Law Society of the Free State v Chabane (2273/2009) [2009] ZAFSHC 76 (11 June 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2009
>>
[2009] ZAFSHC 76
|

|

Law Society of the Free State v Chabane (2273/2009) [2009] ZAFSHC 76 (11 June 2009)

FREE
STATE
HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 2273/2009
In the
case between:
-
THE
LAW SOCIETY OF THE FREE STATE
Applicant
and
MOLISE
CECIL CHABANE
Respondent
_______________________________________________________
CORAM:
HANCKE,
AJP
et
MOLEMELA,
J
_______________________________________________________
HEARD
ON:
11
JUNE 2009
_______________________________________________________
JUDGMENT
BY:
HANCKE, AJP
_______________________________________________________
DELIVERED:
11
JUNE 2009
____________________________________________________
___
[1] This
is an application for an order in terms whereof the respondent be
struck off the roll of attorneys, alternative
ly
be suspended from practice for such period and on such conditions as
this Court may deem fit, together with ancillary relief.
The
application is unopposed.
[2] In its founding
affidavit the President of the applicant, Mr. Hendrik Cornelius van
Rooyen, alleges that the respondent is not
a fit and proper person to
practise as an attorney of this Court for the following reasons:
“
5.1 Respondent
unlawfully
withdrew several amounts totalling
R58
607.01
from the bank account in the estate of late RJ Nyetanyane. The
executrix in this estate, Elsie Ntebaleng Nyetanyane, was at all

relevant stages unaware of these withdrawals, neither consented
thereto, nor ratified same. The money was withdrawn by respondent

for his personal purposes and not paid back. The action of the
respondent is considered to be theft.
The total loss to
the estate is the amount of
R58
607.01
.
Notwithstanding respondent’s
statutory obligation and several directions and requests by
applicant, his audit report in accordance
with Rule 16 of
Applicant’s Rules for the year ending 28 February 2008, which had
to be lodged with applicant on or before
31 August 2008, is still
outstanding.”
[3] An
attorney may be struck from the roll “if he in the discretion of
the court, is not a fit and proper person to continue
to practise as
an attorney”. (Section 22(1)(d) of the
Attorneys
Act, 53 of 1979.)
[4] The
practical manner in which the
Courts
exercise their disciplinary powers was trite and the enquiry was
threefold. The court should first decide whether the alleged

offending conduct had been established. If the answer was yes, a
value judgment was required to decide whether the person concerned

was not a fit and proper person as envisaged in section 22(1) of the
Attorneys Act. And, if the answer was again in the affirmative,
the
court should decide, in the exercise of its discretion, whether, in
all the circumstances of the case, the person in question
was to be
removed from the roll or merely suspended from practice.
LAW
SOCIETY OF THE CAPE OF GOOD HOPE v BUDRICKS
2003 (2) SA 11
(SCA) at 13 J – 14 B.
[5] There
is no doubt that the attorneys’ profession is an honourable
profession, which demands a high degree of honesty and integrity
from
its members. See:
SUMMERLEY
v LAW SOCIETY, NORTHERN PROVINCES
2006 (5) SA 613
(SCA). Dishonesty of a member in general justifies
the conclusion that an attorney is not a fit and proper person to
continue
to practise as such. See
MALAN
v LAW SOCIETY, NORTHERN PROVINCES
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA) at 221 par. [10].
[6] Apart
from the fact that the respondent is guilty of theft of trust monies,
he is also guilty of misconduct and the breach of
applicant’s Rule
17(24) insofar as he neglected or refused to reply to the letters of
applicant’s executive officer. Furthermore,
he is also guilty of
misconduct and unprofessional conduct insofar as he has failed to
file the required audit report in terms
of Rule 16 and is therefore
practising without a Fidelity Fund Certificate being issued to him.
See sections 41 and 78(4) of the
Act;
CIROTA
AND ANOTHER v LAW SOCIETY, TRANSVAAL
1979 (1) SA 172
(A) at 193 F.
[7] In
view of the aforegoing the applicant has shown, on a balance of
probabilities, that the respondent is guilty of misappropriation
of
trust funds which amounts to theft of trust monies and a
transgression of the Act and the applicant’s Rules which at best

for the respondent, should be labelled as unprofessional conduct. I
am therefore of the view that the respondent is not a fit
and proper
person to practise as an attorney.
[8] Accordingly
the respondent is struck off the roll of attorneys and a further
order is granted in terms of prayers 2 to 11 of the Notice of
Motion.
__________________
S.P.B. HANCKE, AJP
I
concur.
__
_______________
M.B. MOLEMELA, J
On behalf of
applicant: Adv. J.P. Daffue SC
Instructed by:
Azar & Havenga
Inc
BLOEMFONTEIN
On behalf of
respondent: No appearance.
/sp