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[2024] ZAFSHC 183
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South African Legal Practice Council v Matee (2012/2024) [2024] ZAFSHC 183 (6 June 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
Case
No. 2012/2024
In
the matter between:
SOUTH
AFRICAN LEGAL PRACTICE COUNCIL;APPLICANT
And
KABELO
MATEE;RESPONDENT
CORAM:
DANISO, J
et
MAJOSI, AJ
HEARD
ON:
02 MAY 2024
JUDGMENT
BY:
MAJOSI, AJ
DELIVERED
ON:
06 JUNE 2024
INTRODUCTION
[1]
The applicant
launched an urgent application in terms of section 43 of the Legal
Practice
Act
28 of 2014
("the Act") to suspend
the
respondent, an attorney practicing under the name and style Matee
Attorney from the roll of practicing legal practitioners of
the High
Court pending the outcome of a disciplinary hearing alternatively,
for such a period the court deems fit with the usual
orders which
would accompany an order for suspension.
[2]
The
application was opposed by the respondent.
[3]
On
12 April 2024 the application served before Daffue J, a rule nisi
returnable on 2 May 2024 was issued
[1]
on the following terms:
"3.1.
The
Respondent be suspended from the roll of practising legal
practitioners of the High Court of South Africa pending the outcome

of
a
disciplinary
hearing to be conducted by the Disciplinary Committee of the Legal
Practice Council LPG ("the DC”) and/or
the Criminal
Investigations under Gas number 14/01/2024
3.2.
The
Respondent shall immediately surrender and deliver to the Registrar
of this Honourable Court, his certificate of admission as
a
legal
practitioner of this Honourable Court.
3.3.
In the
event of the Respondent failing to comply with paragraph 2 supra,
within two (2) weeks from the date of service of this order
on him,
the sheriff is authorized and directed to take possession of the
certificate and to hand it to the Registrar of this Honourable
Court.
3.4.
The
Respondent or any of his employees be prohibited, with immediate
effect, from handling or operating on any accounts detailed
in
paragraph
7
infra.
3.5.
The
Director and/or the Acting Director, or a Nominee of the Free State
Provincial Council of the Applicant be appointed
as
the Curator
Bonis of the Respondent, to administer and control the trust accounts
of the Respondent, and any accounts relating to
insolvent and
deceased estates and any deceased estate and any estate under
Curatorship connected with Respondent's practice as
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 86(1)
of the
Legal Practice Act (LPA
) and/or any separate
savings or interest­ bearing accounts
as
contemplated
by
Section 86(3)
and/or
Section 86(4)
of the LPA, 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:
[a]
immediately
to take possession of the Respondent's accounting records, records,
files and documents in relation to her practice
as a legal
practitioner and to sign all 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 the
Respondent was acting at the date of
this order;
[b]
where
monies have 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 the Respondent in respect of monies
held,
received and/or invested by the Respondent in terms of
Section
86(1)
and/or
Section
86(3)
and/or
Section
86(4)
of
the
LPA
(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 the Respondent was and
may still have been concerned and to receive
such monies and to pay
same
to
the credit of the trust account(s);
[c]
to
ascertain from the Respondent's accounting records the names of all
persons on whose account the Respondent appears to hold or
to have
received trust monies (hereinafter referred to
as
"trust
creditors'? and to call upon the Respondent to furnish him/her,
within 30 (thirty)
days
of the date
of service of this order or such further period
as
he/she may
agree to in writing, with the names and addresses of and the amounts
due to all trust creditors;
[d]
to call
upon such trust creditors to furnish such proof, information and/or
affidavits as he/she may require as to enable him/her
to determine
whether any such trust creditor has
a
claim in
respect of monies in the trust account(s) of the Respondent, and if
so, the amount of such claim;
[e]
except
where a trust deficit is determined, to admit or reject, in whole or
in part, subject to the approval of the (LPFF) Board,
the claims of
any such trust creditor, without prejudice to such trust creditor's
right of access to the civil courts;
[f]
having
determined the amounts which, he/she considers are lawfully due to
trust creditors, to pay such claims in full, but subject
to the
approval of the LPFF Board;
[g]
in the
event of there being any surplus in the trust account(s) of the
Respondent after payment of the admitted claims of all trust

creditors in full to utilize such surplus to settle or reduce (as the
case may be), firstly, any interest due to the Legal Practitioners'

Fidelity Fund in terms of
Section 86(5)
of the LPA, secondly, any
curatorship fees and disbursements and costs and expenses payable by
the Respondent in terms of this
Order, and thirdly, to pay such
balance to the Respondent
,
or duly
authorized representative/trustee/executor subject to the terms
contained in this Order;
[h]
in the
event of there being
a
trust
deficit in the trust banking account(s) of the Respondent, in
accordance with the available documentation and information,
to pay
the available balance in the trust banking account(s) of the
Respondent to the LPFF;
[i]
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/her in
carrying
out his/her duties as Curator; and
[j]
to render from time to time, as Curator, returns to the Applicant,
showing how the said account(s)
has/have been dealt with.
3.6.
The
Respondent immediately delivers his said accounting records, records,
files and documents containing particulars and information
relating
to:
[a]
any
monies received, held or paid by the Respondent for or on account of
any person;
[b]
any
monies invested by the Respondent in terms of
Section 86(3)
and/or
Section 86(4)
of the LPA, including any interest on monies so
invested;
[c]
any
interest on monies so invested which was paid over or credited to the
Respondents;
[d]
any
estate of a deceased person or an estate under Curatorship
administered by the Respondent, whether as executor or Curator or
on
behalf of the executor or Curator in terms of the Administration of
Estates Act, Act 66 of 1965;
[e]
any
insolvent estate administered by the Respondent as trustee oron
behalf of the trustee in terms of the Insolvency Act, Act 24
of 1936;
[f]
any
trust administered by the Respondent as trustee or on behalf of the
trustee in terms of the Trust Property Control Act, Act
57
of 1988;
[g]
any
company liquidated in terms of the Companies Act, Act 71 of 2008,
administered by the Respondent as or on behalf of the liquidator;
[h]
any
close corporation liquidated in terms of the Close Corporations Act,
Act 69 of 1984, administered by the Respondent as or on
behalf of the
liquidator; and
[i]
the
Respondent's practice as an attorney of this Honourable Court, to the
Curator appointed in terms of this order, provided that,
as far as
such accounting records, records, files and documents are concerned,
the Respondent shall be entitled to have reasonable
access to them
but always subject to the supervision of such Curator or his/her
nominee.
3.7.
Should
the Respondent fail to comply with the provisions of the preceding
paragraph of this order, 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.
3.8.
The
Respondent
be and
is hereby removed from office as
-
[a]
executor
of any estate of which the Respondent has been appointed in terms of
Section 54(1)(a)(v) of the Administration of Estates
Act, Act 66 of
1965 or the estate of any other person referred to in Section 72(1)
thereof,·
[b]
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, Act 66 of 1965;
[c]
trustee
of any insolvent estate in terms of Section 59 of the Insolvency Act,
Act 24 of 1936;
[d]
liquidator
of any company in terms of Section 379(2) read with 379(e) of the
Companies Act, Act 71 of 2008;
[e]
trustee
of any trust in terms of Section 20(1) of the Trust Property Control
Act, Act
57
of 1988;
[f]
liquidator of any close corporation appointed in terms of Section
7
4
of the Close Corporations Act, Act 69 of 1984; and
[g]
administrator appointed in terms of Section
7
4
of the Magistrates'
Court
Act, Act 32 of 1944.
3.9.
The
Curator shall be entitled to:
[a]
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;
[b]
require
Claimants to provide any documentation or information which the
Curator may consider relevant in respect of
a
claim or
possible or anticipated claim, against the Curator and/or Respondent
and/or Respondent's clients and/or fund in respect
of money and/or
other property entrusted to the Respondent provided that any person
entitled thereto shall be granted reasonable
access thereto and shall
be permitted to make copies thereof,·
[c]
publish
this order or an abridged version thereof in any newspaper
helshe
·
considers
appropriate; and
[d]
close the Respondent's practice insofar as it relates to the client
files, records and trust accounts.
3.10.
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, 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 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 creditor(s)
concerned for payment
or
recovery
thereof
3.11.
A bill
of costs drawn on the High Court scale of attorney and client costs
taxed by the Registrar of this Court (who is authorized
to do so)
mutatis mutandis
as
if the
Curator and the responsible officials of the Applicant in discharging
their duties
as
contemplated
in this order had acted
as
attorneys,
shall constitute proof of their reasonable fees and disbursements
("the Curatorship fees and disbursements') and
that the
Registrar be authorized to issue
a
writ of
execution for payment thereof by the Respondent.
3.12.
The
Curatorship will terminate when the Curator receives
a
final
written discharge from such duties from the Applicant consequent upon
the Curator filing with the Applicant
a
final
report and account, together with supporting vouchers, in respect of
the execution of the Curator's duties in terms of this
Order.
3.13.
In the
event of the Respondent failing to comply with any of the provisions
referred to in this Order, the Applicant shall be entitled
to apply
through due and proper civil process commensurate with the principles
of the
Constitution
of the
Republic
of
South Africa, Act 106 of 1996, for the appropriate relief against the
Respondent including but not limited to an Order for the
committal of
the Respondent to prison for the Respondent's contempt of the
provisions of the abovementioned paragraphs.
3.14.
The
Respondent be and is hereby directed:
[a]
to pay,
in terms of Section 87(2) / 37(2)(a) of the LPA, the reasonable costs
of the inspection/investigation of the accounting
records of the
Respondent;
[b]
to pay
the Curatorship fees and disbursements
levied
in accordance with the provisions of paragraph 13.11 supra;
[c]
to pay
the expenses relating to the publication of this order or an
abbreviated version thereof,'
[d]
to pay
the costs of this application on an attorney -and
-
client
scale.”
[4]
At the time
applicant launched these proceedings, the respondent's Fidelity Fund
Certificate had been withdrawn since March 2024.
Upon his request,
the respondent was granted leave to file a counter application for
the review and setting aside of the applicant's
decision to withdraw
the Fidelity Fund Certificate by 25 April 2024.
[5]
In these
proceedings, the applicant seeks an order to confirm
the
rule
nisi
whilst the respondent seeks the discharge of the said order. The
applicant raised a point in limine objecting to the authority
of the
respondent's counsel to appear on behalf of the respondent. It was
the applicant's case that pursuant to the granting of
the
rule
nisi
the
respondent is suspended from practicing as an attorney and his
Fidelity Fund certificate had already been withdrawn therefore,
his
status is similar to that of an ordinary client and Counsel is
precluded from representing
a client
without a brief of an attorney.
[6]
The
applicant's objection was dismissed on the basis that these
proceedings entail the determination of an interim order which has
an
interim not a final effect. Counsel was at all material times hereto
acting on the brief received from the respondent for that
reason, the
applicant's point in limine was accordingly found to be without
merit.
II
BACKGROUND
[7]
The
background facts of this matter are common cause. On 10 of January
2024 the complainant Ms. Ramohauoa,
in
her capacity as executrix of the late estate of her mother lodged a
complaint with the applicant against the respondent pertaining
to the
winding up of the deceased estate which included the administration
of funds received in credit to the estate bank account
held at First
National Bank (FNB).
[2]
[8]
The complaint
was premised on the respondent's failure to account for work done and
money which was withdrawn from the said account.
A criminal case of
theft was also opened at Bayswater Police Station under
Gas
number
14/01/2024. After an investigation by the Free State Investigating
Committee of the applicant, and obtaining an affidavit
from the
respondent, it resolved on the 20 of March 2024 that the respondent
had committed acts of serious misconduct by misappropriating
funds of
a client held in trust amounting to R 615 300.00 and that an urgent
application should be sought in terms of section 43
of the Act to
suspend the practioner with the usual orders, pending a disciplinary
hearing. It was also resolved that his fidelity
fund certificates for
the past three years must be withdrawn.
[9]
The respondent
repaid an amount of R 550 000.00 into the late estate's bank account
on the 10 of February 2024 and further amounts.
Despite these
payments, the trust account remained in deficit.
[10]
In the
founding affidavit, applicant alleged that the respondent thus failed
to account to the executrix of the late estate account
as about the
status of the estate and had no authorization from her for usage of
the said funds.
[11]
In
his answering affidavit, the respondent contends that there are
factual misrepresentations made by the applicant in the founding

affidavit and they amount to deliberate non-disclosure of information
material to this case and that there was no need to approach
this
court on an urgent basis and that same is tantamount to abuse of
court process as the complaint itself is an isolated case
[3]
and this is confirmed by his bank statements which form part of the
application.
[4]
[12]
The
respondent states that the alleged offending transactions referred to
by the applicant due to a bona fide error on his part
as all his
banking accounts, inclusive of his personal and multiple businesses,
are with FNB and he believed he was specifically
transacting out of
another business account not related to his practice, namely,
Agodiriwe.
[5]
[13]
It
was the respondent's case that this acknowledgment was also coupled
with his willingness to subject himself to any disciplinary
process
and the assertion that there are insufficient grounds for the
granting of the application especially since a firm may report
in
writing to council the reason for debit and submit proof of
rectification as per rules of conduct for legal practitioners.
[6]
[14]
The respondent also
denied that there was any act of misappropriation of funds, the said
funds were paid over to the complainant's
new attorneys of record in
the
month
of
February
2024
save
for
an
amount
of
R
15 771.32
which
was
retained for
services rendered and a detailed fees and disbursements account was
sent to the attorneys on 6 March 2024.
[15]
According
to the respondent, the applicant's silence on the date/s on which the
disciplinary hearing is to be convened will negatively
affect his
practice and staff component.
[7]
Ill
DISCUSSION
[16]
Section 43 of
the Act provides:
"Despite
the provisions of this Chapter, if upon considering
a
complaint,
a
disciplinary
body is satisfied that a legal practitioner has misappropriated trust
monies or is guilty of other serious misconduct,
it must inform the
Council thereof with the view to the Council instituting urgent legal
proceedings in the High Court to suspend
the legal practitioner from
practice and to obtain alternative interim relief."
[17]
The said
section allows the LPC, as a statutory disciplinary body, to
institute urgent legal proceedings in the High Court to suspend
a
legal practitioner if it is satisfied that a legal practitioner has
misappropriated trust fund money or is guilty of serious
misconduct.
This in itself presupposes the notion that the LPC should put
sufficient allegations before court to show that misappropriation
has
taken place.
[18]
The practical
application of section 43 has presented a challenge as courts have
adopted a dim view of such proceedings being launched
on an urgent
basis with the investigation against the legal practioner being
incomplete or it being launched before disciplinary
proceedings have
been concluded and an appropriate sanction is imposed and some courts
have opted to discharge the
rule
nisi on that basis. Other courts however, have made it clear that
once legal practitioners pilfer trust fund money, they must
be
suspended from the roll.
[19]
In
Limpopo Provincial Council of the
South
African Legal Practice Council v Chueu Incorporated Attorneys and
Others,
[8]
the
SCA faced the very same dilemma. In the court a quo, the LPG brought
an application in terms of section 43 to suspend the respondents
which
were directors of the first respondent for a period of 18 months
pending the disciplinary enquiry into the alleged misconduct
of the
respondents which relating to in the misappropriation of funds
received
in
trust
from
the
Road
Accident
Fund
and
a
trust
deficit
of
R 25 825 699.89. Interim relief was granted in respect of the second
respondent only and he was suspended for a period of 12
months
pending the finalization of the investigation
in
lieu
of
the disciplinary hearing and the application for the suspension of
the remainder of the respondents' (directors of the first
respondent)
was dismissed. Aggrieved by the latter order, the applicant
approached the supreme court with special leave to appeal
after it
was refused by the court a quo that the third to ninth respondents
as
directors of the firm also be suspended as they cannot escape
liability by pleading ignorance of financial matters when faced
with
an allegation of misappropriation.
[9]
[20]
It
came as no surprise that the SCA upheld the appeal and set aside the
order of the high court and ordered the suspension of the
third to
eight respondents for a period of six months pending the finalization
of investigations into their conduct as directors
of first respondent
(the law firm) failing which, the suspension order will lapse. The
court indicated that the order pertains
to interim relief that was
sought and emphasized that only when final relief is sought, would
the question if the legal practitioners
are fit and proper persons to
continue practice and remain on the roll of legal practitioners.
[10]
[21]
In my view, the LPG
was well within their rights to approach this court in terms of
section
43
in
casu
as
it
regulates
the
conduct
of
legal
practitioners
and
section 84(6)
of the LPA empowers them to interdict a practioner who fails to
comply with the provisions of the Act or acts unlawfully
and
unethically. The bank statements annexed to the founding affidavit
illustrated that all the banking transactions of the late
estate
account were in favour of the respondent starting from August 2022
and took place over 14 months. This is a clear pattern
of
misappropriation of trust fund monies which can only be seen as
serious misconduct by a legal practitioner as required by section
43.
[22]
The
determination
of
applications
of this nature involve a three-stage enquiry as confirmed
recently
in
Hewetson
v Law Society
of
the Free State
[11]
as
set out in
Malan
and
Another
v
Law
Society,
Northern
Provinces
[12]
at
para 4:
"First,
the court must decide whether the alleged offending conduct has been
established on a preponderance of probabilities
,
which
is a factual inquiry. Second, it must consider whether the person
concerned "in the discretion of the Court" is
not
a
fit and
proper person to continue to practise. This involves a weighing up of
the conduct complained of against the conduct expected
of an attorney
and, to
this
extent, is
a
value
judgment. And third, the
court
must inquire
whether
in
all
the
circumstances
the
person
in
question
is
to
be
removed
from
the
roll
of
attorneys or
whether an order of suspension from practice would suffice."
[23]
Section 84 of
the LPA requires that a legal practitioner who has been deemed fit to
practice for his or her own account, in a partnership,
or as a
director of a practice which is a juristic entity must be in
possession
of
a valid Fidelity Fund Certificate at all times. No legal practitioner
employed or supervised may receive or hold funds in trust
without the
said certificate and this includes any transfers of legal
practitioners from one practice, to another and for the Council
to be
given notice. In addition to this, section 84(6) states that the
Council may withdraw the certificate and where necessary,
obtain an
interdict against a legal practitioner if he or she fails to comply
with the provisions of the LPA or acts unlawfully
and unethically. As
earlier alluded to herein in above, there is no counter application
before court challenging the decision to
withdraw the respondent's
fidelity fund certificate.
[24]
Both parties
have, in their heads of argument, provided an expansive list of
authorities and cases related to suspension of legal
practitioners by
the LPC and it is unnecessary to repeat it in this judgment The
applicant contends that the respondent has failed
to show cause why
the interim order granted should not be made final and he has, on his
own version, admitted that the said funds
were transferred from the
Late estate account to his business account without the knowledge of
the executrix.
[25]
The
applicant also maintained that the respondent committed acts of
serious misconduct and there is a well-grounded apprehension
exists
of irreparable harm to the public if final relief is not granted and
a significant risk of reputational risk for the legal
profession.
[13]
They also alleged that the respondent cannot be considered a fit and
proper person in these circumstances
and
that his conduct warrants suspension. On the issue of the
respondent's fidelity fund certificates, it was submitted that
certificates
for the years of 2022, 2023 and 2024 have been withdrawn
and he thus, cannot continue to practice as a legal practitioner.
[14]
[26]
The
respondent asserted that the so-called misconduct emanated from a
single complaint and it cannot be said to be misappropriation
as it
would have been unintelligent for him to do so as the Master of the
High Court would have detected such transfers upon scrutiny
of the
late estate's bank accounts and preparation of the liquidation and
distribution account. It was emphasized that the money
was returned
except for an amount of R 15 771.32 which was retained for services
rendered
.
[15]
[27]
In
these circumstances, it was argued that the applicant failed to make
out a case for the relief claimed with its bald allegation
that other
members of the public will be adversely affect should the order not
be granted and another sanction may be imposed by
the applicant
instead of pursuing
an
order for his
suspension
[16]
and the urgency was self-created as this information was already
available in late March 2024.
[28]
Interim
relief was already granted on the 12
th
April
2024 and this order cannot be faulted as already alluded to in
paragraph 19 and 20 herein above. In my view, the applicant
has
already crossed the rubicon of urgency on the strength of the papers
and it cannot be averred to be a live issue in light of
the filing of
an answering affidavit, replying affidavit and heads of argument.
Pilfering of the late estate account is not only
unethical, but also
unlawful hence the complaint succeeded in opening a case of theft. In
order to obtain the final relief sought,
the applicant must show that
it has a clear right, an injury was actually committed or reasonably
apprehended and lastly, there
is no alternative remedy available
as
enunciated
by
the constitutional court in
Masstores
(PTY)
Ltd v P n Pay Retailers (PTY) Ltd.
[17]
[29]
The applicant
in its application, attached bank statements of the late estate's
Bank account. These statements provided irrefutable
evidence that
funds were transferred out of the account, by the respondent himself,
via 69 internet transfers that took place over
a period of 14 months
.
It also
evident from the complaint, that the complainant was not appraised of
the progress of the winding up of the estate and nor
was her consent
obtained for any of the 69 internet transfers that the respondent
made in his favour.
[30]
Upon
most of the funds being "reimbursed" into the account, her
further response to the LPG after viewing the respondent
response to
her complaint, she confirmed that all transactions were fraudulent as
not a single creditor was paid.
[18]
This is a good indication that an injury has occurred which has
already resulted in a financial loss and the possibility exists
that
other members of the public may suffer the same fate.
[31]
The respondent
does not dispute any of the 69 transactions or that he was the one
responsible. He merely states that they happened
by accident due to
numerous accounts of his being held at FNB in his favour. This
argument may have succeeded if it was only one
transaction and he
himself informed the LPG of his misstep as this type of conduct is
discouraged by their code of conduct as legal
practitioners, must
account for all monies held in trust. In my view, his admission to
this undisputed fact is fatal to his case
and illustrates clear
disregard of section 86 of the LPA which specifically dictates how
trust monies must be handled by legal
practitioner
.
[32]
It has been
suggested by the respondent that there are alternative remedies
available to the applicant of which could have been
deployed instead
of bringing an application to suspend him from the roll of legal
practitioners. Though it never became clear from
the papers what this
would entail, it was argued that the applicant may take control of
its books and trust account and the suspension
was unnecessary.
[33]
This argument
cannot be accepted for several reasons. Firstly, the first internet
transfer in his favour took place in August 2022
and from thereon,
funds were consistently transferred over a period of time and would
have only ceased in September 2023.Not one
of the 69 transactions
were ever in
favour of the late estate or went towards payment of expenses related
to the winding up of the estate. None of these
transactions were
disclosed to the LPG as
bona
fide
mistakes
or transactions until the respondent was confronted with the formal
complainant.
[34]
Secondly, the
transfer of the funds was not authorized by the complainant as she
was not privy to the account transactions until
she terminated the
services of the respondent and instructed another firm of attorneys.
She only later discovered that the funds
in the estate account had
been syphoned off and even opened a criminal case against the
respondent. This is yet another forum wherein
the respondent, would
be required to account for his
unethical
conduct.
[35]
Thirdly,
numerous transactions not only show that the respondent failed to
keep proper accounting records of the estate trust account,
which is
a requirement
of the Act,
but, has demonstrated that he also has no restraint or discipline
where trust moneys are concerned which can only be
seen as a
misconduct and not a mistake. The said money was only reimbursed once
a formal complaint with the applicant had been
laid and he was called
upon by the LPC to account for the missing funds which had been laid
bare by the bank statements.
[36]
Lastly, the
respondent's his fidelity fund certificate has been withdrawn as
provided in section 86(4) of the Act. The practical
effect thereof is
that the respondent cannot practice as a legal practioner nor is he
able to receive or pay over funds without
a valid certificate. This
is in defiance of section 84 of the LPA which is unacceptable.
IV
CONCLUSION
[37]
In light of the abovementioned reasons, there is no alternative
remedy available to the applicant. The applicant,
in my view has thus
shown by virtue of being the regulatory body of the respondent that
it has a clear right and there is a reasonable
apprehension that
members of the public may suffer the same fate. I am also satisfied
that there is no alternative remedy available
to the applicant.
[38]
The foundation of the legal profession is honesty and integrity. The
conduct of the respondent falls short
of this required standard and
can only be described as untrustworthy. In my view, the
misappropriation of trust money falls into
the ambit of misconduct by
a legal practitioner. In the prevailing circumstances highlighted
herein above, his suspension is warranted
as he cannot be considered
as a fit and proper person to continue practicing with such serious
allegations of malfeasance.
[39]
The
applicant's Investigation Committee has already investigated the
complaint,
obtained
relevant
bank
statements
and
the
respondent's
written
response to
the allegations. There is thus no reason to delay the convening of
the disciplinary hearing.
[40]
It
is also important to point out that the applicant is not required to
convene a disciplinary enquiry prior to taking steps for
the
suspension
of
the
respondent.
[19]
[41]
For
all these reasons above, the rule nisi ought to be confirmed.
It
is trite that in bringing these applications the LPC is performing a
public duty therefore, costs in applications of this nature
are borne
by a respondent.
[20]
There
are no submissions to the contrary to deviate from this established
rule.
V
ORDER
[42]
Accordingly,
it is ordered that:
1.
The
rule
nisi
granted
on 12 April 2024 is confirmed.
2.
The respondent
shall pay the
costs of this application on an attorney and client scale.
O
R MAJOSI, AJ
I
concur
N
S DANISO
APPEARANCES:
On
behalf of the Applicant
Mr.
C. C Boucher
Instructed
by
:
Jacobs
Boucher Attorneys
BLOEMFONTEIN
On
behalf of the Respondent
Adv.
M.P Madise
Instructed
by:
Matee
Attorneys
BLOEMFONTEIN
[1]
Court
order by Daffue J, dated 12 April 2024
.
[2]
Page
47, applicant's founding affidavit.
[3]
Paragraphs
5 - 8.
[4]
Ibid,
paragraph 9
-
10.
[5]
Ibid,
paragraph 11.
[6]
Ibid
paragraph 23.1
-23.5.
[7]
Ibid
paragraph
27.
[8]
(459/22)
[2023]
ZASCA
112
{26 July 2023).
[9]
Ibid,
paragraph 26.
[10]
Ibid
paragraph 29;
Jasat
v Natal Law Society
2000
(3) SA 44
(SCA);
[2000] 2 All SA 310
{SCA) para 10.
[11]
2020
(5) SA 86
(SCA).
[12]
2009
(1) SA 216
(SCA).
[13]
Applicant's
heads of
argument,
paragraph
2
-
3.
[14]
Ibid
paragraph 20.
[15]
Respondent's
Heads
of
Argument
paragraph
11-19.
[16]
Ibid,
paragraphs 23 -29.
[17]
2017
(1) SA 613 (CC).
[18]
Indexed
bundle, Annexure H (Complainant's response) paragraph 2.3.
[19]
The
Law
Society
of
the
Northern
Provinces
v
Bothma
and
Another
(33739/2016)
[2019]
ZAGPPHC
383
(5
September 2019) at paragraph
[8].
[20]
Law
Society of the Northern Provinces v Dube
[2012]
ZASCA 137
;
[2012] 4 All SA 251
(SCA)
para 33.