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[2016] ZAGPPHC 924
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Law Society of the Northern Provinces v Ranamane and Others (17748/13; 63772/11) [2016] ZAGPPHC 924 (27 October 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
DATE:
27/10/2016
CASE
NO:
17748/13 & 63772/11
Reportable:
No
Of
interest to other judges: No
Revised.
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
Applicant
and
PAUL
MODIKENG
RANAMANE
1
st
Respondent
RANAMANE
PHUNGO INCORPORATED ATTORNEYS
2
nd
Respondent
LAVHELESANI
LIMON
PUNGO
3
rd
Respondent
PHUNGO
INCORPORATED
4
th
Respondent
JUDGMENT
AC
BASSON, J
[1]
There are two applications before this court. In
both applications the applicant (the Law Society of the Northern
Provinces) seeks
an order that the first respondent (Mr Ranamane –
“Ranamane”) and the third respondent (Mr Phungo –
“Phungo”)
be struck from the roll of attorneys of this
court, alternatively that Ranamane and Phungo be suspended in their
practices as attorneys
of this court.
[2]
The two applications have a long and somewhat
unfortunate history. Ranamane and Phungo previously practiced as
co-directors of the
second respondent (Ranamane Phungo Incorporated –
“the firm”).
[3]
Two separate applications were initially launched
against Ranamane and Phungo respectively due to the fact that they
were each practising
for their own account and as single
practitioners at the time of the launching of the applications.
Phungo subsequently resigned
as a director of the firm on 16 March
2011 and is currently practising for his own account and as a single
practitioner under the
style of Phungo Incorporated (the fourth
respondent).
[4]
The application against Ranamane has been pending
since 2012 and the application against Phungo since 2013.
[5]
As will be pointed out herein below, the
finalisation of both applications have been delayed by numerous
postponements over the
years mainly as a result of the fact that both
Ranamane and Phungo have failed to timeously file various affidavits
in the proceedings.
[6]
On 24 November 2014 an order was granted joining
Phungo and the fourth respondent as resondents to the application
against Ranamane
and the firm. Following the consolidation
various further affidavits were filed.
[7]
The consolidated application was thereafter set
down for hearing on 17 April 2015. However, on 14 April 2015 - three
days prior
to the hearing of the application – Phungo filed a
further affidavit in the consolidated main application.
[8]
On 16 April 2015 - merely a day prior to the date
of the hearing of the consolidated main application – Ranamane
filed an
answering affidavit to the applicant’s supplementary
founding affidavit filed on 18 November 2013 - some seventeen months
after the date of filing thereof.
[9]
At the hearing of the consolidated application on
17 April 2015, Ranamane objected to the further affidavit delivered
by Phungo
(on 14 April 2015) and to the three supplementary founding
affidavits previously delivered by the applicant. As a result of this
objection the matter was again postponed. The applicant and Phungo
were ordered to formally apply for leave to file any previously
filed
supplementary affidavits. On 7 July 2015 the applicant and Phungo
obtained leave for the filing of the supplementary affidavits
previously filed by them. These applications were not opposed by
Ranamane.
[10]
In terms of the order granted on 7 July 2015,
Ranamane and Phungo were ordered to file any further answering,
opposing or explanatory
affidavits to the applicant’s
supplementary founding affidavit previously filed within ten days of
the order. No further
affidavits were, however, delivered by either
Ranamane or Phungo.
[11]
The consolidated main application was thereafter
again enrolled for hearing on 13 November 2015. The date of the
hearing did not
suit Phungo’s counsel. A meeting was thereafter
scheduled with the Deputy Judge President of this division to arrange
a date
for the hearing of the application suitable to all parties and
to ensure that all outstanding issues are attended to prior to the
hearing of the matter. A directive was also issued in terms of which
Ranamane was directed to file the further affidavits indicated
by his
legal representative by no later than 10 November 2015 and to file
Heads of Argument by 29 January 2016. It should be pointed
out that
no further affidavits were filed and that Ranamane has also failed to
deliver Heads of Argument.
[12]
The matter was set down for 10 and 11 March
2016. However, on 9 March 2016 - one day preceding the date of
hearing of the
application and only at 16h08 in the afternoon - a
formal application for the postponement of the matter was filed on
behalf of
Ranamane. In the application for postponement Ranamane
stated that it was necessary for him to file a further affidavit and
that
he was unable to do so timeously because his preferred counsel
had become unavailable to assist him during November 2015 (5 months
ago) and that his newly appointed counsel had not had sufficient time
to assist him in preparing these affidavits. The application
for a
postponement was opposed by both the applicant and Phungo.
[13]
On 10 March 2016 the court granted a postponement
and ordered Ranamane to pay the wasted costs (of the applicant and
Phungo and
the fourth respondent) occasioned by the postponement on
the scale as between attorney and client.
[14]
The court also granted an order suspending
Ranamane in his practice as an attorney pending the finalisation of
the application for
the striking, alternatively suspension of
Ranamane and Phungo. Ranamane was further ordered to file his
answering affidavits by
no later than 22 April 2016. However, despite
the postponement and the further opportunity granted to Ranamane to
file the further
affidavits - which he had indicated to have been a
necessity in his application for a postponement – he failed to
deliver
any further affidavits or to take any further steps to
provide an explanation for his conduct referred to in the affidavits
which
he sought to reply to.
[15]
The matter was finally argued before this court
on 11 October 2016.
Merits
[16]
The
question whether an attorney is a fit and proper person to practice
falls in terms of section 22(1) of the Attorney’s
Act
[1]
(“the Act”) within the discretion of the court. It also
falls within the discretion of the court what an appropriate
sanction
should be having regard to the totality of facts placed before it.
[17]
It is trite that in deciding matters such as
this, the court follows a three staged inquiry:
(i)
During the first part of the enquiry the court
will decide whether the alleged offending conduct has indeed been
established on
a preponderance of probabilities.
(ii)
Secondly, once the court is satisfied that the
offending conduct has indeed been established, the court will
consider whether, in
its discretion, the respondent is a fit and
proper person to continue to practice. This process requires a value
judgment and requires
the court to evaluate and weigh up all the
evidence that was placed before it.
(iii)
Once both
questions have been decided the court will consider what, in its
discretion, an appropriate sanction should be. More in
particular,
the court will consider whether a person should be removed from the
roll or whether such a person should merely be
suspended from
practice for a specified period of time. In considering this question
the court will have regard to the nature and
gravity of the conduct
complained of. The court will consider all of these factors in their
totality and not in isolation.
[2]
[18]
The applicant received various complaints against
Ranamane, Phungo and the firm. Ms Mapfumo (“Mapfumo) - a
chartered accountant
and auditor in the applicant’s employ –
was instructed to investigate the complaints. What follows is a brief
summary
of the various complaints levelled against Ranamane and
Phungo.
(i)
The first complaint relates to an amount of R5
million which was deposited by the Department of Public Works Roads
and Transport
(“the Department”) into the trust account
of the firm. This charge is levelled against both Ranamane and Phungo
in
their capacities as co-directors of the firm.
(ii)
The second complaint relates to the overcharging
and/or even overreaching with reference to a statement of account
dated 20 October
2010 submitted to the National Health Laboratory
Service (“NHLS”). This complaint is levelled against both
Ranamane
and Phungo although it seems that initially this complaint
was levelled against Phungo only.
(iii)
The third complaint is levelled against Phungo
alone and entails an allegation that he practiced as an attorney
without being in
possession of a Fidelity Fund Certificate for the
years 2005 to 2009.
(iv)
The fourth complaint is levelled against both
Ranamane and Phungo and relates to a complaint levelled against the
firm by Mr Tywabi
(“Tywabi”). In terms of this complaint
Ranamane failed to attend to the transfer of an immovable property
bought by
Tywabi as far back as December 2004.
The
complaint by the Department of Public Works
[19]
The applicant received a complaint from the MEC
for the Department in the form of an application against the firm (in
the Gauteng
High Court – Johannesburg). The firm is cited as
the first respondent and the Law Society of the Northern Provinces is
cited
as the second respondent in that application. In that
application the Department sought an order directing the firm to
repay an
amount of R5 million which amount was paid into the trust
account of the firm. It further appears from this application
that
during November 2009, Kaulani Civils (Pty) Ltd (“Kaulani”)
instituted action against the Department for payment of an
amount of
R64 million. The Department appointed the firm as its legal
representative in that action. Ranamane was appointed
as the attorney
to assist the Department in the action.
[20]
Ranamane advised the Department to pay an amount
of R5 million into the firm’s trust account. According to the
papers Ranamane
confirmed to the Department that the amount of R5
million would be invested in a section 78(2A) investment account.
[21]
On 8 January 2010 the Department paid the amount
of R5 million into the firm’s trust account. The letter
accompanying the
deposit states as follows:
“
Your previous
correspondence on the subject matter has reference.
This serves to confirm
the transfer of R5 million by the department of Public Works, Roads
and Transport into the trust account
as a measure of good faith
invested in terms of section 78 (2A) of the Attorneys Act 53 of 14979
for the purpose of the application
as per above referred
correspondence.
The amount of R5 million
is paid today, the 08 January 2010 as per attached proof of payment
into the below stated banking details:
Bank: Standard Bank
Branch and Code:
Randburg, 018005
Account Name: Ranamane
Phungo Incorporated
Bank Account: [...]
Your office is expected
to continuously update the department on the following:
·
Any interest accumulated from the amount
transferred (R5 million)
·
Report on any decision taken on the trust account
This information will
assist the department to comply with the financial prescripts on the
monies held in the trust account including
the reporting in the
Annual Financial Statements for audit purpose.
Your co-operation as in
the past will be much appreciated.”
[22]
Kaulani subsequently obtained judgment against
the Department and the Department paid Kaulani the claimed amount.
[23]
It is important to point out that the amount of
R5 million previously paid into the firm’s trust account was
not utilised
for purposes of the payment to Kaulani in respect of the
claim.
[24]
It is further important to point out that during
the litigation period the Department received several statements of
account from
the firm and settled all invoices with the exception of
one invoice not exceeding R100 000.00.
[25]
During August 2010 and October 2010 (after the
claim had been paid to Kaulani), the Department requested repayment
of the amount
of R5 million plus interest from the firm. No reply was
received to these letter and the Department did not receive payment
of
the R5 million.
[26]
During February 2011 the Department again
demanded payment from the firm. On 21 February 2011 the firm
responded and advised the
Department that the matter was referred to
the accounts Department and that the firm would revert to the
Department.
[27]
On 3 March 2011 the acting CFO of the Department
contacted Ranamane in order to enquire about the payment of the said
R5 million.
Ranamane assured him that the firm will see to the
repayment of the R5 million together with the accumulated interest.
[28]
On 3 March 2011 the firm wrote a further letter
to the Department acknowledging its indebtedness. However, despite
this letter the
firm persisted in its failure to re-pay the amount of
R5 million together with interest.
[29]
Mapfumo was, as already pointed out, appointed to
investigate the complaint. She submitted a particularly damming
report on the
financial affairs and accounting records of the firm.
She indicates in her report that very limited accounting records have
been
furnished to the applicant and that, due to the failure of
Ranamane to cooperate with her and to grant her access to the firm’s
account records, she was unable to establish how the R5 million was
utilised. At this juncture I should also point out that even
after
the hearing of this application, the court is still in the dark as to
how the R5 million had been utilised. I will return
to this issue
herein below.
[30]
Mapfumo was, however able to establish that
Ranamane did indeed receive an amount of R5 million from the
Department on 8 January
2010. She was also able to establish that,
notwithstanding the express request from the Department, that funds
were not invested
in terms of any section 78(2A).
[31]
From Mapfumo’s report it is further clear
that on the very same day of receipt of R5 million, two amounts were
withdrawn from
the firm’s trust account: one for R 5 000.00
and one for R 15 000.00. On 9 January an amount of R 350 000.00
were withdrawn. By 27 February 2010 the entire R5 million was
withdrawn. Mapfumo points out that the ledger reflects that some
of
the transactions had no descriptions except for cashbook and journal
references. The cashbook provided to her, however, did
not reflect a
description of the transactions nor of the recipient of the money.
Some of the transactions with descriptions reflect
that the money was
withdrawn as fees to the firm and/or as disbursements. There is,
however, no indication of the recipient of
the money withdrawn as
disbursements. Mapfumo found that a trust deficit in the amount of at
least R4 999655.46 existed as at 28
February 2011. It was also her
view that the auditor’s report should have been qualified. She
was not able to establish how
the amount of R5 million had been
utilised although she was able to establish that the firm did not
hold any section 78(2A) investments.
[32]
Mapfumo concluded that the firm and/or Ranamane
had contravened various sections of the Act and the applicant’s
Rules (“the
Rules”). She also concluded that the failure
of Ranamane and the firm to cooperate with the applicant in the
investigation
constituted a contravention of the Rules.
[33]
In response to the damning report by Mapfumo and
the various complaints, Ranamane raised numerous technical
objections. I do not
deem it necessary to refer to those objections
in detail except to point out that these objections were clearly
raised in an attempt
to avoid answering to the gist of the complaint
namely what had happened to the R5 million deposited in the firm’s
trust
account.
[34]
Ranamane, however, admitted receipt of the amount
of R5 million in his trust account on 8 January 2010 and admitted
that the amount
is no longer available. According to him the R5
million was received by the firm as a deposit (security) for the
firm’s legal
costs and disbursements in respect of several
litigious matters handled on behalf of the Department. This version
is entirely contradictory
to the letter of 8 January 2010 wherein it
is pertinently stated that the amount of R 5 million was to be
invested in terms of
section 78(2A).
[35]
There is no proper explanation on the papers
about the utilisation of the R5 million. What is, however, clear from
the papers is
the fact that on the very same day the funds were
received, funds were transferred from the firm’s trust account
and that
some of the funds were transferred to unknown beneficiaries
and towards creditors not related to the Department. All of this was
done contrary to an express instruction that the funds had to be
invested in a section 78(2A) investment account. By 27 February
2010
– just over a month later – the entire R5 million had
disappeared.
[36]
The investigation was severely complicated by the
fact that no accounting records were provided to the applicant. Only
after this
court made an order on 10 September 2013 ordering Ranamane
to do so, did he provide the applicant with incomplete accounting
records.
When confronted with the fact that the accounting records
were incomplete, Ranamane proceeded to place the applicant to the
proof
to show that the accounting records were in fact incomplete.
[37]
Despite the fact that the accounting records that
were furnished to the applicant were incomplete, Mapfumo was able to
conclude
that the firm did not keep proper accounting records in
accordance with the provisions of the Act and the Rules. She also
concluded,
inter alia
,
that - (i) the firm’s cash book did not contain
descriptions of the transactions and it did not reflect the
beneficiaries
of payments; (ii) the firm failed to ensure that
withdrawals from the trust banking account were made only on behalf
of a trust
creditor or in respect of money due to the firm; (iii)
there were irregular entries in the journals of the firm which were
processed
to conceal a trust deficit in the firm’s bookkeeping;
(iv) Ranamane failed to ensure that the total amount of the firm’s
trust banking account, trust investment account and trust cash was
not less than the total amount of credit balances of the firm’s
trust creditors; (v) Ranamane failed to keep proper accounting
records; and (vi) Ranamane failed to account to a client within
a
reasonable time.
[38]
It is instructive to point out that Ranamane does
not deny the fact that payments from the creditors’ account did
not reflect
proper descriptions of the beneficiaries. He also does
not deny that the funds of one trust creditor were transferred as
fees in
respect of different clients. Ranamane also does not attach
any proof of accounting to the Department in respect of how the R5
million was utlized.
[39]
Adding to the woes of Ranamane is the contents of
the affidavit filed by Phungo on 13 April 2015 in which he levels
serious allegations
implicating Ranamane in improper conduct. In this
affidavit Phungo admits that the amount of R5 million was
misappropriated by
the firm. He also refers to the affidavit of the
firm’s bookkeeper at the time, Mr Sello Christopher Raborethe
(“Raborethe”)
in which Raborethe states that he informed
Phungo that he had raised the discrepancies in the trust account with
Ranamane but that
he did not receive satisfactory answers. Raborethe
also states that R5 million was paid from the trust account for
reasons he does
not know. Raborethe had also informed the firm’s
auditors of the discrepancies in the firm’s account and that he
was
assured that the auditors will look into the matter. This however
did not happen. Raborethe was subsequently dismissed from the
firm as
a result of his persistent attempts to clarify the discrepancies in
the trust account. Raborethe also confirms that Phungo
did not have
access to the trust account.
[40]
Ranamane has up until the date of the hearing
failed to file a response to these serious allegations levelled
against him by not
only Phungo but also by the erstwhile bookkeeper.
[41]
At the hearing of the matter counsel on behalf of
Ranamane conceded that he cannot advance any submissions that could
absolve Ranamane
from wrongdoing in respect of the R5 million
deposited by the Department and conceded that there is no answer to
the allegations
levelled against Ranamane.
[42]
After many years of acrimonious litigation and
hundreds of pages, Ranamane finally, on the day of the hearing
finally realised that
the evidence in respect of the misappropriation
of the R5 million is simply so overwhelming that he can no longer
dispute his wrongdoing.
It is, however, of some concern to the court,
and I will revert to this issue herein below, that it took Ranamane
approximately
four years to come to a point where he finally realised
that he can no longer defend what is clearly a misappropriation of
trust
funds.
[43]
It is thus no longer in dispute that an amount of
R5 million had disappeared without any trace from the trust account
of firm and
that Ranamane cannot account for the R5 million. Despite
the fact that Ranamane now accepts responsibility for the
misappropriated
funds, there is still no explanation forthcoming from
Ranamane as to what had happened to the R5 million.
[44]
I am therefore satisfied, in the light of
Ranamane’s concession and the evidence presented to the court
that the offending
conduct of misappropriation of trust funds against
Ranamane has been established.
[45]
I have already referred to the fact that the
complaint in respect of the missing R5 million has also been levelled
against Phungo.
[46]
The complaint against Phungo is that he
misappropriated, alternatively, participated in the misappropriation,
and further alternatively,
that he was responsible for the
misappropriation of the trust funds.
[47]
From a reading of the papers it does not appear
that it is the
applicant’s case that Phungo made common
cause with the activities of Ranamane in respect of what can only be
described as
the plundering of the trust account. At most Phungo is
called upon to answer the question as to why he did not assiduously
monitor
the activities of Ranamane (and other professional assistants
working together with Ranamane) in order to pick up and effectively
prevent deviations from the course of conduct expected of an
attorney. I have considered the evidence and I am in agreement with
the submission that, with regard to the disappearance of the R5
million, no culpability can be laid at the door of Phungo save
for
not picking up that the R5 million had been misappropriated from the
trust account.
[48]
In a supplementary affidavit filed in April 2015 Phungo did an about
turn and admitted that he failed in his obligation as
an attorney to
take the necessary steps to prevent the misappropriation of trust
monies. In this regard he states the following
in his supplementary
affidavit:
“
2.3 The fact that I
did not misappropriate the aforesaid amount does not, however, mean
that the proceedings instituted against
me are not competent. As an
attorney of this Court and as a partner of the aforesaid firm at the
relevant time, there was a statutory
obligation on my part and the
public expected me to ensure that all the monies placed in the firm’s
trust account were not
misappropriated by myself and any other person
who had access to the trust account.
2.4 I regret to admit
and I am not only embarrassed to admit but I am also disappointed to
admit that such amount was
misappropriated from the trust account
during the time that I was a partner of Ranamane Phungo Inc. I have,
regrettably, failed
to take the necessary steps to ensure that the
funds deposited into the trust account were at all material times as
safe as this
Court and the public expected them to be safe and
protected from misappropriation as possible.
2.5 My obligation to
ensure that trust funds were not misappropriated has nothing to do
with the fact that I did not
have management control of the relevant
trust account. Such obligation arose from the fact that I was a
partner of Ranamane Phungo
Inc. and that I was an attorney of this
Court. I failed to discharge such an obligation.
…
2.10 In the premises, whilst I deny
that I misappropriated the monies in issue, I regrettably admit that
I did not take the necessary
steps as stated above to ensure that
such monies were not misappropriated. The position would have been
different if I had taken
such steps
.”
[49]
It is clear from this affidavit that Phungo has
taken this court in his confidence and that he has fully owned up to
the fact that
he had failed in his obligation to ensure that all
monies placed in the firm’s trust account were not
misappropriated. This
he did not do and he admit that the position
would have been different had he taken such preventative steps.
[50]
Although it is not this court’s conclusion
that Phungo is complicit in the misappropriation of the trust funds
or that he
was aware of the misappropriation, it cannot be ignored
that Phungo was a co-director at the time of the misappropriation. He
can
therefore not escape accountability for the offence relating to
the firm’s trust account: Where attorneys practise in
partnership
or as co-directors, they are jointly responsible to
comply with the provisions of the Act relating to the handling of
trust funds.
They are also jointly liable for the irregularities that
occurred.
National
Health Laboratory Service
[51]
A complaint was received from the National Health
Laboratory Service (“NHLS”) against the firm. In terms of
the complaint
the NHLS had instructed Phungo to act on its behalf in
several matters since 2010. When Phungo filed his answering affidavit
(under
case number 17748/2013) it was pointed out that the matter was
in fact dealt with by Ranamane. After consolidation of the
applications
the complaint was also served on Ranamane.
[52]
This complaint relates to an amount of R99 180.00
that was paid to Ranamane in respect of services rendered during
February
2011. The relevant statements of account are attached to the
letter of complaint. Initially an account in the amount of
R129 447.00
was rendered but was subsequently reduced to
R99 180.00. The complainant states that it is not satisfied with
the amount in
respect of Ranaman’s fees and disbursements.
[53]
If regard is had to the statement of account
dated 20 October 2010 it appears to contain excessive and irregular
entries and appears
to confirm overreaching. For example, on 3
October 2010 Ranamane spent 22 hours on conducting research which on
the face of it
is excessive taking into account a 24 hour day.
Further, on 3 October 2010 Ranamane spent 32 hours on the instruction
for which
a fee of R48 000.00 was debited. This is clearly an
example of overreaching as it is not possible to spend 32 hours
during
a 24 hour day.
[54]
It is therefore
ex facie
clear from the invoice itself that the firm dealt with NHLS matters
at the time when both Ranamane and Phongo were co-directors
of the
firm. The invoice issued by the firm, however, specifically indicates
that Ranamane and attorney Tuswa were the attorneys
handling the
matter.
[55]
I have already pointed out that Ranamane has, on
the day of the hearing, conceded that he had no defence against the
charges levelled
against him. Counsel on his behalf also wisely did
not even attempt to deny the charge of overreaching.
[56]
I am therefore satisfied that in light of the
concession and the evidence that the applicant has established (an a
balance of probabilities)
the alleged offending conduct in respect of
the NHLS complaint.
[57]
It must, however, be pointed out that prior to
the hearing Ranamane also vigorously disputed and defended this
complaint against
him. I do not intend, in light of Ranamane’s
concessions of wrongdoing, set out in detail the manner in which he
defended
this complaint. Suffice to point out that he raised a point
in limine
that an
alleged dispute of fact existed in respect of the NHLS complaint and
that the complaint cannot be resolved on the papers.
He persisted
with this point up until the hearing of this matter.
[58]
In addition to the first point
in
limine
, Ranamane raised a second point
in
limine
alleging that the complaint by the
NHLS does not constitute a complaint but merely calls for an
investigation regarding the reasonableness
of the fees charged and
that the applicant is accordingly not entitled to refer to it or to
treat it as a complaint. Apart from
the fact that this contention is
without merit, this
point in limine
serves to demonstrate the unwillingness of Ranamane to assist the
court in these proceedings and to appreciate his conduct in
circumstances where there simply is no defence against the account
submitted to the NHLS which was patently excessive.
[59]
In terms of the third point
in
limine
raised by Ranamane, it is alleged that
the application is premature and
ultra vires
as a result of the fact that the complaint
was not investigated. This point
in limine
is equally unmeritorious: The applicant may exercise its disciplinary
powers even in the absence of a complaint or even where its
own
disciplinary hearing has not yet been finalised or without any
disciplinary inquiry having been conducted.
[60]
Phungo submitted that the conduct complained of
relates to the conduct of Ramanane and a professional assistant in
the employ of
the firm by the name of Zolelwa Tuswa (“Tuswa”)
and that he was not involved in the matter at all.
[61]
In respect of Phungo it is accepted that he did
not overcharge the NHLS. It is, however, also accepted that
co-directors of a firm
cannot blame one of their employees for
irregularities in the firm and that directors are equally responsible
for the conduct of
their employees.
[62]
It is therefore accepted that Phungo, as a
co-director, is responsible for the conduct of their employees and
that he, at all times,
also had the obligation to supervise the
firm’s employees properly. Phungo is therefore, although to a
much lesser degree
than Ranamane who was directly involved in the
NHLS matter, guilty of the offence by virtue of the fact that he was
a co-director
of the firm.
The
Tywabi complaint:
[63]
The applicant received a complaint from Wayne van
Niekerk Attorneys on behalf of Tywabi. In terms of the complaint
Tywabi purchased
an immovable property in 2004. Ranamane was
instructed to attend to the registration of the transfer after Tywabi
had paid the
purchase price and moved into the property during
December 2004. Tywabi has also paid the transfer costs in the amount
of R2 405.00.
Ranamane failed to attend to the transfer of the
property and as of today – 12 years later – the property
has still
not yet been transferred in the name of Tywabi.
[64]
The seller passed away during December 2006.
Since 2005 Tywabi has made at least ten attendances at the firm and
was assured on
each occasion that he would receive his title deed. It
is common cause that he has not received the title deed.
[65]
On 13 January 2013 the deceased’s wife and
an estate agent attended at the property and advised Tywabi that the
property would
be sold. It was then that Tywabi instructed Wayne van
Niekerk Attorneys to assist him.
[66]
Between 15 February 2015 and 30 May 2015 Van
Niekerk addressed four letters to Ramanane. All went unanswered. A
further letter dated
3 June 2013 also went unanswered.
[67]
Finally on 8 July 2013 Ramanane sent an e-mail to
Van Niekerk and enquired whether Tywabi would be prepared to consider
settling
the matter. Van Niekerk replied to this email and requested
further particulars concerning the transaction. This letter again
went
unanswered.
[68]
As was the case in respect of the two previous
complaints, Ranamane has also now finally conceded that he did not
attend to the
transfer as was required from him. Counsel on behalf of
Ranamane in fact conceded that Ranamane’s conduct in respect of
the
Tywabi transfer was “shoddy”.
[69]
The conduct of Ramanane amounts to
unprofessional, dishonourable and unworthy conduct. It is simply
unacceptable that a member of
the public should wait approximately 12
years for a property that he has bought and paid for to be
transferred into his name. In
fact, as already pointed out, Tywabi is
still waiting for the property to be transferred into his name.
[70]
Of concern again is the manner in which Ramanae
dealt with this complaint. He dealt with the complaint by raising
certain technical
objections. Elsewhere in his papers Ramanane denied
that Tywabi purchased the property and placed the applicant to the
proof thereof.
This denial should also be considered taking into
account the fact that Tywabi had stated under oath that he purchased
the property
and the fact that Ramanane in a letter to the applicant
dated 8 October 2013 acknowledged this.
[71]
Once against, Ramanane’s conduct in
defending this complaint is not only inappropriate, but reflects
negatively on him. Ramanane
continued to dispute the complaint
against him but at the same time did not deny that Tywabi had paid
the transfer costs to him,
that he failed to attend to the
registration of the property and that he had promised Tywabi that he
would provide him with the
title deed to the property.
[72]
In this regard, apart from the fact that Ranamane
has conceded the offending conduct, it is clear from the papers that
the offending
conduct has been established on a balance of
probabilities.
[73]
In respect of Phungo, I am in agreement with the submission that the
Tywabi complaint cannot be conceived as in any way directed
at Phungo
who became a co-director only years after he accepted the instruction
to transfer the property.
Fidelity
Fund Certificate
[74]
It was common cause that Phungo practised as an attorney without
being in possession of a fidelity fund certificate for the
years 2005
to 2009 and that the applicant withheld the certificates.
[75]
It is also common cause that the certificates were subsequently
issued to Phungo.
[76]
On behalf of the applicant it was submitted that, although the
certificates were subsequently issued, the fact remains that
Phungo
practised as an attorney without being in possession of a Fidelity
Fund Certificate and that this conduct constitutes a
contravention of
section 4(1) of the Act in terms of which it is peremptory to be in
possession of a Fidelity Fund Certificate.
[77]
From the papers it appears that no certificate was necessary for the
year 2005 as Phungo did not practice for his own account
and did not
satisfy the test requiring a Fidelity Fund Certificate for that year.
He did however for the years 2006 to 2009 practise
without fidelity
fund certificates.
[78]
It is, however, also common cause that Phungo was vindicated by a
decision of this court which ordered that his fidelity fund
certificates be retrospectively issued.
[79]
I am therefore in light of the peculiar circumstances of this
complaint not persuaded that Phungo is guilty of this offence.
In
summary
[80]
Ranamane admitted having transgressed various provisions of the Act
and the Rules in respect of the firm’s trust account.
These
include the existence of a substantial trust deficit; irregular
withdrawals from the trust banking account; irregular entries
in the
journals of the firm in an attempt to conceal a trust deficit in the
firm’s trust account and misappropriation of
trust funds in the
amount of R5 million. Ranamane has also admitted and it has been
established that he had overreached and he
had failed to diligently
and professionally attend to the transfer of the Tywabi property.
[81]
Phungo has likewise accepted that his conduct of not paying any
attention to the firm’s trust account and the transactions
transacted therein have contributed to the misappropriation of funds.
Phungo has also accepted that, although he was not involved
in the
NHLS matter, he should have supervised the relevant attorneys who
were involved in the matter more closely.
[82]
I have also pointed out that it is accepted that Phungo is not
complicit in the misappropriation of the R5 million from the
trust
fund. The disappearance of the R5 million must be laid squarely at
the door of Ranamane. Phungo was nonetheless, as a director,
jointly
responsible for the management of the firm’s trust account and
consequently jointly responsible to comply with the
provisions of the
Act relating to the handling of trust funds.
Second
enquiry: Fit and proper
[83]
In light of the fact that both Ranamane and Phungo have admitted
their wrongdoings, the next question to be considered is whether,
in
light of the misconduct thus established, Ranamane and Phungo are fit
and proper persons to continue to practise as attorneys.
[84]
Scott JA in
Jasat
v Natal Law Society
2000
[3]
points out that the discretion of the second stage “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.”
[85]
The courts attitude towards the
preservation of trust funds is well documented: In this regards
various courts have consistently
emphasised the important principle
of the attorneys’ profession that attorneys should at all times
keep proper accounting
records. Attorneys are obliged to
keep
proper records and books of account in line with generally accepted
accounting practices and procedures. In general the courts
regard
a
failure to keep proper accounting records as a serious contravention
warranting an order that an attorney be either struck from
the role
or be suspended. See, for example, in this regard:
Cirota
And Another v Law Society, Transvaal
:
[4]
“
The
failure to keep proper books of account as required by s 33 of Act
23 of 1934 is a serious contravention and our Courts
have
repeatedly warned that an attorney who fails to comply with the
section renders himself liable to be struck off the roll or
to
suspension. (See, in this regard,
Incorporated
Law Society v Benade
1956
(3) SA 15
(C) at 17 - 18,
Incorporated
Law Society, Transvaal v S
1958
(1) SA 669
(T) at 675;
Incorporated
Law society, Transvaal v Goldberg
1964
(4) SA 301
(T) at 303 - 4.) Non-compliance with the rules of the
Law Society relating to the proper keeping of books is, in my view,
also a serious matter.
[5]
See also
:
Holmes v Law Society of the Cape of Good Hope and Another Law Society
of the Cape of Good Hope v Holmes
[6]
“
[28] The failure
to keep proper books is a serious offence. The keeping of proper
books underpins the Legislature's endeavours to
protect the interests
of the public. As succinctly stated by Van Winsen J in
Cape
Law Society v Mda
1971
(2) SA 201 (C)
(at 204H):
'It
is not sufficient that trust moneys should not be misappropriated. It
is equally necessary that an attorney's dealings with
such moneys
should be properly recorded. . . . Failing that, much of the
machinery provided by the Legislature, eg regs 59 and
60, for the
protection of clients, and, indeed, of the Attorneys', Notaries’
and Conveyancers' Fidelity Guarantee Fund,
is rendered nugatory.'
In respect of the
important duty of attorneys to guard clients’ trust accounts,
the court in
Law
Society, Cape v
Marock:
[7]
'It cannot be
sufficiently stressed that a careful adherence to the requirements of
the law as to keeping of clients' trust accounts
and the proper
operation of a trust banking account number amongst the most
important of the attorney's duties to his clients.
The lack of strict
compliance with these rules cannot fail to undermine the confidence
of the public in the profession, a
situation which, I hardly need
stress, ensures to the detriment of all the members of the
profession. It is, in my view, the Court's
duty to take such action
as is necessary to maintain, in full, that confidence and to make its
condemnation of a departure from
the requirements of the law, both
with regard to the administration of a trust banking account and
in regard to the proper
keeping of trust accounts, plain for all to
see.’”
[86]
An attorney therefore has an absolute duty
towards the preservation of trust funds. See in this regard
Law
Society, Transvaal v Matthews
1989(4) SA 389
(TPD) at 394 A-E:
“
I deal now with
the duty of an attorney in regard to trust money. Section 78(1) of
the Attorneys Act obliges an attorney to maintain
a separate trust
account and to deposit therein money held or received by him on
account of any person. Where trust money
is paid to an attorney it is
his duty to keep it in his possession and to use it for no other
purpose than that of the trust. It
is inherent in such a trust that
the attorney should at all times have available liquid funds in
an equivalent amount. The
very essence of a trust is the absence
of risk. It is imperative that trust money in the possession of an
attorney should be available
to his client the instant it becomes
payable. Trust money is generally payable before and not after
demand. See
Incorporated
Law Society, Transvaal v Visse and Others; Incorporated Law Society,
Transvaal v Viljoen
1958
(4) SA 115 (T)
at 118F - H. An
attorney's duty in regard to the preservation of trust money is
a fundamental, positive and unqualified duty.
Thus neither negligence
nor wilfulness is an element of a breach of such duty:
Incorporated
Law Society, Transvaal v Behrman
1977
(1) SA 904
(T)
at 905H. It is
significant that in terms of s 83(13) of the Attorneys Act a
practitioner who contravenes the provisions relating
to his trust
account and investment of trust money will be guilty of
unprofessional conduct and be liable to be struck off
the roll or
suspended from practice.”
[87]
Ranamane’s misappropriation of the R5
million from the firm’s trust account reflects adversely on his
honesty and integrity
and constitutes a serious transgression of his
duties as an attorney. I have repeatedly referred to the fact that
the applicant’s
investigations demonstrate that in little over
a month, R5 million were misappropriated from the trust account with
no trace. Up
until today Ranamane has made no attempt to explain the
whereabouts of the R5 million. The only conclusion that the court can
come
to is that Ranamane has no appreciation of the seriousness of
the offence and has no interest in taking this court into his
confidence.
[88]
The attorney’s profession is an honourable
profession. It is a profession that demands complete honesty,
integrity and professionalism
from its members. Ranamane’s
reckless conduct in respect of the trust funds deposited by the
Department demonstrates an absolute
lack of integrity towards his
duties as an attorney. I have in light of the seriousness of the
offence, especially in respect of
the misappropriation of R5 million
from the trust account little hesitation to conclude that Ranamane is
not a fit and proper person
to continue to practise as an attorney.
Ranamane’s overreaching and his failure to professionally and
diligently attend to
the Tywabi transfer are further clear
indications that he is not a fit and proper person to practise as an
attorney
[89]
I am also of the view that Phungo is also not a
fit and proper to practise as an attorney in light of his failure to
properly ensure
compliance with the Act and the Rules relating to the
handling of trust funds. Although the moral culpability of Phungo is
significantly
less than that of Ranamane in light of the fact that he
is not complicit in the misappropriation of trust funds, he is
nonetheless
found not to be a fit and proper person to practise.
Third
enquiry: Approprate sanction
[90]
The final question to consider is what would be
an appropriate sanction in respect of Ramanane. (I will return to the
position of
Phungo hereinbelow.)
[91]
As point of
departure reference can be made to the decision in
Hepple
v Law Society of the Northern
Provinces
[8]
where the court said the following in respect of the third leg of the
enquiry namely whether an attorney should be removed from
the roll of
attorneys or whether an order suspending him from practice would be
an appropriate sanction:
“
[25] This brings
me to the third leg of the enquiry, namely whether Hepple and Earle
should be removed from the roll of attorneys
or whether an order
suspending them from practise would be an appropriate sanction. It is
never easy to impose the ultimate sanction
on an attorney as it has
the effect of terminating his or her means of livelihood, with
adverse consequences to himself/herself
and his/her family. Before
imposing such a sanction a court should be satisfied that the lesser
stricture of suspension from practise
will not achieve the court's
supervisory powers over the conduct of attorneys. These objectives
have been described as twofold:
first, to discipline and punish
errand attorneys and, secondly, to protect the public, particularly
where Trust funds are involved.”
[92]
I have, in addition to the seriousness of
the misconduct, also taken into account the manner in which Ranamane
has conducted himself
in defending the complaints against him. In
this regard two observations can be made: Firstly, the manner in
which Ranamane had
opposed this application shows a total disregard
of his duties as an officer of this court. He raised endless
points
in limine
and went out of his way to delay
the finalisation of this application. Secondly, Ranamane’s
continued and persistent
denial of any wrongdoing even in the face of overwhelming evidence of
such misconduct reveals a total lack
of understanding of his conduct.
[93]
I
have referred to the fact that the application against Ranamane has
been pending since 2102 and that the process has been marred
by
attempts from Ranamane to prevent this application from serving
before this court. Ranamane also raised numerous unmeritorious
points
in
limine
which only resulted in frustrating attempts to bring this matter to
finality. His conduct in defending this matter is, in my view,
a
further indication that he is not a fit and proper person to continue
to practise as an attorney. S
ee
in this regard: Prokureursorde aan Transvaal v Kleynhans.
[9]
“
Verder moet dit
nie uit die oog verloor word nie dat die Hof te doen het met 'n
ondersoek van 'n dissiplinêre aard wat
sui
generis
is. Hieruit volg dit dat van 'n
respondent verwag word om mee te werk en die nodige toeligting te
verskaf waar nodig ten einde
die volle feite voor die Hof te plaas.
Blote breë ontkennings, ontwykings en obstruksionisme hoort nie
tuis by dissiplinêre
verrigtinge nie.
See
also
Law
Society of the Northern Provinces v Sonntag:
[10]
“
[18]
The conduct of the respondent in defending the charges brought
against her was wholly unsatisfactory. She attacked the appellant
for
referring to further complaints against her, accused it of
unprofessional and unethical conduct, and sarcastically questioned
its ability to distinguish between different kinds of offers of
settlement. This was uncalled for. But the matter goes further.
Far from disclosing at the outset fully and openly all the
circumstances of her relationship with Van Schalkwyk and Swanepoel,
the truth emerged only gradually. Initially she repeatedly denied
that she and Van Schalkwyk shared fees. It was only in her affidavit
responding to the appellant's replying affidavit that she
admitted that this had occurred. But her admission was not
unconditional
but an attempt to justify her actions in some or other
way. She admitted to Ms Geringer that Van Schalkwyk at some or other
stage
had shared an office with her. He did and indeed kept the third
party files there. In her answering affidavit, however, she
emphatically
denied that this had been the position. But she
admitted in her affidavit responding to Ms Geringer's report that Van
Schalkwyk
came and went to her offices as he liked until she stopped
him in 2005. The minutes of the staff meeting of 5 October 2005 make
clear references to Van Schalkwyk's office. Her denials that he had
an office are simply not credible. The respondent denied that
she had
'purchased' third party claims. She denied that she had
advertised the services of Van Schalkwyk. She denied, during
her
interview with Geringer, that she had paid the touts employed by her.
All these denials have been shown to be untruthful. She
never
informed the court of the real extent of the third party work
undertaken by her firm, the fees earned and amounts paid to
her
touts. The fact that her trust account was properly kept is
irrelevant. Her plea of guilty does not assist her for she
attempted
to withdraw it. It has been observed that '(t)he attorneys'
profession is an honourable profession, which demands complete
honesty and integrity from its members'. The various defences and the
manner in which they were raised by the respondent cannot
be
said to evince complete honesty and integrity. The court below
misdirected itself by not considering these factors.”
[94]
Although it is so
that Ranamane did eventually own up to his misconduct, this only
happened on the day of the hearing when his counsel
addressed the
court. As already pointed out, counsel in his address conceded that
he can advance no submissions in respect of the
various offences and
proceeded to only make submissions in respect of a penalty short of
striking-off the role.
[95]
The submissions in
respect of an appropriate penalty should, however, also be seen
against the fact that, a day before the hearing,
Ranamane’s
attorneys addressed a lengthy letter to the applicant accusing it of
being inconsistent in dealing with the complaints
against Ranamane.
In the letter it is also stated that there exists a dispute of facts
and that the applicant has caused substantial
prejudice being
suffered to Ranamane. More instructive is the threat contained in the
letter that should the applicant not revert
back to Ranamane’s
attorneys by 16H00 (the day before the hearing) and agree to stay the
proceeding against him, a formal
application will be brought.
[96]
From the contents of this
letter it is clear that, once again, at the 11
th
hour, Ranamane made a desperate attempt to prevent this court to deal
with this application that has been pending since 2012. This
letter,
written a day before the hearing, casts, in my view, serious doubts
on the
bona fides
of Ranamane.
[97]
This brings me to question whether Ranamane and
Phungo should be removed from the role of attorneys or whether an
order suspending
them from practise would be an appropriate sentence
taking into account all relevant circumstances.
[98]
I am
mindful of the fact that the decision to strike-off an attorney from
the role is a narrow one
.
I am
also mindful of the fact that, although an offence involving
dishonesty will normally lead to a striking-off, a court must
nonetheless carefully consider all relevant facts.
See:
Malan
and Another v Law Society, Northern Provinces
[11]
where the court
held as follows:
“
[10]
The appellants relied on
Summerley
v Law Society, Northern Provi
nces
2006
(5) SA 613 (SCA)
for
the proposition that unless a court finds dishonesty during the first
leg of the inquiry, it ought not to remove the attorney
concerned
from the roll. In
Summerley
the following was said in connection with the exercise of this
discretion (at para 21):
The further argument on
behalf of the appellant was that, as a general rule, striking-off is
reserved for attorneys who have acted
dishonestly, while
transgressions not involving dishonesty are usually visited with the
lesser penalty of suspension from practice.
Although this can
obviously not be regarded as a rule of the Medes and the Persians,
since every case must ultimately be decided
on its own facts, the
general approach contended for by the appellant does appear to be
supported by authority [citations omitted].
This distinction is not
difficult to understand. The attorney's profession is an honourable
profession, which demands complete
honesty and integrity from its
members.
Obviously,
if a court finds dishonesty, the circumstances must be exceptional
before a court will order a suspension instead of
a removal.
(Exceptional circumstances were found in
Summerley
and in
Law
Society, Cape of Good Hope v Peter
[2006] ZASCA 37
and the court
was able in the formulation of its order in those cases to cater for
the problem by requiring that the particular
attorney had to
satisfy the court in a future application that he or she should be
permitted to practise unconditionally.) 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”.
[99]
In respect of Ranamane it was concluded that he
has misappropriation trust funds in the amount of R5 million. It was
further concluded
that Ramanane is guilty of the offence of
overreaching in respect of the NHLS account and that he has failed to
professionally
attend to the transfer of the Tyawi property.
[100]
I am of the view that the transgressions in this
matter are so serious that it warrants the striking-off of Ranamane.
Ranamane has
displayed a total disregard for the professional duties
of the attorneys’ profession and had displayed a total lack of
honesty
and integrity.
[101]
On
behalf of Phungo it was submitted that the fact that an attorney may
be guilty of professional misconduct does not necessarily
mean that
he should be removed from the roll of attorneys. I am in agreement
with this submission and I should also point out that
this is also
the approach of our courts.
See
Hepple v
Law Society of the Northern
Provinces:
[12]
“
[25]This brings me
to the third leg of the enquiry, namely whether Hepple and Earle
should be removed from the roll of attorneys
or whether an order
suspending them from practise would be an appropriate sanction. It is
never easy to impose the ultimate sanction
on an attorney as it has
the effect of terminating his or her means of livelihood, with
adverse consequences to himself/herself
and his/her family. Before
imposing such a sanction a court should be satisfied that the lesser
stricture of suspension from practise
will not achieve the court's
supervisory powers over the conduct of attorneys. These objectives
have been described as twofold:
first, to discipline and punish
errand attorneys and, secondly, to protect the public, particularly
where Trust funds are involved.”
[102]
I am, however, mindful
of the fact that despite a finding that Phungo failed to safeguard
trust monies, it does not follow that
an order removing him from the
role is necessarily an appropriate sanction. In this regard I have
taken into account the fact that,
although he was negligent and that
he had failed to properly apply his mind to the affairs of the trust
fund, it cannot be said
that he was dishonest and deceitful when he
failed to take the necessary steps to ensure that trust monies were
not misappropriated.
No case has been made against Phungo that he
benefited from the misappropriation. I have also taken note of the
fact that Phungo,
albeit after a long time, finally owned up to the
fact that he did not properly execute his duties as an attorneys
towards the
safeguarding of trust funds.
[103]
On behalf of Phungo it was submitted that this
court should consider a lesser sanction than a sanction striking him
off the role.
I am of the view that it would not be an appropriate
sanction to remove Phungo from the roll and that a lesser sanction
should
be considered.
[104]
I have also
taken into account that Phungo has been practicing for his own
account since March 2011 without a partner and that he
has
consistently been issued with the appropriate Fidelity Fund
Certificates by the applicant. It is also common cause that there
are
no pending complaints against him. See in this regard:
[zRPz]
Law
Society, Transvaal v
Matthews
[13]
where the court
held as follows:
“
It
was further submitted that this Court should take into account that
the respondent has practised on his own account since May
1984
without any complaint by the Law Society in regard thereto and
without his having transgressed any professional rule or requirement,
whether statutory or otherwise. This is true and we are fully aware
of that position.
It
was further submitted that in the circumstances it would be unduly
harsh and wrong to strike him off the roll. Counsel relied
heavily
for this submission on the decision in
Vereniging
van Advokate van Suid-Afrika (Witwatersrand Afdeling) v
Theunissen
1979
(2) SA 218
(T)
.
The
headnote at 219H reads:
'When
a body such as the Society of Advocates or the Incorporated Law
Society acts against a member then it must act responsibly
from the
point of view of that member's interest and it must go about it with
necessary care and compassion. It borders on the
inhuman to allow a
person to continue for three years to pursue his calling for which he
is qualified without doing anything and
then suddenly bringing down
the axe on his head.'”
[105]
In light
the foregoing I am therefore of the view that it would not be
appropriate to strike Phungo from practicing as an attorney
but to
suspend him from practice and to suspend the suspension order. A
similar approach was followed in
[zRPz]
Law
Society of The Cape of Good Hope v C:
[14]
“
There
have been many cases in which a Court has not found that an
attorney is unfit to practise but has nevertheless suspended
him from
practice and suspended the suspension order. One such case is
Incorporated
Law Society, Transvaal v G
1953
(4) SA 150
(T)
where
MURRAY J said at 160E - F:
"We
have come to the conclusion that the case, although proved against
the respondent, is not of such gravity as to require
the drastic step
of removing respondent from the rolls of the attorneys, notaries and
conveyancers of the Court. At the same time
we entertain a very
unfavourable view of his conduct; his conduct as proved to us passes
beyond that which could appropriately
be dealt with by a
reprimand, however severe. It appears to us that some form of
disciplinary action midway between the
drastic step of striking off
and the mere administration of a reprimand must be imposed."
Other
such cases are to be found in the list of cases set out in
The Law
of South Africa
vol 14 at para 357.
If
a Court makes an order suspending an attorney from practice it
follows that at the end of the period of suspension he is
automatically entitled to resume practice. In making such an order
the Court is not necessarily giving effect to a finding that
he is
unfit to practise.
It
follows from what has been said above that the Court has retained its
common law power to suspend an attorney from practice by
reason of
unprofessional conduct falling short of what is required for his
striking off. If the legislation had intended to deprive
the Court of
its common law power to suspend an attorney (or to suspend such a
suspension order) in cases where it has not been
shown that the
attorney is unfit to practise, the old s 28
bis
and the new s
22 (1)
(d)
would have been differently worded.”
[106]
I should also point out that the suspension of
the suspension order was debated with Mr Smith on behalf of the
applicant who conveyed
to the court that the applicant does not in
principle have a problem with a suspension order nor with an order
suspending the suspension.
[107]
In the event the following order is made:
Order
in respect of the first respondent: Mr Paul Modikeng Ranamane
1.
The name of Mr Paul Modikeng Ranamane is hereby
struck from the roll of attorneys of this Court.
2.
The relief as set out in paragraphs 4 up to and
including paragraph 14 of the order of this Court dated 10 March 2015
will remain
in force.
3.
Mr
Ranamane is ordered to pay the costs of the application on the scale
as between attorney and client.
Order
in respect of the third respondent: Mr Lavhelesani Limon Phungo
1.
Mr
Lavhelesani Limon Phungo is suspended from practicing as an attorney
of the High Court of South Africa for a period of one year.
2.
The suspension provided for in paragraph 1 of
this order is suspended for a period of three years on condition that
he does not
make himself guilty of any of the provisions of the
Attorneys’ Act and/or the Law Society’s Rules during the
period
of suspension.
3.
Mr
Phungo is ordered to pay the costs of the application on the scale as
between attorney and client
_________________________
AC
BASSON
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered:
_________________________
M
SENYATSI
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the applicant
: Mr PJ Smith
Instructed
by
: Rooth & Wessels Inc.
For
the first respondent
Instructed
by
: Ranamane Mokalane Inc
For
the second Respondent
: Michale R Hellens SC
Instructed
by
: Hogan Lovells (South Africa) Inc
[1]
53 of 1977.
[2]
Law
Society, Northern Provinces v Mogami
2010 (1) SA
186
(SCA) at paragraph 4.
[3]
(3) SA 44
(SCA) in paragraph (10)
[4]
1979 (1) SA
172 (A).
[5]
At 193E –
G.
[6]
2006 (2) SA
139
(C) at 152B – F.
[7]
1974 (2) SA
204
(C) at 206H -207A.
[8]
2014 JDR
1078 (SCA)
.
[9]
1995 (1) SA
839
(T) at 342I – 343A.
[10]
2012 (1) SA
372
(SCA)
.
[11]
2009
(1) SA 216 (SCA).
[12]
2014
JDR 1078 (SCA).
[13]
1989
(4) SA 389
(T).
[14]
1986 (1) SA
616
(A).