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[2013] ZAGPPHC 557
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Pretoria Society of Advocates v Ndleve (36147/2009) [2013] ZAGPPHC 557 (12 June 2013)

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Certain
personal/private details of parties or witnesses have been
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IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NO: 36147/2009
DATE: 12 JUNE 2016
In the matter between:
PRETORIA SOCIETY OF
ADVOCATES
.............................................................................
Applicant
And
RALPH PATRICK
NDLEVE
...............................................................................................
Respondent
CORAM: DE VOS J; EBERSOHN AJ
DATE HEARD: 26 April 2013
DATE JUDGMENT HANDED DOWN: 12 JUNE 2013
JUDGMENT
EBERSOHN AJ
[1]
This is an application in terms of which the Applicant,
the Pretoria Society of Advocates, applies for an order that the name
of
the Respondent,
RALPH PATRICK
NDLEVE,
be struck from the roll of advocates in terms of
section 7(2) of the Admission of Advocates Act, 74 of 1964 (“the
Act”)
and for an order that the Respondent pays the costs of
this application on the scale as between attorney and own client as
well
as that this application be referred to the Director of Public
Prosecutions for investigation.
[2]
The Respondent was admitted as an advocate of the above
Honourable Court on 18 February 2002 under case no: 4747/02.
[3]
The Respondent usually practises in the area of
jurisdiction of this Honourable Court as an independent advocate and
is not a member
of any Society of Advocates affiliated to the
Applicant
[4]
The Applicant is a Society of Advocates established for
the North Gauteng High Court, Pretoria as contemplated in
Section
7(2)
of the
Admission of Advocates Act, Act
74 of 1964, and
consequently has
locus standi
to bring this application.
[5]
The Applicant has since 2006 received no less than 6
(SIX) complaints against the Respondent.
The
Act
[6] This section provides that the court may, upon application,
suspend any person from practice as an advocate or order that the

name of any person be struck off the roll of advocates “
if
the Court is satisfied that he is not a fit and proper person to
continue to practise as an advocate
[7]
The Applicant has the requisite standing to bring this
application in terms of the provisions of
Section 7(2)
of the
Admission of Advocates Act, 74 of 1964
.
[8]
In
Law Society
v
Du Toit
1938
(OPD) 103 approved in Society of Advocates of South Africa
(Witwatersrand Division v Cigler)
1976
(4)
SA 350
(T) at 357 - 358D the Court held as follows:
“
The
proceedings are instituted by the Law Society for the definite
purpose of maintaining the integrity, dignity and respect
,
the
public must have for officers of this Court. The proceedings are of a
purely disciplinary nature, they are not intended to act
as
punishment of the Respondent. The public are entitled to demand that
a Court should see to it that officers of the Court do
their work in
a manner above suspicion. If they were to overlook the conduct on the
part of the officers of the Court
,
if
we were to allow our desire to be merciful to override our sense of
duty to the public and have sense of importance attaching
to the
integrity of the profession,
we
should
soon get into a position where the profession would he prejudiced and
brought into discredit
[9]
In South Africa there is a divided legal profession.
Legal practitioners are either advocates or attorneys.
See:
In re: Rome
1991 (3)
SA 291
(A) at 3051-3 06E
De
Freitas and Another v Society of Advocates of Natal
2001
(3)
SA 750
(SCA), par. [1]
Commissioner,
Competition Commission v General Council of the Bar of South Africa
2002
(2) SA 606
(SCA) at 620C-D Rosemann v General Council of the Bar of
South Africa
2004 (1) SA 568
(SCA), par. [28] and [47]
[10]
Each branch of the profession has its professional
bodies which determine the rules by which their members must conduct
their practices,
take action to ensure that the members adhere to the
rules, scrutinize and where appropriate, take action in regard to
applications
for membership of the profession and generally seek to
the interests of the member of the profession.
See:
In
re: Rome
1991 (3) SA 291
(A) at 306A-B;
Society
of Advocates of South Africa (WLD)
v
Van den Heever
[2006]
JOL 18030
(T)
[11]
In
In re: Rome
1991 (3) SA 291
(A) at 306F-G when outlining the points of
distinction between the two branches of the profession as they were
in 1991 (and had
been for many years) Corbett CJ referred to the
long-standing general legislative intention to keep the two branches
of the profession
and their members distinct from one another. He
said:
“
The
advocate is, broadly speaking, the specialist in forensic skills and
in giving expert evidence on legal matters
,
whereas
the attorney has more general skills and is often, in admission,
qualified in conveyance and notarial practice. The attorney
has
direct links (often of a permanent and long-standing nature), with
the lay client seeking legal assistance or advice and, where

necessary or expedient, the attorney briefs an advocate on behalf of
his client. The advocate has no direct links or long­standing

relationship with the lay client: he only acts for the client on
brief in a particular matter and is normally precluded by the
bar
rules from accepting professional work direct from the client. The
attorney is responsible to the advocate for the payment
of
professional fees due to the latter by the client and for recovery of
these and his own fees and disbursements from the client:
The
advocate has no direct financial dealings with the client
[12]
In
Society of
Advocates of Natal
v
De
Freitas & Another
1997 (4) SA 1134
(N) the Society of
Advocates sought an order striking off the name of the Respondent, De
Freitas, because he accepted instructions
directly from members of
the public and represented clients in litigation, without having been
instructed by an attorney. In opposing
the application, De Freitas,
was joined by IAASA which brought a counter application for a
declaratory order that an “
Advocate
has, alternatively, advocates who are members of IAASA have, the
right to accept instructions from any person with or without
the
intervention of an attorney.'’'’
This counter
application was based on the contention that there is no rule of law
or practice to prevent an advocate from accepting
instructions or
briefs directly from members of the public without the intervention
of an attorney. After an exhaustive examination
of the legal
position, Thirion, J, on behalf of the Full Court, concluded that it
is a rule of practice applicable to all practising
advocates that
they do not accept instructions except from attorneys and accordingly
that disobedience of the rules is calculated
to lead to
irregularities and abuses and consequently, in the interest of the
profession and the public, such disobedience should
be treated as
unprofessional conduct which justifies the exercise of the court of
its disciplinary powers (at 117G-H). On appeal
to the Supreme Court
of Appeal, the findings and the conclusion of the Full Court were
upheld.
See:
De Freitas and Another
v
Society of Advocates of Natal and Another
2001
(3) SA 750
(SCA), par. [17] and [18]
[13]
It is unprofessional for an advocate to negotiate and
receive fees from a client without the intervention of an attorney.
In
De Freitas
, Cameron, JA
considered that there was a real and substantial danger to the public
if advocates were permitted to handle public
money, whether by
dealing with their clients’ money or even by taking deposits on
fees in advance and that soliciting such
a payment would be
unprofessional and improper conduct which could lead to sanction by
the Court.
[3 4] The result is that South African Law recognises a provided
profession with a referral system. It is part of that system that
the
attorney initiates the contract between an advocate and his client
and negotiates and receives fees from the client on his
own behalf
and that of the advocate and the advocate does not handle the money
or cheques of his client.
See:
Commissioner
y
Competition Commissioner v General Council of the Bar of South Africa
2002
(6) SA 606
(SCA), par. [19] Rosemann v General Council of the Bar of
South Africa
2004 (1) SA 568
(SCA), par. [28]
Society
of Advocates of SA (WLD) v Van den Heever
[2006]
JOL 18030
(T)
[15]
In
Society of
Advocates of Natal
v
De
Freitas and Another
1997 (4) SA 1134
(N) the Court held as
follows:
'"The
fact that advocates were included in the definition of
“
practitioners”
in the Magistrates' Court Act 32 of 1944 and the definition of
'
plaintiff,
'defendant‘applicant
'respondent
’
and
'
parties’
in Rule
2(1)
of
the rules of the Magistrates' Courts did not lead to an inference
that the frames of the Act and the Rides intended that an advocate
be
entitled to do work which was essentially that of an attorney. There
were several provisions in the Act which referred to the
distinction
between the work of attorneys and the advocates: The whole tenor of
the Act and the Rules demonstrated that procedural
matters were to be
dealt with by attorneys and. that the work of counsel was restricted
to drafting of pleadings and applications
and to appearances in
Court
.
The
Court also held that it was legislation (i.e. the Attorneys Act) and
not the advocates' profession (through the code of the
Society of
Advocates), which limited the legal services, which an advocate would
provide to clients in the Magistrate's Court.
The Court held
furthermore
,
that
disobedience to the Rule in question should be treated as
unprofessional conduct which justifies the exercise of the Court
of
its disciplinary powers
[16]
In
De Freitas v
Society of Advocates of Natal
2001 (3) SA 750
(SCA) at 753C-D
the Court held as follows:
A
real and substantial danger to the public would result if advocates
were permitted to handle public money, whether by dealing
with the
client's money or even taking deposits on fees in advance. For so
long as the absence of statutory trust fund protection
continues, it
provides a compelling reason for the Courts to enforce the referral
rule in the public interest
[17]
In
Rosemann
v
General Council of the Bar of South
Africa
[2003] 4 All SA 211
(SCA) at par. [28] the Court held
as follows:
“
At
this point the referral ride and its implications (as to which SEE:
De Freitas and Another v Society of Advocates of Natal and
Another
2001 (3) SA 750
(SCA) at 756C-760I and 764C-765A and Commissioner,
Competition Commission v General Council of the Bar of South Africa
and Others
2002
(6)
SA
606 (SCA) at 620C becomes significant. An advocate in general takes
work only through the instructions of an attorney. The ride
is not a
pointless formality or an obstacle to efficient professional
practice, nor is it a protected trade practice designed to
benefit
the advocacy. The rule requires that an attorney initiates the
contract between an advocate and his client, negotiates
about and
receive fees from the client (on his behalf and. that of the
advocate), instructs the advocate specifically in relation
to each
matter affecting the client's interests (other than the way in which
the advocate is to carry out his professional duties),
oversees each
step advised or taken by the advocate
,
keeps
the client informed, is present as far as reasonably possible during
interaction between the client and the advocate, may
advise the
client to take or not to take counsel’s advice, administers
legal proceedings and controls and directs settlement
negotiations in
communication with his client. An advocate, by contrast, generally
does not take instructions directly from his
client, does not report
directly or account to the client, does not handle the money (or
cheques) of his clients or of the opposite
party, acts only in terms
of instructions given to him by the attorney in relation to matters
which fall within the accepted skills
and practices of his profession
and, therefore
,
does
not sign, serve or file documents, notices or pleadings on behalf of
his client or receive such from the opposing party or
his legal
representative unless there is a Rule of Court or established r ule
of practice to that effect, (which is the case with
certain High
Court pleadings but finds no equivalent in Magistrates' Court
practice)”
See:
General
Council of the Bar of South Africa v Rosemann
2002 (1) SA 235
(CPD) at 235, 236A-B &
245B-D
[18J In paragraph [29] in
Rosemann
v General Council of the Bar of South Africa
[2003] 4 All SA
211
(SCA) the Court held as follows:
“
//
follows
from the preceding overview that an instruction by the attorney to
represent the client is not a proper instruction if
(a)
It
is not specific in identifying the work to be carried out by the
advocate;
(h)
It
confers on the advocate a general discretion to litigate on behalf of
his client;
(c)
it
expressly or impliedly authorises the advocate to by-pass the
attorney or to run litigation without the particular participation
of
the attorney which I have described;
(d)
it
purports to authorise counsel to cany out any function which is not
the proper function of an advocate or is properly the function
of an
attorney in the sense that it would normally be carried, out only by
an attorney or in or from his office
[ 19] In paragraph [34] in
Rosemann
v General Council of the Bar of South Africa
[2003] 4 All SA
211
(SCA) the Court held further as follows:
‘
'"The
attorney's incapacity is not the concern of the advocate and cannot
,
by
implication
,
broaden
the advocate's mandate to authorise the carrying out of work which
falls outside his or her profession competence. ”
[20]
In
Rosemann v General
Council of the Bar of South Africa
[2003] 4 All SA 211
(SCA)
the Court held as follows:
There
is also no merit in the finding that the referral rule is contrary to
the provisions of Section 22 of the Constitution of
the Republic of
South Africa. In terms of Section 22 of the Constitution citizens
have the right to choose their professions freely.
There has been no
interference with the Respondent's freedom to choose his profession.
He chose to be an advocate not an attorney.
Section 22 of the
Constitution provides, further that the practice of a profession may
be regulated by law:"
[21]
In
Society of
Advocates of Natal v De Freitas and Another
[
1997] 4 All SA
452
(N) at 482 the Court held as follows:
“
The
legislature has enacted in Section 25, 26, 41, 78 and 79 of the
Attorneys Act, 53 of
1997,
importing
provisions for the protection of a client against theft by the
attorney, of money held by the attorney on behalf of his
client. In
essence these provisions make it obligatory for the attorney to keep
a trust bank account in which to deposit all monies
,
held
by the attorney on behalf of anyone, and to keep proper books of
account which may be inspected by the council of the Law Society,
in
respect of money held, received or paid by him on behalf of any
person. These sections also provide for the establishment of
a
fidelity fund from which a person may be compensated for loss
suffered as a result of the theft oj trust money by the attorney.

Section 78(7) provides that monies standing to the creditor of the
attorney's trust account shall not be regarded as forming part
of the
assets of the attorney and may not be attached on behalf of a
creditor of the attorney. The provisions of Section 78(7)
are most
important in that they alter the common law consequences relating to
the ownership of money paid to an attorney for the
purpose of being
held by the attorney on behalf of any person.
There
is no corresponding statutory provision for safeguarding money held
by an advocate on behalf of his client, for the keeping
by the
advocate of books of account in
respect
of money held by him on
behalf of the client, or a separate trust bank account in which to
keep money held by him on behalf of the client. The reason for
the
omission by the legislature to make any statutory provision in this
respect for safeguarding the position of the client vis-a-vis
the
advocate was obvious as was already pointed out above”
[22]
The Respondent is not a member of the Applicant. The only
remedy available to the Applicant is that given in terms of the
provisions
of
Section 7(2)
of the
Admission of Advocates Act, 74 of
1964
.
[23]
The principal
dispute of fact is whether the Respondent took work directly from the
public (lay clients) without the intervention
of an attorney and
whether such conduct constitutes professional misconduct for which
the Respondent’s name may be struck
from the roll of advocates.
[24]
It is furthermore,
the case of the Applicant that the Respondent received money directly
from a lay client without the intervention
of an attorney and that
such conduct constitutes professional misconduct.
[25]
There are also
serious allegations of theft,
alternatively
fraud against the Respondent.
[26]
It was submitted on
behalf of the applicant that the Respondent is not a fit and proper
person to practise as an advocate.
[27]
It is significant
that six different complainants, independently of one another,
complained of the same misconduct by the Respondent.
Although the
facts of each case differ, they are remarkably similar with regard to
the
modus operandi
employed by the Respondent. Ail
the complainants submitted complaints in writing about the
Respondent and these were
amplified in the Applicant’s Founding
Affidavit.
[28]
In the complaint by
POPIE MPUTSIYE NONYANE the complaints are as follows:
a)
the contravention
of the common law principle that an advocate is not allowed to take
instructions directly from a lay client without
being properly
briefed by a practising attorney;
b)
the contravention
of the common law principle that an advocate is not allowed to take
money from a client otherwise than in respect
of reasonable or agreed
fees, through the instructing attorney; and
c)
the commission of
theft of an amount of R 148 000.00,
alternatively
fraud on Mrs NONYANE.
d)
The facts
underlying the aforesaid allegations appear from Annexure “PE3”,
attached to the Applicant's Founding Affidavit
on paginated pages
22-25.
“
Attached hereto is a
copy of a complaint received regarding your conduct as an advocate.
You are invited to respond
thereto within 21 days of date of this letter. In your response you
are required also to deal with the
following question:
1.
When and where
were you admitted as an advocate? (A copy of your brief is required.)
2.
Who was the
attorney instructing you to deal with the matter? (A copy of your
brief is required).
3.
Did you receive
the monies referred to in the letter of Ms Nonyane?
4.
Did you settle
the debt to Toyota?
5.
What were the
purpose of your visits to Durban, Rustenburg and Johannesburg?
Should you fail to respond
hereto, an application may be launched against you to strike your
name from the roll of advocates
.
Kindly treat this request with
the requisite professional seriousness
a) Upon receipt of the
aforesaid complaint on 1 August 2008 the Applicant wrote a letter to
the Respondent in which the Applicant
asked eight direct questions to
the Respondent, which he has chosen not to answer.
f)
The respondent made
a statement which reads as follows:
“
Sworn Declaration
I
,
the undersigned
RALPH PA TRICK NDLEVE
73……………..
Do hereby declare under oath
as follows:
I am the deponent herein and
the facts hereto deposed being within my personal knowledge and are
to the best of my belief both true
and correct.
I
confirm that I am the appointed agent in the above estate to assist
the executrix
,
Mrs.
M P Nonyane in her administration of her late husband estate as well
as any legal issues for her and her immediate family members.
I
further confirm that I was further entrusted with settling the issue
of the Toyota Bakkie, which is being financed by Toyota Financial

services. I further confirm that we are still pursuing the case
against the Insurers (Hollard Insurance).
I
further confirm that I was also entrusted with money
,
which was not handed to
the said Toyota Financial service and it is on this basis that I
sincerely apologise to the family of Nonyane
for the dishonesty.
I
hereby confirm that I was not justified in doing as I did. I hereby
undertake to pay back the amount of R1 00 00.00 (one hundred
thousand
rand) to the family irrespective of the amount outstanding to the
Bank.
I
hereby hand over a post-dated cheque of R100 000.00 to be honoured by
the bank on 30 June 2005 in favour of Mrs. M P Nonyane.
I
confirm that should the cheque he dishonoured for any reason
whatsoever the family is entitled lay a charge of fraud and/or
alternatively
theft.
I
humbly ask for the family's forgiveness.
”
g)
In paragraph 8.2 of
the Respondent’s Answering Affidavit on paginated page 156 the
Respondent admitted that the matter is
still pending in criminal
proceedings against him where he is charged with fraud and/or
alternatively
theft.
h)
From the
aforementioned letter (Annexure
“
PE6”)
it appears that a criminal
investigation was commenced against the Respondent arising from the
aforesaid allegations by Mrs
NONYANE,
which were:
(i) Proof of payment of R 100
000.00 into the Respondent’s account.
(ii) From Annexure
“
PE6.1”
the bank statement of the
respondent it is clear that on 28 September 2004 Mrs
M
P NONYANE
deposited an
amount of R100 000.00 into the cheque account of the Respondent.
(iv)
A copy of the
cheque that Mrs
M P NONYANE
paid into the trust
account of the Respondent, is reflected on paginated page 35 of the
Applicant’s Founding Affidavit.
(v)
Annexure
“
PE6.3”
on paginated pages 36 - 39
of the Applicant’s Founding Affidavit is a further sworn
declaration by the Respondent in which
he admitted to theft, yet of a
lesser amount of R 65 000.00.
(i) In the light of the above
evidence alone the Respondent • should be struck from the roll
of advocates and that the matter
should be referred to the Director
of Public Prosecution for further criminal investigation.
[29]
The second
complaint is one by
SIMON
and
DINAH
MALATJI
which relates to
the contravention of the common law principle that an advocate is not
allowed to take instructions directly from
a lay client without being
properly briefed by a practising attorney as well as the
contravention of the common law principle that
an advocate is not
allowed to take money from a client otherwise than in respect of
reasonable and agreed fees, through the instructing
attorney as well
as the commission of theft,
alternatively
fraud on Mr and Mrs MALATJI.
(a)
The facts
underlying the aforesaid allegations appear from Annexure “PE7”
on paginated pages 40 - 58, attached to the
Applicant’s
Founding Affidavit It amounted to the handling of a claim against the
Department of Health following the death
of their child.
(b)
On 5 August 2008 a
copy of the complaint was faxed to the Respondent by the applicant.
The accompanying letter read as follows:
"Adv RP Ndleve
POLOKWANE
Dear Sir
In
re:
COMPLAINT AGAINST YOURSELF: MS D MALATJI
Attached hereto are copies of
the complaint received against voarself
Kindly respond thereto, if you
so desire, within fourteen (14) days of date Hereof.
Kindly deal
,
in your reply with the
following issues:
1.
Did you take instructions from Ms
Malatji to institute proceedings against the Department of Health for
medical negligence?
2.
Who was your
instructing attorney?
3.
Did you
negotiate or conclude an agreement of settlement of the complainant’s
claim?
4.
Did you
negotiate or conclude an agreement of settlement of the complainant’s
claim?
5.
If so, what
were the terms of the settlement?
6.
Did you, on
behalf of the complainant receive any monies pursuant to such
settlement?
7.
If so, what
amount did you receive and when?
8.
Did you account
to the complainant in respect of such monies? If so, a copy of the
account and proof of payment of the proceedings
are required
.
Yours faithfully ,
AD
VP, ELLIS SC
(c)
The only reply
received from the Respondent to the Applicant’ above mentioned
letter is Annexure “PEI
V\
attached to the Applicant’s
Founding Affidavit, on paginated pages 63 to 69 thereof, which reads
as follows:
“
COMPLAINT:
MS D MALA TJI
I
acknowledge receipt of your letter dated 5
th
August 2008.
Kindly
confirm the following with the Complainant before I can deal with
your request in full:
1
.
That the attached letter
of authority was duly signed by her?
2.
That the
affidavit was signed at Steelpoort and not in my office in light of
her allegation that she was made to sign documents
without
understanding them.
3.
Her new
Attorney of record is now demanding the contents of the file which is
the subject of her complaint against me and I need
your advice as to
what to do.
I
await your urgent bat kind response.
Yours
faithfully
Adv
Ndleve
(d)
Attached to the
reply of the Respondent were various documents being Annexures “PEI
1.1” to “PEI 1.5” to
the record. From the aforesaid
correspondence it appears that the Respondent did take instructions
directly from the MALATJI’s,
without the intervention of an
attorney, yet does not answer any of the pertinent questions
addressed to him in the Applicant's
aforementioned letter.
(e)
Annexure “PE
11.1 for instance reads as follows:
“
LETTER
OF AUTHORITY
I
, the undersigned
DINAH
MALATJIE
ID
65…………
Do hereby authorize Adv Ralph
Ndleve to have access to all the information in my hospital file
notwithstanding the confidentiality
which exist between the hospital
and myself / clinic, may have in this regard.
I further authorize Adv Ralph
Ndleve to act on my behalf in this matter on a pro deo basis due to
financial constraints and to proceed
with the institution of legal
negligent case vis-as-vis the death of my new born / stillborn baby
and to see it that the matter
is finalized in my best interest.
Dated at steelpoort on this
day of September 2005.
D.
Malatjie
I.
........................................
Witness
Adv
Ralph Ndleve
”
It is signed by both Mrs
Malatji and the respondent.
Respondent had misled the
complainants about the progress in the
“
proceedings
”
,
or had settled same without accounting to the complainants.
(f)
In the light of the
above alleged misconduct by the Respondent the Applicant submitted
that the Respondent’s name should be
struck from the roll of
advocates.
[30]
The complaint by a
Mr
E S NKUNA
was
referred to the applicant. The complaint was paraphrased as follows
in the founding affidavit filed on behalf of the applicant
as
follows:
“
From the aforesaid
documents, the following facts emerged:
The late Mr MJ Ndabezitha
passed away some years ago (apparently in1999);
From the estate the respondent
was paid (at least) the following amounts:
14.2.1
28
August 2000: R4 000.00
14.2.2
31 August 2000:
RIO 000.00
14.2.3
15 September
2000: R52 857.13
14.2.4
2 October 2000:
R10 000.00
14.3
The aforesaid
monies were paid to the respondent for the purpose of providing in
the financial needs of the minor children of the
deceased.
14.4
The respondent
did not use the aforesaid monies for that purpose
,
and probably appropriated
the funds for his own purpose.
14.5
The respondent
has avoided those for whom the money was destined, did not account to
them, and sought to avoid the complaint by
stating that it happened
before he was admitted as an advocate.
"
[31]
The respondent was
invited to deal pertinently with all the facts appearing from the
complaints in his answering affidavit.
[32]
The Respondent has
avoided those for whom the money was designated, did not account to
them and sought to avoid the complaint by
stating that it happened
before he was admitted as an advocate.
[33]
The applicant
submitted that the conduct of the Respondent to this complaint
subsequent to his admission, clearly demonstrated that
he was not a
fit and proper person to practise as an advocate.
[34]
In May 2006 the
Applicant received a complaint from one
GEORGE
NKANYANI
a convicted
prisoner.
[35]
From the
correspondence it is clear that the Respondent had taken instructions
from the complainant, to act on his behalf in applying
for a
reduction of his sentence or correctional supervision, without being
briefed by an attorney.
[36]
It is furthermore
clear from the abovementioned correspondence that the Respondent had
received R 3 000.00 from the complainant
and that the complainant had
terminated his mandate and that the Respondent kept the R 3 000.00
and did not repay it to the complainant.
[37]
It is clear that
the Respondent took instructions from a lay client, without the
intervention of a practising attorney.
[38]
On 14 January 2008
the applicant received a further complaint against the Respondent
from one CALVIN MAKGOBA. The facts set out
in the complaint clearly
proves that the respondent took instructions from a lay client
without the intervention of an attorney.
[39]
On 14 January 2008
the Applicant received a further complaint against the Respondent
from one CALVIN MAKGOBA.
[40]
From the complaint
it appears, once again, that the Respondent took instructions from a
lay client without the intervention of an
attorney.
[41]
The applicant
submitted that the Respondent was not a fit and proper person to
practise as an advocate.
[42]
The Respondent
filed heads of argument and appeared in person at the hearing before
this court.
[43]
He conceded when
answering questions from this court the theft of the money and the
facts of the other complaints.
[44]
The applicant after
he graduated was admitted as an advocate. He did not do articles nor
did he do pupillage.
[45]
It is a fact that
the various Bar Councils in the countiy can accept about 300 pupils a
year. Articles are virtually unobtainable.
Every year more than 1400
graduates receive LLB degrees. It is a well-known fact that the 4
years LLB course does not sufficiently
prepare a student to practice
independently.
[46]
The current
situation inevitably lead to the situation the respondent found him
in. He must practise to be able to survive but he
is not trained
enough. This the government and the universities must give attention
to.
[47]
The following order
is made:
1.
The application
succeeds and the name of Ralph Patrick Ndleve is removed by this
court from the roll of advocates.
2.
The Respondent must
pay the costs of the application on the scale of attorney and client.
P.Z. EBERSOHN
ACTING JUDGE OF THE HIGH COURT
I concur
H J. DE VOS
JUDGE
OF THE HIGH COURT