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[2008] ZAWCHC 300
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Law Society of Cape of Good Hope v Mgwebile (13516/2008) [2008] ZAWCHC 300 (19 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
13516/2008
DATE
: 19
NOVEMBER 2008
In
the matter between:
LAW
SOCIETY OF THE CAPE OF
GOOD
HOPE
APPLICANT
versus
P
M MGWEBILE
RESPONDENT
JUDGMENT
GAUNTLETT.
A J
:
In
this matter, the Law Society of the Cape seeks an order against the
respondent directing him:
"To
produce for inspection the office file and trust ledger account
relating to the matter of Ms Mbaliswana, as requested
on 25 March
2008
r
within
10 (ten days) of the date of the granting of this order, together
with an order as to costs."
Brieffy
,
Ms Mantane, a councillor of the Law Society, has deposed to the fact
that the Law Society is engaged in investigating a complaint
by a
Mrs C Howie on behalf of a domestic worker, Ms MbaMswana. It appears
that it is alleged that Ms Mbaliswana had engaged the
respondent to
represent her son in relation to a criminal defence matter. The
contention furthermore is that the respondent had
charged an
excessive fee in relation to the conduct of that matter, which was
discovered by Mrs Howie on her return from Sloemfontein
earlier this
year.
The
affidavit refers to the provisions of section 70(1) of the Attorneys
Act, which empowers the Law Society to demand any practitioner
to
produce for inspection:-
"...
any book, record or thing which is in the possession or custody or
under the control of such practitioner and which
relates to his
practice...
The
respondent was previously found guilty of unprofessional conduct on
12 November 2007 for contravening Law Society Rule 14.3.7
in that he
had failed to account faithfully, accurately and timeously for the
R5 000,00 paid to him on behalf of Ms Mbaliswana.
Following, it is
said, a failure by him to respond, the applicant instructed the
sheriff on 25 March 2008 to uplift the client
file and the trust
ledger account relating to Ms Mbaliswana from the respondent's
office, pursuant to the provisions of section
70,
The
affidavit further records the fact that the sheriff has made six
attempts to serve a letter of demand and to uplift the file
and
trust ledger account, but on each occasion the sheriff attended at
the respondent's office, the respondent was not available.
Appearing
before me in person, the respondent has applied for a postponement
of this application.
In
support of this
application
he has tendered an affidavit which addresses the following. First of
ali, he seeks to explain the delay between the
service of the
application on 20 October 2008 and the filing of the affidavit by
stating that he was first advised on 12 November
2008 by his
secretary that they had indeed been sewed. The explanation, by way
of hearsay, is that the secretary "forgot
them".
The
explanation relating to the delay since then which is tendered by
the respondent is that:
"Subsequently
to 12 November, I could not attend to the matter as I had trials".
The
respondent attended upon me in chambers yesterday morning, whereupon
he informed me that he intended to seek a postponement
of this
application. I indicated to him that this was a matter in relation
to which I would have to hear argument today in court,
and f advised
him that if he wished to prepare an affidavit, and to engage other
legal representation, he should do so within
the day's opportunity
thus afforded to him. He has since, as I have indicated, tendered
the affidavit in question, in which he
records the fact that he
sought the services of a particular senior counsel, but was informed
that he is in Johannesburg, whereupon
he:
"...
then consulted with another advocate, who advised me to draft an
affidavit to support my application for the postponement".
The
basis of the application before me appears essentially to be that:
"As
this is an old matter arising in 2005, the information I so seek to
prepare for my defence is not easily accessible,
0
It
seems to me that this misconceives the situation. The position is
that the Law Society at this stage seeks no substantive
relief
against the respondent, but an interlocutory order directing the
production for its inspection of an office file and trust
ledger
account, as I have already noted. The respondent was not able to
advance any reason why the reliance by the Law Society
on the
provisions of section 70 is misconceived, nor to explain why the
allegations in that affidavit were not, in the simplest
terms,
traversed by him as a qualified legal practitioner in the affidavit
which he has put forward.
In
the circumstances, it seems to me that no proper basis has been made
out at all for the postponement which has been sought.
I
have also afforded the respondent an opportunity to address me in
relation to the relief sought in the application. As I have
already
indicated, he has had an opportunity to address this both in the
affidavit which he has tendered, and in the course of
oral argument
before me. He has advanced no basis whatsoever as to why the
interlocutory relief sought by the Law Society, against
the
background of the considerable delays to which I have referred and
the multiple efforts by the sheriff to obtain the documents,
should
not be granted.
In
all these circumstances, it seems to me that there
is
no
basis whatsoever which has been established for the failure by the
respondent either to respond in the period since on his
own showing
he had knowledge of this application (that is at least 12 November)
or to respond to the retief sought. In oral argument
before me, he
indicated that the office file and trust ledger account "may"
exist and "may" be held in the
house from which he
evidently conducts his practice. This can be no satisfactory or
acceptable answer. CEearly he is required
by faw to have such
documentation. Moreover, he has had at least since 12 November to
investigate their existence or otherwise,
and to put up the simplest
of affidavits addressing that.
Thirdly,
it would be noted, the Law Society seeks relief in terms which woufd
afford the respondent a full ten days to identify
and to produce the
required documentation, or otherwise to advise the Law Society that
neither the office file or trust ledger
account exist, which may of
course in itself give rise to other proceedings.
In
all the circumstances, I grant an order in terms of the notice of
motion as follows;
1.
Directing the respondent to produce for inspection the office
file and trust ledger account relating to the matter of
Ms
Mbaliswana, as requested on 25 March 2008, within ten days of the
date of the granting of this order;
2.
Directing the respondent to pay the costs of this application."
So
ordered.
GAUNTLETT,
A J