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[2013] ZAGPPHC 297
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Law Society of the Northern Provinces v Nkoe (58884/2012) [2013] ZAGPPHC 297 (17 October 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 58884/2012
DATE:17/10/2013
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
.........................................
Appellant
AND
ONICCAH
MAKGEBELE NKOE
…........................................................................
Respondent
JUDGMENT
MASANGO
AJ
[1]
The applicant is the Law Society of the Northern Provinces which
includes Mpumalanga, Gauteng and Limpopo Province and every
attorney
appointed under the Attorneys Act in these Provinces are members of
the applicants. The applicants’ duty is to monitor
the
professional conduct of its member and to ensure that the members
conduct themselves in a professional way in the running of
the
profession as contained in paragraph 3 to 5 of the applicant’s
founding affidavit.
[2]
The respondent is an attorney who has since closed her practice and
is employed by the Elias Motsoaledi Municipality. She was
admitted as
an attorney on the 28 May 1998.She was practicing as an attorney
under the name and style of Onnicah M Nkoe at Harmony
International
Care Centre, Portion 32 Onspoed Farm Bronkhorstspruit. At the time
when the application was made the respondent was
employed by Elias
Motsoaledi Municipality as a Legal Advisor.
[3]
The applicant is applying to this Court for the removal of the
respondent from the roll of the attorneys alternatively that
the
respondent be suspended from her practice as an attorney on such
terms and condition this court will deem appropriate alleging
that
her conduct has deviated from the standard of profession and that she
is not a fit and proper person to continue to practice
as an
attorney.
[4]
The respondent has raised a point in limine that the applicant has no
locus standi to bring this application as she was no longer
practicing as an attorney and have closed her practice on 20 April
2010.That at the time when application was launched she was
in full
time employment as a Legal Advisor at Elias Motsoaledi Municipality
in Groblersdal. The respondent also relies on section
57(1) of the
Attorneys Act 53 Of 1979 which provides that “every
practitioner who practices in any Province whether in his
own account
or otherwise shall be a member of the Society of that Province.”
[5]
The applicant's response to the point in limine was that the interest
of the Law Society in this application flows from the
Attorneys Act
Section 22(1) d and the rules made in terms of section 74 of the Act
and that the respondent was still enrolled on
the roll of attorneys
and admitted as an attorney of this Honorable Court. An attorney is
not limited to a person who is practicing
but also includes
non-practicing attorneys.
[6]
I will first deal with the point in limine raised by the respondent
in this matter. It is common cause that the respondent was
employed
by Elias Motsoaledi Municipality and no longer practices as an
attorney since she was employed by the Municipality. Section
1 of the
Attorneys Act defines an attorney to mean any person duly admitted to
practice as an attorney in any part of the Republic.
The respondent
is not contesting that she is an attorney but that she has closed
down her practice and joined the Elias Motsoaledi
Municipality.
[7]
Section 57(1) provides that any practitioner who practice in any
Province shall be a member of the Society of that Province.
Section
57(2) provides that even a practitioner who is not practicing in the
Province of the Law Society concerned as long as he/she
was enrolled
as an attorney in any Court in that Province may by notice addressed
to that person be declared a member of the Law
Society in that
Province.
[8]
Before a person is admitted as an attorney he must have been a member
of the Society of that Province in terms of section 16
of the Act and
must have satisfied the Society that he is a fit and proper person to
be admitted as an attorney. An attorney ceases
to be a member of the
Law Society of his or her Province when he has been dealt with in
terms of section 22 of the Act. I accordingly
conclude that the
respondent’s membership with the Law Society of the Northern
Provinces is still intact and she is still
a member of the applicant
until she has been dealt with in terms of section 22 of the Attorneys
Act.
Accordingly
the applicant has the locus standi to bring this application and the
point in limine raised by the respondent is dismissed.
[9]
I now turn to the merits of the matter. The basis of the complaint
against the respondent is contained in paragraph (9) of the
founding
affidavit of the of the applicant. In paragraph 9.1 it is alleged
that she failed to co-operate with the Law' Society
in a proposed
inspection of her accounting records and failed to hand to the Law'
Society her accounting records and office flies
for the purposes of
such inspection. In her answering affidavit the respondent denied
this allegation against her and she further
stated that at that time
she was employed by the Elias Motsoaledi Municipality and her
practice was closed and that was also confirmed
by the investigator
of the applicant Ms.M. Geringer in Paragraph 2 and 3 of the report
compiled. Rule 70 provides that she should
have submitted her closing
audit report at the time when she was closing the practice.
[10]
The respondent failed to comply with Rule 70 to cause her auditors to
lodge the audit report with the applicant within 6(six)
months of the
annual accounting period when she closed her Practice on the 20 April
2010 and she was supposed to have acted in
terms of Rule 70 of the
applicants rules. She consulted with Ms Geringer on 27 June 2012 and
at that time the records were still
outstanding. In my view she
contravened Rule70 of the Applicant's rules.
[11]
The second complaint is that she failed to account to a client which
is FM Mokone, though there is no affidavit attached as
to the time of
the complaint and no file was found which would be of assistance to
the applicant. The respondent failed to make
the records of the
client Mokone available to the applicant’s investigator.
[12]
The other complaint against the respondent relates to the mishandling
of the Trust money and the mismanagement of the Trust
account. The
complaint by the client Makgetlane was that out of the her claim of
R594 106.00 which was paid to the Trust account
by the Road Accident
Fund on behalf of the client R141 925.00 was paid to the client and a
balance of R362 181.00 unaccounted for.
The claim was received during
2007 and payment to the client was only made during 2009.
[
13]As already mentioned above this is an application to remove the
responded from the roll of attorneys and in the application
of this
nature the Court held in The Law Society, Northern Provinces V
Mogami2010(1)186(SCA)para4:
“
Applications
for the suspension or removal from the roll require a three-stage
enquiry. First, the Court must decide whether the
alleged offending
conduct has been established on a preponderance of probabilities,
which is a factual enquiry. Second, it must
consider whether the
person concerned is “in the discretion of the court” not
a fit and proper person to continue to
practice. This involves a
weighing-up of the conduct complained of against the conduct expected
of an attorney and, to this extent,
is a value judgement.And third,
the Court must enquire whether in all the circumstances the person in
question is to be removed
from the roll of attorneys or whether an
order of suspension from practice would suffice”.
[14]
Whether the first enquiry is established can be judged from the
conduct of the parties to the issue. In paragraph 5 of the
respondent’s notice of motion for the postponement her
representative conceded that the respondent was causing undue delay
in this matter and she even stated in paragraph [4] of the notice of
motion “She promised to attend to this matter urgently
and as
at today she has not yet managed to give me proper instructions as to
how' far she is with the full accounting” to
me this is an
indication of a lack of commitment on the part of the respondent to
answer to the allegation against her and to resolve
the matter. In
the complaint of Makgetlane the respondent conceded that the balance
owed to the complainant was R325 493.20 but
tried to justify that
that money covered her costs and it was not clear how she arrived at
that.
[15]
I have already mentioned that she was obliged in terms of the rules
to file her Rule 70 closing audit report when she joined
the
Municipality but she did not do so. The respondent was slack in the
conduct of her practice and in the compliance with the
rules of the
applicant and that leads me to the conclusion that the first enquiry
has been established on a preponderance of probabilities.
[16]
I now turn to the second enquiry which is to weigh up the conduct of
the respondent towards what is complained of against what
is expected
of a reasonable attorney to have acted or behaved under the
circumstance. Section 22(1) (d) of the Attorneys Act provides
that
“the Court when exercising its discretion it must have found
that the respondent is not a fit and proper person to continue
to
practice as an attorney”. The conduct complained of to me is of
a serious nature as the dignity and the integrity of the
profession
is being compromised .A reasonable attorney under the circumstance
would have acted differently for instance in the
case of Makgetlane
she would have preferred the interest of her client above her own. I
am therefore satisfied that the respondent
is not a fit and proper
person to continue to practice as an attorney.
[17]
I now turn to the Third enquiry which is the most critical enquiry.
The appeal Court in Summerley v The Law' Society of The
Northern
Provinces 2006(5) SA613SCA, Brand JA described the test to be applied
as followed: “The Third enquiry again requires
the Court to
exercise its discretion. At this stage the Court must decide in the
exercise of its discretion whether the person
who has been found not
to be fit and proper person to practice as an attorney deserve the
ultimate penalty of being struck from
the roll or whether an order of
suspension from practice will suffice’' .Considering the
submissions and evidence that has
been tendered in this matter. I
come to the conclusion that she be removed from the roll of the
attorneys.
[]8]
I accordingly propose the following order:
(a)
That the draft order marked “X” be made an order of the
court.
NS
MASANGO
ACTING
JUDGE OF THE HIGH COURT
I
agree
N
KOLLAPEN
JUDGE
OF THE HIGH COURT
IN
THE NORTH GAUTENG HIGH COURT - PRETORIA REPUBLIC OF SOUTH AFRICA
Case number: 58884/2012
PRETORIA
THIS 20th DAY OF AUGUST 2013
BEFORE
THE HONOURABLE JUSTICE KOLLAPEN J BEFORE THE HONOURABLE JUSTICE
MASANGO AJ
In
the application of:
THE
LAW SOCIETY OF THE NORTHERN PROVINCES
(Incorporated
as the Law Society of the Transvaal) Applicant
and
ONICCAH
MAKGABELE NKOE Respondent
DRAFT
ORDER
Having
heard counset for the applicant and having read the papers filed of
record
IT
IS ORDERED
1.
That the name of Oniccah Makgabele Nkoe (the respondent) be struck
from the roil of attorneys of this Honourable Court.
2.
That the respondent hands and delivers her certificate of enrolment
as an attorney to the Registrar 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
certificates are, be authorised and directed
to takes possession of
the certificates and to hand it to the Registrar of this Honourable
Court.
4.
That the respondent be prohibited from handling or operating on her
trust accounts as detailed in paragraph 5 hereof.
5.
That Johan van Staden, the head: member affairs of the applicant or
any person nominated by him, be appointed as curator bonis
(curator)
to administer and control the trust accounts of the respondent,
including accounts relating to insolvent and deceased
estates and any
deceased estate and any estate under curatorship connected with the
respondent's practice as an attorney and including,
also, the
separate banking accounts opened and kept by the 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: B
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 the 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 the 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 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 the
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 the respondent's accounting records the names of
all persons on whose account the respondent appears to hold
or to
have received trust monies (hereinafter referred to as trust
creditors); to call upon the 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 the monies in the trust account(s) of the
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
the 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 the 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 the respondent to the 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 the respondent, if
she is solvent, or, if the respondent is insolvent, to the trustee(s)
of the respondent's insolvent
estate;
5.8
in the event of there being insufficient trust monies in the trust
banking account(s) of the 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 the 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 the respondent for or on account
of any person while practising as an attorney;
6.2
any monies invested by the 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
the respondent;
6.4
any estate of a deceased person or an insolvent estate or an estate
under curatorship administered by the respondent, whether
as executor
or trustee or curator or on behalf of the executor, trustee or
curator;
6.5
any insolvent estate administered by the 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 the 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 the 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 the respondent as or on behalf of
the liquidator;
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, the respondent shall be entitled to have access
to them
but always under supervision of such curator or his nominee.
7.
That should the respondent fail to comply with the provisions of the
preceding paragraph of this order of service thereof upon
her or
after a return by the person entrusted with the service thereof that
he has been unable to effect service thereof on the
respondent (as
the case may be), the sheriff for the district in which the
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 the respondent and/or the respondent's clients
and/or the fund
in respect of money and/or other property entrusted to the respondent
provided that any person entitled thereto
shall be granted reasonable
access thereto and shall be permitted to make copies thereof;
8.3
publish this order or an abridged version thereof in any newspaper he
considers appropriate,
9.
That the respondent be and is hereby removed from office as -
9.1
executor of any estate of which the respondent has been appointed in
terms of
section 54(l)(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)
;
0cm
; line-height: 200%">
9.2
curator or guarding of any minor or other person's property in terms
of
section 72(1)
read with
section 54(l)(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 the 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
the
respondent;
10.2
to pay the reasonable fees of the auditor engaged by the 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;
10.5
to pay the expenses relating to the publication of this order or an
abbreviated version thereof; and
10.6
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 her (respondent) in respect
of her former
practice, and should she fail to do so, she shall not be entitled to
recover such fees and disbursements from the
curator without
prejudice, however, to such rights (if any) as she 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.
BY
ORDER OF COURT REGISTRAR
64.
ROOTH & WESSELS INC A Bloem/es/B30376