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[2016] ZAFSHC 145
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Law Society of the Free State v Majola (4776/2015) [2016] ZAFSHC 145 (12 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case number:
4776/2015
In
the matter between:
THE
LAW SOCIETY OF THE FREE
STATE
.......................................................................
Applicant
And
NTSIKELELO
NELSON
MAJOLA
...................................................................................
Respondent
CORAM: DAFFUE, J
et FISCHER, AJ
HEARD ON: 4
AUGUST 2016
JUDGMENT BY:
DAFFUE, J
DELIVERED ON: 12
AUGUST 2016
I
INTRODUCTION
[1]
This is an application by the Law Society of the Free State (“the
Law Society”)
for an order removing the respondent’s name
from the roll of attorneys, alternatively, that he be suspended from
practising
as an attorney until he satisfies the court that he is a
fit and proper person to resume practice as an attorney, together
with
the customary ancillary relief.
II
THE PARTIES
[2]
As mentioned
supra
,
the Law Society is die applicant in this application.
[3]
Respondent is Ntsikelelo Nelson Majola, an attorney and sole
practitioner practising in
Bloemfontein under the name and style of
Majola Attorneys who was admitted as an attorney approximately twenty
seven years ago
according to the heads of argument drafted by his
former counsel, Adv. Potgieter.
III
THE COMPLAINTS
[4]
The Law Society’s submission that respondent is not a fit and
proper person to practise
as attorney is based on respondent’s
failure to comply with directives from its duly appointed
Disciplinary Committee and/or
its Executive Officer pertaining to
eight complaints received by the Law Society from respondent’s
former clients.
These complaints and the history of the
protracted battle between the Disciplinary Committee and applicant’s
Executive Officer
on the one hand and respondent on the other will be
dealt with in more detail
infra.
[5]
Although the Law Society’s President for the time being, Mrs D
Milton, averred in
a replying affidavit that respondent’s
failure to account to a client timeously and only effecting payment
two and a half
years after a complaint had been laid,
“
leads
one to the inescapable conclusion that the Respondent did make
himself guilty of failing to pay trust funds over to his client
(the
Complainant) when obliged to do so and of not keeping such monies on
trust and dealing therewith in accordance with applicable
practise
(sic) rules and principles”, it cannot be found as a fact that
respondent acted dishonestly and/or that he misappropriated
trust
funds. More will be said in this regard
infra
.
IV
THE APPLICABLE LAW
[6]
Section 22(1) of the Attorneys Act, 53 of 1979 stipulates that 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 practices –
(d)
if he or she, in the discretion of the court, is not a fit and proper
person to continue to practise as an attorney.”
[7]
The application of s 22(1)(d) involves a threefold enquiry (see e.g.
Law Society of the Cape of Good Hope
v Budricks
2003 (2) SA 11
(SCA) in
para [2] and numerous SCA judgments thereafter).
[8]
The first enquiry is aimed at determining whether the applicant has
established the offending
conduct relied upon on a balance of
probabilities. Secondly, it has to be determined whether the
attorney, in the light of
the misconduct proven, is not a fit and
proper person to continue to practise as an attorney. In
considering the second requirement
the court exercises a discretion
which in the words of Scott JA in
Jasat
v Natal Law Society
2000 (3) SA 44
(SCA) at 51E-F:
“…
involves
in reality a weighing up of the conduct complained of against the
conduct expected of an attorney and, to this extent,
a value
judgment.”
See
also
Budricks
supra
at
14A. Finally, and only if it is found that the attorney is not
a fit and proper person as mentioned, the court must decide,
in the
exercise of its discretion, whether the attorney deserves the
ultimate penalty of being struck off the roll or whether an
order of
suspension from practice will suffice.
[9]
Applications for striking off are considered to be
sui
generis
. They are not ordinary
civil proceedings, but proceedings of a disciplinary nature.
See:
Hepple and Others v Law Society
of the Northern Provinces
[2014] 3
All SA 408
SCA in para [9]. A Law Society relying on s 22 of
the Attorneys Act does so
custos morum
as the guardian of morals of the attorneys’ profession.
It performs a public duty. See pertaining to s 22’s
predecessor:
Solomon v The Law
Society of Good Hope
1934 AD 401
at
408 – 409. The Law Society’s role can also be seen
as that of a
nuntius
:
it merely places facts relating to alleged unprofessional conduct
before the court for consideration by it in order for the court
to
exercise its discretion as to the appropriateness of a sanction to be
imposed in the event of the commission of the transgression
being
established. See:
Hassim v
Incorporated Law Society of Natal
1977 (2) SA 757
(AD) as 767C –G.
[10]
As a general rule the ultimate sanction of striking off is reserved
for attorneys who have acted dishonestly
whilst transgressions that
don’t involve dishonesty are usually visited with the lesser
penalty of suspension from practice.
If dishonesty is found,
the circumstances must be exceptional before a court will order
suspension instead of striking off.
See:
Law
Society, Cape of Good Hope v Peter
[2006] SCA 37 RSA in para [19] in which case exceptional
circumstances were found.
[11]
In
Summerley v Law Society, Northern
Provinces
2006 (5) SA 631
(SCA)
Brand JA made it clear that the so-called general rule referred to
supra
cannot
be regarded as a rule of the Medes and the Persians and continued as
follows in para [21]:
“
The
distinction is not difficult to understand. The attorney’s
profession is an honourable profession, which demands
complete
honesty and integrity from its members. In consequence
dishonesty is generally regarded as excluding the lesser
stricture of
suspension from practice, while the same can usually not be said of
contraventions of a different kind.
[12]
In
Malan and Another v Law Society of
the Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA
216
(SCA) Harms ADP states the following in para [10]:
“
Obviously,
if a court finds dishonesty, the circumstances must be exceptional
before a court will order a suspension instead of
a removal …
Where dishonesty has not been established the position is as set out
above, namely that a court has to exercise
a discretion within the
parameters of the facts of the case without any preordained
limitations.”
[13]
In the light of the kind of proceedings, i.e. they are
sui
generis
and of a disciplinary nature as
illustrated by the Supreme Court of Appeal in
Hepple
supra
, the
SCA confirmed the duty resting on an attorney in these kinds of
proceedings in the following
dictum
in para [9]:
“
It
follows therefore that where allegations and evidence are presented
against an attorney they cannot be met with mere denials
by the
attorney concerned. If allegations are made by the law society and
underlying documents are provided which form the basis
of the
allegations, they cannot simply be brushed aside; the attorneys are
expected to respond meaningfully to them and to furnish
a proper
explanation of the financial discrepancies as their failure to do so
may count against them.”
See
also:
Malan
supra
at
paras [27] - [28]. Let it be clear –
in
casu
, there is no clear proof of
financial discrepancies, but the
dictum
appears to be applicable to all other allegations of misconduct.
[14]
Attorneys confronted with applications for striking-off must be
cautious of not trying to blame the
Law Society without any
foundation. The following remarks by Harms ADP in
Malan
supra
at
paras [27] – [28] are apposite:
“
Furthermore
,
instead of dealing with the merits of the allegations, the
appellants conducted
a paper war and they attacked the Society and its officers, they
attacked the Fidelity Fund and they attacked
the attorneys who had to
take over their files – in short, their approach on the papers
was obstructionist... These factors
are ‘aggravating’ and
not extenuating because they manifest character defects, a lack of
integrity, a lack of judgment
and a lack of insight.”
[15]
Harms ADP went further and observed in
Law
Society of the Northern Provinces v Mogami
2010 (1) SA 186
(SCA) at para [26] that it had become a common
occurrence for persons accused of wrongdoing to accuse the accuser
and seek to break
down the institution involved instead of properly
confronting the allegations. He emphasised that courts cannot
countenance
such a strategy. I shall deal with the observation
of the learned judge again when I consider the evidence
infra
.
[16]
In
Law Society of the Northern
Provinces v Mabando
[2011] 4 All SA
238
(SCA) the Law Society’s appeal against an order of the High
Court succeeded and the practitioner was struck from the roll
of
attorneys. In para [54] the court considered the approach of
the practitioner and I merely quote the following:
“
In
October 2000, the First Respondent scandalously and in
stereotypically errant debtor style dispatched a letter to Mr van Zyl
allegedly enclosing a cheque that in fact was not attached. In the
case of Mr van Zyl, the amount due was paid approximately five
years
after the complaint was laid and then was paid in two instalments
some nine months after the Appellant had ordered him to
so, following
on the disciplinary enquiry. In the ordinary course, the amounts
collected and due to the instructing attorney or
client would have
had to be retained in a trust account. Considering the common cause
facts the inference is inescapable that the
amounts were not so
retained ─ a grave and usually fatal error on the part of any
attorney. “
The
reader may recognise the words in the last sentence of the
dictum
as this was the conclusion arrived at by Mrs Milton in the replying
affidavit of applicant referred to
supra
.
In para [55] of
Mabando
supra
the
court continued as follows:
“
To
this day, the First Respondent continues to demonstrate a remarkable
lack of insight concerning the professional and ethical
standards
expected of an attorney. Lastly, even at the time of the hearing, the
First Respondent showed a remarkable lack of contrition
and
unaccountability.”
[17]
Section 78 of the Attorneys Act provides as follows:
“
s
78 Trust accounts
(1)
Any practising practitioner shall open and keep a separate trust
banking account at a banking institution in the Republic and
shall
deposit therein the money held or received by him or her on account
of any person.
(2)…
(3)
…
(4)
Any practising practitioner shall keep proper accounting records
containing particulars and information of any money received,
held or
paid by him or her for or on account of any person, …”
[18]
It is true, as submitted by respondent’s counsel in his heads
of argument, that the Law Society
could have utilised its rights in
terms of s 78(5) of the Attorneys Act and in doing so could have
inspected the accounting records
of the respondent in order to
satisfy itself that he observed the requirements of ss 78(1), (2),
(2A), (3) and (4). I shall
consider this when evaluating the
evidence
infra.
[19]
In
Botha v Law Society,
Northern Provinces
[2008] ZASCA 106
;
2009 (1) SA 227
(SCA) Cloete JA in paragraph [10] and further considered the uncalled
for criticism of the practitioner and his lack of co-operation
with
the Law Society, but eventually found that striking-off as ordered by
the High Court was inappropriate. The practitioner
was
suspended from practice for one year which suspension was suspended
on certain conditions.
V
THE BACKGROUND FACTS
[20]
Since January 2010, that is six and a half years ago, the Law Society
has received a total of eight
complaints from clients / former
clients of respondent. These complaints were referred to the
Law Society’s Disciplinary
Committee for investigation in terms
of rule 19 of its rules.
[21]
The respondent was in each instance called upon to respond in
accordance with the aforesaid rule.
[22]
According to the Law Society respondent displayed a lack of
co-operation and consequently the complaints
could not be finalised.
Respondent, contrary to the Law Society’s viewpoint, accuses
the Law Society of “over-exaggeration”.
According
to him its Disciplinary Committee cannot argue that complaints could
not be finalised as they were in possession of his
explanatory
affidavits, although he admitted that in several instances the
documents relied upon in such affidavits were not attached
thereto.
Notwithstanding this he blames the Disciplinary Committee for not
finalising matters.
[23]
Contrary to respondent’s several undertakings to the
Disciplinary Committee to present his accounting
records and trust
ledgers in respect of some of the complaints, he failed to do so, and
bearing in mind that he could still present
these documents to the
court to bolster his defence, he failed to act accordingly.
VI
RESPONDENT’S DISREGARD OF
THE UNIFORM RULES OF COURT
[24]
Before dealing with the relevant facts, I wish to mention that
respondent is guilty of deplorable conduct
in the High Court
proceedings. The following is clear from the court file:
1.
The
application was served upon him on 26 October 2015 and a notice of
opposition was filed on 4 November 2015;
2.
Notwithstanding
the fact that the answering affidavit was due within 15 days from 4
November, to wit 25 November 2015, he failed
to file same timeously.
In fact an extraordinary period of three and a half months lapsed
before he eventually filed his
affidavit on 14 March 2016.
3.
The Law
Society’s attorneys enrolled the matter for hearing on 10
December 2015 as they were entitled to do, but removed it
at the
request of respondent and simultaneously set down the matter by
agreement for hearing on 28 January 2016.
4.
By 28 January
2016 there was still no co-operation from respondent and at his
request the matter was again removed from the roll
and set down for
hearing on 18 February 2016.
5.
Hereafter
respondent filed a formal application for postponement of the matter
wherein he set out the reasons for the delay.
He confirmed in
paragraph 4.4 of his founding affidavit that during consultation with
Pretoria counsel in November 2015 he was
informed that
“
it
was necessary that I obtain documentary proof of certain transactions
wherein it was contended by the Applicant that I failed
to make
payments”
.
Clearly he was already advised at that stage that he had to obtain
the documentary proof that the Disciplinary Committee
requested and
which he promised to provide over a period of two years. In
paragraph 4.9 of his affidavit respondent remarked
as follows:
“
I
vouch that I shall be in a position to finalise my opposing papers by
24 February 2016 at the latest.”
6.
On 18 February
2016 Ebrahim J postponed the main application to 31 March 2016,
ordering respondent to deliver his answering affidavit
on or before
24 February 2016 and to pay the costs occasioned by the postponement.
7.
On 31 March
2016 the matter was postponed by agreement to 28 April 2016,
respondent to pay the wasted costs. Contrary to the
court order
of 18 February 2016 which was made an order of court by agreement,
the answering affidavit was filed hopelessly out
of time.
8.
On 28 April
2016 the matter was postponed to 2 June 2016, costs to stand over.
9.
On 2 June 2016
the application was again postponed, this time to 28 July 2016,
respondent to pay the wasted costs.
10.
On 28 July
2016 the matter was postponed to 4 August 2016 for the reasons
indicated
infra
.
[25]
As a consequence of the delaying tactics adopted by respondent in
line with the strategy followed during
the disciplinary proceedings,
a matter that could have been finalised in December 2015 will now
only be finalised some eight months
later.
[26]
Respondent, acknowledging the late filing of his answering affidavit
and his breach of the court order
of 18 February 2016, indicated in
paragraph 3 of his answering affidavit that a substantive condonation
application would be brought
immediately. This has not been
done and during oral argument respondent could not proffer any reason
for his failure.
One wonders how an attorney can act in the
interest of his clients if he shows such a lack of respect for the
rules of court and
court orders.
[27]
Heads of argument were drawn on behalf of respondent by
Pretoria counsel, Mr H J Potgieter. Mr Potgieter
did not attend
the proceedings on 28 July 2016 and the court was informed that the
parties had agreed that the matter be postponed
for a week, the
reason being that counsel was not medically fit. On 4 August
2016 respondent appeared in person and informed
us that he had
disposed of the services of Mr Potgieter and that he was prepared to
argue the matter on his own behalf.
VII
EVALUATION OF THE EVIDENCE, THE
SUBMISSIONS BY THE PARTIES AND APPLICATION OF THE AUTHORITIES
Was
the offending conduct relied upon by applicant established?
[28]
Since January 2010 the Law Society received eight complaints from
clients/former clients of respondent
which complaints were referred
to the Disciplinary Committee for investigation. Respondent
indicated that two of these complaints
were laid by relatives of
clients but nothing turns around this.
[29]
The majority of the complaints relate to the failure by respondent to
execute his mandate and/or failure
to keep clients informed of
progress. In at least two instances, the matters of Me Mmabatho
Maria Sesotlo and Me Zenziwe
Mariam Zumane, the complaints relate to
the receipt of trust money received from the Road Accident Fund (“the
RAF”)
on behalf of the clients and the failure thereafter to
properly and timeously account to the clients.
[30]
It is the respondent’s submission that it was unnecessary to
present any trust ledgers and/or
accounting records in respect of
these two clients as he had already been found guilty by the
Disciplinary Committee and therefore
he regarded the matter as
finalised and closed.
[31]
Notwithstanding the principles applicable to opposed applications as
set out in
Plascon-Evans
I am satisfied that the version of respondent cannot be accepted and
should be rejected insofar as it is far-fetched, untenable
and in
conflict with objective and documentary evidence. In any event
even if the Disciplinary Committee convicted respondent
in respect of
any complaints on the merits of such complaints, it was still open to
the Law Society to refer the matter to this
court for consideration
as to whether a sanction of striking-off or suspension from practice
was appropriate or not.
[32]
It is clear from the minutes, annexure “M5” to the
founding affidavit, read with paragraphs
6.6 and 6.8 of the founding
affidavit, as well as the summary of complaints, annexure “M3”
to the founding affidavit,
that respondent was convicted in respect
of the complaint laid by Me Sesotlo for failure to respond to the
letters of the Executive
Officer, and unprofessional conduct in that
respondent failed to execute his mandate timeously. It is
apparent that the Disciplinary
Committee needed additional
information from respondent which included the accounting records and
trust ledger pertaining to the
particular client in order for it to
consider the merits of the complaint.
[33]
On 3 December 2014 respondent failed to appear before the
Disciplinary Committee in respect of all
the outstanding complaints
whereupon he was again found guilty of unprofessional conduct because
of his non-appearance. Sentence
was held over. After the
meeting the Law Society received a medical certificate to the effect
that respondent was medically
indisposed and could not attend that
meeting.
[34]
Respondent did not deny the correctness of the summary of complaints
prepared by applicant attached as annexure
“M3” to the
founding affidavit and the information contained therein should
therefore be regarded as common cause.
His version in paragraph
2 of the answering affidavit that his failure to deal with or
traverse any specific averment contained
in the founding affidavit
should not be construed as admissions of the correctness or accuracy
of such averments doesn’t
really take the matter any further.
He was called upon to deal with this detailed summary, but failed to
do so. In
fact when he was called upon to respond to the Law
Society’s version pertaining to the two complainants, Me
Sesotlo and Me
Zumane as set out in paragraphs 6.8.1 and 6.8.2 of the
founding affidavit, he failed to deal with the specific averments,
but indicated
that
“
(A)
fine was imposed and strangely I was instructed to furnish certain
additional documents to the DC.” According to him the
procedure
adopted by the Disciplinary Committee was prejudicial to him and he
concluded as follows in paragraph 9.3:
“
I
respectfully submit that the act of proceeding with the same matter
post-sanctions is not permitted by the enabling legal instrument.
Imposition of a sanction brought the consideration of the complaint
to an end unless the DC had formulated its decision to include
a
condition attached to the penalty.”
Respondent
on his own version did not pay the fine of R2 000,00 issued in
respect of the Sesotlo matter (for non-appearance,
non-compliance
with the complaint and not executing his mandate timeously) and made
the following inappropriate and arrogant remark
in paragraph 9.2:
“
I
cannot fathom the reasons that failure to pay a fine should be held
to be a transgression on its own when there are enforcement
machineries available to the Applicant.”
The fine was
imposed three years ago and respondent not only failed to make
payment but now blames the Law Society for not utilizing
its powers
to collect the money!
[35]
Respondent’s version that the two complaints were finally
disposed of and that the matters could
not be re-opened is clearly an
afterthought. In his application for postponement of the
application to be heard on 18 February
2016 he indicated that counsel
advised him to obtain the records and documents required by
applicant. Respondent himself
was fully aware of the
requirement and was prepared to adhere thereto. On 5 December
2012 the Disciplinary Committee considered
the Zumane complaint.
He was informed accordingly in a letter dated 12 December 2012
received by his office on 13 December
2012. He had to comply on
or before 11 January 2013. He did not respond and he also did
not respond at all to further
letters addressed to him dated 18
January 2013 and 8 March 2013 which letters were also received by his
office. Respondent
was notified to appear before the
Disciplinary Committee on 19 March 2013 when he confirmed that the
letters were received
“
in
the file”
but
that he was not aware thereof. However he indicated that he
would respond by 14 June 2013 whereupon the disciplinary hearing
was
postponed to 26 June 2013.
[36]
On 26 June 2013 respondent did not appear, but the Disciplinary
Committee received a letter from him
indicating that he had paid an
amount of R27 000,00 to the client (Me Zumane) and, together
with a first payment of R10 000,00
made earlier, the client had
now received the full capital amount of R37 000,00 received from
the RAF. The Law Society
was not satisfied with this and
respondent was called upon to appear before the Disciplinary
Committee on 31 July 2013 on which
date he was again instructed to
produce the accounting records and trust ledgers within 14 days, but
he failed to do so.
[37]
On 29 January 2014 the Disciplinary Committee discussed the matter
again whereupon it was decided to
notify respondent that he should
appear before it on 25 February 2014 to give compelling reasons why
that committee should not
make a recommendation to the Law Society’s
Council for his suspension or removal from the roll. During all
these months
respondent failed to comply with the directives of the
Disciplinary Committee.
[38]
Eventually a summons was issued and served upon respondent directing
him to appear before a newly appointed
Disciplinary Committee on 2
July 2014. The committee instructed respondent to submit his
ledger cards on or before 16 July
2014. Respondent was warned
to appear again before it on 6 August 2014.
[39]
On 6 August 2014 the respondent appeared and informed the
Disciplinary Committee that he had handed
the required documentation
to his messenger for delivery to the Law Society, but the messenger
had lost the bag with documents
in a taxi. A final opportunity
was given to respondent to file the required documents by not later
than 8 August 2014 and
respondent was called upon to appear before
the Disciplinary Committee on 3 September 2014. He failed to
comply and also
failed to attend the meeting, but a medical
certificate was delivered.
[40]
Notwithstanding several further demands, respondent failed to provide
accounting records and/or trust
ledgers in respect of at least the
two clients, Me Sesotlo and Me Zumane and eventually the Disciplinary
Committee recommended
to the Law Society’s Council that an
application for striking-off be brought.
[41]
In conclusion the following facts are not denied by respondent.
Me Sesotlo phoned the RAF who
informed her that they had paid an
amount of R20 000,00 to her attorney, but respondent indicated
that he only received R18 000,00.
The complainant received
R10 000,00 only and was told by respondent that he was still
awaiting other money. Respondent
alleged that he deducted his
fees from the amount received from the RAF and that once his legal
fees have been taxed and paid by
the RAF, complainant will be paid
what was due to her. However it appears as if no steps were
taken to recover costs that
were taxed on 24 April 2007 and this led
to the complaint being laid in January 2010. In the matter of
Zumane the respondent
informed his client that he had not received
any money from the RAF, but when she contacted the RAF she was
provided with proof
of payment in the amount of R37 000,00 made
to respondent as long ago as 19 September 2007. R10 000,00
was paid
to the client at a stage and an amount of R27 000,00
paid only in June 2013, two and a half years after the complainant
had
laid a complaint with the Law Society.
[42]
Respondent argued that his constitutional rights had been infringed.
He relied upon several procedural
issues, e.g. the two matters
referred to above had been re-opened as submitted by him after he had
been convicted and sentenced
whilst the Disciplinary Committee could
not act accordingly. Also, this court as an extension of the
disciplinary process
could not consider the failure to provide
accounting records and/or trust ledgers
in
casu
. Furthermore the
Disciplinary Committee, well-knowing that respondent did not attend
its meeting of 3 December 2014 due to
illness, never informed him of
its intention to refer the matter to the Law Society’s Council
with a recommendation that
it should proceed with a striking-off
application against him. In failing to do so, his right to
argue the matter before
the Disciplinary Committee or the Law
Society’s Council in order to persuade them not to proceed with
court action was unfairly
disregarded.
[43]
Another procedural defect according to respondent is the failure by
the Disciplinary Committee to deal
with the complaints on receipt of
his affidavits. According to him it was not required of the
committee to prolong the matters
by postponing hearings on several
occasions. According to him the annexures referred to in his
affidavits, and which were
not attached thereto, were of a peripheral
nature and the Disciplinary Committee was not required to insist on
the presentation
of these documents. It is apparent that the
Disciplinary Committee acted carefully and probably allowed too much
leniency
to respondent. In doing so its members wasted their
own valuable time. However if they had acted more strictly and
adopted a robust approach, respondent would probably have been the
first to criticise them for such an approach if he was convicted
of
any misconduct. It may also be argued that the Law Society
and/or its Disciplinary Committee could have utilised s 78(5)
of the
Attorneys Act in order to obtain the accounting records and trust
ledgers of respondent which they opted not to do.
The fact of
the matter is that they probably believed that it would be more
courteous to a colleague to request the documentation
from him and to
rely on his co-operation, rather than to make use of the provisions
of s 78(5). I am not prepared to find
as submitted by
respondent that the Disciplinary Committee acted unfairly towards him
and/or that its members failed to apply their
minds to the facts and
circumstances of the cases presented to them.
[44]
If respondent wanted the court to believe that he was
bona
fide
and truthful and that he had
nothing to hide, he should have presented this court with his
accounting records and trust ledgers
pertaining to the various
clients. As stated in
Hepple
supra
, it
is expected of respondent to respond meaningfully to allegations made
and to furnish a proper explanation. He could not
merely brush
aside the requests of the Disciplinary Committee to provide it with
accounting records and trust ledgers.
[45]
Respondent submitted finally that applicant failed to establish the
offending conduct relied upon and
therefore did not even succeed in
respect of the first enquiry referred to
supra
.
I am of the view that applicant has established the offending conduct
relied upon on a balance of probabilities and that
it was not
possible to finalise the disciplinary processes in respect of the
eight complaints received due to respondent’s
obstructionist
approach. Respondent failed to comply with numerous letters
over a period of two and a half years. When
he eventually filed
answering affidavits, he omitted in several instances to attach
annexures relied upon and again failed to present
these documents
when requested. His recalcitrant attitude in not providing the
accounting records and trust ledgers in respect
of at least the
Sesotlo and Zumane complaints is the death knell for any argument
that respondent did not commit any misconduct.
Is
respondent a fit and proper person to practise as an attorney?
[46]
Respondent submitted that insofar as the Law Society failed to
establish any misconduct on a balance
of probabilities, the second
and third requirements, i.e. whether he is not a fit and proper
person to practise as an attorney
and the sanction to be imposed, do
not come into play at all. Respondent’s answering
affidavit is replete with accusations
against the Disciplinary
Committee and the Executive Officer of the Law Society which are
really unfair and uncalled for.
One example would suffice and I
refer to paragraph 15 of the answering affidavit where the following
remarks are made:
“
The
contents of this paragraph are denied and it is evidently clear that
the disciplinary process was vitiated by a myriad of deficiencies
and/or irregularities at various levels. In addition, the
Applicant has abysmally failed to make out a substantive case that
I
was no longer a fit and proper person to practice (sic) as an
attorney. It shall be contended that the plethora of misguided
decision (sic) by the Applicant’s functionaries is a serious
indictment to the disciplinary regime of the Applicant.
It begs
the question if such an important function of the Applicant was in
the hand of fit and proper person (sic) to oversee.”
During
oral argument respondent persisted with his criticism of the actions
of the Disciplinary Committee. It is often said
that attack is
the best form of defence. Unfortunately such an approach is
frowned upon by our courts, particularly in striking-off
applications. I refer again to the remarks of Harms ADP in
Malan
supra
.
[47]
Respondent failed to comply with directives of the Disciplinary
Committee on numerous occasions. According
to my calculations
twenty letters were sent to him by the Law Society’s Executive
Officer during the period 2012 - 2014,
but notwithstanding the
endeavours of the Law Society, its Executive Officer and Disciplinary
Committee, the Disciplinary Committee
was eventually neither in a
position to consider the complaints properly on the merits thereof,
nor make any findings.
[48]
Respondent’s former counsel attached to his heads of argument
an article by Prof Magda Slabbert
of the Department of Jurisprudence
at the University of South Africa with the title “
The
requirement of being a ‘fit and proper’ person for the
legal profession,
published in
Per/Pelj
2011(14)4
.
She quoted the following from a report by Mr Govender, the
chairperson of the Ethics Committee of the Law Society of South
Africa published in the Law Society of South Africa’s Annual
Report 2010/11: “
Ethics
does not in this age, form an essential part of the sword or shield
of the majority of legal practices. Ethics is more
likely to be
slashed by the slick lawyer and trodden upon to get to the loot.”
Prof
Slabbert made the point in her article that the public perceptions
about lawyers are also sometimes captured in anti-lawyer
humour such
as for example
“
a
lawyer is a learned gentleman who rescues your estate from your
enemies and keeps it for himself”
or “
(H)ow
do you know when a lawyer is lying?
“
His
lips are moving.”
She
also quoted Prof Pityana, the Principal and Vice Chancellor of the
University of South Africa, in his address to mark the 30
th
anniversary of the Black Lawywers’ Association on Friday 9
November 2007, where he mentioned the following:
“
A
lawyer should do more than just occupy a profession. A lawyer
should serve the public. To do so effectively lawyers
need to
be trustworthy men and women of untarnished reputation – thus,
“fit and proper” persons.”
[49]
Although respondent
was admitted twenty seven years ago, it is apparent that since 2007,
i.e.
nine
years ago, he has made himself guilty of improper conduct in respect
of at least two clients whilst he has kept the Disciplinary
Committee
on a string for more than two years. If the authorities quoted
above are duly considered I am of the view that
the accepted evidence
shows conclusively that respondent displayed a contemptuous and
arrogant attitude towards the Law Society’s
Executive Officer
and his colleagues sitting as the Disciplinary Committee. His
lack of co-operation, his evasiveness and
his conduct in general are
indicative of a lack of integrity and therefore it cannot be said
that he is a fit and proper person
to practise as an attorney.
Respondent did exactly what Harms ADP warned against in
Mogami
supra.
A
practitioner acting in the manner respondent saw fit
in
casu
is in
essence guilty of unprofessional conduct. Courts cannot
countenance such strategies.
The
appropriate sanction: striking-off or suspension from practice?
[50]
As in the case of
Mabando
supra
respondent paid the capital amount due to one client, Me Zumane, six
years after he had received payment from the RAF. The
record
does not reflect whether respondent received the amount from the RAF
in trust and/or whether he kept it in trust until he
finally
accounted to the client. This is what the Disciplinary
Committee wanted to establish, but respondent failed to produce
his
accounting records and trust ledger. The same applies to the
complaint of Me Sesotlo. It was therefore impossible
to make
any finding as to whether there was any compliance with s 78 of the
Attorneys Act. I borrow from the judgment in
Mabando
the following words with which I align myself fully:
“
Considering
the common cause facts the inference is inescapable that the amounts
were not so retained ─ a grave and usually
fatal error on the
part of any attorney.”
[51]
I am satisfied that the respondent has demonstrated a remarkable lack
of insight concerning the professional and ethical standards
expected
of an attorney. Obstructionism, denials and evasions have no
place in matters of this nature and it was expected
of respondent to
put full facts before the Disciplinary Committee in the first place,
but ultimately before the court. See:
Law
Society, Northern Provinces v Sonntag
2012 (1) SA 372
(SCA) at paras [17] – [20] as well as the
authorities quoted
supra
.
When respondent was asked during oral argument where his accounting
records and trust ledgers were at that stage and whether
these were
still available for inspection, he confirmed that the documents were
in possession of his bookkeeper, but he could not
even provide the
court with the name of the bookkeeper.
[52]
In the exercise of my discretion I have to decide whether respondent
deserves the ultimate penalty
of striking-off or whether a suspension
from practice will suffice and in the event of a suspension, whether
an order should not
be made that the suspension should be for a
limited period only.
[53]
I have considered the totality of the evidence as well as the
authorities quoted, but the following
factors play a particular role
in the exercise of my discretion:
53.1
Respondent, not a young person anymore, has been practising for 27
years and may find it difficult to get
suitable employment if struck
from the roll.
53.2
The amounts which had to be accounted for are relatively small and
although the clients suffered losses due
to inflation and a decrease
in the value of the rand as a result of late payment, the losses were
not severe.
53.3
Although I referred to the inescapable inference to be drawn from
respondent’s failure to present his
accounting records and
trust ledgers, dishonesty has not been proven.
53.4
A total of eight complaints were laid against respondent by eight
different clients or former clients (or
relatives on behalf of
clients) and although the merits of the complaints were not traversed
in these proceedings except for the
two complaints referred to
supra
,
it is apparent from the summary provided by the Law Society that the
misconduct complained of was not so serious to warrant a
striking-off.
53.5
Although respondent stubbornly attacked the Law Society, its
Executive Officer and Disciplinary Committee
and provided the court
with an evasive and argumentative answering affidavit, thereby
demonstrating a lack of insight - conduct
not expected of an attorney
accused of misconduct as indicated in the authorities referred to
supra
- I am of the view that respondent probably believed
that attack was the best form of defence. I am of the opinion
that he
should not be penalised with the ultimate sanction, but in
saying that I should not be understood to say that striking-off may
not be an appropriate sanction in similar circumstances. The
matter
in casu
can be distinguished from the allegations made
by the practitioners in the
Malan
matter
supra,
whilst the facts are more in line with those in
Botha
and
Summerley
supra.
53.6
The complaints lodged against respondent date back several years and
there is no indication that respondent has committed
further
misconduct in recent times. There is no suggestion that, save
for the eight complaints referred to and his unacceptable
lack of
co-operation with the Law Society, he has committed any further
misconduct. In fact, I have to accept that he has
apparently
filed his trust audit reports for the past few years punctually and
that fidelity fund certificates have been issued
to him in terms of s
42 of the Attorneys Act, allowing him to practise for his own
account. If this was not so, the Law Society
would surely have
relied on such failure as well. However unlike the practitioner
in
Botha
supra
who accepted responsibility and
eventually made a full disclosure of what happened with certain
amounts received on behalf of clients,
the same cannot be said of
respondent.
[54]
I considered suspending respondent from practice instead of striking
him from the roll of attorneys. This would mean
that he would
have to satisfy the court in the future that he is a fit and proper
person to resume practising as an attorney.
In the light of the
above aspects and the evidence in totality together with the
authorities, I am of the view that my discretion
should be exercised
on the basis that respondent should be suspended for a specific
period. I am of the view that respondent
will learn from his
mistakes and that he will do the necessary introspection which will
allow him to become a fit and proper person
again to take on the
practice of an attorney. In my view a suspension for a period
of one year shall suffice to enable respondent
to rehabilitate.
There is, based on the totality of the evidence, sufficient reason to
believe that respondent will not repeat
the conduct evident from the
record. Having considered the totality of the evidence and in
particular the judgment in
Botha
supra
I do
not believe that respondent is entitled to similar relief and
therefore a suspension of suspension from practice is not a viable
option.
VIII
COURT ORDERS
[55]
Therefore the following orders are made:
1.
The respondent
Ntsikelelo Nelson Majola is suspended from practising as an attorney
for a period of 1(one) year from the date of
this order.
2.
Respondent
shall surrender and deliver to the Registrar of this Court his
Certificate of Enrolment as an attorney of this Court.
3.
Should
Respondent fail to comply with paragraph 2 within FOURTEEN (14) days
of this order, the sheriff of the High Court for the
relevant
district, be empowered and directed to take possession of such
certificate(s) and deliver it/them to the said Registrar.
4.1
THAT the Chief Executive Officer of the applicant for the time being
be appointed as Curator Bonis to exercise the powers
and to discharge
the duties described in paragraph 7 hereof;
4.2
THAT it be ordered that it shall not be necessary for the Chief
Executive Officer to provide security as Curator Bonis
for the
performance of his obligations in terms hereof.
5.
THAT the Respondent is directed to surrender and deliver to the
Curator Bonis all the Respondent’s records
relating to his
practice which, for the purpose of this order, but without
limitation, shall include 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 “the Act”);
c)
Any interest on monies so invested in terms of Section 78(2) or
78(2A) of the Act;
d)
Any estate of a 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, or on behalf of
the trustee in terms of the Trust Property Control 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.
6.
THAT should the Respondent fail immediately to surrender or deliver
the items referred to in paragraph 5 after service of this
Order upon
the Respondent by the Curator Bonis, 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, be empowered and directed to take possession and deliver them to
the said Curator Bonis;
7.
THAT the said Curator Bonis shall have the following rights and
powers:
a)
to hand over any said records to any person entitled thereto, as soon
as he has satisfied himself that the fees and disbursements
in
connection therewith have been paid or satisfactorily secured, or
that same are no longer required;
b)
to accept a written undertaking by 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
of paragraph 7(a), provided that such written undertaking
incorporates a domicilium 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 considers them
to be
relevant to and, (including any possible anticipated or threatened)
claim against him as Curator Bonis 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 accounts
which for the purpose of this Order shall include:
i.)
the accounts relating to any estate, curatorship, trust or company,
referred to in paragraph 5 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 5.
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 persons having lawful claims
upon the
said trust accounts and/or against the Respondent in respect of
monies held, received an/or invested by the Respondent
in terms of
Section 78(1) and/or 78(2) and/or 78(2A) 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 persons 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 call upon the Respondent to furnish
him
within 30 (THIRTY) 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 have 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 11 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;
l)
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, to close 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
account” 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
persons 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 Bonis as terminated.
8.
THAT the Respondent be interdicted and prohibited from operating the
accounts referred to in paragraph 7(d).
9.
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 Sections 14 or 15 of the Administration of Estates
Act, Act
66 of 1965 read with section 54(1)(a)(v) of the Act; and
b)
Curator or guardian of any minor or other person’s property of
which he has been appointed 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; 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 Section 379(2) read with
Section 379(1)(e) 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.
10.
THAT the Applicant be and is hereby authorised, should it consider it
necessary, to engage the services of accountants of its
choice, who
are registered in terms of the Auditing Professions Act, Act 26 of
2005, 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.
11.
THAT the Respondent be and is hereby directed to pay:
a)
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(5) 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 6
above;
d)
The fees and expenses of the Curator Bonis, 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 Bonis
and
specifying the expenses and the length of time during which he was
engaged in the performance of his duties as Curator Bonis;
e)
The fees and expenses of any person consulted and/or engaged by the
Curator Bonis in terms of paragraph 7(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 and incidental to this application on an attorney and
client scale.
12.
THAT the Respondent be and is hereby directed to satisfy the Curator
Bonis, within one 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’s
said practice
and, should the Respondent fail to do so, 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 recovery thereof.
13.
THAT the applicant be and is hereby directed to cause a copy of this
order to be served upon the Master of this Court.
J.P.
DAFFUE, J
I
concur.
P.
U. FISCHER, AJ
On
behalf of applicant: Adv. M. Louw
Instructed
by: Symington & De Kok
BLOEMFONTEIN
On
behalf of respondent: In person