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[2014] ZAFSHC 49
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Law Society, Free State v Nthako (2208/2013) [2014] ZAFSHC 49 (27 March 2014)
FREE STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC OF
SOUTH AFRICA
Case No. : 2208/2013
In
the matter between:-
THE
LAW SOCIETY, FREE STATE
…............................................................................
Appellant
and
ABRAM
SEABE NTHAKO
….........................................................................................
Respondent
CORAM:
KRUGER
et
RAMPAI,
JJ
JUDGMENT
BY:
KRUGER, J
HEARD
ON:
20 MARCH 2014
DELIVERED
ON:
27 MARCH 2014
[1]
This is an application to have respondent’s name struck off the
roll as an attorney. The principal reason is that,
having
stopped to practice as an attorney, respondent has failed to lodge a
final closing down trust audit report in terms of Rule
3B. The
respondent says he stopped practising as an attorney on 9 December
2009. The respondent submitted his trust
audit report in terms
of Rule 16B to the applicant for the years 2009/2010 during 2010 but
failed to lodge a final or closing-down
trust audit report as
required by Rule 3B to the applicant.
[2]
This application was launched in June 2013. In December 2013
the matter came before Moloi J who placed the parties on
terms as to
the filing of answering and replying affidavits, and postponed the
matter to 13 February 2014. The answering
affidavit was filed
on 15 January 2014. Therein the respondent says it is his
intention to comply with Rule 3B but he does
not have the know-how
when it comes to accounting matters. He does not say when he
intends to comply, or what steps he has
taken to get accountants or
auditors to help him. On 13 February 2014 the matter was by
agreement postponed to 20 March 2014,
the date we heard the matter.
[3]
At the outset of the hearing before us Mr Ponoane, for respondent,
asked whether there was any point for the court to continue
with the
application in view of the fact that the Rule 3B certificate was
apparently lodged with the applicant last week. In
the heads of
argument, which were obviously drawn by the respondent himself, the
following appears in paragraph 13:
“
...
I indicated that the certificate of closure and or report will be
finished by the end of January 2014 and wish to inform the
Honourable
Court that an independent Chartered Accountant from Makomota
Investment Holdings has finalized the report and certificate
on
closure after being referred there by Dele Accountants. It is
my humble submission that this is an indication that I did
not fail
or refuse to submit Rule 3B Certificate on closure. I would
like to inform the Honourable Court that the trust account
has been
closed.”
The
respondent in the heads of argument refers to paragraphs 16.3 to 16.6
of his answering affidavit which was filed on 15 January
2014.
Obviously at the time respondent’s heads of argument were
filed on 14 March 2014 the Regulation 3B certificate
had not been
filed. There is no indication in the heads of argument that the
Rule 3B certificate has been filed. We
asked Mr Williams, who
appeared for the applicant at the hearing about the filing of the
Rule 3B certificate, and he said apparently
something had been filed,
but he had not seen it and he understood that it was not
satisfactory. No supplementary affidavit
was filed by the
respondent attaching the alleged certificate, and nothing is before
us. All we have is the history of the
matter evidencing delays
unexplained by the respondent.
[4]
It is important to bear in mind that the conduct of the respondent
complained about is not merely that he did not file the Regulation
3B
certificate, it is that for about four years he failed to do so.
[5]
One of the points argued on behalf of the respondent relates to
paragraph 11 of the founding affidavit, where the deponent says
that
the application is being brought in terms of section 18 of the
Attorneys Act 53 of 1079. The deponent says in paragraph
11:
“
I
submit that the Respondent is clearly not a fit and proper person to
practice as an attorney. The Applicant is therefore
entitled to
bring this application in terms of Section 18 of the Act. The
Respondent’s conduct by not responding and
not appearing before
the Disciplinary Committee in itself amounts to unbecoming conduct,
which warrants the Respondent to be struck
off the roll of
attorneys.”
In
the answering affidavit the response to this paragraph reads as
follows:
“
Save
to admit that the Applicant can bring the application in terms of
Section 18 of the Act, the rest of the paragraph is denied
and the
Applicant is put to proof of same.”
[6]
Mr Williams, for the applicant, conceded at the outset of his
argument in court that the reference in the founding affidavit
to
section 18 was wrong, and said the application is being brought in
terms of section 22(1)(d). As we pointed out to Mr
Ponoane who
appeared for the respondent, there can be no doubt that this is an
application for striking off. The Notice of
Motion does not
refer to any section of the Act. The fact that a deponent to a
founding affidavit refers to an incorrect
section cannot affect the
substance of the matter. The founding affidavit is not part of
the order made by the court. The
respondent knows that the
purpose of this application is to have him struck off the roll. The
matter is made worse for the
respondent by virtue of the fact that in
the answering affidavit he finds no fault with the reference to
section 18 in the founding
affidavit. Only in the heads of
argument is the point taken.
[7]
The applicant’s deponent sets out the history of the matter as
follows in the founding affidavit:
7.1
On 9 December 2009 the respondent was requested to submit a
certificate from his auditors relating to the closure of his practice
by 15 January 2010.
7.2
On 14 January 2010 respondent wrote to applicant that his auditors
would ask for an extension for submission of the final trust
audit
report.
7.3
On 11 May 2010 the respondent was once again requested to comply with
Rule 3B in a letter served on the respondent by the Sheriff.
7.4
The respondent was granted until 30 July 2010 to comply with Rule 3B
and to submit the closing down report.
7.5
On 28 July 2010 the respondent appeared before the compliance and
Disciplinary Committee (the CDC) of the applicant regarding
his
failure to comply with Rule 3B as well as on other matters.
7.6
The respondent was asked whether he would be able to comply with Rule
3B by 30 July 2010 to which he replied that he would attend
to the
matter immediately.
7.7
On 18 August 2010 the matter was again on the roll of the CDC. The
respondent had still not complied and the CDC referred
the matter to
the Council of the applicant in terms of Rule 19(3)(c) for its
decision.
7.8
According to the founding affidavit there should be an amount of
about R100 000 in respondent’s trust account, whereas
according to the audit report filed by the respondent for the
2009/2010 year, a surplus of R110,50 was reflected. In the
answering affidavit the respondent says the amount of R100 000
is factually incorrect and misleading, and he puts applicant
to the
proof.
7.9
On 2 November 2012 the sheriff served a notice on the respondent to
appear before the Council on 23 November 2012 to provide
reasons why
he should not be struck off. Certain correspondence was exchanged
with the respondent.
7.10 The respondent
failed to appear before the Council on 23 November 2012 and the
Council resolved to bring the present application
to strike him off
the roll. In the answering affidavit respondent says on that
day he left a message with the receptionist
at the Council’s
offices and asked her to inform Mr Mohobo that he would not be able
to attend (the respondent does not say
what reasons, if any, he
furnished).
[8]
The deponent to applicant’s founding affidavit submits that by
not responding and not appearing before the disciplinary
committee,
respondent has shown himself not to be a fit and proper person to
practice as an attorney.
[9]
In the replying affidavit the deponent says that the respondent has
failed to communicate with the applicant since 28 July 2010.
[10]
Regarding respondent’s answer to the eight complaints by his
former clients detailed in the founding affidavit, respondent
says
that he struggles to get assistance from accountants, and whenever he
gets someone to assist him, that person makes promises
to him they do
not keep.
[11]
In reply the applicant points out that the respondent provides no
details, and that the various accountants allegedly approached
are
not identified, nor are dates provided as to when they were
contacted.
[12]
In paragraph 16.5 of the answering affidavit the respondent says:
“
My
intention is to comply with Rule 3B but I respectfully submit that I
do not have the know-how when it comes to accounting matter
and I
cannot just close the trust account and say I am done with practicing
when there are rules to follow. If those who
have the know-how
in accounting and auditing frustrate me and my efforts to provide the
requested information and report, I could
not do anything but
continue to look for someone who was willing to assist me as a matter
of urgency.”
In
paragraph 16.6:
“
Just
to mention the previous year only, I obtained the services of Moloi
Incorporated and Associates. I instructed then to
write to the
applicant as a matter of urgency and during our communications I was
informed that the letter had been written. When
I was about to
submit documents, I was informed by Moloi Incorporated and Associates
that they are waiting for the renewal of practice.
I got
frustrated, started to make calls all over and ultimately I got
somebody from Dele Accounts who was willing to assist
me. His
indication was that they will be done with the closing reports by the
end of January 2014 and I felt thrilled. I
am not refusing to
provide closing report and I am not failing because my intention is
to ensure that this is behind me. It
is my humble submission
that my situation does not make me unfit or improper person.
The Applicant was aware of my challenges
and from the letters that I
sent through to them about postponements and requests that the
Auditors made through me but they turned
a blind eye. I also made
then aware of that I have to find somebody to assist me with closing
certificate.”
[13]
In the replying affidavit the applicant responds as follows to these
two paragraphs:
“
3.4
What respondent is effectively saying is that in 2013 he obtained the
services of Moloi Incorporated, who would have written
a letter on
his behalf to Applicant. No such letter was ever received.
Thereafter “somebody” (once again
unidentified)
from Dele Accounts was approached who indicated that the closing down
Trust Audit report will be finalised by the
end of January 2014.
Once again no confirmation letter or affidavit from Dele
Accounts is attached.
Furthermore,
various other non-significant correspondence from respondent is
annexed to the opposing affidavit. All the salient
letters he
refers to in the paragraph under reply are, however, missing. The
reason, they never existed.”
[14]
The disdain with which respondent treated applicant and his
professional obligations appears from paragraph 10 of the answering
affidavit:
“
Safe
to admit that I was supposed to appear before the Council on the 23
rd
of November 2012 but I wish to indicate to the Honourable Court that
on that day I made a call to the Applicant’s workplace
through
my cell phone and I spoke to the receptionist lady who informed me
that Mr Mohobo was in a meeting. I told her to
inform Mr Mohobo
that I will not be able to attend and she indicated that she will
convey the message.”
The
respondent, on the day of his hearing before the Council, he does not
say at what time, possibly while the Council is already
in session,
tells the receptionist to say he will not be coming. He does
not say what reason, if any, he gave to the receptionist.
[15]
In the founding affidavit the applicant refers to seven complaints
against the respondent. In the replying affidavit
the applicant
says that the respondent has explanations with regard to every
complaint, and that it is not the task of this court
to determine the
validity of the complaints.
[16]
Applicant’s case is based on the fact that the respondent has
for four years failed to comply with his duty in terms
of Rule 3B.
In applicant’s submission this is in itself sufficient
for a finding that the respondent is not a fit and
proper person to
practice as an attorney.
[17]
Mr Williams, for applicant says the court must enquire whether in all
the circumstances the respondent’s name should
be removed from
the roll of attorneys. Before that question can be answered two
other questions are asked: has the offending
conduct been established
on a preponderance of probabilities, and is he a fit and proper
person to continue to practice –
Jasat
v Natal Law Society
2000 (3) SA 44
(SCA) par [10], quoted and confirmed in
Malan
and Another v Law Society, Northern Provinces
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) par [4]. The main consideration is the
protection of the public (
Malan
-case
par [7]). Mr Williams says the respondent has displayed a
continuous pattern of disregard in respect of his obligations,
with
reference to
Prokureursorde van
Transvaal v Landsaat
1993 (4) SA
807
(T) at 814E-G, where the court asks the rhetorical question
whether a person who has over a 10 year period conducted unacceptable
book-keeping practises is a fit and proper person to be on the roll
of attorneys and be allowed to continue to practice. The
judges
find he is not. Mr Williams refers to
Law
Society for the Cape of Good Hope v King
1995 (2) SA 887
(T), where the court found that the respondent was a
poor and hapless office manager and was well-nigh reckless in the
manner in
which he permitted his office affairs to become more and
more disorganised. But he had talent, and served the poor and
needy
(at 897D-F). In
King’s
case the order was that the respondent was not allowed to practice
for his own account. Mr Williams also refers to
Law
Society, Cape v Visser
1965 (1) SA
523
(C) at 525 E- 526 D where it appears that the respondent did not
give attention to the Law Society’s requests for explanations.
There were also other complaints against the respondent.
[18]
Mr Ponoane submits that in this matter there was no dishonesty and
there is no public outcry that the respondent should be
removed from
the roll. His other argument is that the application is brought
under the incorrect section of the Attorneys
Act, namely section 18
where it should have been section 22(1)(d).
[19]
Nothing turns on the incorrect reference to section 18 in the
founding affidavit. The heading to section 18 is –
“Admission
and readmission of notaries and conveyancers”. It does
not apply to attorneys. Section 22 deals
with “Removal of
attorneys from roll”. The important point is that
applicant does not in the notice of motion
refer to any section of
the Act. It is a striking off application. The respondent
at all times understood that this
is an application to have his name
struck off the roll for failure to comply with Rule 3B.
[20]
The respondent has made himself guilty of repeated and extended
flouting of the duties imposed upon an attorney. He simply
decided not to attend a meeting of applicant’s council. He
failed to get a Rule 3B certificate over a number of years.
If
his books were in order, that would be a simple matter for any
accountant. The authorities make it clear that dishonesty
is not a
prerequisite for striking off. The conduct of the respondent,
also in the manner he conducted this case, in failing
to provide
details of persons and dates, and at the date of the hearing seeking
to allege that he has complied without the alleged
Rule 3B
certificate having been seen or considered by Mr Williams or the
court, illustrates that he is not a fit and proper person
to continue
practise as an attorney as contemplated in section 22(1)(m) of the
Attorneys Act 53 of 1979.
[21]
ORDER
An
order is granted in terms of prayers 1 -12 of the Notice of Motion.
In terms of prayer 2, the applicant’s name is to be
struck off
the Roll of Attorneys.
_____________
A. KRUGER, J
I
agree.
_______________
M.H.
RAMPAI, J
On
behalf of appellant: Adv A. Williams
Instructed
by:
Ramothello,
Raynard & Tsotetsi Inc.
BLOEMFONTEIN
On
behalf of the respondent: Mr M.J. Ponooane
Instructed
by:
Ponooane
Attorneys
BLOEMFONTEIN