law Society of the Free State v Molapo
(2013)
ZAFSHC 99.
[31]
The first leg of the inquiry in terms of section 22(1)(b) concerns
the question whether the respondent has indeed committed
the
transgressions he is accused of. This component of the enquiry is
factual in nature.
[32]
The second leg of the enquiry in terms of section 22(1)(b) concerns
the practising attorney's fitness or otherwise. Here the
question is
whether the respondent is no longer a fit and proper person to
continue to practise as an attorney as the applicant
contends.
[33]
The third leg of the enquiry in terms of section 22(1)(b) concerns a
sanction. Here the question is what an appropriate punishment
should
be for the proven delinquent attorney. The choices are limited. The
respondent is either temporarily suspended from practice
or is
permanently removed from practice. There is nothing in between. On
that note the guiding legal framework ends.
[34]
Mrs Sander, council for the applicant, contended that the alleged
offending conduct of the respondent in respect of each complaint
has
been established on preponderance of probabilities; that in view of
the proven misconduct, the respondent is no longer a fit
and proper
person to continue to practise as an attorney and that in these
circumstances the only fitting an appropriate punishment
is a
sanction whereby the respondent's name would be permanently removed
from the roll. Therefore, counsel urged us to grant the
relief as
fully set out in the notice of motion as amended.
[35]
In
the first place
I deal with the respondent's failure to
apply for and obtain fidelity certificate.
This is
the very first complaint
levelled against him by the applicant. The respondent as an attorney
was required
by law to apply annually for the issue of a fidelity
certificate in terms of section 41(1). The applicant alleged that the
respondent
was not in possession of the requisite certificates since
the year 2014. The allegations levelled against the respondent in
this
regard were uncontested. That been the case, there is no reason
for the averments made by the applicant to be doubted. In the absence
of any evidence to the contrary, we are bound to accept those
averments as true and correct. Therefore, I find that the respondent
has been practising without the requisite fidelity certificate since
the year 2014 and that his conduct constitutes contravention
of
section 41(1).
[36]
By practising without a fidelity certificate, the respondent has
contravened section 83(10) as well. He has, therefore, committed
a
criminal offence and liable to be prosecuted. Uncertificated
practice of law as an attorney is a crime of a very serious
magnitude. Delinquent attorneys who contravene section 83(10) read
with section 41(1) should not be easily led off the hook. They
must
ideally be prosecuted. Unless they are, a wrong perception will be
created out there that law societies do nothing to protect
the public
against their delinquent members. The applicant has to act swiftly
against attorneys who contravene these sections.
It is a lamentable
state of affairs to note that, in this particular instance, the
respondent's default started way back in 2014
but he was only brought
to court almost two years later on the 8 December 2016. In my view
this was not swift enough.
[37]
The failure by an attorney to apply for the annual fidelity
certificate is objectively an instant indication that trust funds
of
the attorney clients might be under threat. A swift action by the law
society will ensure that an uncertificated attorney is
not given
further opportunity to over reach his trust clients. The longer it
takes for the law society to act the greater will
be the loss of
trust and confidence of the public in the lawyering community. In
Jasat,
supra
,
the court held, per Gillie JA, that an attorney who practices
without the annual fidelity certificate poses a very serious risk to
members of the public. I share those sentiments. This disposes of the
statutory transgression relating to the fidelity certificate.
[38]
In the second place
I deal with the professional
transgressions relating to the duty of an attorney to account. As a
result of the respondent's failure
to submit the audit reports for
the 2014 audit year, the applicant's disciplinary community resolved
to bring an application to
court to have the respondent's name struck
off the roll in connection with the four separate professional
complaints lodged against
him. I have earlier given summaries of the
alleged misconducts.
[39]
The applicant alleged that upon receipt of each one of the four
complaints from the respondent's clients, each complaint was
taken up
with the respondent. He was furnished with copies of each complaint.
He was then called upon to answer. He did not answer.
He was then
requested on several occasions to respond but he did not respond to
any such request. The application was served on
him. He did not file
the answering affidavit. On three or so occasions the matter was
postponed at his request. Notwithstanding
the postponements, he still
did not file the answering affidavit at long last.
[40]
A
gain each of the
complaints remains uncontested. The averments of the applicant must,
therefore, be accepted as true and correct.
In the circumstances, I
am satisfied that each transgression has been established on a
balance of probabilities.
Jasmat,
supra.
[41]
The failure of an attorney to account to a client is, on its own, a
very serious transgression of section 78(1) read with section
83(13).
The misconducts committed by the respondent in respect of each of his
clients cannot be reconciled with the noble objectives,
norms and
standards which the applicant strives to cultivate and uphold.
The
respondent behaved in a manner which degraded the prestige, the
status and the image of the lawyering community. He probably
kept no trust accounting books of record, or he probably suppressed
some serious irregularities and dishonest dealings in respect
of some
of his trust accounting books of record. By so doing he tarnished the
integrity of the honourable legal profession in general
and the
dignity of his fellow practitioner in the local community - see sec
58.
[42]
"An attorney who cannot properly account to his client poses a
very serious threat to public interest. All trust money
held by the
respondent was at great risk. He closed down his practice while he
was under a dark and heavy cloud of suspicion. The
manner in which
the respondent conducted himself suggested to me that he probably
kept no trust accounting records or that there
were some serious
irregularities in respect of some or all his accounting records."
Molapo,
supra,
at [48].
[43]
It seems to me that there was a clear connection between the third
complaint and the first complaint. The respondent sold the
residential property of the first complainant's late mother to the
third complainant. The latter purchased the property for cash.
She
took immediate beneficial occupation of the property. Notwithstanding
that, the respondent still demanded from her occupational
rent. As if
that was not enough, the respondent dragged his feet for years but
never had the property transferred to the third
complainant. During
those many years, dating back to 2011, the third complainant paid
rent to the respondent but the first complainant
or the deceased
estate received neither the rent nor the purchase price of the
property from the respondent. I mention these aspects
to illustrate
the gravity of the respondent's dishonest conduct.
[44]
In the light of the aforegoing, I am also satisfied that the
applicant has established each and every one of the demeanours as
evidenced
by the complaints lodged by the respondent's previous
clients. Each of them has been established on a preponderance of
probabilities.
Therefore, the first question of the inquiry has to be
determined in favour of the applicant. See
Jasat,
supra.
[45]
As regards the .second leg of the inquiry,
it is of the utmost
importance to bear in mind that the respondent has made himself
guilty, not of one, but of two if not four professional
misconducts
involving dishonesty. I have a suspicion, and it is a very strong
suspicion, that the first respondent's misconduct
relative to his
failure to apply for the issue of a fidelity certificate has an
element of dishonesty in it. The evidence indicates
that he did not
furnish the applicant with the requisite audit certificate since
2015. I do not believe, for one moment, that his
failure to do so was
in any way innocent.
[46]
There is a great likelihood in my view, that the respondent did not
cause his trust books of account to be audited as the law
requires
because he knew all too well that the auditing would have revealed
skeletons in the cupboards. If my suspicion is correct,
and I have
every reason to believe that it is, then the respondent was not only
dishonest to his four clients but he was also dishonest
to the
applicant as well. It is, therefore, important to consider his breach
of his duty towards the applicant not differently
from his failure or
his breach of duty towards his four clients.
[47]
The five complaints taken together make out a formidable case
of dishonesty against the respondent. An attorney who breaches his
statutory duties towards his clients and towards his regulatory body
can, in no circumstances, be objectively considered to be
still a fit
and proper person to practise law as a member of this honourable
profession. The respondent's dishonest conduct, particularly
towards
his trusting clients, disqualifies him from laying any claim to the
membership of the noble profession. He acted in a disgraceful,
dishonest and unethical manner towards his trusting clients. His
deviant conduct offended the noble objectives, norms and standards
expected of an attorney. The misconducts he committed show that, by
reason of his character or otherwise, he is certainly no longer
a fit
and a proper person, if he ever was, to practise as an attorney. See
Nyembezi v Natal Law Society
supra.
[48]
Consequently the respondent fails the fitness and propriety test. I
would, therefore, determine the second question of the
inquiry in
favour of the applicant. The question raised by the second leg of the
inquiry is accordingly answered in the affirmative.
I have
painstakingly weighed up the respondent's misconduct against the
conduct of an ordinary attorney. I found the respondent
to be
comparatively wanting. Those deplorable acts of dishonesty appeared
to be deeply anchored in his character as a person. Shortcomings,
inherent in the personhood of an individual take time to be
curatively remedied. In this instance, it seems to me that they
vitiate
any likelihood that the respondent's unfitness and
impropriety can, now or in the immediate future, be effectively
cured.
He has, therefore, imperilled
his privilege to serve the community as an
attorney. Therefore,
the second question of the inquiry also has to
be decided in favour of the applicant.
Jasat v Natal Law
Society
supra.
[49]
As regards the third element of the enquiry,
the spotlight
concerns an appropriate measure of punishment. To suspend or to
remove? That is the question. A material consideration
in this regard
concerns public interest. The respondent is no longer a fit and
proper person to continue practising as an attorney.
The four
complainants suffered enormous financial prejudice on account of his
dishonest conduct. The image of the applicant's honourable
profession
has been seriously tarnished by his conduct.
[50]
On behalf of the applicant, Mrs Sander, submitted to us that
suspending the respondent from practice would not be an adequate
and
appropriate punishment to him for what he did. There was substance in
the submission. Anyway, the respondent is no longer
practising.
That being the state of affairs, it would logically serve no
practically useful purpose to suspend him. Consequently
suspension
would not be an appropriate sanction. In the light of the gravity of
at least two acts of dishonesty he has committed,
I am of the view,
and it is a very firm view, that suspending him from practice for a
specific period of time will not be proportionate
to the gravity of
the transgressions he has committed.
[51]
The above conclusion leaves us with no other satisfactory
alternative other than to have the respondent's name
permanently
removed from the roll. The misconduct he has committed reflect
very poorly upon his character. Those unethical
acts of misconduct
portray him as a lawyer unworthy to remain in the ranks of an
honourable profession. Above all these considerations
the need to
protect the public is the most paramount consideration.
Jasat
supra
and
Molapo
supra.
[52]
In
Malan
supra,
the court held:
"First
in deciding whichever course to follow the prime consideration is the
protection of the public." (vide par [71)
The
court went further to say:
"Logic
also dictates that if a court finds that someone is not a fit and
proper person to continue to practice as an attorney,
then such
person has to be removed from the roll." vide par [8]
Pretty
much the same sentiments where expressed in
Molapo
supra.
It has to be recognised though, that there are qualitative
degrees of unfitness - some benign others malignant. The latter
is inherently incurable form of unfitness. That is precisely the
situation here. There are virtually no good transformative prospects.
[53]
Once the temporary suspension of the delinquent attorney has
been ruled out as an inappropriate punishment, there remains
effectively only one available sanction to impose. This is
particularly so in the case where the conduct of a delinquent
attorney
was tainted by elements of dishonesty.
"It
is seldom, if ever, that a mere suspension from practice for a given
period in itself will transform one who is unfit to
practise into one
who is fit topractise."
Malan,
supra,
at
[8].
[54]
Having considered all the circumstances of this particular case I
could find no reason whatsoever which slightly suggested
that the
suspension and not the removal of the respondent would be a fitting
and appropriate sanction. I share the following views:
"Obviously
if the court finds dishonesty, in any facet of the conduct complained
of, then, in that event, the circumstances
must be exceptional before
a court would order a suspension instead of a removal."
Malan,
supra,
at [10]:
"In
the instant matter there was virtually no argument advanced and I
could find no evidence to support any conclusion that
there were
exceptional circumstances which substantially compelled the
suspension of the respondent instead of his removal from
the roll of
attorneys."
Molapo,
supra,
at [54]:
"The
protection of the public is always of paramount importance in matters
such as this. In my view the public has to be protected
against the
respondent. The most effective and meaningful way of protecting the
public against the danger posed by the respondent
as an attorney is
to have the respondent's name removed from the roll. Such a sanction
would prevent him from endangering public
interests."
Molapo,
supra,
at [56].
[55]
Having considered the peculiar circumstances of this particular case
and the three stage enquiry, I have come to the following
conclusion:
55.1
That each complaint lodged against the respondent has indeed been
established on the preponderance
of probabilities;
55.2
That the respondent is indeed no longer a fit and proper person to
continue practicing as an attorney;
55.3
That the removal of the respondent's name from the roll of practising
attorneys is a fitting and appropriate
punishment for him for all the
five transgressions he has committed.
[56]
Accordingly I make the following order:
56.1
The respondent's name is struck off the roll of attorneys;
56.2
The respondent must surrender and deliver to the registrar of this
court his certificate of enrolment
as an attorney of this court;
56.3
Should the respondent fail to comply with paragraph 2 within fourteen
(14) days of this order, the
sheriff of the this court for the
relevant district, is empowered and directed to take possession of
such certificate and to deliver
to the said registrar;
56.4
The chief executive officer of the applicant for the time being is
appointed as curator bonis to exercise
the powers and to discharge
the duties described in paragraph 8 hereof;
56.5
The chief executive officer is exempted from to providing security to
the master of this court for
her appointment as curator bonis for due
performance of her obligations in terms this order and the law;
56.6
The respondent is directed to surrender and to deliver to the curator
bonis all the records relating
to his practice which, for the purpose
of this order, shall include but not limited to all accounting
records, files, correspondence,
documents and the like which are
directly or indirectly relevant to or which contain particulars and
information relating to;
(a)
Any monies received, held or paid by the respondent for or on account
of any person;
(b)
Any monies invested by the respondent in terms of any provision of
Section 78 of the
Attorneys Act, No. 53 of 1979 (hereinafter referred
to as “theAct”);
(c)
Any interest on monies so invested in terms of Section 78(2) or
78(2A) of the
Act;
(d)
Any estate of deceased person administrated by the respondent,
whether as executor
or on behalf of the executor, in terms of the
provisions of the Administration of Estates Act, Act 66 of 1965;
(e)
Any estate in which the respondent acted as or on behalf of the
Curator to administer
the property of a
minor
child or any other person in terms of Section 72 of the
Administration of Estates Act, Act 66 of 1965;
(f)
Any insolvent estate administrated by the respondent as trustee or on
behalf
of the trustee in terms of the Insolvency Act, Act 24 of 1936;
(g)
Any trust administrated by the respondent as trustee, of on behalf of
the trustee
in terms of the Trust Properties Act, Act 57 of 1988;
(h)
Any company liquidated in terms of the Companies Act, Act 61 of 1973,
administrated
by the respondent as liquidator or on behalf of the
liquidator;
(i)
Any close corporation liquidated in terms of the Close Corporations
Act,
Act 69 of 1984 administrated by the respondent as liquidator or
on behalf of the liquidator; or
j)
The respondent's practice as an attorney of this Court.
56.7
Should the respondent fail immediately to surrender or to deliver the
items referred to in paragraph
6 after service of this order upon
him, or after a return by the person entrusted with such service that
such a person has been
unable to effect service of this order upon
the respondent, as the case may be, the sheriff of the high court for
the district
in which such records are, is empowered and directed to
take possession and to deliver them to the said curator bonis.
56.8
The said curator bonis shall have the following rights and powers:
(a)
to hand over any said records to any person entitled there to, as
soon as he has satisfied
himself that the fees and disbursements in
connection therewith have been paid or satisfactory secured, or that
same are no longer
required;
(b)
to accept a written undertaking y a trust creditor to pay such amount
as may be due
to the respondent, either on taxation, assessment or by
agreement, as satisfactory security for the purpose paragraph 8(a),
provided
that such written undertaking incorporates a
dimicilium
citandi et executandi
of such creditor;
(c)
to require that any records, so handed over, be delivered back to him
if, in his sole
and absolute opinion, he considered them to be
relevant to an, (including any possible anticipated or threatened)
claim against
him as Curator Banis and/or the respondent and/or the
respondent's clients and/or the Attorney Fidelity Fund (hereinafter
referred
to as "the Fund");
(d)
to administer and control all the respondent's trust account which
for the purpose
of this orders shall include:
i.
the accounts relating to any estate, curatorship, trust or company,
referred to in paragraph 6
hereof;
ii.
any and all banking accounts opened and/or kept by the respondent (or
on the respondent's behalf) in terms
of any provision contained in
the Act or any of the Acts referred to in paragraph 6.
(e)
Subject to approval of the Board of Control of the Fund (hereinafter
referred to as "the Board"), to sign and endorse cheques
and/or withdrawal forms and generally to operate upon the said
trust
accounts, but only to such extent and for such purposes as may be
necessary to bring to completion current transactions in
which the
Respondent was acting as at the date of this Order;
(f)
Subject to the approval of the Board, to recover and receive and, if
necessary
in the interest of person having lawful claims upon the
said trust accounts and/or against the respondent in respect of
monies
held, received and/or invested by the respondent in terms of
Section 78(1) and/or 78(2) of the Act (hereinafter referred to
as the “trust monies”) to take any legal proceedings
which may be necessary for the recovery of money which may be
due to
such person in respect of incomplete transactions in which the
Respondent may have been concerned and which may have been
wrongfully
and unlawfully paid from the said trust accounts and to receive such
monies and to pay the same to the credit of the
said trust accounts;
(g)
To ascertain from the respondent's records the names of all persons
on whose account
the respondent appears to hold or to have received
trust monies (hereinafter referred to as "trust creditors")
and to
all upon the respondent to furnish him within thirty (30) days
of the date of this order or within such further period as he may
agree to in writing with the names and addresses of, and amounts due
to, all trust creditors;
(h)
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, to
determine whether any
such trust creditors has a claim in respect of
money in the said accounts and, if so, the amount of such claim;
(i)
Subject to the approval of the Board, to admit or reject in whole or
in
part, the claims of any such trust creditor without prejudice to
such trust creditor's right of access to the Civil Courts;
(j)
Subject to the approval of the Board, to pay such claims as he may
consider lawfully
due;
(k)
In the event of there being any surplus in the said trust accounts
after payment of
any such claims, 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 the Act in respect of any interest therein
referred to and, secondly without prejudice to the rights of the
respondent's
creditors, the costs, fees and expenses referred to in
paragraph 12 hereof, or such portion thereof as has not already been
separately
paid by the respondent to the applicant and, if there is
any balance left after payment in full of all such claims, costs,
fees
and expenses, to pay such balance to the fund;
(I)
In the event of there being insufficient trust monies in the said
accounts
to pay in full the claims of trust creditors as reflected in
the records of the respondent:
i.
Subject to the approval of the Board, toclose the said accounts and
to pay the credit balances therein to the Fund
and require such
credit balances therein to be placed to the credit of a special trust
suspense account in the name of the respondent
in the Fund's books;
ii.
To refer the claims of all trust creditors to the Board to be dealt
with in terms of the provisions of the Act;
iii.
To authorise the Board to credit the credit balances referred to
above to its "paid claims account" when the Fund
has paid,
in terms of Section 26 of the Act, admitted claims of the trust
creditors of the respondent in excess of such credit
balances,
provided that, notwithstanding the aforegoing, the Board in its
discretion shall be entitled to transfer to its: paid
claims
account11 the amounts of any claim as and when admitted and
paid by it.
(m)
Subject to the approval of the Chairman of the Fund, to appoint
nominees or representatives
and/or consult with and/or engage the
services of attorneys, counsel, accountants and/or any such other
person where considered
necessary, to assist him in the carrying out
of his duties as Curator Bonis.
(n)
To render from time to time returns to the Board showing how the said
accounts have
been dealt with until such time as the Board notifies
him that he may regard his duties as Curator Banis as terminated.
56.9
The respondent is interdicted and prohibited from operating the
accounts
referred to in paragraph B(d);
56.10
The respondent is hereby removed from the office as:
(a)
Executor of any estate in respect of which he has been appointed in
terms of Section 14(v) of the Administration
of Estates Act, Act 66
of 1965 or the estate of any other person referred to in Section
72(1); and
(b)
Curator or guardian of any minor or other person's property in terms
of Section 72(1), read with Sections
54{1)(a)(v) and 85 of the
Administration of Estates Act, Act 66 of 1965, or the estate of any
other person referred to in Section
72(1); and
(c)
Trustee of any insolvent estate in terms of Section 59 of the
Insolvency Act, Act 24 of 1936; and
(d)
Liquidator of any company in terms of Sections 379(2) read with
Section 379 of the Companies Act, Act
61 of 1973; and
(e)
Trustee of any trusts in terms of Section 20(1) of the Trust Property
Control Act, Act 57 of 1988; and
(f)
Liquidator of any Close Corporation appointed in terms of Section 74
of the Close Corporations
Act, Act 69 of 1984.
56.11
The applicant is hereby authorised, should it consider it necessary,
to engage the services
of accountants of its choice who are
registered in terms of the Public Audit Act, Act 25 of 2004 to
conduct an examination and
audit of the respondent's accounting
records and to report to applicant in respect of such an examination
and audit insofar as
such accountants, and/or applicant, may consider
it necessary.
56.12
The respondent be and is hereby directed to pay;
(a)
The applicant's costs of the inspections which may have been carried
out of the Respondent's records
in terms of Section 70(1) and 78() of
the Act at the rate of R600.00 per hour;
(b)
The costs of the said accountants in respect of any examination audit
or report made by them in terms
of this order;
(c)
The costs of the sheriff, employed in terms of paragraphs 3 and 7
above;
(d)
The fees and expenses of the Curator Banis, such fees to be assessed
at the rate of R600.00 per hour
(including travelling time) and
prima
facie
proof whereof shall be sufficiently constituted by way of
certificate purporting to be signed by the Curator Banis and
specifying
the expenses and the length of time during which he was
engaged in the performance of his duties as curator Banis;
(e)
He fees and expenses of any person consulted and/or engaged by the
Curator Banis in terms of paragraph B(m)
above, at such person's
prescribed tariff rate save where such person is an attorney. at the
rate as between attorney and client;
(f)
The costs of an incidental to this application on an attorney and
client scale.
56.13
The respondent is hereby directed to satisfy the curator bonis within
one (1) year of the respondent
having been requested to do so by the
Curator, or within such shorter period as the curator bonis may agree
to in writing, by means
of submission of taxed bills of costs or
otherwise, of
the amount of fees and disbursements due to the
respondent in respect of the respondent said practice and, should the
respondent
fail to do sol the respondent shall not be entitled to
recover such fees and disbursements from the curator bonis, but
without
prejudice to any such rights, if any, as the respondent may
have against the trust creditors, concerned for payment or the
recovery
thereof;
56.14
The applicant is hereby directed to cause a copy of this order to be
served upon the master of this
court;
56.15
The copies of this judgment be served by the applicant through the
sheriff on each of the complainants;
56.16
The applicant is further directed to file proof of each service with
the registrar via the scribe
hereof before the 30 November 2017.
_________________
MH
RAMPAI, J
I
concur
_________________
BR
LEFENYA, AJ
On
behalf of applicant:
Adv I Sander
Instructed
by:
Molefi Thoabala Inc
Bloemfontein
On
behalf of respondent: No appearance