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[2013] ZAGPPHC 463
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Law Society of The Northern Provinces v Sekukuni (73021/12) [2013] ZAGPPHC 463 (8 November 2013)
IN THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: 73021/12
DATE:
8 NOVEMBER 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, 8
th
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.62167592297 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
D.D MOGOTSI
ACTING JUDGE OF THE HIGH COURT
I agree and it is so ordered,
H.
J DE
VOS
JUDGE
OF THE HIGH COURT