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[2016] ZAGPPHC 1178
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Law Society of the Northern Provinces v Bungane (54153/2013) [2016] ZAGPPHC 1178 (28 November 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 54153/2013
28/11/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
THE LAW SOCIETY OF THE
NORTHERN PROVINCES
Applicant
and
GREAT
CEASAR NGANGAMSHA
BUNGANE
Respondent
JUDGMENT
HF JACOBS, AJ:
[1]
The respondent was admitted and enrolled as an attorney of this Court
on 20 October 1987. On 6 June 2014 this Court (Fabricius
J and
Vorster AJ) granted an order suspending the respondent in his
practice as an attorney and granted an order in the following
terms:
"2.
That
the respondent immediately surrender and deliver to the registrar of
this Honourable Court his certificate of enrolment as
an attorney 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
certificate and to hand it to the Registrar of this Honourable Court.
4.
That the
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 creditors
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 amount 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 her 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 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 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 an 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 fess 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.
9.
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)
;
4cm
; margin-bottom: 0cm; line-height: 150%">
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
Administrator 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 Corporations Act, No 69 of 1984
.
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; and
10.5
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.
13.
That the suspension order shall lapse immediately on presentation
of
a
valid Fidelity Fund Certificate to the Registrar of the
High Court.
14.
That all
affidavits filed by the parties herein to date of this order be
consolidated.
15.
That the matter be postponed
sine
die.
16.
The
costs
of the postponement are reserved."
[2]
The chronology gleaned from the papers show the following:
[2.1] This application
was served on the respondent personally on 4 September 2013;
[2.2] The respondent
filed his answering affidavit on 23 October 2013;
[2.3]
The applicant filed its replying affidavit on 3 April 2014;
[2.4]
The matter was enrolled for hearing on 6 June 2014;
[2.5] On 6 June 2014 the
respondent sought a postponement through a substantive application he
brought on the basis that he required
an indulgence to file an
answering affidavit to the applicant's supplementary affidavit which
the applicant filed on 17 March 2014.
In terms of the order quoted
above the respondent was suspended from practice as an attorney and a
curator
bonis
was appointed to administer and control his
trust account;
[2.6] On 17 May 2016 the
applicant filed a further supplementary affidavit.
[2.7] The respondent has
failed to file answering affidavits in response to any of the
supplementary affidavits or subsequent to
the order of 6 June 2014.
[3]
According to the supplementary affidavit of the applicant filed on 17
May 2016 the applicant commissioned Mr Swart to conduct
a further
investigation into the trust accounting records of the respondent's
firm. Mr Swart furnished the applicant with a report
dated 29
September 2014. According to Mr Swart's report the respondent's trust
accounting records did not reflect the correct transactions
on the
balances of individual trust creditors. The respondent's trust
creditors accounting records were found to be unreliable
and the
impression gained by Mr Swart was that those records were merely kept
to lend the records a modicum of compliance with
the legal provisions
applicable to the administration of trust creditors' accounts. Mr
Swart further found that the accounting
records reflected a trust
shortage and that the absence of proper recordkeeping creates the
risk for trust creditors as well as
the Attorneys Fidelity Fund. Mr
Swart, therefore, recommended that the applicant should consider to
withdraw the initial approval
of an unqualified accountant's report
of the respondent's firm for the periods ending February 2011,
February 2012 and February
2013.
[4]
As stated earlier the respondent has not filed any supplementary
affidavits to address the issues raised in the affidavit (and
the
annexures thereto) delivered on behalf of the applicant on 17 May
2016. Before us, therefore, the findings of Mr Swart, his
recommendation and the evidence about the state of affairs of the
respondent's trust account stand unchallenged.
[5]
The initial application for striking off and suspension of the
respondent was premised on not less than 16 (sixteen) complaints.
These complaints are:
[5.1] The complaint by Mr
M N Ramphomane who claimed that he instructed the respondent to lodge
an appeal against a finding made
against Mr Ramphomane by the Western
and Gauteng Taxi Council which mandate the respondent failed to
execute notwithstanding the
fact that an amount of R10 000.00 was
paid to the respondent in advance to perform the work. In response to
the complaint the respondent
was called upon to appear before the
applicant's disciplinary committee on 16 May 2012 and again on 25
July 2012. The hearing did
not proceed due to the respondent's
unavailability. The respondent was again called upon to appear before
the applicant's disciplinary
committee on 12 September 2012 but
failed to attend the disciplinary hearing. The disciplinary committee
ruled that the matter
should be referred to the applicant's counsel
in terms of the provisions of Rule 101 of the applicant's rules.
[5.2] A complaint by Mr K
A Molefe whose complaint was that the respondent was instructed to
attend to the administration of the
estate of the late brother of Mr
Molefe. Mr Molefe expected an amount of R160 175.00 from his late
brother's pension fund but only
received an amount of R18 000.00 from
the respondent. The respondent initially failed to react to the
complaint but later advised
the complainant that his late brother had
five children who also had to be consulted. The respondent undertook
to revert to the
complainant and the applicant following a
consultation which he said he would have with the children of the
deceased. In response
to the complaint the respondent was called upon
to appear before the applicant's disciplinary committee also on 16
May 2012 and
25 July 2012 which hearings did not proceed due to the
respondent's unavailability. Like the earlier complaint the
respondent was
again called upon to appear before the applicant's
disciplinary committee on 12 September 2012. The respondent failed to
attend
the hearing and as what happened with the previous charge, the
action was referred to the applicant's council in terms of the
provisions
of Rule 101 of the applicant's rules.
[5.3] The complaint of
Cass Pieterse Incorporated on behalf of the estate of the late N B
Mbokoto followed after the respondent
was appointed executor of the
deceased estate of Mr N B Mbokoto. During 2007 the respondent's firm
was approached by the heirs
of Mr Mbokoto to assist them in
finalising of the administration of the estate due to the fact that
they were not satisfied with
the manner in which the respondent
handled the matter. According to Cass Pieterse Incorporated the
respondent has failed to answer
to correspondence and messages
addressed to him dating as far back as June 2009 and that the
respondent received money in favour
of the deceased's estate for
which he failed to account. On 31 January 2011 the respondent advised
that another person was dealing
with the matter and that that person
had left the respondent's employ delaying a timeous response to the
complaint. The respondent
further informed that the pension fund and
the insurance benefits of the deceased had been paid to the children
of the deceased
as they were beneficiaries of such policies. The
respondent informed that the only sum he received was R25 000.00
which emanated
from a life policy. The respondent undertook to
resolve the matter with the complainants and was called upon to
appear before the
applicant's disciplinary committee on 16 May 2012
and 25 July 2012. As stated earlier, the disciplinary hearings did
not proceed
due to the respondent's unavailability and the respondent
was again called to appear before the applicant's disciplinary
committee
on 12 September 2012 which resulted in referral of the
matter to the applicant's council in terms of Rule 101 of its rules.
[5.4] The complaint of Mr
L Mokheche followed after the complainant instructed the respondent
to institute a claim on his behalf
against the Road Accident Fund.
The respondent failed to report to his client regarding progress in
the matter and according to
the records of the Road Accident Fund the
claim has prescribed. The respondent was called upon to appear before
the applicant's
disciplinary committee on 16 May 2012 and 25 July
2012 but was unavailable to do so. The respondent was again called
upon to appear
before the applicant's disciplinary committee on 12
September 2012 but failed to attend the disciplinary hearing which
was followed
by a referral of the complaint to the applicant's
council in terms of the provisions of the applicant's Rule 101.
[5.5] The complaint by
Van Velden-Duffey Incorporated was that the respondent failed to
effect payment of Van Velden Duffey
lncorporated's statement of
account for services rendered to the respondent's firm as
correspondent attorneys.
[5.6] Mr R G Ramafoko
appointed the respondent as executor in the estate of Mr J B Ramafoko
and the Master issued letters of executorship
to the respondent
during 1999. The respondent was alleged to have failed to administer
the deceased estate and has failed to deal
with the two immovable
properties in the estate to the detriment of the heirs.
[5.7] Ms S Mankayi
instructed the respondent during March 2007 to attend to the
administration of the estate of the late T R Qolo.
The respondent
received a sum of R563 000.00 from an insurance policy payable to the
estate of the deceased and has failed to effect
payment in favour of
Mrs Mankayi. On 28 February 2011 the respondent confirmed that three
of his staff members dealt with the matter
and that he acted as a
supervisor. The respondent informed that a certain Ms Moyo who was on
maternity leave dealt with the pension
fund claims and advised that
the respondent's statement of account in respect of work done to
secure the letter of executorship
would be taxed. The respondent
further informed that the complainant took an amount of R271 300.00
from the amount of R563 000.00
collected.
[5.8] The complaint of Mr
M G Masike was that he instructed the respondent to act on behalf of
his brother who is serving a sentence
in Groenpunt Prison and that Mr
Masike paid the respondent the sum of R15 000.00 in addition to an
amount of RS 700.00 for transcriptions.
The respondent has failed to
furnish any receipt in respect of the payments received.
[5.9] Mr M Somnjwaxa
complained to the applicant that he instructed the respondent to
attend to an appeal on his behalf. He furnished
the respondent with
the necessary transcription and R5 000.00 deposit. The complaint is
that the respondent failed to execute Mr
Somnjwaxa's instructions and
failed to report to him regarding any progress in the matter.
[5.10] Ms M A Makhalenele
complained that she instructed the respondent to act on behalf of her
brother who was serving a prison
sentence. Ms Makhalenele paid the
respondent an amount of R58 700.00 for which the respondent failed to
furnish a receipt. It was
alleged on behalf of Ms Makhalenele that
the advocate concerned was paid R6 000.00 and the balance of the
monies paid by her to
the respondent was not accounted for.
[5.11] Mr M B Tenteza
complained to the applicant that he instructed the respondent to
attend to settle disputes in his divorce
proceedings. The respondent
acted on behalf of Mr Tenteza's wife. Mr Tenteza paid an amount of
R160 000.00 into the respondent's
firm trust account, R150 000.00 of
which was in respect of settlement and R10 000.00 in respect of the
respondent's legal fees.
It was alleged by Mr Tenteza that the
respondent failed to effect payment of the R150 000.00 to his wife
and failed to respond
to correspondence.
[5.12] Mr S P Ntlhopi
complained that an amount of R50 000.00 was paid to the respondent to
assist Mr Ntlhopi in purchasing a motor
vehicle. Mr Ntlhopi was
uneducated and did not have the confidence to purchase the vehicle on
his own. The complaint was that the
respondent failed to deliver the
vehicle and also refused to repay to Mr Ntlhopi the sum of R50
000.00. There was a later dispute
premised on the allegations of the
respondent that he paid a certain Mr Mdlalose the sum of R50 000.00.
[5.13] Ms G Sello
complained to the applicant that her late husband instructed the
respondent to attend to a property related transaction
on their
behalf following the sale of a property by a certain Mr Tlou for
which the sum of R43 000.00 was paid to the respondent.
The
respondent failed to draft the agreement for the parties to sign and
failed to repay the money paid to him.
[5.14] Mr L O Tlong
complained that he purchased a RDP house from a certain Mr Madima for
an amount of R18 000.00 of which an amount
of R14 000.00 was paid to
the respondent. The amount of R4 000.00 was still due and payable to
Mr Madima but only upon registration
of transfer. On 31 August 2012,
so the complaint went, Mr Tlong sold his RDP house to one Ms Motaung
for an amount of R20 000.00.
The money was, according to the
complaint, paid in cash to the respondent and that Ms Motaung took
occupation of the house on October
the 8
th
2012. When Mr
Tlong called upon the respondent's office to collect the purchase
price and the balance of the initial purchase price,
the respondent
informed them that the applicant took his accounting records and that
the respondent's firm's cheque book and that
he could not effect
payment in their favour. The respondent then gave Mr Tlong R2 000.00
in cash and Mr Madima R500.00 cash. On
23 November 2012 the
respondent furnished Mr Tlong with a cheque but the cheque was not
met by the respondent's bank.
[5.15] Ms M C Leepile
complained that during September 2003 she instructed the respondent
to act on her behalf against the Road
Accident Fund following
injuries she had sustained in a motor vehicle accident. During 2009
it came to her attention that an amount
of R189 158.27 was paid by
the Road Accident Fund to the respondent's firm's banking account on
7 May 2008 but that the respondent
failed to effect payment in favour
of Ms Leepile. According to the respondent's eventual communication
and response to letters
addressed to him he informed that the
expenses incurred exceeded the amount he received and offered to cut
his fees by R50 000.00
and paying the same to the complainant. In
this respect the respondent was called upon to appear before the
applicant's disciplinary
committee on 26 October 2011. The hearing
did not take place due to the respondent's unavailability. The
hearing was postponed
to 23 November 2011 and again postponed to 15
February 2012. On 15 February 2012 the hearing stood down until 2
March 2012. The
respondent failed to attend the disciplinary hearing
on 2 March 2012 and the hearing was postponed to 26 March 2012. The
hearing
did not proceed on 26 March 2012 due to the respondent's
unavailability. The respondent was thereafter again called upon to
appear
before the applicant's disciplinary committee on 16 May 2012
and again on 25 July 2012. Again, the hearings did not take place due
to the respondent's unavailability. The respondent was thereafter
again called upon to appear before the applicant's disciplinary
committee on 12 September 2012. The respondent failed to attend the
hearing and the committee ordered that the matter be referred
to the
applicant's council in terms of the provisions of its Rule 101.
[5.16] The complaint
filed by Mr A Amod was that he was approached by Mr De Beer who
advised that he was employed as an attorney
at the respondent's firm
and that one of their clients, Mr Joubert, wanted to purchase 100
beds from the complainant that were
urgently required by the mines.
An order was subsequently placed and the invoice was rendered to the
value of R182 400.00. It later
transpired that the respondent
unilaterally withdrew from a guarantee that was issued on behalf of
his firm by Mr De Beer and his
conduct caused the complainant, Mr
Amod, to suffer financial loss.
[5.17] The complaints
were later found to tally with incorrect entries in the trust account
of the respondent and no record was
found in the respondent's trust
records for some of the transactions at all. To record the
shortcomings in the respondent's trust
account records here would
serve no purpose and I conclude by referring to the considerable
trust shortfall the audit of the respondent's
trust account revealed.
[6]
A singular feature of the respondent's conduct gleaned from the
papers is the measure of disdain with which the respondent treated
his clients, the applicant as professional body responsible for the
exercise of statutory control over its members and the applicant's
professional rules. His failure to attend meetings, reply to
correspondence, attend to the affairs of his clients, not on an
isolated
occasion but continuously over years, amount to derision and
is totally unbecoming a member of the attorneys profession. In my
view the applicant has shown on a balance of probability that the
respondent is guilty of dishonourable and disgraceful conduct.
The
offending conduct of the respondent shows further, in my view, that
he is not a fit and proper person to be and remain on the
roll of
attorneys.
[7]
When the order was granted by Fabricius J and Vorster AJ suspending
the respondent from practice the issue of costs was reserved
for
later determination. It is trite law that the applicant, a statutory
body performing a statutory function is entitled to its
costs on the
appropriate scale irrespective of the outcome of the application. In
my view the wasted costs of the postponement
of 6 June 2014 should be
paid by the respondent on the scale as between attorney and client.
Nothing changed since 6 June 2014,
on the contrary, evidence gathered
by the applicant showed that in addition to the complaints levelled
against the respondent his
trust account was found to be in total
disarray.
Under
the circumstances the order is made:
(1) The draft order
attached hereto and marked "X" is made an order of court.
(2) The Registrar of this
court is ordered to deliver a copy of this judgment and order and a
copy of the record to the Director
of Public Prosecutions to consider
institution of criminal proceedings against the Respondent.
H
F JACOBS
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
I
agree, and it is so ordered.
N
RANCHOD
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
Date:
28 November 2016
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 54153/2013
In
the matter between:
THE LAW SOCIETY OF THE
NORTHERN PROVINCES
Applicant
and
GREAT
CEASAR NGANGAMSHA
BUNGANE
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
GREAT CEASAR NGANGAMSHA BUNGANE
(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
);
2cm
; margin-bottom: 0cm; line-height: 150%">
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