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[2016] ZAGPPHC 698
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Law Society of the Northern Provinces v Mahlaola (2249/2015) [2016] ZAGPPHC 698 (29 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
29/7/2016
CASE
NO: 2249/2015
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
Applicant
and
MICHAEL
TSAKANE
MAHLAOLA
Respondent
JUDGMENT
MAAKANE
A J
INTRODUCTION:
1.
This is an application in which the Applicant seeks the removal of
the Respondent's name from the roll of attorneys.
2.
On 16 November 2015 the Applicant launched an urgent application with
this court, seeking an order to have the name of the Respondent
removed from the roll of attorneys. In the alternative, it sought an
order suspending him from practising as an attorney, pending
the
removal of his name from the roll of attorneys.
3.
The application itself was served on Mr Mahlaola on 18 November 2015.
He opposed the application and filed his answering affidavit
on 7
December 2015.
4.
The application was heard in the urgent court on 8 December 2015.
Having heard the matter, the court ordered that the Respondent
be
suspended from practising as an attorney of this Court, pending
application for the removal of his name from the roll of attorneys.
5.
Applicant was also ordered to file his replying affidavit by 12
January 2016 and the matter was postponed to 9 February 2015.
On 9
February 2015 the matter was again postponed to 9 June 2016 for final
determination.
BACKGROUND:
6.
The Respondent, Michael Tsakane Mahlaola
(" Mr Mahlaola"
)
was admitted and enrolled as an attorney of this Court on 22
August 2002.
7.
He remained a non-practising member of the Applicant from 22 August
2002 to 2 January 2006.
8.
During the period between 3 January 2006 to June 2007, he practised
as a professional assistant at a firm of attorneys known
as Fourie
Fismer Incorporated.
9.
From 1 July 2007, he commenced practising for his own account as a
sole practitioner under the name and style of Mahlaola Incorporated
Attorneys at Office No. 209, Olivetti House, 100 Pretorius Street,
Pretoria.
10.
On 18 December 2014 the Applicant received a complaint from Ms
Sivhiwe Tracey Mphakathi
(" the complainanf' ).
Complainant
had instructed Mr Mahlaola to assist her with a Road Accident Fund
("RAF”) claim. It was agreed in writing
between the
parties that Mr Mahlaola would be entitled to a 25% contingency fee.
Mr Mahlaola thereafter failed to report to or
make contact with the
complainant regarding progress in the matter.
11.
During or about September 2014 the complainant ultimately visited the
offices of the RAF to enquire about progress in her claim.
There she
established that an amount of R4,626,066.00 in her favour, was paid
by the RAF into the trust account of Mr Mahlaola.
The payment was
made on 31 July 2014. Over and above that, a further amount of
R167,887.15 was paid into the same trust account
on 8 January 2015 by
the RAF representing taxed legal costs again in her favour.
12.
Armed with this information, the complainant during the same month
visited the offices of Mr Mahlaola. During this meeting,
Mr Mahlaola
requested an indulgence and undertook to pay to her the money due by
the end of October 2014. This was during September
2014.
13.
Unfortunately this did not happen. Instead Mr Mahlaola requested
another indulgence and undertook to pay her by the end of November
2014. Once again, Mr Mahlaola failed to transfer the money into her
bank account on the agreed date.
14.
On 10 December 2014 the complainant again visited the offices of Mr
Mahlaola. This she did on invitation to a meeting by Mr
Mahlaola.
During this meeting Respondent sought yet another indulgence.
Complainant was informed that the amount of R3,307,638.00
will be
transferred into her bank account within 48 hours. She understood
this to mean that payment will be made by the 1ih December
2014. Once
again this did not happen. Mr Mahlaola did not honour his word and no
payment was made.
15.
After several unsuccessful attempts to secure payment from Mr
Mahlaola, the complainant ultimately sought legal assistance
elsewhere. It is for this reason that she then contacted Masewawatla
Attorneys ("
Masewawatla Attorneys "),
for
assistance.
16.
The new attorneys wrote a letter to Mr Mahlaola demanding that
payment of the complainant's money be effected within 48 hours.
Once
again Mr Mahlaola failed to pay the money as requested.
17.
This prompted Masewawatla Attorneys to launch an urgent application
on behalf of the complainant to this Court seeking an order
compelling Mr Mahlaola to pay the complainant the amount of money
due.
18.
On 18 March 2015 the matter was heard and the relief sought granted.
In terms of the order agreed to between the parties, Mr
Mahlaola
undertook to pay to the complainant the amount owing in two
instalments. The first payment of R2,000,000.00 was to be
paid before
or on 31 March 2015 and the second payment of R1,307,638.00 before or
on 24 April 2015.
19.
Notwithstanding the Court order, Mr Mahlaola failed to make the first
payment of R2,000,000.00 on the due date. Instead, on
1 April 2015 he
addressed a letter to complainant's attorneys requesting a further
indulgence. This letter reads in part:
"We are unable to
make the necessary payment at this point. We humbly request an
extension until 10 April 2015 as we are anticipating
to receive funds
in due course. We are really trying our level best to meet your
demands and we are mindful our legal obligations.
Further we will
never undermine your professional integrity. We are also mindful that
this matter has the potential to destroy
our profession."
20.
On 3 March 2015 the Applicant addressed a letter to Mr Mahlaola
regarding the complainant's complaint. He was specifically requested
to respond thereto by 30 March 2015. Mr Mahlaola failed to respond to
the letter at all.
21.
During May 2015 an auditor of the Applicant, Ms P Maphumo, visited
the Respondent's firm. She compiled a report dated 18 August
2015.
According to the audit report, as at 28 February 2015, the
Respondent's trust account had a deficit of R3,474,034.32, and
the
complainant's money was not in the trust account of Mr Mahlaola.
LEGAL
POSITION - TEST FOR FITNESS:
22.
The question whether an attorney is a fit and proper person to
continue to practise as such lies in the discretion of the Court.
In
determining this, the Court has to conduct a three stage enquiry,
namely that:
22.1. The Court must
first decide as a matter of fact whether the alleged offending
conduct by the attorney has been established.
22.2. If the Court is
satisfied that the offending conduct has been established, a valued
judgment is required to decide whether
the person concerned is not a
fit and proper person to practise as an attorney.
22.3. If the Court
decides that the attorney concerned is not a fit and proper person to
practise as an attorney, it must decide
in the exercise of its
discretion whether in all the circumstances of the case the attorney
in question is to be removed from the
roll or merely suspended from
practise.
23.
This test
is well established and has been summarised by Harms DP in
Law
Society, Northern Provinces v Mogami
[1]
as follows:
"Applications for
the suspension or removal from the roll require a three-stage
enquiry. First the court must decide whether
the alleged offending
conduct has been established on a preponderance of probabilities,
which is a factual enquiry. Second, it
must consider whether the
person concerned is 'in discretion of the court' not 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
and, to this extent, is a
value judgment. And third, the court must
enquire whether in all the circumstances the person in question is to
be removed from
the roll of attorneys or whether an order of
suspension from practice would suffice (Jasat v Natal Law Society,
2000 (3) SA 44
(SCA) ([2000]
2 All SA 310)
; Malan and Another v Law
Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) ([2009]
1 All SA
133
;
[2008] ZASCA 90)
at para 10)"
OFFENDING
CONDUCT:
24.
It is common cause and Mr Mahlaola admits that he did, on 31 July
2014, receive from the RAF payment in the amount of R4,626,066.00
and
later a further amount of R167,887.15 on 8 January 2015. Save for 25%
of the R4,626,066.00 the balance of the money was all
due to the
complainant.
25.
It is also abundantly clear that Mr Mahlaola did misappropriate money
due to the complainant and therefore trust money. This
can be
inferred from the following:
25.1. After receipt of
the money, Mr Mahlaola failed to timeously inform the complainant,
account to or pay to her what was due;
25.2. Even after
complainant visited Mr Mahlaola's offices on more than one occasion
demanding her money, Respondent was unable
to pay her.
25.3. At the stage when
the urgent application was launched by Masewawatla Attorneys, Mr
Mahlaola did not have the money to pay
the complainant. He instead
offered to settle and pay the money (trust money) in instalments;
25.4. Again after the
Court order was issued, he was unable to make the first payment of
R2,000,000.00 on the agreed date. Instead
he asked for a further
indulgence until the 1oth April 2015.
25.5. His letter dated 1
April 2015 to the complainant's attorneys shows clearly that until
that time, he did not have money to
pay the complainant;
25.6. In her report to
the Law Society, Ms Mapfumo specifically that Mr Mahlaola has
misappropriated the complainant's money. She
reports as follows:
"When
I enquired why he had delayed paying the complainant he changed the
story and informed
me
that he had utilised the money to pay
disbursements pertaining to other matters which were being handled by
the firm."
26.
It is important to emphasise that an attorney has a duty and
obligation to keep in his or her trust account, all trust moneys
until such time that a trust client gives instructions in relation
thereto.
27.
Referring specifically to trust moneys and the obligation of the
attorney in that regard, the SCA per Ekseen JA held:
"When money is
entrusted to an attorney or when money comes to an attorney to be
held in trust, the general public is entitled
to expect that
that
money will not be used for any other purpose than that for which it
is being held, and that it will be available to be paid
to the person
on whose behalf it is held whenever it is required
."
(my
underlining).
Vassen
v Law Society of the Cape of Good Hope
[2]
28.
In my view therefore, the Applicant has conclusively proved and
established on a balance of probabilities that Mr Mahlaola has
misappropriated trust moneys and therefore made himself guilty of
dishonourable conduct.
FIT
AND PROPER PERSON:
29.
With regard to the demands and conduct generally expected of members
of the attorneys' profession Eksteen JA in
Vassen
supra
expressed himself as follows:
"In this regard
it must be borne in mind that the profession of an attorney, as of
any other officer of the Court, is an honourable
profession which
demands complete honesty, reliability and integrity from its members;
and it is the duty of the respondent Society
to ensure, as far as it
is able, that its members measure up to the high standards demanded
of them. A client who entrusts his
affairs to an attorney must be
able to rest assured that that attorney is an honourable man who can
be trusted to manage his affairs
meticulously and honestly. Here once
again the respondent Society has been created to ensure that the
reputation of this honourable
profession is upheld by all its members
so that all members of
the public may continue to have every
confidence and trust in the profession as
a
whole."
30.
Taking into account the nature and seriousness of the misconduct, Mr
Mahlaola has failed to uphold the high standard which governs
the
attorneys' profession. He failed dismally to act in the best interest
of his client. Instead he deliberately acted to her detriment
or
potential prejudice by misappropriating her money.
31.
That being the case, I am satisfied and have no doubt that Mr
Mahlaola is not a fit and proper person, to can continue to practise
as an attorney of this court.
SANCTION:
32.
On behalf of the Applicant it was argued that a proper sanction under
the circumstances is that Mr Mahlaola's name be removed
from the roll
of attorneys.
33.
On the other hand, on behalf of the Respondent it was submitted that
a proper sanction will be a fine coupled with certain conditions.
He
argued that suspension and or removal of Mr Mahlaola's name from the
roll of attorneys, will be too harsh a sanction under the
circumstances.
DISCRETION
OF THE COURT:
34.
It is trite law that in deciding on or imposing an appropriate
sanction, the court exercises a discretion. This discretion has
to be
exercised judicially taking into account various factors such as the
nature and seriousness of the transgression, the interest
of the
clients and the profession in a general sense, the manner in which
the transgression was committed. Over and above that,
the Court must
take into account the conduct and attitude of the attorney in dealing
with and handling the conduct complained upon
receipt of a complaint
from the Law Society.
35.
An
illustration of this is to be found in the matter of
Law
Society, Cape v Peter.
[3]
In this
matter, upon receipt of a complaint from the Law Society, the
attorney co-operated fully. She admitted to the offending
conduct and
took all responsibility for her conduct. She made full and
unconditional disclosure of all facts surrounding the conduct
complained of to the Law Society. She showed remorse and apologised
for her conduct. As a result of this, the SCA (per Farlam JA)
came to
the conclusion that notwithstanding her transgressions, she is not
inherently a dishonest person.
36.
Unfortunately, same cannot be said about Mr Mahlaola. What he did is
exactly the opposite of what the attorney in the Peter
matter
(supra)
did. The Law Society on 3 March 2015 addressed a letter to him,
regarding the complaint. He was specifically requested to respond
thereto before or on 30 March 2015. Respondent completely failed to
respond to this correspondence.
37.
In this regard, it is important to once again refer to what the SCA
had to say about the role of the Law Society, and the importance
of
its relationship with member attorneys:
"Here once again,
the respondent Society has been created to ensure that the reputation
of this honourable profession is upheld
by all its members so that
all members of the public
may
continue
to have every confidence and trust in the
profession
as
a
whole."
[4]
38.
The one factor that counts strongly in his favour, is that he did
ultimately pay the complainant in full. This payment was however
only
made on or about 23 July 2015.
39.
What aggravates this case is the general conduct and attitude
displayed by Mr Mahlaola throughout. He failed to take responsibility
for his actions. He has shown no remorse whatsoever. Instead, he has
always tried to downplay the seriousness of this matter.
40.
Over and above that, what is more disturbing and of concern to the
Court is the fact that Mr Mahlaola gave different and contradictory
versions regarding the complainant's money:
40.1. Initially he told
Ms Mapfumo that the money was throughout kept in his practice's trust
account until paid to the complainant.
40.2. When interrogated
further and shown that this was not true, he changed his version and
admitted that he had utilised the money
to pay for disbursements
pertaining to other matters that his firm was handling.
40.3. In his answering
affidavit the Respondent all of a sudden makes an about turn and
alleges that the money was kept in an investment
account. He does not
provide any details of the said investment account or even the name
or branch of the banking institution involved.
He goes at length and
alleges that the bank failed to transfer the money into the
complainant's account.
40.4. The version in his
answering affidavit is contradicted by his letter of 1 April 2015 to
the complainant's attorneys. The letter
is very specific and reads in
part:
"We
are unable to make the necessary payment
at this point. We
humbly request an extension until 10 April 2015 as
we are
anticipating to receive funds in due course
. We are really
trying our level best to meet your demands and we are mindful of our
obligations. Further we will never undermine
your professional
integrity.
We are also mindful that this matter has the
potential to destroy our profession
."
(my
underlining)
41.
As I have pointed out, the letter is self explanatory and very
specific. He did not have the money to pay and therefore was
seeking
further indulgence. He is also mentioning it specifically that he is
hoping to receive funds in due course. There is no
mention whatsoever
in this letter of the investment and the fact that the delay is due
to the difficulty they are having with the
bank.
42.
It is therefore abundantly clear that the version and allegations
made in his answering affidavit cannot be the truth. Once
again, Mr
Mahlaola failed to take this court into confidence.
43.
It must also be borne in mind that after the Law Society obtained an
interim order on the 8th December 2015, Mr Mahlaola filed
an
application for leave to appeal. This he did despite the fact that an
interim order is not appealable. This is trite law.
44.
Unfortunately Mr Mahlaola completely failed to take the Law Society
into confidence by co-operating and disclosing frankly.
His conduct
as a whole makes a mockery of the attorneys' profession and the
demands thereof. The contradictory versions he gave
regarding
complainant's money including those made under oath make it
pertinently clear that he has little or no regard for the
truth.
45.
Taking into account all of the above, I am of the view that Mr
Mahlaola has ceased to be a fit and proper person to practice
as an
attorney and should no longer be allowed to be part of the attorneys'
profession.
ORDER:
I
propose that Mr Mahlaola be struck from the roll of attorneys of this
Court and that an order be granted in terms of the draft
order
attached hereto marked "X".
_____________________
S
S MAAKANE
Acting
Judge of the High Court
of
South Africa
Gauteng
Division,
Pretoria
I
agree and it is so ordered:
______________________
A
BASSON
Judge
of the High Court
of
South Africa
Gauteng
Division
Pretoria
APPEARANCES:
For
the Applicant
: Ms S L
Magardie
Applicant's
Attorneys
: Damons
Magardie Richardson Attorneys
Counsel
for Defendant
:
Adv. R
C Baloyi
Instructed
by
: Mpho
Mofomme Attorney
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 92249/2015
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
Applicant
and
MICHAEL
TSAKANE
MAHLAOLA
Respondent
DRAFT
ORDER OF COURT
Having
read the papers filed of record and having heard the attorney for the
Applicant,
IT
IS
ORDERED
1.
That the name of
MICHAEL TSAKANE MAHLAOLA
(hereinafter
referred to as the Respondent) be removed from the roll of attorneys
of this Honourable Court;
2.
That Respondent hands and delivers his certificate of enrolment as an
attorney to the Registrar of this Honourable Court;
3.
That in the event of the Respondent failing to comply with the terms
of this order detailed in the previous paragraph within
two (2) weeks
from the date of this order, the sheriff of the district in which the
certificate is, be authorised and directed
to take possession of the
certificates and to hand it to the Registrar of this Honourable
Court;
4.
That Respondent be prohibited from handling or operating on his trust
accounts as detailed in paragraph 5 hereof;
5.
That Johan van Staden, the head: members affairs of applicant or any
person nominated by him, be appointed as
curator bonis
(curator)
to administer and control the trust accounts of Respondent, including
accounts relating to insolvent and deceased estates
and any deceased
estate and any estate under curatorship connected with Respondent's
practice as an attorney and including, also,
the separate banking
accounts opened and kept by respondent at a bank in the Republic of
South Africa in terms of section 78(1)
of Act No 53 of 1979 and/or
any separate savings or interest-bearing accounts as contemplated by
section 78(2) and/or section 78
(2A) of Act No. 53 of 1979, in which
monies from such trust banking accounts have been invested by virtue
of the provisions of
the said sub-sections or in which monies in any
manner have been deposited or credited (the said accounts being
hereafter referred
to as the trust accounts), with the following
powers and duties:
5.1. immediately to take
possession of Respondent's accounting records, records, files and
documents as referred to in paragraph
6 and subject to the approval
of the board of control of the attorneys fidelity fund (hereinafter
referred to as the fund) to sign
all forms and generally to operate
upon the trust account(s), but only to such extent and for such
purpose as may be necessary
to bring to completion current
transactions in which respondent was acting at the date of this
order;
5.2. subject to the
approval and control of the board of control of the fund and where
monies had been paid incorrectly and unlawfully
from the
undermentioned trust accounts, to recover and receive and, if
necessary in the interests of persons having lawful claims
upon the
trust account(s) and/or against respondent in respect of monies held,
received and/or invested by respondent in terms
of section 78(1)
and/or section 78(2) and/or section 78(2A) of Act No 53 of 1979
(hereinafter referred to as 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, if
any, in which respondent was and may still have been concerned and to
receive such monies and to pay the same
to the credit of the trust
account(s);
5.3. to ascertain from
Respondent's accounting records the names of all persons on whose
account respondent appears to hold or to
have received trust monies
(hereinafter referred to as trust creditors) and to call upon
respondent to furnish him, within 30 (thirty)
days of the date of
service of this order or such further period as he may agree to in
writing, with the names, addresses and amounts
due to all trust
creditors;
5.4. 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 of control of the fund, to
determine whether any such trust
creditor has a claim in respect of
monies in the trust account(s) of respondent and, if so, the amount
of such claim;
5.5. to admit or reject,
in whole or in part, subject to the approval of the board of control
of the fund, the claims of any such
trust creditor or creditors,
without prejudice to such trust creditor's or creditors' right of
access to the civil courts;
5.6. having determined
the amounts which he considers are lawfully due to trust creditors,
to pay such claims in full but subject
always to the approval of the
board of control of the fund;
5.7. in the event of
there being any surplus in the trust account(s) of respondent after
payment of the admitted claims of all trust
creditors in full, 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 Act No 53
of 1979 in respect of any interest therein referred to and, secondly,
without prejudice to the rights
of the creditors of respondent, the
costs, fees and expenses referred to in paragraph 10 of this order,
or such portion thereof
as has not already been separately paid by
respondent to applicant, and, if there is any balance left after
payment in full of
all such claims, costs, fees and expenses, to pay
such balance, subject to the approval of the board of control of the
fund, to
respondent, if he is solvent, or, if respondent is
insolvent, to the trustee(s) of respondent's insolvent estate;
5.8. in the event of
there being insufficient trust monies in the trust banking account(s)
of respondent, in accordance with the
available documentation and
information, to pay in full the claims of trust creditors who have
lodged claims for repayment and
whose claims have been approved, to
distribute the credit balance(s) which may be available in the trust
banking account(s) amongst
the trust creditors alternatively to pay
the balance to the Attorneys Fidelity Fund;
5.9. subject to the
approval of the chairman of the board of control of the fund, to
appoint nominees or representatives and/or
consult with and/or engage
the services of attorneys, counsel, accountants and/or any other
persons, where considered necessary,
to assist him in carrying out
his duties as curator; and
5.10. to render from time
to time, as curator, returns to the board of control of the fund
showing how the trust account(s) of respondent
has/have been dealt
with, until such time as the board notifies him that he may regard
his duties as curator as terminated.
6.
That respondent immediately delivers his accounting records, records,
files and documents containing particulars and information
relating
to:
6.1. any monies received,
held or paid by respondent for or on account of any person while
practising as an attorney;
6.2. any monies invested
by respondent in terms of section 78(2) and/or section 78 (2A) of Act
No 53 of 1979;
6.3. any interest on
monies so invested which was paid over or credited to respondent;
6.4. any estate of a
deceased person or an insolvent estate or an estate under curatorship
administered by respondent, whether as
executor or trustee or curator
or on behalf of the executor, trustee or curator;
6.5. any insolvent estate
administered by respondent as trustee or on behalf of the trustee in
terms of the
Insolvency Act, No 24 of 1936
;
6.6. any trust
administered by respondent as trustee or on behalf of the trustee in
terms of the Trust Properties Control Act, No
57 of 1988;
6.7. any company
liquidated in terms of the Companies Act, No 61 of 1973, administered
by respondent as or on behalf of the liquidator;
6.8. any close
corporation liquidated in terms of the
Close Corporations Act, 69 of
1984
, administered by respondent as or on behalf of the liquidator;
and
6.9. respondent's
practice as an attorney of this Honourable Court, to the curator
appointed in terms of paragraph 5 hereof, provided
that, as far as
such accounting records, records, files and documents are concerned,
respondent shall be entitled to have reasonable
access to them but
always subject to the supervision of such curator or his nominee.
7.
That should respondent fail to comply with the provisions of the
preceding paragraph of this order on service thereof upon his
or
after a return by the person entrusted with the service thereof that
he has been unable to effect service thereof on respondent
(as the
case may be), the sheriff for the district in which such accounting
records, records, files and documents are, be empowered
and directed
to search for and to take possession thereof wherever they may be and
to deliver them to such curator.
8.
That the curator shall be entitled to:
8.1. hand over to the
persons entitled thereto all such records, files and documents
provided that a satisfactory written undertaking
has been received
from such persons to pay any amount, either determined on taxation or
by agreement, in respect of fees and disbursements
due to the firm;
8.2. require from the
persons referred to in paragraph 8.1 to provide any such
documentation or information which he may consider
relevant in
respect of a claim or possible or anticipated claim, against him
and/or respondent and/or respondent's clients and/or
fund in respect
of money and/or other property entrusted to respondent provided that
any person entitled thereto shall be granted
reasonable access
thereto and shall be permitted to make copies thereof;
8.3. publish this order
or an abridged version thereof in any newspaper he considers
appropriate; and
8.4. wind-up of the
respondent's practice.
9.
That Respondent be and is hereby removed from office as:
9.1 executor of any
estate of which Respondent has been appointed in terms of
section
54(1)(a)(v)
of the Administration of Estates Act, No 66 of 1965 or
the estate of any other person referred to in section 72(1);
9.2 curator or guardian
of any minor or other person's property in terms of section 72(1)
read with section 54(1)(a)(v) and
section 85
of the
Administration of
Estates Act, No 66 of 1965
;
9.3 trustee of any
insolvent estate in terms of
section 59
of the
Insolvency Act, No 24
of 1936
;
9.4 liquidator of any
company in terms of
section 379(2)
read with 379(e) of the Companies
Act, No 61 of 1973;
9.5 trustee of any trust
in terms of section 20(1) of the Trust Property Control Act, No 57 of
1988;
9.6 liquidator of any
close corporation appointed in terms of section 74 of the Close
Corporation Act, No 69 of 1984; and
9.7 administrator
appointed in terms of Section 74 of the Magistrates Court Act, No 32
of 1944.
10.
That Respondent be and is hereby directed:
10.1. to pay, in
terms of section 78(5) of Act No 53 of 1979, the reasonable costs of
the inspection of the accounting records
of respondent;
10.2. to pay the
reasonable fees of the auditor engaged by Applicant;
10.3. to pay the
reasonable fees and expenses of the curator, including travelling
time;
10.4. to pay the
reasonable fees and expenses of any person(s) consulted and/or
engaged by the curator as aforesaid;
10.5. to pay the
expenses relating to the publication of this order or an abbreviated
version thereof; and
10.6. to pay the
costs of this application on an attorney-and-client scale.
11.
That, if there are any trust funds available the respondent shall
within 6 (six) months after having been requested to do so
by the
curator, or within such longer period as the curator may agree to in
writing, shall satisfy the curator, by means of the
submission of
taxed bills of costs or otherwise, of the amount of the fees and
disbursements due to him (respondent) in respect
of his former
practice, and should he fail to do so, he shall not be entitled to
recover such fees and disbursements from the curator
without
prejudice, however, to such rights (if any) as he may have against
the trust creditor(s) concerned for payment or recovery
thereof;
12.
That a certificate issued by a director of the Attorneys Fidelity
Fund shall constitute
prima facie
proof of the curator's costs
and that the Registrar be authorised to issue a writ of execution on
the strength of such certificate
in order to collect the curator's
costs;
BY
ORDER OF THE COURT
______________________
REGISTRAR
[1]
2010 (1) SA 186
SCA at para 4
[2]
[1998] ZASCA 56
;
1998 (4) SA 539
(SCA) at page 539 G - I
[3]
2009 (2) SA 18
SCA
[4]
Vassen (supra) at page 538