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2007
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[2007] ZAGPPHC 1
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Law Society of Northern Provinces v Nqoko and Others (10150/07) [2007] ZAGPPHC 1 (10 May 2007)
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
PRETORIA
CASE
NO
: 10150/07
DATE:
2007-05-10
In
the matter between:
LAW
SOCIETY OF THE NORTHERN PROVINCES
Applicant
and
A
P G P NQOKO AND OTHERS
1
st
Respondent
JONGIKAYA
GWE
2
nd
Respondent
FUNDILE
NCWANA
3
rd
Respondent
JUDGMENT
BOSIELO,
J
: This is an ex tempore judgment.
This application has two legs. The first leg relates to the
suspension of the respondents from
practicing as attorneys while the
second leg, which forms part B of the notice of motion which is not
for consideration today,
relates the ultimate striking off of the
three respondents from the roll of attorneys.
This
matter came before me by way of urgency. I interpose to state that I
have been placed in possession of correspondence from
attorneys
purporting to represent the first and the third respondent to the
effect that first and third respondents do not intent
to oppose part
A of this proceedings but that they reserve their rights to oppose
part B of this application. As I have already
alluded to part B of
this application relates to the ultimate and final striking off of
the applicants from the roll of attorneys.
Consequently, based on the
two letter referred to above an order will be made as against the
first and third respondents as prayed
for by the applicant in terms
of prayer 1.2 of the notice of motion.I will deal with the other
prayers later in the course of this
judgment.
I
find it necessary to state that the position of the second respondent
is somewhat different to that of the first and third respondents.
In
the sense that this application is vigorously opposed by the second
respondent. In addition thereto, the second respondent has
duly filed
a notice of a counter application. The effect thereof is to issue a
directive to the applicant, The Law Society of the
Northern Provinces
[incorporated as the Law Society of the Transvaal], to issue to the
second respondent a fidelity fund certificate
in terms of the
provisions of section 42(3) of the Attorneys Act, 53 of 1979 as
amended for the period ending 31 December 2007.
In his answering
affidavit the second respondent pertinently raise the issue of
urgency in this proceedings. As a result of that
approach by the
second respondent the applicant deemed it fit to address and deal
pertinently with that issue. This issue was to
a large extent
canvassed and covered in the applicant’s replying affidavit
deposed to by one Mr Hussain who, according to
the papers, is the
current President of the Law Society of the Northern Provinces.
The
essence of the response by Mr Hussain on the issue of urgency as it
appears from his replying affidavit is the fact that the
Law Society
has a responsibility to the general members of the public to ensure
that they are properly protected against unscrupulous
legal
practitioners. He had furthermore giving the nature and the
seriousness of the allegations made against the respective
respondents
as contained in the reports submitted by the Law
Society's auditor in the name of Farris that it is in the interest of
the public
that this matter be heard as a matter of urgency. It is so
that this court being an urgent court is obliged to investigate the
question of urgency to determine whether this is the kind of matter
that requires to be dealt with in the urgent court as a preliminary
issue.
My
careful reading of the documents filed and the averments contained in
the various affidavits has revealed the following. That
on or about
November 2006 the applicant issued instructions to Farris to
investigate the law firm where the three respondents were
partners
which practice under the name and style of Nqoko, Ncwana & Gwe
Incorporated which was situated in Johannesburg. It
is clear from the
papers that notwithstanding some initial problems in locating the
managing partner of this firm, Mr Nqoko, ultimately
Farris succeeded
therein in securing a meeting with the said Mr Nqoko which ultimately
enabled the said Farris to undertake his
investigation of the affairs
of this partnership.
It
is common cause, this is fully supported by the affidavit of Farris
himself, that on 20 December 2006 he furnished and submitted
his
report to the applicant. It is not in dispute that amongst other
things in that report Farris reported about the unsatisfactory
financial affairs of this partnership, the fact that the books of
account of this partnership were not been kept at the office
of this
partnership. The fact that he discovered certain trust deficit in the
trust account of this partnership and of importance,
the fact that
this partnership had not submitted a rule 70 report as is required in
terms of the rules of the Law Society. What
is also remarkable is the
fact that having received this report on 20 December 2006 the Law
Society took some time in terms of
its own internal processes to
consider this report and in all likelihood to secure the necessary
resolution of the council authorising
them to take appropriate and
further steps against the respondents.
According
to the affidavit by the applicant on 7 February 2007 instructions
were sent to the Law Society’s attorneys to institute
this
application against the respondents. Having spent some time to
prepare and settle the founding affidavit supporting this application
that affidavit which was duly completed was sent to the Law Society
for signature on 15 February 2007. However, according to Mr
Hussain
the President of the Law Society, he needed time to read, peruse and
consider the founding affidavit and could only sign
it on 1 March
2007 which therefore enabled this application to be issued on 15
March 2007.
It
should be clear here from that the Law Society should have known as
far back as 20 December 2006, having received the report
from Farris
which underpins this application, that there was serious problems in
the partnership comprising of the respondents
before this court. As
alluded to earlier on justification for this application being
brought on urgency is the allegation by the
Law Society that it
cannot afford to delay any further because by so doing members of the
public are unduly expose to the risk
of attorneys who are practicing
without a fidelity fund certificate. It is not in dispute that
notwithstanding this realisation
by the Law Society the Law Society
delayed for a period of two months before this application could be
formally launched. To my
mind, the Law Society has not satisfactorily
explained in its affidavit, including the replying affidavit, where
attempts were
made to address this issue of the patent delay in
hearing this application in particularly having received the clear
report from
Farris on 20 December 2006.
Giving
the concession and the undertakings made by first and third
respondents I fail to understand how members of the public will
still
be exposed to the risk of harm particularly emanating from the first
and third respondents who have undertaken to abide by
an order of
this court to have them suspended from practicing until part B of
this application is considered and finalised. I have
already alluded
to the fact that the position of the second respondent differ
somewhat from that of first respondent and the third
respondent. I
find it necessary at this stage to state that in so much as
appreciate the duty of the Law Society to protect the
general public
and to act responsibly I also hold the view that the Law Society owes
its own members the same duty to act responsibly
and with compassion.
I
have listened carefully to Mr Ganya arguing on behalf of the
applicant but at some stage I got a clear impression that he does
not
seem to have an understanding of the position in which the second
respondent found himself. It is indeed so that the second
respondent
considered that he subsequently became aware that at the time when he
left this partnership there was a deficit of some
R35 000 in the
trust account of this partnership. His explanation as to why he was
not aware as at that time and during the time
when he was a partner
in this firm it that it is due to the fact that the first respondent
was exclusively responsible for the
day-to-day management including
the financial management of this firm. It is not disputed, that
having been made aware of the inability
or the failure by the former
partnership to submit the rule 70 certificate, that the second
respondent did everything within his
powers to investigate the cause
thereof and put pressure on the first respondent who was responsible
for the day to day running
of the partnership to ensure that this
certificate is timeously prepared and submitted to the applicant.
It
is furthermore not disputed that in the course of those frantic
efforts he communicated with the bookkeeper for the former
partnership
who was responsible for preparing and finalising the rule
70 certificate and that the second respondent was given the assurance
that that certificate would be submitted in due course. I was
reliably informed from the bar in the course of the submission, which
report was not controverted, that the rule 70 report has since been
submitted to the Law Society although it is qualified. However,
a
point that I consider to be of critical importance is the fact that
with effect from September 2005 when the second respondent
left the
former partnership and open up his own partnership to date hereof, he
has conducted a partnership or a practice where
he was exclusively
responsible for his own books of account and that in fact he has
already submitted his rule 70 report in respect
of his own practice
which was met with the approval of the applicant in this matter. The
problem relates to his application for
a new fidelity fund
certificate which he submitted as is required by the rules which the
applicant refuses to consider based initially
on the failure to
submit the rule 70 certificate in respect of the old partnership. As
the evidence unfolded in this matter, it
now appears that that report
has since been submitted to the Law Society but that it has been
disqualified.
In
my view, this seem to tally with. the assertion by the respondent
that whatever problems which existed during his partnership
with his
previous partners i.e. the first and the third respondent were the
result of conduct on the part of the first respondent
which could not
be attributed to him. I venture to state that the fact that
subsequent to the dissolution of that partnership and
second
respondent now operating on his own and the fact that there is no
evidence that there is any trust deficit or any contravention
of any
of the rules relating to trust accounts relating to his own practice,
is ample proof of the fact that it cannot be said
that the second
respondent is not a fit and proper person to be allowed to practice
the profession of an attorney. It may well
be that a case can be made
out that the second respondent was not diligent or vigilant during
the time at the former partnership
to ensure the first respondent to
complies with the rules of the Law Society strictly. That in any
event, in my view, would amount
to negligence as oppose to
intentional and deliberate contravention of the rules of the Law
Society. The question that one would
need to answer in that context
therefore would be is that negligence which has been attributed to
the second respondent of such
a gross nature that it would justify
the inference that the second respondent is not a fit and proper
person to be allowed to practice
as an attorney.
I
am not required in this application to pronounce myself or express a
view as to whether the second respondent is in fact a fit
and proper
person to practice as an attorney. I understand my task to be to
determine whether the applicant has demonstrated on
the admitted
evidence that there is some prima facie evidence which will justify
the court hearing ultimate the application to
come to a finding that
the respondent is not a fit and proper person to be an attorney and
that therefore he should be struck off
the roll.
Mr
Ganya appearing for the applicant argued quite strenuously and
correctly that the applicant cannot afford to have its members
practicing as either attorneys, conveyors or notaries who are not in
possession of a valid fidelity fund certificate because it
denies
members of the public the protection which they found would
ordinarily be extend to them in the event where there is theft
of
trust monies by such practicing attorneys. I do not think that
anybody could argue to the contrary unless one first appreciates
the
very reason and significance why the attorneys’ fidelity fund
was set up. However, in the case of the second respondent
justice and
fairness requires that I should go beyond the mere fact that he does
not have a fidelity certificate. I should require
as to the reason
why he does not have a valid fidelity fund certificate. Initially the
applicant said that the second respondent
is not is not entitled to a
fidelity fund certificate because he together with his former
partners failed to submit a rule 70 certificate
as required by the
rules of the Law Society.
That
argument was subsequently water down to the fact that although that a
rule 70 certificate has now been furnished it is qualified
and in
terms of the rules of the Law Society a fidelity fund certificate
cannot be issued where the report is qualified. It is
not in dispute
that the reason why this report is qualifies amongst others relates
to the trust shortages which were found in the
accounts of this
partnership as well as the fact that the books were not properly
kept. At a risk of repetition,
I
have already alluded to the fact that the second respondent’s
version is that this fault lies exclusively with the first
respondent
who had the responsibility to ensure that the books of account of
this firm were properly kept and that the proper reports
were
submitted to the applicant as is required.
It
is remarkably and noteworthy that the assertion by the second
respondent that the books of his old firm starting from October
2005
until today are in order and strictly in accordance with the
statutory requirements laid down by the Attorneys Admission Act
has
not been controverted by the applicant. All that the applicant has
said in response thereto is that that period is irrelevant
for
purposes of this application. In. my view that response is
disingenuous to say the least, as I am of the view that the fact
that
as from October 2005 up until today there is no evidence that the
second respondent has made himself guilty of any contravention
of the
rules and the act governing the attorney profession, save for the
fact that he does not have a fidelity fund certificate,
is sufficient
proof to me that he is still a fit an proper person to be allowed to
practice as an attorney. I am mindful of the
fact that for him to be
able to continue to practice properly and lawfully he requires to be
issued with a current and valid fidelity
fund certificate by the Law
Society. The Law Society has made it very clear that despite •
the fact that he has submitted
an application to be issued with a
fidelity fund certificate accompanied by a rule 7 certificate which
is unqualified it does not
intent to issue the required fidelity fund
certificate to the respondent.
I
do not think that the Law Society is acting properly and responsibly
in that regard. The Law Society, in my view, is creating
circumstances wittingly or unwittingly which have the effect of
making it impossible for the second respondent to practice without
falling foul of the rules and the act governing attorneys in this
country. I am of the view that the Law Society has an obligation
to
properly consider the second respondent’s application for a
fidelity fund certificate which is currently serving before
the Law
Society expeditiously and without any unnecessary delay and to
determine whether to issue that certificate to the second
respondent
or not. I wish to add, that I hereby ask the Law
Society
to do it as soon as it is reasonably possible in order to ensure the
second respondent is unnecessary and unjustifiably
denied his
constitutionally protected right to pursue his lawful career.
I
have already alluded to the fact that I am not persuaded that the Law
Society has set out sufficient and cogent reasons, giving
the history
of this matter, why this matter came before me on urgency. I am not
satisfied that, save for the conduct of the applicant,
the second
respondent poses any potential and/or actually or imminent danger to
members of the public. Under the circumstances,
I therefore find that
this application is not urgent, it should not have been argued before
me. However, given the fact that the
first respondent and the third
respondent are not opposing this application and are willing to abide
by .their suspension I am
of the view that in the circumstances the
following order would be appropriate:
1.
That in terms of the undertakings and tenders made by the first and
the third respondents is hereby suspended from practicing
as
attorneys with effect from today pending the final determination of
this application.
2.
The first and third respondents are hereby ordered to surrender and
deliver to the Registrar of this court their certificates
of
annulment as attorneys of this court.
3.
That should the first and third respondent fail to comply with 2
above on service of this order upon them the sheriff of this
court is
hereby authorised, empowered and directed to take into his immediate
possession the certificate of annulment in respect
of both
first and third respondents.
4.
The orders as e embodied and reflected in prayer 1.5, 1.6., 1.6.1,
1.6.2, 1.6.3, 1.6.4, 1.6.5, 1.6.7, 1.6.8, 1.6.9, 1.6.10, up
to 1.11,
that is inclusive of 1.11, I hereby granted in respect of the first
respondent and the third respondent.
5.
Insofar as the second respondent is concerned, save for the comments
I have made about urgency, I am not satisfied that the applicant
has made out a case to have the respondent suspended from
practicing as an attorney and consequently the prayer the prayer
with
regard to the second respondent is hereby dismissed.
6.
With regards to the counter application by the second respondent the
applicant is hereby ordered to give prompt and proper consideration
to the application furnished to it by the second respondent to be
issued with a fidelity fund certificate and to communicate its
decision to the second respondent within 20 days of the order.
7.
The costs of this application insofar as it relates to the second
respondent are reserved and will be dealt with during the considering
of part B of this application