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2008
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[2008] ZAFSHC 86
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Law Society of Free State v Mynhardt (nee Mostert) (3983/2008) [2008] ZAFSHC 86 (14 August 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 3983/2008
In the case between:
THE LAW SOCIETY OF
THE FREE STATE
Applicant
and
ADéLE
JOHANNA MYNHARDT (neé MOSTERT)
Respondent
_____________________________________________________
CORAM:
HANCKE, J
et
RAMPAI, J
JUDGMENT:
HANCKE, J
_____________________________________________________
HEARD ON:
14 AUGUST 2008
_____________________________________________________
DELIVERED ON:
14 AUGUST 2008
_____________________________________________________
[1] This is an
application wherein applicant seeks an order that respondent’s
name be struck off the roll of attorneys, alternatively
that she be
suspended from practice for such period and on such conditions as
this Court may deem fit, together with the customary
ancillary
relief. The application is not opposed by the respondent.
[2] It is the applicant’s
case that the respondent is not a fit and proper person to practice
as an attorney for the following
reasons:
2.1 She failed to file an
unqualified audit report in accordance with the provisions of rule 16
of the applicant’s rules,
which report was due on 31 Augustus
2006;
2.2 She failed to adhere
to the provisions pertaining to winding down of her practice in terms
of rule 3B of the applicant’s
rules;
2.3 She failed to keep
proper books of account as is required by applicant’s rules and
the Act;
2.4 She misappropriated
trust moneys in an amount of at least R435 000,00 (four hundred and
thirty five thousand rand).
[3] An attorney may be
struck from the roll or suspended from practice if the person “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
Attorney’s Act, 53 of 1979.
[4] As far as the duties
of the courts are concerned, Hefer AP stated the following in
LAW
SOCIETY OF THE CAPE OF GOOD HOPE v BUDRICKS
,
2003 (2) SA 11
(SCA) at 16B – F:
“
the Courts exercise supervisory
powers over the conduct of attorneys, not only in order to discipline
an punish errant practitioners,
but also, and more importantly
(particularly in cases like the present one where trust money was
misappropriated) in order to protect
the public.”
[5] As far as trust money
is concerned, the following is stated in
LAW
SOCIETY TRANSVAAL v MATTHEWS
1989 (4) SA 389
(T) at 394:
“
An attorney’s duty in
regard to the preservation of trust money is a fundamental, positive
and unqualified duty.”
[6] It is evident from
the papers that the respondent is not a fit and proper person to
practice as an attorney. On her own admissions
as well as supporting
documents she misappropriated a huge amount of trust money, she did
not keep proper accounting records and
as a consequence of her
dishonesty and failure to comply with the applicant’s rules and
the Act, I am satisfied that the
applicant has made out a case that
the respondent be struck off the roll of attorneys of this court.
[6] Accordingly the
following order is made:
(a) The respondent is
struck off the roll of attorneys of the High Court of South Africa
(Free State Provincial Division);
(b) A further order is
granted in terms of prayers 2.1 – 11 of the Notice of Motion.
__________________
S. P. B. HANCKE, J
I agree.
__________________
M. H. RAMPAI, J
On behalf of the
applicant: Adv. J. P. Daffue
Instructed by:
Bezuidenhout Inc.
BLOEMFONTEIN
/EM