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[2013] ZAGPPHC 248
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Law Society of the Northern Provinces v Peta (60344/2012) [2013] ZAGPPHC 248 (16 August 2013)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
CASE NUMBER: 60344/2012
DATE:16/08/2013
In
the matter:
THE
LAW SOCIETY OF THE NORTHERN PROVINCES
.................
APPLICANT
AND
KGAUGELO JOSEPHINE PETA
…..................................................
RESPONDENT
JUDGMENT
________________________________________________________________
LAMPRECHT, AJ
Introduction
[1] This is an application in terms of
section 22(1)(d) of the Attorneys Act 53 of 1979 (the Attorneys Act),
for the removal of
the Respondent's name from the roll of attorneys
and conveyancers.
[2] Initially an urgent application
was brought to this Court. After four unsuccessful attempts on 19,
20, 22 and 23 October 2012,
the papers were eventually served on
Respondent's brother on 24 October 2012. This service was felt to be
necessary because Respondent
could not be found at her practice at
second floor, Newgate Building, 108 Jeppe Street, Newtown,
Johannesburg, of which the doors
were kept locked and no alternative
service was possible but to append the Notice of Motion to the door
of the practice.
[3] No Notice to Oppose was filed and
Respondent was suspended from practice as an attorney and conveyancer
by order of this Court
dated 13 November 2012, pending the removal of
her name from the roll of attorneys and conveyancers.
[4] Attempts to have the Court Order
and the Notice of Set Down (in respect of the application for
removal) served and / or executed
on the Respondent proved fruitless
as she was nowhere to be found, not even at her given residential
address at 12 Flamingo Villas,
800 Vermooten Street, Princess AH X 3,
ROODEPOORT. On 30 January 2013 the present occupier of the mentioned
residential address
informed the Sheriff that Respondent has left the
address with no forwarding address, but the Notice of Set Down was in
any event
posted to the door of said residence.
[5] An application for substitutive
service was brought on 31 July 2013, which was duly authorized and
ordered by this Court (Kruger
AJ). The Court Order was that the
Notice of Set Down could be published in one issue of The Star and
one issue of the Sunday Times
newspapers, which newspapers circulate
in Gauteng and the broader South Africa. Publication took place only
in the Sunday Times
of 04 August 2013, but, a satisfactory
explanation was tendered. In any event, the Sunday Times is the paper
that is the most widely
circulated among the two and, even though
publication was effected such a short time before the date of set
down, we are, in the
light of the above and what follows, of opinion
that no other means of service would have proven to be more effective
to avoid
judgment on an unopposed basis.
The facts
[6] 6.1 Respondent was admitted and
enrolled as an attorney of this Court on 27 February 2006. She
practiced as a professional
assistant at Tim Du Toit & Co
Incorporated from 1 March 2006 to 28 February 2007; and, at Colin
Mabunda Incorporated from
1 march 2007 to 30 November 2010. She
commenced practicing as a sole practitioner for her own account under
the name and style
of KJ Peta Attorneys with effect from 03 January
2011.
6.2 Since inception of the firm on 03
January 2011, Respondent has failed to lodge her firm's opening audit
report and, as a result,
no Fidelity Fund Certificate was issued to
her. She thus practiced for own account for reward without such
certificate, in the
process contravening section 41 of the Attorneys
Act, which is also declared a criminal offence in terms of section
83(10) of the
Act. Applicant commissioned one of its employees, Ms
Jackie Bezuidenhout to conduct an investigation into Respondent's
firm in
this regard. In her report she explains that she has
experienced much difficulty in executing her mandate as the
Respondent was
evasive and cancelled pre-arranged meetings; and, she
initially failed to answer to correspondence regarding the
submission of
her firm's opening audit report. In a letter dated 22
May 2012, Respondent advised Applicant that she had appointed
Trezifin Professional
Accountants as her auditors and undertook to
furnish Applicant with the original audit report as soon as
finalized, which to date,
she has failed to do.
6.3 At least 24 complaints were
lodged with Applicant against the Respondent for conduct which can
best be described dishonourable,
unprofessional and unworthy of a
practitioner. These complaints relate to:
Failure to execute clients'
instructions.
Failure to pay over funds to clients
and failure to render proper statements of account to client.
Failure to attend to the registration
and transfer of properties as per her mandate and failure to repay
the monies deposited
into her firm's trust account for that purpose.
Failure to attend to the winding up
of deceased estates after her appointment as executor; failure to
give progress reports regarding
the affairs of the deceased estates;
and, failure to transfer properties into the name of surviving
spouses or beneficiaries
of estates.
6.4 In almost all of these matters,
Applicant tried in vain to contact Respondent, since she has quite
apparently abandoned the
premises where she conducted her practice
and could not be reached telephonically or otherwise.
6.5 Applicant commissioned an
investigation by one of its employees, Ms Phossina Mapfumo, into the
affairs of Respondent's firm.
Although Mapfumo could not reach the
Respondent to address any of the above complaints that Applicant
received, she established
the existence of a trust deficit of
approximately
R1, 851, 174.98
. Respondent's trust bank
balance reflected an amount of only
R469.13
.
6.6 The Respondent currently being
unreachable, it is clear that she has abandoned her practice without
giving her clients or Applicant
any notice and even without handing
over the files of clients matters to another practitioner.
6.7 According to Applicant and the
Report of Mapfumo, Respondent has
inter alia
contravened the
following provisions of the Attorneys Act and the Applicant's Rules:
Section 41 of the Attorneys Act -
practicing without being in possession of a Fidelity Fund
Certificate;
Section 70 of the Attorneys Act -
failure to comply with Applicant's directive to produce for
inspection the accounting records
of the firm;
Rule 68.7 - failure, within
reasonable time, after the performance or earlier termination of the
mandate received from the complainants,
to furnish them with a
detailed and written statement of account;
Rule 68.8 - Failure, within
reasonable time, to pay any amount due to the complainant's;
Rules 70.3 and 70.4 - Failure or
neglect to file her firm's Rule 70 audit report within or at the
required time;
Rule 89.15 - failure to give proper
attention to the affairs of her clients;
Rule 89.17 - abandonment of practice
without prior notice to clients and Applicant;
Rule 89.23 - failure, within
reasonable time, to answer or appropriately deal with any
communication which reasonably required
a reply or response;
Rule 89.25 - failure to comply with
an order, requirement or request of the Applicant;
Rule 89.30 - failure, without lawful
excuse, to perform work of a kind that is commonly performed by a
practitioner, with the
degree of skill, care, attention and quality
and standard expected of a practitioner; and,
failure to explain and / or deal with
the mentioned trust deficit, justifying criminal investigation and
prosecution if she could
be found.
Exposition of the law
[7] Applications of this nature are
regarded as
sui generis
and of a disciplinary nature. There is
no
lis
between the Law Society and the respondent. Its duty as
custos morum
of the profession requires of the Law Society
merely to place the relevant facts before the Court for
consideration. -
Solomon v The Law Society of the Cape of Good
Hope
1934 AD 401
at 407;
Hassim v Incorporated
Law Society of Natal
1977 (2) SA 757
(A) at 767 C-G;
Cirota and Another v Law Society Transvaal
1979
(1) SA 172
(A) at 187 H;
Law Society of Transvaal v
Matthews
1989 (4) SA 389
(T) at 393 E; and
Prokureursorde
van Transvaal v Kleynhans
1995 (1) SA 839
(T) at 851 E-F.
[8] In terms of section 22(1)(d) of
the Attorneys Act The question whether an attorney is a fit and
proper person lies in the discretion
of the court. -
Hassim v
Incorporated Law Society of Natal, supra loc cit
;
Law
Society of the Cape of Good Hope v C
1986 (1) SA 616
(A)
;
A v Law Society of the Cape of Good Hope
1989 (1) SA
849
(A) at 851 A-F;
Law Society of Transvaal v Matthews,
supra
at 393 I-J;
Vassen v Law Society of the
Cape of Good Hope
[1998] ZASCA 47
;
1998 (4) SA 532
(SCA);
Jassat
v Natal Law Society
2000 (3) SA 44
(SCA);
Law
Society of the Cape of Good Hope v Budricks
2003 (2) SA 11
(SCA)
.
[9] Regardless of the provisions of
the Attorneys Act, the Court in any event has inherent jurisdiction
to determine whether an
attorney is a fit and proper person to
practice as such. -
Law Society of the Cape of Good Hope v C,
supra at 638C - 639F; Prokureursorde
van
Transvaal v Kleynhans
,
supra loc cit
;
Law Society of the Transvaal v Machaka and Others (No 2)
1998 (4) SA 413
(TPD);
Law Society of the Transvaal v
Tloubatla
[1999] 4 ALL SA 59
(D) at 63 G-I
.
[10] The facts on which a court
exercises its discretion are to be established on a balance of
probabilities. -
Olivier v Die Kaapse Balie-Raad
1972 (3) SA 485
(A) at 496 F-G;
Law Society of Transvaal v
Matthews, supra
at 393 I-J;
Prokureursorde van
Transvaal v Kleynhans, supra
at 853 I-J;
Summerley
v Law Society of the Northern Provinces
2006 (5) SA 613
(SCA) at 615 B-F
.
[11] The opinion or conclusion of the
Law Society after its own investigation of the matter usually carries
great weight in the
Court's consideration, although the Court is not
bound by it. -
Die Prokureursorde van die Oranje Vrystaat v
Schoeman
1977 (4) SA 588
(O) at 603 A-B;
Kaplan
v Incorporated Law Society, Transvaal
1981 (2) SA 762
(T)
at 781 H
.
[12] The very nature of disciplinary
proceedings are such that it is expected from a respondent against
whom a
prima facie
case of unprofessional conduct has been
made out to co-operate and, where necessary, to place information
before the Court to enable
the Court to have the full facts on which
an informed decision can be made as to the fitness of the respondent
to practice as an
attorney. -
Prokureursorde van Transvaal v
Kleynhans, supra
at 853 G-H
.
[13] Naturally, the facts upon which a
court's discretion is based should be considered in their totality,
not each and every fact
in isolation. -
Beyers v Pretoria
Balieraad
1966 (2) SA 593
(A) at 606 B;
Law
Society of the Cape of Good Hope v Segall
1975 (1) SA 95
(C) at 99 B;
Prokureursorde van Transvaal v Kleynhans,
supra loc cit
,
paragraph [9];
Malan
v Law Society of the Northern Provinces
[2008] ZASCA 90
;
[2009] ALL SA 133
(SCA)
.
[14] Lastly, the appropriate sanction
where the Court finds that a person is no longer a fit and proper
person for the profession,
namely suspension from practice or
striking from the roll of attorneys, also lies within the discretion
of the Court. -
Jassat v Natal Law Society, supra
at
51 B-I;
Law Society of the Cape of Good Hope v Buddricks,
supra
at 13 I, 14 A-B;
Malan v Law Society of
the Northern Provinces, supra
at 137
.
[15]
Thus, the Court should
approach matters such as these as follows:
15.1 Firstly, the Court must decide
as a matter of fact whether the alleged misconduct on the part of the
attorney has been established
on a balance of probabilities;
15.2 Second, and based on its
finding that misconduct has been established, the Court must exercise
a value judgment to decide
whether the person is still a fit and
proper person that can be allowed to practice as an attorney. -
For
an analysis on what a 'fit and proper person' is in the context of
the attorney profession, see
Kaplan v Incorporated Law
Society, Transvaal, supra
at 782 A-C;
Reyneke v
Wetsgenootskap van die Kaap die Goeie Hoop
[1993] ZASCA 161
;
1994 (1) SA 359
at 369-70.
15.3 Where the Court holds
that the person is no longer a fit and proper person for the
profession, the Court must exercise its
discretion whether, in all
the circumstances of the case, the attorney in question is to be
removed from the roll of attorneys
or merely suspended from practice.
Ultimately, this is a question of degree.
Applying the law to the facts
[16] An attorney must scrupulously
comply with the provisions of the Attorneys Act and the Rules
promulgated thereunder, especially
in relation to money of clients
which are placed into his or her custody and control - 'trust'. It is
trite that trust money does
not form part of the assets of an
attorney. The very essence of a trust fund is the absence of risk for
a client and the confidence
engendered thereby. Unjustified handling
of trust money has always been regarded as totally unacceptable in
that it frustrates
the legal requirements relating to trust and
undermines the principle that a trust is regarded as completely safe
in respect of
the money held therein by an attorney on behalf of
another person. Misappropriation of trust funds is regarded as so
serious that
an attorney is almost invariably struck from the roll of
attorneys and, if criminal prosecution results in conviction, such
attorneys
almost always are sentenced to direct gaol terms. The trust
deficit of more than a Million Rand is therefore enough reason for
ordering the removal of Respondent's name from the roll of attorneys.
[17] The other contraventions of the
Act and Rules referred to above are equally serious, and there can be
no other outcome in this
matter than that an order be issued that
Respondent's name is to be removed from the roll of attorneys and
conveyancers. We are
of the opinion, on the papers, that she is not a
fit and proper person to practice as an attorney, which is an
honourable profession.
[18] The only problem that Applicant
has in this matter, is the fact that, contrary to Kruger AJ's order
of 31 July 2013, the Notice
of Set Down was published in only one
newspaper instead of two as ordered.
[19] In the light thereof,
(a) that Respondent has, according
to the available evidence, absconded from and abandoned practice as
soon as she sensed that
something seriously was amiss and that
Applicant was investigating her practice;
(b) that she has not filed any
opposition after the original papers were served on her practice and
her brother when she could
not be found;
(c) that she has absconded from the
physical address of both her practice and her residence, without any
notification to Applicant
or her clients, resulting in a situation
that she cannot be reached; and,
(d) because the newspaper in which
the substituted service was published, the Sunday Times, circulates
country wide -
we are of the opinion that Respondent
can only have herself to blame if she did not receive any proper
notification of the Set Down
and the Court Order suspending her from
practice pending this application. It appears to be nigh impossible
for Applicant to reach
her for proper service of the papers in this
matter. In any event, as the matter is unopposed it should in our
view be dealt with
on the same bases as a default judgment and, if
Respondent later finds out that the order below was granted in her
absence and
she feels aggrieved for not having been notified of the
application, she can always in terms of the rules or the common law
apply
for a rescission of the order. Or she can always apply for
re-admission as an attorney and conveyancer. In such a case she would
naturally have to show good cause as to why she could not be reached
for purposes of proper service of the papers in this matter
and as to
why she should be regarded as a fit and proper person to practice law
as an attorney and conveyancer..
[20] The non-compliance with the order
authorizing substituted service is therefore condoned and the
following order is issued:
20.1 That the name of the Respondent
is removed from the roll of attorneys and conveyancers. In this
regard, the draft court order
supplied by Applicant is made an order
of the court and is attached hereto.
20.2 Respondent is ordered to pay the
costs for the applications on an attorney client scale.
____________________________
A A LAMPRECHT
ACTING JUDGE OF THE NORTH GAUTENG
HIGH COURT
I
agree
____________________________
SN NKOSI
ACTING JUDGE OF THE NORTH GAUTENG
HIGH COURT
Representation for the applicant
:
Ms SL Magardie
Attorneys:
Damons Magardie Richardson Attorneys
Representation
for respondent
Counsel No appearance
Instructed
by