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[2012] ZAGPPHC 334
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Law Society of the Northern Provinces v Ndlovu (12072/2012) [2012] ZAGPPHC 334 (7 December 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
number: 12072/2012
Date:
7 December 2012
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
.............................................
Applicant
And
ROLAND
NDLOVU
…........................................................................................................
Respondent
JUDGMENT
PRETORIUS
J.
[1
] The applicant is applying for the suspension of the respondent from
the roll of attorneys. Although the respondent filed a
notice of
intention to oppose, he failed to serve and file an opposing
affidavit.
[2]
The applicant alleges that the respondent is no longer a fit and
proper person to practice as an attorney. The respondent was
admitted
as an attorney of this court on 23 July 2007 and his name is still on
the roll. He is currently practising as an attorney
of this court as
an associate of the firm Ntabeni attorneys at 509 Central Office
Towers, 286 Pretorius Street, Pretoria.
[3]
The reason for alleging the respondent is no longer fit and proper to
practise as an attorney is that he failed to cooperate
with the Law
Society in a proposed inspection of his accounting records and
practise affairs; failed to timeously submit his Rule
70 auditor’s
report for the year ending 28 February 2009 to the Law Society;
failed to comply with an order of a disciplinary
committee of the
Council; failed to pay the Law Society a fine imposed by a
disciplinary committee of the Council; failed to honour
an
undertaking to the Law Society to pay an outstanding fine; failed to
notify the Law Society of his change of address; failed
to attend
meetings of a disciplinary committee of the Council.
[4]
Mr AWP van Rooyen, a management consultant and forensic investigator,
was instructed by the applicant on 12 January 2010 to
visit the
respondent and to conduct an inspection of his accounting records and
practice affairs. Mr van Rooyen reported to the
society in writing on
19 April 2010. According to Mr van Rooyen’s report the
respondent failed to cooperate with Mr van Rooyen
and to furnish the
Law Society with his proper accounting records.
[5]
On 19 August 2010 the applicant notified the respondent to appear
before a disciplinary committee of the Council on 15 September
2010
to answer to the charges of contravention of Rules 89.25; 70.4 read
with 70.3; 76.2 read with Rules 76.1.2 and 76.1.3.1.
[6]
The respondent failed to attend the disciplinary hearing on 15
September 2010. On 17 December 2010 the respondent was notified
to
appear before a disciplinary committee of the council on 16 February
2011 on the abovementioned charges, as well as a charge
that he is
guilty of unprofessional or dishonourable or unworthy conduct on the
part of a practitioner in that he failed to appear
before a
disciplinary committee of the Council of the Law Society of the
Northern Provinces at a meeting held on 15 September 2010,
although
he was duly requested to do so.
[7]
Once more the respondent failed to attend the disciplinary
proceedings of the committee on 16 February 2011. On 18 February
2011
a meeting took place between the respondent and Mr Jaco Fourie, a
senior legal official in the employ of the Law Society.
The
respondent undertook to pay the fine. He furthermore undertook to
furnish the required information.
[8]
Thereafter the respondent did not contact the applicant at all, which
resulted in the applicant to proceed with further disciplinary
proceedings. After notification of a disciplinary hearing which would
take place on 20 July 2011, the respondent failed to attend.
[9]
The disciplinary committee proceeded with the hearing in the absence
of the respondent and found him guilty of not co-operating
with the
applicant’s investigator (Rule 89.25); failing to pay the fine
imposed by the disciplinary committee on 24 November
2009 (Rule
89.25); failing to honour his undertaking to Mr Fourie on 18 February
2011; failing to supply the applicant with his
change of address
(Rule 3); conduct unbecoming an attorney by failing to attend the
disciplinary hearing on 15 September 2012;
and failing to attend a
disciplinary hearing on 16 February 2011.
[10]
The respondent was informed of these findings by the disciplinary
committee by letter on 26 July 2011. A written report in
terms of
rule 101 was compiled by the disciplinary committee on 16 August
2011.
[11]
On 24 August 2011 the applicant addressed a letter to the respondent
furnishing him with the report and inviting him to furnish
the
applicant with his comments, if any, by 23 November 2011. The
respondent - failed to do so.
[12]
The conduct which amounts to unprofessional, dishonourable or
unworthy conduct is that the respondent contravened at least
the
following provisions of the Attorney’s Act and the Law
Society’s Rules: failed to cooperate with the Law Society
in an
inspection (Section 70); failed to notify the Law Society of his
change of address (Rule 3); failed to submit a Rule 70 report
timeously (Rule 70); failed to submit a closing auditor’s
report (Rule 76); failed to reply to correspondence (Rule 89.23);
failed to cooperate with the Law Society; failed to return telephone
messages; failed to comply with an order of a disciplinary
committee;
failed to pay a fine imposed by the disciplinary committee (Rule
89.23)
[13]
In Jasat v Natal Law Society
2000 (3) SA 44
(SCA) the Supreme Court
of Appeal held that there are three stages in an application for
suspension or striking off the roll of
an attorney:
““
First,
the Court must decide whether the alleged offending conduct has been
established on a preponderance of probabilities. The
second inquiry
is whether, as stated in s 22(1)(d), the person concerned 'in the
discretion of the Court' is not a fit and proper
person to continue
to practise. The third inquiry is whether in all the circumstances
the person in question is to be removed from
the roll of attorneys or
whether an order suspending him from practice for a specified period
will suffice.
[14]
The court has taken all the charges and the respondent’s lack
of explanation since February 2009 into consideration.
The respondent
has had several chances to redeem himself, but has failed to do so.
He has not communicated with the respondent
at ail since his meeting
with Mr Fourie. A person who does not comply with the Law Society’s
rules and do not defer to the
Law Society should not be allowed to
practice as there is no guarantee that the public will not be
prejudiced by the applicant’s
actions. The only conclusion the
court can draw is that the respondent is no longer a fit and proper
person to practice as an attorney
and he should be suspended.
[15]
It is ordered:
1.
That Roland Ndlovu (the respondent) is suspended from the roll in
his practice as an attorney of this Honourable Court.
2.
That respondent immediately surrenders and delivers to the registrar
of this Honourable Court his certificate of enrolment as
an attorney
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 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
ail 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);
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 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 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, first 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; and
8.3
publish this order or an abridged version thereof in any newspaper he
considers appropriate.
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)
;
0in
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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;
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 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 creditors) 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.
Judge
C Pretorius
I
agree,
Judge
EM Kubushi
Case
number : 12072/2012
Heard
on : 7 December 2012
For
the Applicant / Plaintiff : Mnr Bloem
Instructed
by: Rooth Wessels Attorneys
For
the Respondent / Defendant ;
Instructed
by
Date
of Judgment : 7 December 2012