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[2016] ZAGPPHC 907
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Law Society of the Northern Provinces v Morifi (4952/2016) [2016] ZAGPPHC 907 (6 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 4952/2016
6/10/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES APPLICANT
And
DUNCAN
NAPE
MORIFI RESPONDENT
Heard:
6
SEPTEMBER 2016
Delivered:
28
SEPTEMBER 2016
JUDGMENT
TWALAAJ
Introduction
[1]
Before this Court, is an application in which the applicant
prays for an order suspending the respondent, a member of the
applicant,
from practising as an attorney of this Court. The
applicant further prays for the ancillary relief as set out in the
notice of
motion.
[2]
At the beginning of the hearing of this case, the respondent,
appearing in person, applied from the bar for the postponement of the
case. He stated the reason for the application was that he had
employed the services of counsel who only informed him on the 2
September 2016, a day or so before the hearing that he is not
available to attend Court on the day the matter was set down for.
He
also could not file his heads of argument because he only learned on
the 29 August 2016 that his correspondent in Pretoria had
ceased to
practice. The other reason for seeking a postponement was that he
only received the applicant's heads of argument on
the 31 August 2016
after he called their attorneys.
[3]
The applicant opposed the respondent's application for
postponement for the following reasons:
(a) the respondent was served
with the notice of set down in April 2016 already,
(b) the respondent has failed to
bring a substantive application for a postponement,
(c) the respondent has failed to
furnish the reason for his failure in filing his heads of argument.
(d) the respondent is an
attorney and was therefore in a position to deal with the matter
himself.
[4]
Realising that he had failed to make out a case for the
postponement of the matter the respondent abandoned his application
for
the postponement of the matter and pronounced himself as being
prepared and ready to proceed with the hearing of the case.
Background
facts
[5]
It is common cause that the respondent was on the 3 February
2009 admitted to practice as an attorney within the jurisdiction of
this Court and his name is still on the roll of attorneys. The
respondent practised in partnership and for his own account under
the
name and style of Morifi Seshoka Masho Attorneys at 72A Jorissen
Street, corner of Jorissen and Dahi Streets, Polokwane, Limpopo
Province.
[6]
The applicant is The Law Society of the Northern Provinces
incorporated in terms s 56 of the Attorneys' 53 of 1979 (the
Attorneys'
Act). It is common cause that every attorney within the
jurisdiction of the applicant is
ipso facto
its member and is
governed by its rules.
[7]
For the purposes of this judgment the responsibility and the
functions of the applicant are the following:
a.
to regulate the exercise of the profession
b.
to encourage and promote efficiency in and responsibility in
relation to the profession,
c.
to deal with all matters relating to the interest of the
profession and to protect those interests,
d.
to uphold the integrity of practitioners,
e.
to uphold and improve the standards of the professional
conduct and qualification of practitioners,
f.
to provide for the effective control of the professional
conduct of practitioners,
g.
to exercise disciplinary jurisdiction over all practitioners,
h.
to institute an application for the striking off the roll or
suspension from practice in the case where the practitioner is found
not to be fit and proper person to continue to practice as an
attorney.
The
charges against the respondent
[8]
The applicant alleges that the respondent committed the
following offences as a practising and registered attorney:
i. he failed to submit his Rule 70
auditor's report for the periods ending 28 February 2011 and 28
February 2012 timeously.
ii. he failed to submit his rule 70
auditor's report for the periods ending 281h of the one 2013, 28
February 2014 and 28 February
2015 and further reports are currently
still outstanding.
iii. The respondent is practising is
an attorney without being in possession of a fidelity fund
certificate and has done so since
1 January 2014
iv. he has failed to keep his
accounting records at no place other than his main office.
v. he abandoned his practice without
notifying the applicant.
vi. he failed to notify the applicant
about his whereabouts.
The
case of the applicant
[9]
The applicant contended that the respondent has conducted
himself in a manner that contravened certain rules of the applicant
and
provisions of the Attorneys Act. He failed to submit his
auditor's report for the periods ending 28 February 2011 and 28
February
2012 respectively to the applicant timeously in terms of the
provisions of rules of the applicant. Further, he failed to submit
his auditor's report to the applicant for the periods 28 February
2013, 28 February 2014 and 28 February 2015 respectively.
[10]
It is the applicant's contention that the respondent is practising as
an attorney without being in possession of a fidelity
fund
certificate since 1 January 2014. He has previously practised without
the fidelity fund certificate for the period between
January 2012 to
November 2012. He has failed to keep his account records at no place
other than his main office. He has abandoned
his practice in that he
has not informed the applicant of his whereabouts as a result he
could not be served with disciplinary
processes.
The
case of the respondent
[11]
The respondent contended that he practised in partnership with his
partners Mashao D and Seshoka TG from 2009 to 2011. He then
practised
for his own account until November 2011 when he took employment with
COGHSTA. He addressed an e-mail to the applicant
in 2013 advising
them of his new employment and the closure of his practice. He denied
being the only one responsible for the submission
of the auditor's
report for the period 28 February 2011. He denied having practised
without the fidelity fund certificate. He denied
having a duty to
submit his auditor's report for the periods from 28 February 2012, 28
February 2013, 28 February 2014 and February
2015 as he was no longer
practising as an attorney but was in the employ of COGHSTA. When he
closed his practice, he did not have
any trust creditors as there
were no funds in the trust account.
[12]
Initially the respondent in his submission sought to project a
picture that he was never informed about the audit which was
conducted
on his practice by the applicant. This included the
contention that he never had any engagement about the audit with the
applicant's
auditor, Ms Mapfumo. However, during the debate with the
court he conceded that he spoke to Ms Mapfumo on the telephone but
never
met her in person regarding the audit.
[13]
The other important concession which the respondent made in
the context of this judgment is that he in fact did not pay much
attention
to the provisions of the Attorneys Act and the Rules of the
applicant. He conceded that he had administration problems and that
he had made mistakes by not informing the applicant that he was
closing his practice and submitting a final closing audit of his
trust account.
[14]
The respondent requested the Court to be lenient with him when
it imposes the sanction. He submitted that the sanction should have
corrective measures, which could include subjecting him to further
training. He also indicated that his current employment is linked
to
him being an attorney and therefore if he was to be suspended he
could lose his current employment.
[15]
The issue to be determined in this case is whether the
respondent has contravened the rules of the applicant and the
provisions
of the Attorneys Act. If it is found that he has committed
those transgressions, then the enquiry is to determine whether such
conduct can be said to be unprofessional, dishonourable and unworthy
for an attorney to warrant his suspension from practising as
such.
[16]
An application of this
nature to the Court takes the form of a disciplinary inquiry and is
thus
sui generis
in
nature and not a
lis
between
the Law Society (the applicant) and the practitioner (the
respondent). The Law Society as the
custos
morum
place the
facts
before the Court for
consideration to determine whether a contravention or an offence has
been committed by an attorney. The applicant
has the duty to show
that an offence or contravention of the rules have been committed on
the balance of probabilities.
[1]
[17]
Due to the nature of the disciplinary proceedings, it is
essential for the respondent to co-operate and to place the full
facts,
where necessary, before the Court to enable it to arrive at
the correct decision. The respondent is not expected to be
obstructive
and to submit bare denials.
[18]
As indicated above, the respondent has admitted to his wrong
doing in that it contravened the rules of the applicant and the
provisions
of the Attorneys Act. Although it was late in the day that
the respondent conceded that it did not unscrupulously observe the
rules
of the applicant and the provisions of the Attorneys Act, the
respondent did put facts before this Court to enable it to come to
the correct conclusion.
[19]
The failure to submit the yearly audit report to the applicant
is a serious transgression because it is the only mechanism with
which the applicant can ascertain that the trust funds of the public
held by an attorney are protected. Therefore the conduct of
the
respondent is under the circumstances unprofessional, dishonourable
and unworthy of an attorney. It is therefore clear that
the
respondent is no longer a fit and proper person to continue to
practice as an attorney of this Court for his own account.
[20]
It is my considered view that a proper case has been made out
in the papers and has been confirmed by the respondent himself when
he admitted to transgressions of the rules and the provisions of the
Attorneys Act.
[21]
I accordingly find the respondent to be guilty for not
submitting his closing audit report in February 2012.
[22]
The Court accepts that the respondent is in full time
employment of COGHSTA since November 2011. It is my view therefore
that the
public and the fidelity fund are not exposed since the
respondent is not practising on his own account. I therefore do not
agree
with counsel for the applicant that the sanction to be imposed
under the circumstances of this case should be the striking of the
name of the respondent from the roll of attorneys of this Court.
Moreover, the striking of the name of the respondent from the
roll
will result in him losing his current employment.
[23]
It is my respectful view that, although the transgressions the
respondent has been found guilty of are serious, the respondent is
now employed in another capacity. He is not practising on his own
account and therefore the general public and the fidelity fund
are
not exposed. He is not handling trust funds in the course of his
current employment.
[24]
In considering the sanction imposed below, I have taken into
account the submissions made by the respondent in mitigation of the
sanction. I have not been persuaded that the mitigation outweigh the
gravity of the offence. In mitigation the respondent sought
to show
some remorse. This was however belatedly done. I have also in
particular taken into account the attitude and the approach
that had
been adopted by the respondent.
[25]
In the circumstances, I propose the following order:
1. The respondent is suspended from
practising as an attorney of this Court for his own account or in
partnership or as director
of an incorporated practice, on the
following conditions:
A. That the respondent complies with
all the Law Society of the Northern Provinces' (the applicant)
outstanding requirements;
B. That the respondent attend and
complete the Legal Practice Management Course as prescribed in
Section 138 of the Attorneys' Act,
Act 53 of 1979, read with Rule
21.16 of the Rules for the Attorneys' Profession;
C. That the respondent be prohibited
from handling or operating on or being in any way involved in any
trust accounts at any practice
where he may be employed during his
period of suspension;
2. That respondent be prohibited from
handling or operating on his trust accounts as detailed in paragraph
3 hereof.
3. 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 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 53 of
1979 and/or any separate savings or
interest bearing account 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-section
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:
3.1. 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.
3.2. 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 interest 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 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 person 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
to the
credit of the trust account(s).
3.3. 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); 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;
3.4. 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;
3.5. 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 right of access to the civil courts;
3.6. 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;
3.7. in the event of there being any
surplus in the trust account(s) of the 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;
3.8. in the event of there being
insufficient trust monies in the trust banking account(s) of the
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;
3.9. 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, accounts and/or any other persons, where
considered necessary, to
assist him in carrying out his duties as
curator; and
3.10. 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.
4. That respondent immediately
delivers his account records, records, fries and documents containing
particulars and information
relating to:
4.1. any monies received, held or paid
by respondent for or on account of any person while practising as an
attorney;
4.2. any monies invested by respondent
in terms of section 78(2) and/or section 78(2A) of Act No 53 of 1979;
4.3. any interest on monies so
invested which was paid over or credited to respondent;
4.4. 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;
4.5. any insolvent estate administered
by respondent as trustee or on behalf of the trustee in terms of the
Insolvency Act, No 24 of 1936
;
4.6. 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;
4.7. any company liquidated in terms
of the Companies Act, No 61 of 1973, administered by respondent as or
on behalf of the liquidator;
4.8. 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
4.9. respondent's practice as an
attorney of this 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.
5. That should respondent fail to
comply with the provisions of the preceding paragraph of this order
on service thereof upon him
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.
6. That the curator shall be entitled
to:
6.1. 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;
6.2. 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 and
shall be permitted
to make copies thereof;
6.3. publish this order or an abridged
version thereof in any newspaper he considers appropriate; and
6.4. wind-up of the respondent's
practice.
7. That respondent be and is hereby
removed from office as –
7.1. 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)
;
0.9
8in; margin-bottom: 0in; line-height: 150%">
7.2. 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
;
7.3. trustee of any insolvent estate
in terms of
section 59
of the
Insolvency Act, No 24 of 1936
;
7.4. liquidator of any company in
terms of
section 379(2)
read with 379(e) of the Companies Act, No 61
of 1973;
7.5. trustee of any trust in terms of
section 20(1) of the Trust Property Control Act, No 57 of 1988;
7.6. liquidator of any close
corporation appointed in terms of
section 74
of the
Close
Corporations Act, No 69 of
1984; and
7.7. administrator appointed in terms
of section 74 of the Magistrates Court Act, No 32 of 1944.
8. That respondent be and is hereby
directed:
8.1. to pay, in terms of section 78(5)
of Act No. 53 of 1979, the reasonable costs of the inspection of the
account records of respondent;
8.2. to pay the reasonable fees of the
auditor engaged by applicant;
8.3. to pay the reasonable fees and
expenses of the curator, including travelling time;
8.4. to pay the reasonable fees and
expenses of any person(s) consulted and/or engaged by the curator as
aforesaid;
8.5. to pay the expenses relating to
the publication of this order or an abbreviated version thereof; and
8.6. to pay the costs of this
application n an attorney and client scale.
9. 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;
10. 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.
11. That the respondent prove to this
Court that he is a fit and proper person to practice as an attorney
for his own account before
the suspension imposed in paragraph 1 of
this order is uplifted.
______________________
TWALA
M
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I
agree
______________________
MOLAHLEHI
E
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances:
For
the APPLICANT:
Adv
PJ SMITH
Instructed
by:
ROOTH
& WESSELS INC
TEL:
012
452 4015
For
the RESPONDENT:
Mr
DN MORIFI (in
person)
TEL:
012
3421179
[1]
See Prokureursorde v Kleynhans
1995 (1) SA 839
(T).