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[2016] ZAFSHC 218
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Law Society of the Free State v Ntjabane (2086/2015) [2016] ZAFSHC 218 (1 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 2086/2015
In
the matter between:-
THE
LAW SOCIETY OF THE FREE
STATE
APPLICANT
and
MOEKETSI
PAULOS NTJABANE
RESPONDENT
CORAM:
MOLOI, ADJP et REINDERS, J
HEARD
ON:
01 DECEMBER 2016
MOLOI,
J
[1]
This is an application for the removal of the Respondent’s name
from the roll of attorneys with usual prayers in such
a case. The
application is not formally opposed though the respondent made an
appearance when the matter first served before the
court on 2 June
2016 and certain orders were made. The matter was postponed a number
of times thereafter when certain further
orders were made in
terms of which the respondent was to file his opposing papers, which
he did not. This aspect will be dealt
with in detail hereunder.
[2]
The basis for the application is primarily the failure of the
respondent to file the required audit reports to enable him to
obtain
Fidelity Fund Certificates for the periods 1 March 2012 to 28
February 2013 and 1 March 2013 to 28 February 2014 and subsequent
periods to date as required by section 41 (1) and (2) of the
Attorneys Act No.53 of 1979. In addition the respondent failed to
appear before the applicant’s Council on 28 November 2014 to
provide reasons why his name should not be removed from the
roll of
attorneys.
[3]
The respondent continued to practice or acted as a legal practitioner
for own account without a Fidelity Fund Certificate required
by
section 41 (1) and (2) of the Attorneys Act since 2012.
3.1
After his appearance in this court on 2 June 2016 the application was
postponed to 28 July 2016 at his instance.
3.2
On 28 July 2016 the application was postponed to 22 September 2016
and the respondent was ordered to file
the audit reports of his firm
for the years 2013, 2014, 2015 and 2016 not later than 1 September
2016; to file his answering affidavit
not later than 2 September
2016; he was suspended from practising as an attorney and interdicted
to operate his trust account held
at Standard Bank with Account
number 041050746 pending the finalisation of this application. None
of the above orders were complied
with.
3.3
On 22 September 2016 he again appeared in court and alleged he could
not comply with the order made on 28
July 2016 as he was
incarcerated. The application was postponed to 13 October 2016 as a
final postponement and ordered to supply
proof of his alleged
incarceration not later than 6 October 2016 and to deliver documents
as ordered on 28 July 2016 and file the
audit reports and answering
affidavit not later than 6 October 2016. None of the above orders
were complied with.
3.4
On 13 October 2016 the application was postponed to 17 November 2016
and the respondent was ordered to file
his answering affidavit and
audit reports by not later than 10 November 2016 and heads of
argument not later than 14 November 2016
at 12h00. None of the above
orders were complied with.
3.5
On 17 November 2016 the respondent failed to appear in court. On 16
November he filed a letter of even date
to which he attached a note
by Drs Bester and Bosch dated 25 October 2016 and a Patient Treatment
Card dated 31 October 2016. In
his letter he claimed he was due for
medical check-up on 22 November 2016. On the strength of the medical
records the application
was finally postponed to 1 December 2016.
4.
On 1 December 2016 the respondent appeared in person and applied for
a further postponement of
the application hearing alleging that in
October 2016 he had been diagnosed with chest illness and could
consequently not prepare
and file the answering affidavit. Regard
being had to the fact that the matter was first on the roll on 2
nd
June 2016 and was postponed on several occasions as set out in
paragraph 3 above, and nothing had been done, the diagnose of October
2016 could not be sufficient reason to justify a further
postponement. The application was dismissed and the hearing was
conducted.
5.
From the above it is clear that the respondent practised as an
attorney without a Fidelity Fund
since 2012 and continued to do so to
date in breach of a clear requirement as set out in section 41 (1)
and (b) of the Attorneys
Act No 53 of 1979. His conduct as set out
above clearly shows that he is defiant of the law, the Council of the
Law Society by
failing to appear before it when legally obliged to do
so and the court by persistently ignoring the orders of court and is
thus
not a fit and proper person to continue practise as an attorney
of this court as envisaged in section 22(1) of the Attorneys Act
No
53 of 1979. There is nothing before the court suggesting any other
sanction than to remove his name from the roll of attorneys.
On 28
July 2016 this court had ordered his suspension from practise and
nothing has been placed before the court to suggest he
complied with
that order as on 16 November 2016 when he wrote about his illness he
still used his official letterheads indicating
he was still a
practising attorney. I am satisfied that the requirements as laid out
in the
Law Society of the Cape of Good Hope vs Budricks
,
2003
(2) SA 11
at 13J – 14B are met.
In
consequence the following orders are made:
1.
That the respondent’s name be removed
from the roll of attorneys.
2.
Prayers 2 – 13 of the notice of
motion are granted.
3.
The respondent is ordered to pay the costs
of this application including the costs occasioned by the various
postponements thereof.
________________
MOLOI,
ADJP
I
concur.
________________
REINDERS,
J
On
behalf of the applicant:
Adv M LOUW
Instructed
by
MTHEMBU
& VAN VUUREN INC
BLOEMFONTEIN
On
behalf of the respondent:
Mr MP NTJABANE
NTJABANE
ATTORNEYS
BLOEMFONTEIN