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[2016] ZAFSHC 97
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Law Society of the Free State v Radebe (5293/2015) [2016] ZAFSHC 97 (9 June 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5293/2015
DATE:
09 JUNE 2016
In
the matter between:
THE
LAW SOCIETY OF THE FREE
STATE
.......................................................................
Applicant
And
MKHOSI
CONFIDENCE
RADEBE
...................................................................................
Respondent
CORAM:
RAMPAI, J et CHESIWE, AJ
HEARD
ON: 12 MAY 2016
JUDGMENT
BY: CHESIWE, AJ
DELIVERED
ON: 09 JUNE 2016
INTRDOCTION
[1]
In this application, the applicant primarily seeks an order whereby
the respondent’s name is struck of the roll of attorneys
of
this court, or alternatively, that the respondent be suspended from
practice for such a period and on such conditions as the
honourable
court may deem first. The respondents opposes the application.
[2]
The application is brought in terms of section 22(1)(d) of the
Attorneys Act 53 of 1979 which provides that:
22(1)
“
Any person who has been admitted
and enrolled as an attorney may on application by the society
concerned be struck off the roll
or suspended from practice by the
court within the jurisdiction of which he or she practices…..”.
(d)
“
If he, on the discretion of the
court, is not fit and proper person to continue to practice as an
attorney.”
[3]
The respondent was admitted as an attorney of this court on 23 July
2009. He commenced to practice as a sole practitioner from
May 2011
under the name and style of MC Radebe Attorneys in Ficksburg.
[4]
The application is brought on the grounds that the respondent has
failed to properly administer the deceased estate of the late
Mafusi
Rebecca Phomodi.
BACKGROUND
TO THE APPLICATION
[5]
That on or about 8
th
October 2013, the applicant received a written complaint against the
respondent from a Mr Abraham Phomodi. The complaint was that
the
respondent who was appointed as the executor had failed to properly
administer the estate of the late Mafusi Rebecca Phomodi.
The
complaint was based on the alleged delays by the respondent to
finalise the estate, the fees that the respondent charged, the
respondent’s failure to reply to letters from Mr Phomodi and
the unauthorised utilisation of funds for personal practice
expenses
to the total value of R31 000,00 in the estate of the late
Mafusi Rebecca Phomodi.
[6]
The applicant notified the respondent of the complaint levelled
against him. The respondent’s response was that Mr Phomodi
was
not an heir to the estate and that any communication with him was out
of courtesy. Furthermore that the finalisation
of the estate
was delayed due to the heirs’ failure to respond to all the
correspondence send to them on 10 June 2015. On
8
th
of July 2015 the respondent appeared before the Disciplinary
Committee (DC), where various documents were provided by the
respondent
himself. The documents included, amongst others,
statements for cheque account [4......] and savings account
[9.........]. Both
accounts were held at ABSA Bank. The bank
statements showed various withdrawals from the bank accounts by the
respondent
as well as various deposits made by the respondent.
[7]
During the DC hearing the respondent voluntarily admitted that he had
withdrawn money from the estate account to pay for the
business
expenses of his practice, but that he had since paid back all the
money he had withdrawn. The respondent informed
the DC that he
had also applied to the Magistrate High Court to be removed as an
executor of the estate.
[8]
After the hearing, the committee was of the view that the respondents
transgressions where of a serious nature and consequently
the
committee resolved that the matter be referred to the Law Society
Council for a decision. The council held their meeting on
28 August
2015. At that meeting the respondent was represented by Adv
Snyman. The minutes of the meeting are attached as
FA15 page 205 –
207 of the record. The council resolved to bring an application to
have the respondent struck off or suspended.
APPLICATION
FOR POSTPONEMENT
[9]
On 25 February 2016 the respondent brought an application for
postponement which was granted by the honourable court and the
matter
was postponed to 12 May 2016. The court granted the respondents
application for the postponement. The court order read as
follows:
·
That the applicant in the main application
to make discovery of all documentation, if any in possession of the
applicant regarding
the Barnaschone matter or before 4 March 2016.
·
That the respondent in the main application
to file his application for leave to file further affidavits to the
main application
on or before 11 March 2016.
·
That the applicant in the main action files
an opposing affidavit to the application, for leave to file further
affidavits, on or
before 18 March 2016.
·
That the respondent in the main action file
his replying affidavit to the applicant’s opposing affidavit in
the application
for leave to file further affidavits, if any, in or
before 23 March 2016.
·
The application for leave to file further
affidavits, if any, be heard on 31 March 2016.
·
The respondent in the main application to
pay wasted costs accumulated as a result of the postponement.
[10]
In response to the court order, the president of the applicant, Mrs
Milton, filed an affidavit dated 4 March 2016, in which
she explained
that the applicant could traced no records relating to its erstwhile
member, Barmaschone.
THE
ISSUES
[11]
The first issue in this application is whether or not the respondent
is a fit and proper person to continue practicing as an
attorney as
envisaged in section 22 of the attorneys Act 53 of 1979. The
second issue, which arises only if the first issue
is negatively
determined, is what the appropriate sanction should be imposed on the
respondent.
THE APPLICANT
CASE
[12]
Mr Buys on behalf of the applicant submitted in oral arguments and
Heads of Arguments that the respondent is unworthy to remain
in the
profession and that the public needs to be protected from such an
attorney. Mr Buys quoted the case of
Malan
and
Another
v Law Society
[1]
.
He argued that the respondent confirmed his transgression and also
lied to the disciplinary committee. The respondent
also failed
to attend or to respond to the objections as raised by the Master of
the High Court. Mr Buys submitted that the
respondent continued
to make withdrawal from the estate accounts even five days before the
disciplinary committee hearing.
[13]
He argued that the behaviour of the respondent clearly indicated that
he had no moral lapses. He contended that the respondent’s
behaviour was contrary to the behaviour of a fit and proper
attorney. The respondents’ actions were serious and
amounted
to theft or fraud. As a result of the respondents’
behaviour, he failed to properly exercise his fiduciary duty towards
the heirs of the deceased estate. Mr Buys made reference to
section 22(1)(d) which envisages a three staged enquiry. This
enquiry
will be discussed in more detail below. Mr Buys concluded by
saying that there was no better sanction than to strike
the
respondent’s name, off the roll of attorneys.
THE RESPONDENT’S
DEFENCE
[14]
Mr Snyman appearing on behalf of the respondent pointed out in oral
arguments and Heads of Argument that, at the council meeting
questions were raised by certain members of the applicant’s
council concerning the applicant’s handling of the Barnasetone
matter. Mr Snyman argued that unlike many similar matters, in
this matter the respondent stood up as a man and openly acknowledged
his mistakes. He made reference to the case of
Burdicks
[2]
which
stipulates the guiding enquiry of the threefold principle. He
argued that the respondent implicated himself by acknowledging
his
mistakes. Mr Snyman pointed out that for a year the applicant
set with the complaint and did nothing, which poses the
question
whether the applicant was not concerned about the complaint.
[15]
Mr Snyman submitted that in the case of
Summerley
[3]
,
the attorney was struck off the roll on account of dishonesty.
In this case, however, the respondent has fully disclosed
his
transgressions and paid back the money, which shows good character on
the part of the respondent. He further submitted
that, the
Master of the High Court has appointed the respondent in other
matters which involved larger amounts. Mr Snyman
made reference
to the matter of
Peter
[4]
– a case with similar offences; the attorney was only suspended
for a period of one year, since there are mitigating factors
which
will allow the court to deviate from the usual. He
submitted that, the applicants’ failure to immediately
interdict the respondent after the complaint was lodged, shows that
the applicant did not regard the respondent as an attorney
who posed
serious threat to members of the public whose interest must be
protected from an attorney with really bad moral character.
[16]
Mr Snyman brought it to the courts attention that, even though it is
not stated in pleadings, the applicant proceeded to issue
the
respondent with a new Fidelity Fund Certificate for the current year,
in spite of the pending application before court. This,
he said,
confirmed that the respondent’s trust accounts are clean and in
order.
[17]
Mr Snyman concluded that the respondent should not be struck off the
roll of attorneys as there are mitigating factors present.
He
stressed that each case must be decided on its own facts. He
then submitted that the peculiar circumstances of this particular
matter indicated that, notwithstanding his transgression, which he
frankly acknowledged with great remorse. The respondent
was
still a fir and proper person to practise as an attorney.
Therefore, counsel urged us to determine the issue in favour
of the
respondent. He relied on the case of
Law
Society v Peter
[5]
.
THE LAW
[18]
According to
Jasat
v Natal Law Society 2000 (3) SA 44 (SCA)
[6]
,
section 22(1)(d) of the Attorneys Act
[7]
envisages a three stage enquiry which is namely:
(1)
Whether
the alleged conduct has been established on balance of probabilities
(a factual enquiry)
[8]
.
(2)
Whether
the person concerned, in the discretion of court, is not fit and
proper person to continue to practice
[9]
.
(3)
Whether
in all circumstances the person in question is to be removed from the
roll of attorneys or whether an order of suspending
him from practice
for a specified period will suffice
[10]
.
[19]
In terms of section 58 of the Attorneys Act
[11]
the objectives of the law society are to:
(a)
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 interest of the profession and to protect those interests;
(e)
to uphold the integrity of the
practitioners;
(f)
to uphold and improve the standards
of professional conduct and qualifications of 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 law;
(j)
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;
(l)
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.
[20]
It is trite that applications of this kind are of a disciplinary
nature and are still considered
sui
generis
[12]
.
The Law Society in this instance is the
custos
morum
of the legal profession
[13]
.
It merely gathered the facts and placed them before court for
consideration
[14]
.
[21]
The question is whether an attorney is a fit and proper person as
contemplated in terms of section 22 (1)(d) of the Act is
not
dependent upon factual findings but lies in the discretion entrusted
to the court of law
[15]
.
The phrase fit and proper “does not contain two distinct ideas.
It is an expression of wide import. Its
meaning has to be
determined in the context within which it is used. In this
particular instance that context is the legislation
that is
applicable to attorneys. The context of the section and the
broad context of the statue must be borne in mind regarding
being had
to the scope and purpose of the legislation.
[22]
In
Kaplan
v The Law Society Transvaal
above
[16]
the court
stated that:
‘
The
indications are therefore that the expression “fit and proper
person” in 515 relates to the personal qualities of
an
applicant. The expression is also used in 522 which authorises
the court to strike an attorney off the roll or suspend
him from
practice of the court is satisfied that he is not a “fit and
proper person” to continue to practice as an
attorney.’
APPLICATION
OF THE LAW TO THE FACTS
[23]
The applicable principles of striking off an attorney are stated
clearly in section 22 (1)(a) of the Attorneys Act
[17]
which provides that any person who has been admitted an enrolled as
an attorney may on application by the Law Society concerned
be struck
off the roll or suspended from practice by the court, if in the
discretion of the court, he is not a fit and proper person
to
continue to practise as an attorney
[18]
.
[24]
To reiterate, the decision in
Jasat
v Natal Law Society
[19]
case
the court contemplated a three stage enquiry. Firstly the court must
decide whether the alleged offending conduct has been
established on
a balance of probabilities, which is a factual enquiry. Seeing
that the respondent acknowledge his transgressions,
the factual
enquiry requires no further consideration. On his own admission
the offending conduct has been established on
a balance of
probabilities. Therefore, the first leg of the enquiry is
satisfied. The misconduct has been proven.
[25]
Secondly, the court must consider whether or not the person
concerned, in the discretion of the court, is a fit and proper
person
to continue to practise. This involves a weighing up of the
conduct complained of against the conduct expected of
an attorney.
As far as the second leg of the enquiry is concerned, the Act
contemplates that where an attorney is guilty
of unprofessional or
dishonourable or unworthy conduct different consequences may follow.
The conduct in other instances
may be not that serious and the Law
Society may exercise its disciplinary powers by imposing a fine or
reprimanding the attorney.
This does not however mean that the court
is powerless if it finds the attorney guilty of unprofessional
conduct. The court
may discipline the attorney by suspending
him from practice with or without reprimanding
[20]
.
[26]
Thirdly
the
court must decide
whether
in all the circumstances the person in question is to be removed from
the roll of attorneys. The third leg is a matter of
discretion of the
court, this will depend upon the factors presented before court, and
the extent to which it reflects upon the
persons character or shows
him to be unworthy to remain in the ranks of an honourable
profession, the repetition of such conduct
and the need to protect
the public. If the court finds that a person is not fit and
proper to continue practice as an attorney,
that person must be
removed from the roll. However, the Act contemplates a
suspension. This means that removal does not follow
as a matter of
course. If there are grounds to assume that after the period of
suspension, the person will be fit to practice
as an attorney, then
the court would not ordinarily remove such a person, but will order
an appropriate suspension.
[27]
The implications of an order to remove an attorney from the roll for
misconduct are serious in nature. Such an order
ordinarily is
not made unless the court is of the opinion that the misconduct in
question is of a serious nature and that it will
manifests as
character defect or moral lapse and lack of integrity
[21]
.
In the matter of
A
v Law Society of the Cape of Good Hope
[22]
the court was of the view that any order of suspension must be
conditional upon the cause of unfitness e.g. if an attorney is unfit
because of the inability to keep proper books, the conditions of
suspension must deal with that inability. In that case,
as in
this matter the respondent acknowledged that he handled the funds of
the deceased estate inappropriately. The respondent,
therefore,
will need to have proper measures in place when he has to deal with
deceased estate accounts.
The
respondent in this regard relied on the judgment of
Summerly
v Law Society, Northern Province
[23]
which sets out the guidelines for sanction as follows:
“
As
a general rule, striking off is reserved for attorneys who have acted
dishonesty, while transgressions not involving dishonesty
are usually
visited with a lesser penalty of suspension from the practice.”
[28]
Obviously if a court finds dishonesty, the circumstances must be
exceptional before court will order a suspension instead of
removal.
The respondent placed the following exceptional circumstances before
the court justifying why he should be suspended,
rather than be
struck off the roll. He has been practising as a sole
practitioner since May 2011. He has not been found
guilty of
any other misconduct by the applicant. This incident represents his
first transgression. He is the sole breadwinner,
as his wife is
employed by him. He was forced to terminate the employment of other
staff in his practice due to insufficient income.
He committed the
transgression not to satisfy his selfish greed for money, but to meet
the basic expenses his new practice and
financial obligations towards
his employees. He has shown great remorse for his transgressions.
He has fully reimbursed the
estate of the monies he had withdrawn.
The heirs and creditors of the estate did not suffer actual loss.
All the same
he admitted that there was potential prejudice in his
actions. He has, out of his own accord, removed himself from office
as executor
without seeking payment in respect of an executor’s
fee or disbursements he incurred in the administration of the estate
concerned.
[29]
To sum up the respondent is young and relatively inexperienced in the
running of an attorney’s office. It was irregular
and unethical
of him to abuse the funds of the estate and not give proper account
to the heirs. He admitted his mistakes,
which indicates a
measure of remorse. He has not attempted to deceive the applicant nor
the court. In the matter of
Law
Society of the Cape Good Hope v C
[24]
,
Galgut AJA said with regard to the implication of a striking-off
order.
“
The
implication of a striking-off order are serious and far reaching.
Such an order envisages that the attorney will not be
re-admitted to
practice unless the court can be satisfied by the clearest proof that
the applicant has genuinely reformed, that
a considerate time has
lapsed since he was struck off, and that probability is that, if
reinstated, he will conduct himself honestly
and honourably in
future.”
[30]
We have considered the peculiar circumstances of the misconduct.
We are not convinced that a proper case has been made
out to justify
the finding that the respondent is no longer a fit and proper person
to continue practicing as an attorney.
[31]
We have weighed up the respondent’s conduct against the conduct
expected of a prudent attorney. We found the conduct
of the
respondent to be wanting. However, his deviant conduct did not,
in our view, stem from an inherently irreparable character
defect.
It append to us that, given a chance, he would probably redeem
himself and prudently conduct himself in an honourable
manner as a
fit and proper attorney is expected to. In the light of all
those considerations we are inclined to exercise
the discretion
entrusted to us in favour of the respondent as regards the second leg
of the enquiry. This then is our value
judgment. Jasat,
supra
, at
51C-G.
[32]
It is also trite that in the third leg of the enquiry the court has
to determine whether the respondent’s name must be
permanently
struck off from the roll or whether the respondent must be
temporarily suspended from practice
[25]
.
In
Law
Society of the Cape of Good Hope v Peter
[26]
,
the respondent experience financial problems and misappropriated
R20 000.00 to cover expenses of her practice. The court
held
that the theft was not the result of a character defect inherent in
her but rather a moral lapse brought about by the pressure
she had
been under. The respondent in that matter was only suspended
from practice.
[33]
In this matter before us, the respondent admittedly made withdrawals
from the estate account of the deceased. The respondent
acknowledged
that he had no intention of stealing the funds, but always intended
to pay back all the money he took from the estate
account
[27]
.
The deposits he made supported his averments. That tended to
diminish the moral blame worthiness of his action. He
did not
have the
mala
fide
criminal intent to permanently deprive the estate the actual benefit
of its funds.
Although
he acknowledged that the transgression were of a serious nature, he
submitted that that despite the applicant being aware
of his
transgressions for one year, the applicant still allowed him to
continue to practice without interdicting him. In
his opinion,
the failure to interdict him clearly demonstrates that the applicant
did not consider him unfit to practice as an
attorney. Mr
Snyman also submitted that the respondents trust account is clean;
the general running of the practice is immaculate
and neither the
estate nor the heirs to the estate had suffered any prejudice.
[34]
The applicant in this matter sought the ultimate disciplinary
sanction against the respondent that he be struck-off the role
of
attorneys. Such a sanction would be excessively severe and
harsh. Moreover, it would not be in keeping with the
conclusion
we have already reached in respect of the second leg of the enquiry.
It seems to me that, in all the circumstances,
a suspended sanction
would be an appropriate punishment to the respondent for the
misconduct he committed.
[35]
The question of costs, the applicant in the notice of motion and
founding affidavit asked for costs on an attorney and client
scale.
I am inclined to order the respondent to pay costs on the requested
basis. The applicant was well within its
rights to bring the
application.
[36] Accordingly the
following order is made:
(1)
The respondent is suspended from
practising, as an attorney for his own account, of this court for a
period of 12 months starting
from 1 October 2016.
(2)
The respondent may, during the period of
suspension, to practise as a professional assistant but shall not
practise for his own
account or as a partner with any other attorney.
(3)
The respondent is directed to pay the
applicant’s costs of the application on the scale as between
attorney and client.
S
CHESIWE, AJ
I
concur
MH
RAMPAI, J
On behalf of
applicant: Adv JJ Buys
Instructed
by: EG Cooper Majiedt Inc.
Bloemfontein
On
behalf of respondent: Adv C Snyman
Instructed
by: Honey Attorneys
Bloemfontein
[1]
Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) at para 4
[2]
Law Society of Good Hope V Budricks
2003 (2) SA 11
(SCA) at
paragraph 13 as well as KZN Law Society v Van Rooyen
[2009} JOL
23222
(KNP at page 13
[3]
Summerley v Law Society, Northern Provinces 2006 (%) SA 613 (SCA) at
paragraph 17.
[4]
Law
Society of the Cape of Good Hope v Peter reported as
2009 (2) SA 18
(SCA).
[5]
[zRPz]Law
Society of the Cape of Good Hope v Peter
2009
(2) SA 18
(SCA) at para [19]
[6]
Jasat
v Natal Law Society
2000
(3) SA 44
(SCA) at para 10. See also
Malan
and Another v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
and
General
Council of the Bar of South Africa v Geach and Others
2013 (2) SA 52
(SCA) at para [50]
[7]
Attorneys
Act 53 of 1979
[8]
Jasat
v Natal Law Society
above
at para [10]
[9]
Ibid
[10]
Ibid
[11]
Jasat
v Natal Law Society
above.
[12]
[zRPz]Malan
and Another v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009
(1) SA 216
(SCA) at 226A.
[13]
[zRPz]Kaplan
v Incorporated Law Society, Transvaal
1981 (2) SA 762
(T) at 777F
[14]
Hassim
v Incorporated Law Society of Natal
1977
(2) SA 757
(A) at 767C-G. See also
Cirota
and another v Law Society Transvaal
1979 (1) SA 72
(A) at 187H
[15]
Law
Society of Cape of Good Hope VC,
1986 (1) SA 610
(A) at 637C-E and
See also
Law
Society of Transvaal v Matthews
.
[16]
See
footnote 9 at
783G-H.
[17]
Section
22(1)(a) of the Attorneys Act states that:
i.
if he or she is no longer a South
African citizen;
ii.
in the case of a person who is not
a South African citizen, other than a person contemplated in
subparagraph (iii), if he or she
has failed to obtain a certificate
of naturalization in terms of the South African Citizenship Act,
1949 (Act No. 44 of 1949),
within a period of six years from the
date on which he or she was admitted to the Republic for permanent
residence therein, or
within such further period as the court may
for good cause allow;
iii.
in the case of a person referred to in
item (bb) of section 15 (1) (b) (ii), if he or she is no longer a
citizen of any state
referred to in that item, or has ceased to
belong to a category of persons or to comply with conditions
determined in terms of
that item;
[18]
Ibid.
[19]
Jasat
v Natal Law Society
above.
[20]
Law
Society of the Cape Good Hope v C
1986
(1) SA 616
(A) at 638I- 639E.
[21]
Ex
parte Wilcocks
1920
TPD 243
at 245
[22]
A
v Law Society of the Cape of Good Hop
1989
(1) SA 849
at 852 E-G
[23]
Summerly
v Law Society, Northern Province
2006
(5) SA 613
SCA.
[24]
Law
Society of the Cape Good Hope v C
above.
[25]
Law
Society of Cape of Good Hope v Buddricks
above.
[26]
Law
Society of the Cape of Good Hope v Peter above
.
[27]
Paragraph
35.1, page 245 of the opposing affidavit of respondent.