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[2013] ZAGPPHC 328
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Law Society of the Northern Provinces v Sekukuni (73021/12) [2013] ZAGPPHC 328 (8 November 2013)
IN
THE NORTH GAUTENG HIGH COURTPRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 73021/12
DATE:
8/11/2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
.........................
APPLICANT
And
MADIMETIA
GILBERT
SEKUKUNI
..........................................................
RESPONDENT
JUDGMENT
MOGOTSI
AJ:
[1]
INTRODUCTION
This is
an application in terms of Section 22 (1) (d), of the Attorneys Act
53 of 1979 (as amended) to strike the Respondent’s
name from
the roll of attorneys of this Honourable Court with costs on attorney
and client scale and related ancillary relief as
set out in the
Notice of Motion.
The
papers were served on the Respondent’s wife on 5 February 2013
and on the Respondent on the 13 March 2013. The Respondent
filed
notice to oppose the application on the 20 March 2013 but he failed
to file his answering affidavit.
A Notice
of set down was served on Respondents Corresponding attorneys on 13
May 2013.
[2]
THE
PARTIES
The
Applicant is the Law Society of Northern Provinces which exists by
virtue of Attorneys, Notaries and Conveyances Admission Act
no 23 of
1934 and continues further in existence by virtue of Section 56 of
the Attorneys Act no53 of 1979.
The
Respondent is Madimetja Gilbert Sekukuni, who was admitted and
enrolled as an Attorney of this Honourable Court on 16 April
2007.
His name is still on the roll.
The
Respondent is currently still practising as a sole Practitioner on
his own account under the name and style of Sekukuni Attorneys.
Situated at suite 801, Mansion House, 8th Floor, Comer Market and
Kruis streets, with effect from 01 May 2007. He is therefore
still on
the roll of attorneys of this Honourable Court.
[3]
BACKGROUND
The
Applicant alleges that the Respondent’s conduct constitute such
a deviation from the standards of professional conduct
that he is not
a fit and proper person to continue to practise as an attorney.
According to the Applicant based on a report prepared
by its office,
the Respondent has inter alia contravened the following provisions of
the Attorneys Act and Applicant’s Rules:
1.
Section 70 of the Attorneys Act in that he failed to comply with
Applicant’s directive to produce for inspection the accounting
records of his Practise. The purpose of a Rule 70 auditors report is
to satisfy the Law Society that an Attorney’s accounting
records are kept in accordance with the Provisions of the Rules and
the Act and that an Attorney handles and administers trust
monies
entrusted to him by his clients properly and responsibly.
2. Rule
89.25 in that the Respondent failed to comply with an order,
requirement or request of the Applicant.
3. Rule
68.7 in that the Respondent failed within a reasonable time, after
the
performance
or earlier termination of the mandate received from a Complainant,
namely Ms Portia Nkanazi Ndaba to furnish her with
written statement
of account setting out with reasonable clarity:
•
Details
of all amounts received by him in connection with the matter,
appropriately explained.
•
Particulars
of all disbursements and other payments made by him in connection
with the matter
•
Fees
and charges charged or raised against the client and where any
represents an agreed fee, a statement that such fee was agreed
upon
and the amount so agreed
•
Rule
68.8 in that the Respondent did not pay any amount due to the
complainant within a reasonable time; and
•
Section
78(1) read together with Rule 69.3.1 in that the firm did not ensure
that the total amount of money in its trust account,
trust investment
account and trust cash at any date shall not be less than the total
amount of the credit balances of the firms
trust creditors.
The
approach of the court in relation to trust shortages and a duty of an
attorney with regard to trust money was stated in Law
Society
Transvaal v Matthews, 1989 (4) SA389 (T) 394 as follows:
“
I
deal now with the duty of an attorney in regard to trust money.
Section 78 (1) of the Attorneys Act obliges an attorney to maintain
a
separate trust account and to deposit therein money held or received
by him on account of any person. Where trust money is paid
to an
attorney, it is his duty to keep it in his possession and to use it
for no other purpose than that of the trust. It is inherent
in such a
trust that an attorney should at all times have available liquid
funds in equivalent amount.” The very essence
of a trust is the
absence of risk. It is imperative that trust money in the possession
of an attorney should be available to his
client the instant it
becomes payable. Trust money is generally payable before and not
after demand.”
See in
this regard Incorporated Law Society Transvaal v Visser & Others,
also Incorporated Law Society Transvaal v Viljoen,
1958 (4) SA 115
(T) 118 F-H.
“
An
attorney’s duty in regard to the preservation of trust money is
a fundamental, positive and unqualified duty. Thus, neither
negligence nor wilfulness is an element of a breach of such duty. See
in this regard Incorporated Law Society Transvaal v Behrman,
1977 (1)
SA 984
(T) 905 H. It is significant that in terms of Section 83 (13)
of the Attorney’s Act, a practitioner who contravenes the
provisions
or relating to his trust account and investment of trust
money will be guilty of unprofessional conduct and be liable to be
struck
off the roll or suspended from practice.”
4.
According to a report by Mapfumo (an auditor employed by the
monitoring unit of the Law Society of the Northern Provinces) dated
19/6/2012, the Respondent failed to pay trust funds to Ms Ndaba.
5. The
Respondent was alleged to have since moved from the address recorded
in the Law Society register in May 2011. The Respondent
was followed
on 20April 2012 to following address, office no 7A Town Square Plaza
Burgersfort from where he appeared to be practising.
It was found
that Mr Sekukuni had moved from the said office in May 2010. When the
Respondent was contacted, he said his firm was
still in Burgersfort
where he was said to have moved and he further indicated that he was
aware of the complaint by Ms Portia Nkanazi
Ndaba.The Respondent
requested Mapfumo to schedule a meeting with him which he failed to
attend. Ms Ndaba had deposited an amount
of R80 000.00 on the 22 July
2011 in the account of Sekukuni Attorneys: FNB Acc no. via EFT.
The
money was deposited for the transfer of a house into the name of Ms
Ndaba. The house in question was later on said to have been
bought by
another person.
Ms Ndaba
subsequently unsuccessfully demanded her money back.
When Ms
Ndaba eventually made contact with the Respondent, the latter
undertook to pay back the money and he made a deposit of R20
000.00
on the 31 August 2011 and R11 000.00 on the 1 October 2011. Since
then he has failed to make any further payments to her
and is
presently indebted to her in an amount of R49 000 plus interest.
Attempts to recover the money by the applicant once more
proved
fruitless. Mr Sekukuni is said to be a magistrate in Limpopo.
The
Applicant received another complaint on 30 May 2012 from Mr Funeka
who had made a deposit of R3250.00 into the account of the
Respondent. This was an initial deposit so that the Respondent could
institute a claim for damages against a member of a taxi association.
The
Respondent failed to report to the Complainant about progress made or
not made in this matter. The Complainant unsuccessfully
made several
attempts to arrange further meetings with the Respondent.
The
Complainant, Ms Nomsa Joyce Mfaba instructed the Respondent to
institute a claim on her behalf against Road Accident Fund, following
injuries she had sustained in a motor vehicle collision. The
complainant could not get hold of the Respondent as the Respondent
frequently moved from one office to another without informing the
Complainant.
EXPOSITION
OF THE LAW
Applications
of this nature are sui seneris and of a disciplinary nature. There is
no [is between the Applicant and the Respondent.
Prokureursorde Van
Transvaal v Kleynhans
1995 (1) SA 839
(T) at 851 E-F; Ciruta and
Another v Law Society Transvaal
1979 (1) SA 172
(A) at 187 H.
It is in
the judicial discretion of the Court to determine whether an Attorney
complained of is a fit and proper person in terms
of section 22(1
)(d) of the Attorneys Act. Law Society of Cape of Good Hope v C
1986(1) SA 616 (A) at 637 C-E.
Law
Society Transvaal v Matthews
1989 (4) SA 3897
at 851 A-E.
The
Court has in any event inherent jurisdiction to determine whether an
Attorney is a fit and proper to practise as such. Law Society
of the
Transvaal v Tloubatha
(1999) 4 ALL SA 59
(D) at 63 G-I.
Thus an
application of this nature involves a three stage enquiry by the
Court. Law Society of the Northern Provinces v Mogami
2010 (1) SA 189
SCA
a) The
Court must determine whether the alleged offending conduct has been
established on a preponderance of probabilities, which
is a factual
enquiry
b)
Whether the Attorney concerned is not a fit and proper person to
continue to practise. This involves the weighing-up of the conduct
complained of against the conduct expected of an Attorney hence a
value judgment. Kaplan v Incorporated Law Society, Transvaal
1981 (2)
SA 762
(T) at 781 H.
c) Where
the Court holds that the Attorney is no longer fit and proper 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 be
suspended from
Practise. Ultimately this is a question of degree. Jassat v Natal Law
Society
2000 (3) SA 44
(SCA)
The
opinion or conclusion of the Law Society after its own investigation
of the matter usually carries great weight although the
Court is not
bound by it.
APPLYING
THE LAW TO THE FACTS
The
legal interest which the Law Society has in bringing this application
flows from the Attorneys Act and the rules made under
authority of
Section 74 of that Act and Common Law.
In
exercising the discretion in Section 22 (1) (d) to remove or suspend
a errand Attorneys the approach of the Court has been to
remove the
names of the Attorneys who are guilty of misappropriation of trust
funds from the roll: see Incorporated Law Society
v Salinger and
Wolmarans
1917 TPD 660
at 670. However, where mitigating factors are
present the Courts deviate from that and merely impose a suspension.
Law Society
of Cape of Good Hope v McLaren
1938 CPD 93
and The Law
Society of the Northern Provinces [Incorporated as the Law Society of
the Transvaal] v Goosen and Others (17289/04)
[2009] ZAGPHC5 (23
January 2009).
This
power is meant to inter alia maintain and enhance the prestige,
status, dignity of the profession, public interest and to promote
uniform practice and discipline among Practitioners. Turning to the
conduct of the Respondent against what is complained of and
how a
reasonable Attorney should have acted or behaved. The conduct
complained of is of a serious nature as it compromises the
dignity
and the integrity of the profession.
A
reasonable Attorney under the circumstances would have acted
differently by e.g. in a case of Abel Mfisileni Funeka and Ms Nomsa
Joyce Mfaba instituting a claim for damages and in the case Ms Portia
Nkanazi Ndaba attended to the registration of immovable property
in
the name of the complainant and or advised his/her clients
accordingly and dealt with the money deposited in the Trust Account
accordingly.
Alternatively
a reasonable Attorney would have co-operated with the Applicant’s
endeavour to carry out investigations and
or filed an answering
affidavit after giving serious consideration to the circumstances of
this application. I am of the view that
there are no reasons placed
before this Court to justify imposition of another order.
In my
view the Respondent is not a fit and proper person to be admitted as
an Attorney of this Honourable Court.
I
accordingly propose the following order:
•
That
the draft order marked ‘X’ be made the order of this
Court
DD
MOGOTSI
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered,
H.
J/bE VOS
JUDGE
OF THE HIGH COURT