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[2015] ZAGPPHC 328
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Law Society of the Northern Province v Mokase (71840/14) [2015] ZAGPPHC 328 (12 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 71840/14
Date:
12 March 2015
Not
reportable
Not
of interest to other judges
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
................................................
Applicant
and
MORRIS
MOKASE
................................................................................................................
Respondent
JUDGMENT
POTTERILL
J
[1]
The applicant is applying that the respondent’s name be struck
from the roll of attorneys of this Honourable Court including
ancillary relief. The respondent filed a notice of intention to
oppose dated the 8
th
of October 2014, but failed to file an answering affidavit. The
notice of set-down of this hearing was properly served on
the
respondent’s attorneys firm on the 19
th
of November 2014.
[2]
The respondent was admitted and enrolled to practise as an attorney
of this Court on 29 November 2011 and is presently practising
as an
attorney for his own account under the style of M Mokase Attorneys
and Associates.
[3]
The applicant contended that the offences committed by the respondent
deviates to such an extent from the standards of professional
conduct
that the respondent is not a fit and proper person to continue to
practise as an attorney.
[4]
Swart’s investigations
4.1 After the Law
Society received three complaints against the respondent pertaining
to the delayed payment of trust funds the
Law Society instructed its
chartered accountant and auditor, Mr. Deleeuw Swart (“Swart”)
to visit the respondent and
conduct an investigation. Swart
arranged an appointment with the respondent for 19 November 2012.
The respondent did
not keep this appointment date. The
appointment was rescheduled for 5 February 2013. This
appointment also never materialised.
It was again rescheduled
for 6 March 2013 to which the respondent again not avail himself.
Swart was accordingly unable to
conduct an inspection of the firm’s
accounting records and discuss the complaints with the respondent.
4.2 On 18 July 2013
the Law Society received a letter from the respondent advising that
he will be available from 23 September 2013
should Swart want to meet
with him. The Law Society in answer thereto addressed an e-mail
suggesting a number of dates to
which the respondent failed to
reply. A second e-mail was sent by the Law Society requesting
dates which were also ignored
by the respondent. The Law
Society addressed a third e-mail to the respondent and advised that
Swart would visit the firm
on the 25
th
of September 2013
or the 26
th
of September 2013. This was again
ignored by the respondent. On 25 September 2013 Swart found
that the respondent’s
offices were locked and desolate.
Swart was unable to determine the balance of the trust creditors and
did not obtain the
accounting records.
4.3 Swart obtained a
certificate of balance from First National Bank which reflected on 13
March 2013 that there was an amount of
R4 156.45 available in
the respondent’s trust banking account. Swart’s
inspection of the Rule 70 auditor’s
report revealed that there
were substantial trust deficits in the respondent’s bookkeeping
in the amounts of R78 900.02,
R282 497.83 and
R1 212 387.74.
[5]
Reddy’s investigations
Mr.
A. Reddy of the Law Society’s auditor/monitoring unit, a
chartered accountant of South Africa, was also requested by the
Law
Society to investigate the complaint of Cochrane. His
instructions were to provide an overview of the accounting and
supporting records, systems and procedures with a view to establish
the general state thereof and the identification of and commentary
on
any aspects considered irregular and/or unsatisfactory.
Furthermore he also had to determine the trust position of the
firm
at a specific or selected dates and to report on any trust
deficiencies or other similar irregularities. Despite attempts
to contact the respondent telephonically on his mobile as well as on
his office telephone as well as visiting the firm’s
address on
record there was no contact made with the respondent. Mr. Reddy
concluded that the respondent’s office as
closed and the
whereabouts of Mr. Mokase were unknown.
[6]
Further investigations by Swart
On
the 19
th
of May 2014 the Law Society once again instructed Swart to proceed
with an inspection and to visit the respondent on 28 May 2014.
The Law Society had traced the respondent to No 53 Bergartillerie
Road, Danville Ext 5, Pretoria. Swart attended this address
which he found to be a residential address. At this address
nobody opened the door. Swart contacted the respondent
on his
mobile phone and the respondent informed Swart that he was under the
impression that the meeting had in fact been scheduled
for 29 May
2014 and not 28 May 2014. On 29 May 2014 Swart received a
telephone call from the respondent advising him that
his auditors
were still in the process of preparing his accounting records and the
records would be available shortly. Swart’s
inspection
was rescheduled for 4 June 2014. On 4 June 2014 Swart again
attended the premises and again received no response.
Swart
tried to contact the respondent telephonically and this was also
unsuccessful.
[7]
The Law Society instructed a chartered accountant and auditor in the
employ of the Law Society, Ms. Mapfumo (“Mapfumo”)
to
conduct an inspection after the Law Society received a complaint
against the respondent to the effect that he failed to account
in
respect of trust funds. Mapfumo found that the respondent
effected irregular transfers from his trust banking account
to his
business banking account. The respondent failed to account to
his clients. She further found that the respondent
failed to
ensure that withdrawals from the trust banking account were made as
transfers to his business banking account and that
he failed to
ensure that the account of any trust creditor was in debt.
[8]
Offences committed by respondent
8.1 The respondent
failed to submit his Rule 70 auditor’s report for the period
ending 28 February 2013 to the Law Society.
8.2
The respondent is not in possession of a fidelity fund certificate
for 2014 and has accordingly practised without such certificate
since
1 January 2014.
[9]
Complaints received against the
respondent
9.1 The Law Society
received a complaint from Mofomme Attorneys of Pretoria on behalf of
Mr N.M. Ngobese. The respondent was
instructed to lodge a claim
on Ngobese’s behalf against the Road Accident Fund. The
claim was finalised, but the respondent
failed to account to Ngobese
in respect of the proceeds thereof. Ngobese was forced to
institute a civil claim against the
respondent and on 5 February 2010
obtained a judgment against the respondent for an amount of
R281 184.00 plus taxed costs
in an amount of R89 395.18.
The respondent subsequently lodged a claim with the Attorneys
Indemnity Insurance Fund and
the Fund on 4 October 2011 paid in an
amount of R233 544.20 into his trust banking account.
Despite this payment the
respondent failed to make payment to
Ngobese. Ngobese concluded that the respondent had
misappropriated his monies.
9.2 The Law Society
similarly received a complaint against the respondent from Mr L.L.
Lugayeni (“Lugayeni”).
Lugayeni and his spouse
purchased an immovable property located in Benoni during Marh 2010
and instructed the respondent to attend
to the registration of the
transfer. To facilitate the transfer Lugayeni deposited an
amount of R83 000.00 into the
respondent’s trust banking
account on 19 March 2010. The registration of the transfer was
delayed for six months and
Lugayeni instructed the respondent to
repay the deposit. Surprisingly the respondent advised Lugayeni
that his deposit had
been utilised for purposes of the purchase of
alternative property, located in another street in Benoni.
Neither Lugayeni
nor his wife authorised the respondent to conclude
such an agreement on their behalf. Lugayeni accordingly
instructed the
respondent to repay their deposit. The
respondent failed and/or refused to comply with their demand.
Lugayeni also
lodged a claim against the Attorneys Fidelity Fund for
this amount of money.
9.3 The Law Society
furthermore received a complaint from Hendricks Incorporated Attorney
on behalf of Mr A.P. Cochrane (“Cochrane”)
dated 19
November 2012. Cochrane was nominated as the executor of the
estate of the late P Cochrane. The late Cochrane
had consulted
the respondent and instructed him to lodge a third party claim on his
behalf against the Road Accident Fund.
The respondent finalised
the claim and received the proceeds in an amount of R900 000.00
from the Road Accident Fund on 11
July 2012. The respondent
failed to account to the deceased estate. The respondent
requested Cochrane to sign documents
for Cochrane to be appointed as
the executor in the deceased estate of the late Cochrane which
Cochrane signed. A letter
of executorship was however never
issued despite a lapse of five months. Hendricks Inc. on behalf
of Cochrane attempted to
communicate with the respondent regarding
the matter, but the respondent failed to reply to its letters and
telephone calls.
9.4 Ms B.N. Kekana
(“Kekana”) approached the respondent and instructed him
to assist her with a divorce and maintenance
matter. Kekana
paid a deposit in the amount of R2 500.00 to the respondent.
These monies were however paid into
the respondent’s business
banking account instead of his trust banking account. The
respondent failed to execute his
mandate, to advise Kekana correctly
and properly and also failed to advise Kekana on the legal costs
relating to the two matters.
As a result thereof the respondent
was notified to appear before a disciplinary committee of the Council
on the 31
st
of July 2013 in order to answer to a charge
relating to the contravention of Rule 89.15 of the Law Society’s
Rules.
The respondent pleaded not guilty to the charge but the
disciplinary committee found the respondent guilty of the charge.
The order of the disciplinary committee was that the respondent had
to provide proof that Kekana’s deposit in the amount
of
R2 500.00 was transferred from his business banking account to
his trust banking account. The respondent failed to
comply with
the order of the disciplinary committee and persisted in this
failure.
9.5
On 16 August 2014 Ms. Ramasodi (“Ramasodi”) submitted a
complaint against the respondent to the Law Society.
Ramasodi
instructed the respondent to act on behalf of her son in a criminal
matter and had paid the respondent a deposit of R15 000.00.
The respondent failed to execute the instruction despite receiving
this deposit.
[10]
The respondent was notified to appear before a disciplinary committee
of the Council on 25 April 2013 to answer the charges
relating to Mr.
Chauke, Mr. and Ms. Khumalo and Mr. Lugayeni. The respondent
attended the disciplinary proceedings and pleaded
not guilty to
charge 1 and guilty to charges 2 and 3. The disciplinary
committee found the respondent guilty on all charges
and the
disciplinary committee compiled a Rule 101 report. The Law
Society requested the respondent to furnish comments to
the Council
on or before 5 August 2013 as to why his name should not be struck
from the roll of attorneys. On 4 August 2013
the respondent
submitted his written comments. The respondent
inter
alia
admitted his failure to account in
respect of trust funds and his failure to report to his clients.
The respondent proffered
the explanation that certain monies of his
clients were “
swindled”
by estate agents. The respondent submitted that his suspension
from practising as an attorney or the removal of his name
would be a
viable solution. Despite the respondent’s commitment to
reimburse his clients this commitment was never
fulfilled.
[11]
In considering such an application the court must first decide
whether the offending conduct was established on a preponderance
of
probabilities and secondly whether, as stated in section 22(1)(d) of
the Attorneys Act, the respondent concerned in the discretion
of the
court is not a fit and proper person to continue to practise.
[12]
In this matter the offending conduct not being disputed, the only
questions to be answered are whether the respondent is a
fit and
proper person to continue to practise and whether he should be struck
from the roll. Having regard to the conduct
of the respondent
it is clear that he indeed made himself guilty of unprofessional,
dishonourable or unworthy conduct. It
is required of any
attorney to adhere to the specific requirements of the Attorneys Act
and Rules pertaining to trust monies.
This is so because trust
money is money of the public which is placed under control and
custody of an attorney. Lodging an
auditor’s report as
required serves as a safety mechanism for the public and the client’s
money and is a prerequisite
for an attorney to be issued with a
fidelity fund certificate. In failing to do so the respondent
has not aspired to meet
the standard of behaviour which is required
of an attorney. The respondent failed to account to his clients
in respect of
trust funds and delayed the payment of trust funds. In
fact the respondent misappropriated the trust funds. The
respondent
furthermore over-reached a client. The respondent
placed the Attorney’s Fidelity Fund at risk. The
respondent
failed to render professional services of an adequate
standard to the affairs of his client. There is a substantial
deficit
in the respondent’s bookkeeping. Individually and
cumulatively all these offences render the respondent unfit to
practise
as an attorney –
Malan
v The Law Society of the Northern Provinces
[2008] ZASCA 90
;
[2009]
1 All SA 133
(SCA)
.
[13]
I am satisfied that the respondent is not a fit and proper person to
continue to practise, his conduct cannot be excused and
the
respondent is to be struck from the roll –
Jasat
v Natal Law Society
2000 (3) SA
44
(SCA)
.
[14]
I am satisfied that the applicant has made out a proper case for the
related prayers as set out in the notice of motion and
in the
circumstances the prayer for costs to be on and attorney and client
scale is also warranted –
Botha
v Law Society of the Northern Provinces
[2008] ZASCA 106
;
2009
(1) SA 227
(SCA)
at 236F-G.
[15]
I accordingly mark the draft order “X” and it is made an
order of court.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
I
agree
__________________
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
CASE
NO: 71840/14
HEARD
ON: 12 March 2015
FOR
THE APPLICANT: Ms. F. Asmall
INSTRUCTED
BY: Rooth & Wessels Inc.
FOR
THE RESPONDENT: No appearance
DATE
OF JUDGMENT: 12 March 2015