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[2012] ZAGPPHC 22
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Law Society of the Northern Provinces v Le Roux (49385/2010) [2012] ZAGPPHC 22; 2012 (4) SA 500 (GNP) (14 February 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
Case
Number: 49385/2010
Date:14/02/2012
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
...........................................
Applicant
And
IGNATIUS
STEFANUS LE
ROUX
...........................................................................
Respondent
JUDGMENT
1.
This application for the suspension of the respondent from his
practice as an attorney and conveyancer is unopposed. As is evident
from the case number, the matter dates from 2010, the applicant's
papers having been served on the respondent personally on the
1st
September 2010.
2.
It should be noted that the application was enrolled for the 11th
November 2011. The significant delay in finalising an unopposed
application is indicative of the worrisome state of affairs that
faces the legal professions. The sole reason for the delay appears
to
be the large number of applications for the suspension or striking
off of attorneys from the roll that is pending in this division.
This
state of affairs is no different, apparently, from the number of
cases of professional misconduct the Law Societies of other
provinces
have to deal with.
3.
The position is exacerbated by the crowded state of the motion court
roll in this division and the fact that it is established
practice
that two judges have to sit to consider an application for the
suspension or striking off of a practitioner from the roll
upon which
her or his name has been entered as an officer of this court.
4.
The respondent was admitted to practice as an attorney and
conveyancer on the 29th May 2006. From the 1s{ June 2007 to the 4th
June 2009 he practised as a professional assistant of the
professional firm Maponya Incorporated.
5.
He left this firm under a dark cloud to start practising for his own
account as Naas Le Roux Attorneys on the 5th June 2009.
6.
Since that date he has failed to submit an audit certificate to the
applicant society and is presently not in possession of a
Fidelity
Fund Certificate.
7.
Even more disconcerting, however, is the fact that the respondent
left his former employer after having confessed during an internal
disciplinary hearing to having misappropriated R 450 000, 00 from the
employer firm's trust account.
8.
A written admission was furnished to the employer and handed to the
applicant society when the respondent failed to honour the
undertaking to repay the money he had unlawfully withdrawn from
Maponya Incorporated's trust account.
9.
The respondent failed to react to the applicant's enquiries and
continued to do so after an official of the Society had investigated
his affairs and presented a damning report to him for his comments.
10.lt
is also uncontested that the respondent is presently being
investigated by the police in connection with the alleged
misappropriation
of the trust funds. 11. lt is against this
background that the applicant Society resolved on the 23
rd
July 2010 to apply to this court for the respondent's suspension
only.
12.
When the matter was called we raised several concerns with Ms
Magardie who appeared for the applicant. These touched upon matters
of practice and the policy the applicant Society has followed in
recent years in matters of this nature. They were the following:
a)
On what basis did the applicant's Council resolve to apply for the
suspension only of the respondent? Prima facie, and in the
light of
the uncontested evidence, the respondent has admitted theft of trust
funds, which, apart from being a criminal offence,
constitutes
evidence of dishonesty of a degree which indubitably renders an
attorney unfit to practice. A suspension allows the
name of the
attorney to remain on the roll of this court's officers and enables a
dishonest individual to mislead unsuspecting
members by failing to
disclose that he is no longer allowed to practice as an attorney;
b)
On the evidence presented to us in this matter it would certainly
offend against public policy and the public interest not to
consider
the ultimate sanction of striking the respondent's name off the roll
of attorneys. The uncontested evidence establishes
without doubt that
he is unfit to be an officer of the court. The respondent "...
committed about the worst professional sin
that an attorney can
commit by misappropriating trust funds...(b)earing in mind that ...
the possibility of a repetition of his
conduct if he were allowed to
continue practising has not been excluded , the only appropriate
penalty will ...be to strike him
from the roll despite the dire
consequences of such a step to him" (per Hefer AP in Law Society
of the Cape of Good Hope v
Budricks
2003 (2) SA 11
(SCA) at par {11};
c) By applying for a suspension only - as the Society has to the
court's knowledge done as a matter of course
in recent years -
against the background of the gravity of the respondent's conduct the
applicant leaves the court with no option
but to consider an order
striking off the offending practitioner on its own initiative. It
must be remembered that in disciplinary
matters the Society may
feature as applicant on the papers without being a party to the
proceedings. As custos morum of the profession
it brings offending
behaviour to the court's notice, but the resultant hearing is an
inquiry conducted by the court into the behaviour
of its officer's
fitness to remain on the roll of practitioners. The applicant fulfils
the role of an amicus curiae. In principle,
nothing prevents the
court from initiating the inquiry into an errant attorney's conduct
itself if it comes to the court's notice
in whatever fashion. In the
rare instance of severe professional misconduct in facie curiae a
single judge is empowered to suspend
or strike the offending
practitioner off there and then. In an instance such as the present,
however, the respondent is as yet
unaware of the court's prima facie
view that he should be struck off. It is not beyond the realm of
possibility that the respondent
may have decided not to oppose an
application for his suspension, but would oppose an application for
his name being struck. He
has a fundamental right to consider, and,
if so minded, to pursue that course. The court can therefore only
issue a rule nisi at
this stage, calling upon the respondent to show
cause why his name should not be struck off the roll, while
suspending him pending
the return date. This amounts to a waste of
valuable resources of manpower and time. It also adds the costs of a
second appearance
by the applicant's legal representative to the
punitive costs order that is usually issued against the respondent in
proceedings
of this nature; d) Prima facie, therefore, it would be
preferable if the Society were in future, in all applications in
which the
gravity of the respondent's alleged misconduct is such that
the court might consider a striking off order, to provide for this
alternative in the notice of motion to accelerate the finalisation of
disciplinary matters. The systemic delay that is evident from
the
unacceptably long period it took to bring this matter to finality is
exacerbated if another appearance presided over by two
judges of a
very busy division becomes necessary. Dishonest attorneys must be
laid by the heels as soon as possible. At present
the earliest
available court days for the enrolment of new disciplinary
applications are in 2013. It is clear that this state of
affairs is
unacceptable and creates real dangers that unsuspecting member of the
public fall prey to criminal conduct of the nature
evident in this
matter, because the opportunity for further nefarious conduct is
created while applications for suspension or striking
off of thieving
practitioners have to take their place in the two year queue.
13.
In order to better understand the challenges facing the respondent,
the court reserved judgment and requested the applicant
to indicate
in an affidavit by its Director:
a)
How many pending complaints of misconduct there were against
attorneys at date of the hearing;
b)
How many complaints still needed to be investigated;
c)
How many indefinite suspension and striking applications there were
pending before the court;
d)
Did the Society regard the two year delay from the start of
disciplinary proceedings to the final hearing as acceptable?
e)
Did the Society have the capacity to deal with these matters?
14.The
answers provided by Mr Grobler, who kindly responded to the court's
inquiries, cast a very sorry reflection upon the state
of affairs in
the legal profession. There are no less that 4590 complaints pending
against practitioners under the applicant's
jurisdiction, of which
4117 were still under investigation at the date of the hearing; 473
of which still had to be heard by the
applicant's disciplinary
committee. 58 applications for suspension and 121 removal
applications were pending with trial dates having
been allocated to
them.
15.
Neither the applicant nor the court can be satisfied with these
statistics. The Honourable Deputy Judge President has therefore
engaged the Council of the Society with an eye to adapt the practice
manual of this Division in co-operation with the applicant's
Council
to address the existing backlogs and to accelerate the disposal of
future disciplinary applications.
16.As
far as the present matter is concerned there is more than sufficient
evidence to come to the conclusion that a rule should
issue calling
upon the respondent to show cause why he should not be struck off.
For the reasons set out above the following order
is made:
1.
A rule nisi is issued with return date on 9th May 2012 at 09h30
calling on
the respondent to show cause why
a)
He should not be struck off the roll of attorneys and conveyancers;
and why
b)
He should not be ordered to pay the applicant's costs on the scale of
attorney and client;
2.
Pending the return date of this order the respondent is suspended
from
practice as an attorney and as a conveyancevin terms of the
draft order
marked Annexure 'A' hereto.
Signed
at Pretoria on this
E
BERTELSMANN
Judge
of the High Court
I
agree.
N
TUCHTEN
Judge
of the High Court
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No: 49385/10
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
......................................
APPLICANT
(Incorporated
as the Law Society of the Transvaal)
and
IGNATIUS
STEFANUS LE
ROUX
.....................................................................
RESPONDENT
DRAFT
ORDER OF COURT
Having
read the papers filed of record and having heard the attorney for the
Applicant,
IT
IS ORDERED
1.
That IGNATIUS STEFANUS LE ROUX (hereinafter referred to as the
respondent) be suspended in his practice as an attorney and
conveyancer
of this Honourable Court.
2.
That the respondent immediately surrenders and deliver to the
registrar of this Honourable Court his certificates of enrolment
as
an attorney and conveyancer 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 take 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 his
trust accounts as detailed in paragraph 5 hereof.
5.
That Johan van Staden, the head: members.affairs of applicant or any
person nominated by him, be appointed as curator bonis (curator)
to
administer and control the trust accounts of respondent, including
accounts relating to insolvent and deceased estates and any
deceased
estate and any estate under curatorship connected with respondent's
practice as an attorney and including, also, the separate
banking
accounts opened and kept by 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:
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 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 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 section 78 (2A) 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 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 respondent's accounting records the names of all
persons on whose account respondent appears to hold or to
have
received trust monies (hereinafter referred to as trust creditors)
and to call upon 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 al!
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 monies in the trust account(s) of 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
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 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 respondent to 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
respondent, if he is
solvent, or, if respondent is insolvent, to the trustee(s) of
respondent's insolvent estate;
5.8
in the event of there being insufficient trust monies in the trust
banking account(s) of 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 respondent immediately delivers his accounting records, records,
files and documents containing particulars and information
relating
to:
6.1
any monies received, held or paid by respondent for or on account of
any person while practising as an attorney;
6.2
any monies invested by 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
respondent;
6.4
any estate of a deceased person or an insolvent estate or an estate
under curatorship administered by respondent, whether as
executor or
trustee or curator or on behalf of the executor, trustee or curator;
6.5
any insolvent estate administered by 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 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 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 respondent as or on behalf of the
liquidator; and
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, respondent shall be entitled to have reasonable
access to
them but always subject to the supervision of such curator or his
nominee.
7.
That should respondent fail to comply with the provisions of the
preceding paragraph of this order on service thereof upon him
or
after a return by the person entrusted with the service thereof that
he has been unable to effect service thereof on respondent
(as the
case may be), the sheriff for the district in which such 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 respondent and/or respondent's clients and/or
fund in respect
of money and/or other property entrusted to respondent provided that
any person entitled thereto shall be granted
reasonable access
thereto and shall be permitted to make copies thereof.
9.
That respondent be and is hereby removed from office as:
9.1
executor of any estate of which respondent has been appointed in
terms of
section 54(1)(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)
;
9.2
curator or guardian of any minor or other person's property in terms
of
section 72(1)
read with
section 54(1)(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 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
respondent;
10.2
to pay the reasonable fees of the auditor engaged by 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; and
10.5
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 him (respondent) in respect
of his former
practice, and should he fail to do so, he shall not be entitled to
recover such fees and disbursements from the curator
without
prejudice, however, to such rights (if any) as he 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 THE COURT REGISTRAR