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[2016] ZAGPPHC 434
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Law Society of Northen Province v Khoza (23260/2005) [2016] ZAGPPHC 434 (27 May 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been redacted
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE
NO:
23260/05
DATE
OF
JUDGMENT:
27 MAY 2016
In the matter
between:-
THE
LAW SOCIETY OF THE NORTHERN PROVINCES Applicant
(Incorporated
as
the Law Society of
the Transvaal)
and
THULANI
ISHMAEL
KHOZA
Respondent
JUDGMENT
KOOVERJIE
A
J:
A.
NATURE
OF A
PPLICATION:-
1. This is an
application in terms of Section 22(1)(d) of the Attorneys Act, No 53
of 1979
("the Act')
for the striking off the name
of the Respondent from the Roll of Attorneys of this Honourable
Court, on the basis that the Respondent
is no longer a fit and proper
person to practise as an attorney.
B.
U
NOPPOSED:-
2.
The Respondent, despite being informed of the date for this
hearing, has failed to oppose the said application and further failed
to appear before this Court. This Court is satisfied that he was
given sufficient notice in respect of the date for the hearing
of
this matter. This application was served on the Respondent personally
on the 1ih June 2015.
C.
B
ACKGROUND:-
3.
The
Respondent was admitted as an attorney of this Court on 6 January
2001 and commenced practice under the name
T I Khoza Attorney,
which office was situated at Office 4 and 5, 151 Floor, Lorna
Court, […]Rothsay Streeet, Benoni, Gauteng.
4.
The Respondent had already been suspended from the roll of
practising attorneys on 20 February 2006.
Complaints
5.
There
were at least 12 complaints lodged with the Law Society against the
Respondent. The following complainants who were all clients
of the
Respondent at the time:
(1) Vuyela Joyce
Nongwe;
(2) Sbongile Kate
Masuku;
(3) Kate Daphne
Swanepoel obo Simone Dominic Swanepoel;
(4) Adelaide
Nosizwe Diniso;
(5) Marryman
Khulekele Maqanda;
(6) Gabangani
Absalom Masondo;
(7) Priscilla
Ledwaba;
(8) Nicholars
Zolo Modwenda and Rittah Lindiwe Ntuli;
(9) Nohappy
Cynthia Dasuke;
(10) Maria
Jabhisane Zulu;
(11) Ncongo
Nomakhosi Lydia;
(12) Vuyelwa
Nompunga.
Misconduct
6.
The
Applicant's case is premised on the basis that the Respondent is not
a fit and proper person and should not be allowed to
practise as an
attorney any longer, namely that the Respondent:
6.1
contravened Rule 35.12 in that he failed to pay trust monies due to
his clients within a reasonable time or not at all;
6.2 had
misappropriated trust funds and the Attorneys Fidelity Fund had to
pay out claims to the respective claimants;
6.3 continued to
practise as an attorney after his suspension which was effective from
20 February 2006;
6.4 had failed to
account faithfully accurately and timeously in respect of the
complainants' monies.
7.
It was argued by the Applicant's counsel that the Respondent's
conduct as an attorney and officer of this Court reveals a character
defect which should not be tolerated.
8.
The offences committed by him were serious and he no longer
was a fit and proper person to practise as an attorney.
C.
A
NALYSIS:-
9.
Having heard counsel and having read the papers, more
particularly the complaints lodged with the Applicant, this Court is
required
to exercise its own discretion as to whether the sanction
requested for by the Applicant against the Respondent is justified.
10.
The
Applicant had made the following submissions in relation to the
Respondent's misconduct, namely:
10.1 The integrity of an attorney is paramount. He must always
represent and service his clients in their best interests;
10.2
An attorney should at all times comply with the Attorneys Act and the
Rules thereto;
10.3 An
attorney must deal with his clients' monies and his trust account
responsibly and accurately. He must account for monies
received on
behalf of his clients in a proper and diligent manner;
10.4 At all
times, an attorney must be professional and honest.
11. This
application was launched in terms of Section 22(1)(d) of the
Attorneys Act, which states:
"(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 practises
…
(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."
(my underlining).
12.
In
Ma/an and Another v Law Society, Northern Provinces
2009(1) SA 216 at 219 SCA Harms ADP
confirmed the
three stage enquiry endorsed by the Court in
Jasat v Natal Law
Society
2000 (3) SA 44
SCA at para
10,
namely::
•
firstly
the Court must decide whether the alleged offending conduct has been
established on a preponderance of probabilities, which
is a
factual
e
nquiry;
•
secondly,
it must consider whether in the Court's discretion he is not a fit
and proper person to continue to practise. This involves
the weighing
up of the conduct complained of against the conduct expected of an
attorney
(value
judgment);
•
thirdly,
the Court must inquire whether in all the circumstances it is
justified to remove the attorney from the roll of attorneys
or
whether the suspension from practice would suffice
(degree of
sanction).
13.
In this instance, this Court is requested to particularly
declare the Respondent as not a
"fit and proper"
person
to continue to practice.
14.
Insofar as the first stage of the inquiry is concerned, this
Court is satisfied that the factual basis of the Respondent's
misconduct
has been established.
15.
In
order to determine whether the Applicant is a
"fit and
proper"
person, the Court will have to consider his personal
qualities and decided whether he is a fit and proper person in
relation to
such matters as the prestige. Status anddignity of the
profession, the kind of personal qualities in respect of which a Law
Society
has to be satisfied.
16.
These
considerations were set out in
Kaplan v Incorporated Law
Society, Transvaal
1981 (2) SA 762
at
p
792:
"When
will such a person again qualify to be a fit and proper person to be
readmitted
as
attorney? The simple answer seems
to be: When he has
shown himself to be
fit and proper person in relation to the prestige, status and dignity
of the profession and the responsibility,
standards of professional
conduct
and integrity of practitioners.
The prestige, status and dignity of the professional
in turn relates to the person or image the profession
has in the eyes of
the practitioners and
the Court in particular. In this connection it is not to be
overlooked that the trust and confidence reposed
by the public and by
the Court in practitioners to carry on their profession under the
aegis of the Courts must make the Courts
astute to
see
that persons who are enrolled
as
attorneys
are persons of dignity honour and integrity."
17.
Having
regard to the Respondent's conduct as an attorney, the acts of
misconduct illustrated in these papers demonstrate that the
Court and
the public demonstrate that the Court and the public has lost the
confidence and trust in the Respondent. By misappropriating
trust
funds, and failing to pay trust monies to certain of his clients and
failing to comply with the prescribed legislation he
was expected to,
shows dishonesty and lack of integrity.
18.
He has compromised the standard of the honesty, integrity and
dignity required of an attorney in this profession.
19.
The third stage of the enquiry is to determine the sanction
most appropriate. In this instance the level of dishonesty and his
professional
conduct in dealing with trust monies and to serve his
clients in their best interests warrants him to be struck off.
20.
Moreover to date, the Respondent has not contested the
findings made against him
ORDER
The
following order is therefore made:
The order had
already been handed down at the hearing of the matter in terms of the
draft order marked
"X".
Such order is reiterated
herein and remains the order of this court.
H KOOVERJIE
ACTING JUDGE OF
THE HIGH COURT GAUTENG DIVISION, PRETORIA
I concur:
SP
MOTHLE
JUDGE
OF THE
HIGH COURT
GAUTENG
DIVISION,
PRETORIA
INSTRUCTED
BY: STEGMANNS INC. ATIORNEYS
FOR
THE RESPONDENT: MKHABELA ATIORNEYS
DATE
OF HEARING: 13 MAY 2016
DATE
OF JUDGMENT: 27 MAY 2016