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[2014] ZAGPPHC 447
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Law Society of The Northern Provinces v Maluleke (54223/12) [2014] ZAGPPHC 447 (6 June 2014)
IN
THE GAUTENG HIGH COURT. PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE NO: 54223/12
In the matter
between:
THE LAW SOCIETY
OF THE NORTHERN
PROVINCES
........................................................
Appellant
AND
SHIRILELE LEON
MALULEKE
................................................................................................
Respondent
JUDGEMENT
MOJUTO AJ
[1] This is an
application brought by The Law Society of The Northern Provinces for
the removal of the Respondent’s name from
the roll of
attorneys, alternatively for his suspension from practicing as such.
[2]
The Respondent is Shirilele Leon Maluleke who was admitted and
enrolled to practice as an attorney of this court on 5
th
November 1996. Having worked in various capacities and different law
firms, he commenced practicing sole for his own account under
the
style and name Maluleke Attorneys on 29
th
February
2010
.
[3] The matter came
before us unopposed, service was effected through substituted service
in various print media.
[4] The issue to be
decided is whether the Respondent is a fit and proper person in terms
of section 22 (1) (d) of the Act. This
task does not depend on
factual findings but lies in the discretion of the court.
[5] The court in
exercising it’s discretion in matters of this nature, conducts
an enquiry which isthreefold:
[i] The court must
firstly decide as a matter of fact if the alleged offending conduct
by the attorney has been established,
[ii] if such conduct
referred to above has been established satisfactorily, the court has
to decide whether the person concerned
is a fit and proper person to
practice as an attorney,
See
Kaplan v
Incorporated Law Society, Transvaal, 1981 (2) SA page 762 at
paragraph A
-
C.
[iii] and if the
court decides that the attorney concerned is not a fit and proper
person to practice as an attorney, the court
must decide on what the
appropriate sanction is, be it removal and/or suspension.
See: Law Society
of the Northern Provinces [568/2007][2008]ZASCA 90 (12/09/2008 at
4-9).
[6] A brief overview
of the facts are as follows: The Respondent failed to lodge an
unqualified audit report for the period ending
February 2011 as
required by the Applicant’s Rule 70.4 read with Rule 70.3. As a
result, he was not issued with a Fidelity
Fund Certificate while
section 83 (10) of the Act makes it a criminal offence for an
attorney to practice without such a certificate.
[7] On 24
th
October
2011 the Applicant sent a letter to the Respondent calling upon him
to appear before a disciplinary committee of the Applicant
to answer
to charges arising from his failure to comply with Rule 70.4 read
with Rule 70.3.
[8] The Respondent
did not bother or make an effort to attend the disciplinary
enquiry.On the 19
th
of March 2012 a further letter was
sent to the Respondent wherein he was once again urged to attend to
outstanding issues.
[9] As a result of
the Respondent’s lack of interest in the matter, the Applicant
commissioned Ms Mapfumo to conduct an investigation
into the
Respondent’s firm after no audit report was received from the
Respondent for the period in issue. In her report
she indicated that
the Respondent has abandoned his practice.
[10] On the
probabilities we are satisfied that the Respondent has contravened
Rule 89.17, Rule 70.3, Rule 70.4 and section 41 (1)
and section 41
(2) of the Attorneys Act, and that his conduct is not in line with
the standard expected of an attorney
[11] We are of the
view that the conduct of the Respondent amount to such a material
deviation from the standard of professional
conduct.that he is not a
fit and proper person to continue to practice as attorney.
[12] I interpose and
note that the Applicant made a concession that there are no
complaints which has come to their knowledge against
the Respondent
nor suspicion that he is currently practicing as an attorney without
the Fidelity Fund Certificate.
[13] In the light of
the above Shirilele Leon Maluleke, herein referred to as the
Respondent, should and is hereby suspended in
his practice as an
attorney of this Honorable court.
[14] The following
order is made ;
(1) The Respondent
is suspended from practicing as an attorney
(2)
The draft order prepared by the
Applicant
and attached hereto as Annexure “X” is also made an Order
of court.
JM MOJUTO
ACTING JUDGE OF
THE HIGH COURT
I agree
CP RABIE
JUDGE OF THE HIGH
COURT
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT, PRETORIA)
Case No: 54223/2012
In the matter
between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
.........................................................
Applicant
(Incorporated as
the Law Society of the Transvaal)
and
SHIRILELE
LEON
MALULEKE
.................................................................................................
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
SHIRILELE LEON
MALULEKE
(hereinafter
referred to as the respondent) be suspended in his practice as an
attorney of this Honourable Court.
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
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 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 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 him
or after a return
by the person entrusted with the service thereof that he has been
unable to effect service thereof on respondent
(as the case may be),
the sheriff for the district in which such accounting records,
records, files and documents are, be empowered
and directed to search
for and to take possession thereof wherever they may be and to
deliver them to such curator.
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.
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)
;
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.
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 audijor 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 in the event that the Respondent intends to continue to practice
after the e
xpiry-
o
Mh
e
two
y
ea
r
-
p
e
r
i
o
d)
the Respondent shall make an application to this Court demonstrating
that the infractions which brought about his suspension
from practice
as an attorney has been corrected and further demonstrating that he
is a fit and proper person to be allowed to continue
to practice as
an attorney.
BY ORDER OF THE
COURT
REGISTRAR