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[2015] ZAGPPHC 567
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Lestoale v Pretoria Society of Advocates (34315/2012) [2015] ZAGPPHC 567 (30 July 2015)
OFFICE OF THE
CHIEF JUSTICE
REPUBLIC OF
SOUTH AFRICA
IN TH
E H
I
GH COU
RT OF SO
UTH A
FRICA
(GA
UTENG DIVISION, PRETORI
A)
30/7/15
CASE NO: 34315/2012
IN
THE
MATTER
BETWEEN
MAKETE
JUDAH
LETSOALE
Applicant
and
PRETORIA
SOCIETY OF
ADVOCATES
Intervening party
JUDGMENT
NOWOSENETZ
AJ
[1]
On 15 June 2012 the applicant filed this re- application for his
admission as an advocate of this Court. Leave to intervene
was
granted to the Pretoria Society of Advocates (the Society) which has
filed papers and opposed this application. It initially
expressed the
intention to investigate the circumstances of the applicant but
abandoned this. This is the second admission application
brought by
the applicant. The first application was dismissed with costs on 16
February 2010 (case no 48239/ 08) by Thlapi J, Louw
J concurring. In
that judgment, it was made clear that the door was open to him to
"clear the cobwebs".
[2] In a very
comprehensive judgment, that Court found that on the application
before it, the applicant had not demonstrated that
he was a fit and
proper person. The Society had intervened in that application too.
The grounds for the failure of the first application
stem from the
adverse findings made in civil proceedings against the applicant in
the judgment by Webster J. The case was instituted
by the Legal Aid
Board (plaintiff) against Khoaripe John Modiko (first defendant),
Nana Thansaqa Doris Modiko (second defendant)
and Impact Advisory
Services CC (third defendant). The applicant was the sole member of
the third defendant (Impact). Mr Modiko
was a senior employee of the
plaintiff and the Court found he had defrauded the Plaintiff in the
amount of R559 477, 80 by submitting
false invoices bearing the name
of Impact as the service provider and receiving payment cheques from
the plaintiff which he then
deposited into the bank account of
Impact. The applicant also benefited from the said deposits in that
he entered into a verbal
loan agreement with Mr Modiko and received
R51 000 from the funds deposited in the Impact bank account by Mr
Modiko.
[3] Webster J found both
Mr Modiko and the applicant to be untruthful and unreliable witnesses
and that the applicant's version
was inherently improbable. He said:
"I am satisfied that Letsoalo was party to the conspiracy to
defraud the plaintiff."
Judgment was granted against all the
defendants jointly and severally. Mr Modiko was convicted of fraud
but the applicant was never
charged.
[4] The applicant has
persisted at all material times, including both applications for
admission that he was innocent and did not
participate in the fraud.
He alleged he had no knowledge of the illegal source of the cheques
paid into Impact's account. Mr Modiko
was his close friend and had
asked the applicant to register a close corporation for Mr Modiko's
business activities. In the meantime,
he admitted that he had allowed
Mr Modiko to use the Impact bank account to deposit cheques received
from undisclosed third parties.
These deposits were made from August
2002 until March 2003. The applicant filed a detailed and lengthy
affidavit presenting himself
as a naive and unsuspecting victim of Mr
Modiko who had betrayed him by hiding the fictitious invoices from
the applicant and using
the applicant to cover up Mr Modiko's
fraudulent scheme.
[5]
The application before us is the third application for admission as
an advocate. In the first application, the court was not
satisfied
that the applicant had explained the improbabilities in his version
and found no basis to diverge from the findings of
Webster J.
Questions were raised about the applicant's involvement in Impact and
the legal services it provided. In the intervening
time since the
first application, the applicant filed an application for leave to
appeal but it was never prosecuted. He blames
his attorney for
dereliction of duty. He also states lack of funds as a factor in the
failure to appeal. Impact has been
dormant.
[6] The present
application is characterized by a lengthy narrative by the applicant
dealing with his friendship with Mr Modiko,
the Anton pillar
application and the search of the applicant's premises in April 2003
which did not yield any evidence connecting
him to the fraud. He
dealt with the criminal trial of Mr Modiko during which the applicant
was state witness but Mr Modiko changed
his plea to guilty and the
applicant did not testify. He maintains he told the truth in the
civil case. He submitted that the improbabilities
were only
inferences and the contradictions in his evidence were due to failed
memory or his complacency and naivete in dealing
with Mr Modiko. He
also gave a lengthy account of the loans. He used the funds to pay
off consumer debts. He stated that the Legal
Aid Board had not
pursued its judgment against Impact nor has he been called upon to
repay the Legal Aid Board. The applicant filed
a Supplementary
Affidavit containing his employment history,
curriculum
vitae
and some letters of reference.
[7] As
a
point of
departure,
the
judgment
in
the
first
application
does
not purport
to
prescribe
or
circumscribe
the
scope
of
the
enquiry
to
be
made
by
this
or
any another
court
in
determining
whether
the
applicant
is a
fit
and
proper
person.
This
question lies in the discretion
of the
Court. This discretion
is based
upon all the facts placed before it. The facts should
be viewed
in their
totality
and not in
isolation
[1]
.
[8] When considering the
striking off of an attorney van Dykhorst J observed in
Prokureursorde
van Transvaal v
Kleynhans
1995 (1) SA
839
(T) at 854 C that ultimately when deciding when conduct is
unprofessional or not is primarily a question of impression and
feeling which the Court has based on long years of experience in
practice. This approach has resonance in this case in assessing
whether the conduct of the applicant in his business dealings and his
career is that of a person of integrity and trustworthiness
and is a
suitable candidate to practice as an advocate.
[9] The Society contended
that the onus is on the applicant to place all the evidentiary
material he relies upon before this Court.
This approach cannot be
faulted. The applicant contends he has been truthful and honest and
to this end it would have been expected
of him to provide a full
transcript of his testimony in the civil and criminal proceedings for
a broader assessment of his creditworthiness
to be made or to
reconsider the adverse findings made by Webster J. Nothing of this
nature has been placed before the court: Only
the judgment of Webster
J and an extract of the criminal proceedings dealing with the plea of
guilty, conviction, sentence and
the application for leave to appeal
is filed of record. This Court must ascertain inter alia whether any
new light has been cast
on the concerns expressed by the Court in the
first application.
[10] The inherent
probabilities of the innocence of the applicant in allowing Mr Modiko
to use Impact's account are still subject
to serious criticism.
No significant new facts have been adduced by the applicant. More
questions than answers emerge. Mr
Modiko, applicant's friend, was in
full time employment of the Legal AidBoard at all material times. He
was the second most senior
official. The applicant did not question
what kind of business activities Mr Modiko was conducting outside his
employment. According
to his curriculum vitae, the applicant obtained
a BA Hons. in Labour Relations in 1998 and ought to have been aware
that employment
contracts require employees to place their full
productive capacity exclusively for the employer and extensive
additional business
activities are not commonly undertaken by
employees particularly in senior management positions.
[11] Nor did the
applicant question the large amounts flowing into the Impact bank
account during the ensuing five months. The applicant
gives no
explanation at all why it was necessary for Mr Modiko to use the
Impact account and not his own. Why was it necessary
for Mr Moriko to
register his own close corporation in order to have a banking account
for his business? The applicant does not
address these issues which
should have troubled him but apparently did not. The first deposit
took place in August 2002. The applicant
only filed the application
for the registration of a close corporation for Mr Modiko on 19
February 2003. He does not explain why
he waited at least five months
before taking steps to register Mr Modiko's company. No evidence was
tendered of any yearly financial
statements of Impact, and whether
Impact was registered as a tax payer with the South African Revenue
Services. In passing, the
accounting officer of Impact was Mr Modiko.
[12] The issue of the
loans is similarly disconcerting. No record of any loan transaction
was tendered. On the face of it, the loan
had no repayment date, nor
interest payable. This hardly can be considered to be a bona fide
arm's length dealing. The applicant
says he used the funds for
repaying consumer debt. It is hard not to suspect that he had a keen
personal interest in the large
payments flowing into Impact's
account. The applicant was unjustly enriched at the expense of the
Legal Aid Board. Even if the
Legal Aid Board did not pursue repayment
from the applicant, the least expected of him, would be to seek an
honourable discharge
of his liability to the Legal Aid Board. As a
person seeking entry to the advocate's profession, his passivity in
unjustly retaining
the funds intended to assist needy litigants is
plainly disgraceful. He could have inter alia offered to perform
community service
as a
quid pro
quo
for his
enrichment. The disquiet expressed by the court in the
first application has not been allayed. On the contrary,
more
questions than answers emerge. Despite the prolixity of his papers,
the applicant has not been frank with the Court. The
findings
of Webster J remain intact.
[13] His employment
record since April 2003 when he ceased conducting business as Impact,
is relevant. He has been in formal employment
until April 2013, his
last employer being Tshwane University of Technology. He had three
previous employers all of which were public
entities. He attached
letters of reference from individuals who have known him or worked
with him but crucially not one reference
was from any of his former
employers. Prior to 2001 he had five different employers and he also
filed no references from any of
these employers. He started a
business called Motheong Consulting and Advisory Services CC in
January 2006 and states this as his
current employment. This entity
appears similar to Impact having no tangible professional
achievement. The nature of the business
is employment management and
business consulting. His unstable employment record, coupled with the
absence of references from any
employers detracts from a character
assessment of him as a reliable and respected employee. Thus there
are no circumstances to
mitigate the adverse character findings in
the civil case or to show any admirable personal growth or career
development.
[14] In sum
the
applicant
has
not
demonstrated
that
he is a fit
and
proper
person to
be
admitted
as
an
advocate.
"An
advocate
may
not
lack
that
sense
of
responsibility, honesty
and
integrity
...
."
[2]
. An
advocate
should
be
scrupulous
in
his
dealings:
'The
proper
administration
of justice
could
not
easily
survive
if
the
professions
were
not
scrupulous
of
the
truth
of
their
dealings
with
each
other
and with
the
Court"
[3]
.
Practitioners (and
aspiring
practitioners) should show
a
zeal
for
ethical
and
responsible
conduct.
The
overall
impression
of the
applicant
is that
he is
profoundly lacking in these respects.
ORDER
1.
The application for the admission of the applicant as an advocate is
dismissed.
2.
The applicant shall pay the costs of the intervening party, the
Pretoria Society of Advocates.
…
....................................................
L NOWOSENETZ AJ
ACTING JUDGE OF
THE HIGH COURT
I
AGREE IT IS SO ORDERED
…
..................................................
M F LEGODI
JUDGE OF THE HIGH
COURT
Heard
on:
25 May 2015
Judgment
handed down:
30 July 2015
For the
Applicant:
In Person
Attorneys
for the Applicant: Friedland
Hart Solomon & Nicholson
4-301 Monument Office
Park
79 Steenbok Avenue
Monument Park
PRETORIA, 0001
TEL: 012 424 0200
Ref: Mr. Ramarumo/KR0078
(315740)
Attorneys
for the Intervening:
Bernhard Van
Der Hovenm
Pare Nouvea
Walker Creek Office Park
[1]
Beyers
v
Pretoria
Balieraad
1966(2)
SA
593
(A)
603
E-F;
Olivier
v
Die
Kaapse
Batie-Raad
1972(3)
SA 485(A)
at 496
F-G;
Malan
and another v The Law
Society,
Northern
Provinces
[2009]
1 All SA
133 (SCA).
[2]
Olivier
v Die Kaapse Balieraad
1972
(3) SA 485 (A).
[3]
Ex
Parte Swain
1974
(2) SA 427
N at 434H.