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2024
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[2024] ZAFSHC 364
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South African Legal Practice Council v Dlabantu (3712/2024) [2024] ZAFSHC 364 (8 November 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable/ Not
Reportable
Case no: 3712/2024
In
the matter between:
THE
SOUTH AFRICAN LEGAL PRACTICE COUNCIL
APPLICANT
And
TANDO
ONGAMA DLABANTU
RESPONDENT
Neutral citation:
The South African Legal Practice Council v Tando Ongama
Dlabantu
(3712/2024)
Coram:
Daniso J,
et
Cronje, AJ
Heard:
19 September 2024
Delivered:
08 November 2024
ORDER
1.
The respondent is suspended from the roll of legal practitioners of
this court on the terms recorded
on the order attached hereto and
marked as “X.”
JUDGMENT
Daniso, J (Cronje, AJ
concurring)
[1]
In this opposed application, the applicant seeks an order suspending
the respondent from practicing
as an attorney of this court on the
grounds of gross professional misconduct involving practicing without
a Fidelity Fund certificate
in contravention of the provisions of
Section 84(1) of the Legal Practice Act (the LPA)
[1]
and for failing to pay the legal practitioners’ annual fees and
contributions to the Fidelity Fund in contravention of Rule
3 and 4
of the Legal Practice Council (the LPC). The usual ancillary relief
pertaining to applications of this nature is also prayed
for in the
notice of motion.
[2]
On the papers, it is common cause that the respondent was admitted as
an attorney on 19 March
2019 by the high court, Eastern Cape Division
in Makhanda. Pursuant to his admission, the respondent practiced as a
sole practitioner
in the Eastern Cape under the name and style
Dlabantu and Associates. On 20 October 2023, he registered a branch
in the Free State
Province and practiced for his own account at the
offices situated at Regus Business Centre, Ground Floor, Unipark
Building, Vodacom
Lane, Nobel street, Brandwag in Bloemfontein, Free
State Province.
[3]
Before
dealing with the issue to be considered in
this matter, there are
preliminary issues raised by the
respective parties.
[4]
At the commencement of the hearing, the applicant objected to the
respondent’s answering
affidavit on the grounds that it was
filed late and no condonation for the late filing has been sought.
[5]
On the other side, the respondent disputes this court’s
jurisdiction to hear these proceedings.
He supports his argument by
asserting that:
5.1. At
all material times he was enrolled and practicing in the Eastern Cape
and his Free State branch was only
registered on 20 October 2023
therefore this court lacks jurisdiction over him.
5.2.
The service of process namely, the documents initiating this
application is defective due to non-compliance
with Uniform Rule 4(1)
(a) in that, having established his absence at the given addresses
the sheriff did not leave the process
with the persons found at the
addresses. As regards the service way of electronic mail, it his
submission that he did not consent
to such service accordingly, this
matter is not properly before court.
[6]
The respondent’s answering affidavit was due fifteen days from
the date of delivery of his
notice to oppose on 30 July 2024. It was
only filed on 17 September 2024, approximately seven weeks late and
barely two days before
the date of the hearing of this application.
The answering affidavit was served before the hearing, there is no
indication that
the late answering affidavit has caused prejudice to
the applicant and having regard to the fact these proceedings
are
intended to safeguard the interests of the public including the
respondent’s clients and the Fidelity Fund, I will therefore
n
ot take a technical approach
with regard to belatedness of the answering affidavit. It
is
in the interests of justice and of the parties as well that this
matter is advanced
.
[7]
There is no merit to the respondent’s objection to this court’s
jurisdiction on the
account of being admitted and practicing in the
Eastern Cape as on the facts germane to this matter, the allegations
foreshadowing
his misconduct are directed at his practice situated at
Bloemfontein in the Free State.
[8]
Uniform rule 4(1)(a) (ii) (as amended) provides that service of the
process initiating application
proceedings at the place of residence
or business of the person in his absence shall be served by:
“
delivering a
copy thereof at the place of residence or business of the said
person, guardian, tutor, curator or the like with the
person
apparently in charge of the premises at the time of delivery, being a
person apparently not less than 16 years of age.”
[9]
The examination of the applicant’s relevant proof of service,
annexures “D”
and “E” (sheriff’s
returns of service) and annexure “G” (proof of electronic
transmission) reveals
that there is merit to the respondent’s
contention that the service of the process was irregular for want of
compliance with
the provisions of subrule (1)(a)(ii). The sheriff’s
returns indicate that service was attempted on 11 July 2024 at the
respondent’s
Bloemfontein business premises. Upon being
informed by the receptionist that the respondent had left the
business address, the
sheriff returned the process to the applicant’s
legal representative. On 20 July 2024 and 22 July 2024 service was
again
attempted at the respondent’s residential address in
Gqeberha where the sheriff was informed by the respondent’s
mother-in-law
that he no longer resides at the said address likewise,
the sheriff returned the process to the applicant’s legal
representatives
without delivering the copies thereof. Service
by electronic mail relates to service of subsequent documents and
notices
and not the service of process initiating proceedings.
[2]
[10]
That being said, on the respondent’s own version the process
did come to his attention with the result
that he duly filed the
notice to oppose the proceedings followed by a comprehensive
answering affidavit
albeit
late.
The respondent was not prejudiced by the irregular service and
despite the peremptory nature of the provisions of subrule
(1)(a)
(ii), it is my view that the applicant’s subversion of the
rules in this regard ought not to hinder this court from
adjudicating
the real dispute between the parties. I am not suggesting that
parties are entitled to bend the rules pertaining to
service of
process but rather to affirm that the main purpose of uniform rule 4
is to ensure that the person being sued is aware
of the suit
[3]
so as to exercise his right of access to court for the resolution of
the dispute as provided for in Section 34 of the Constitution.
In the
circumstances, the respective parties’
in
limine
objections are dismissed.
[11]
With regard to the merits of the application, the applicant states
that on 24 November 2023 a notice was
transmitted to all legal
practitioners including the respondent as a reminder to renew their
Fidelity Fund certificates for the
year 2024 by 31 December 2023. The
respondent did not heed the notice, he instead continued to practice
at his Free State branch
without a Fidelity Fund certificate.
Further to this, the respondent failed to pay his annual levies in
respect of both the
Fidelity Fund certificate and legal
practitioners’ contributions totalling an amount of R5 588.33
as a result, on 11 January
2024 and 29 February 2024
[4]
the respondent was notified about his non-compliance and that having
failed to adhere to the notifications the applicant’s
investigation committee of the Free State Provincial office has
recommended the institution of legal proceedings for his suspension
from practicing pending compliance. Not only did the respondent
ignore the communication which required his response and compliance
with his obligations as a legal practitioner, he also failed to
attend the ensuing hearing convened on 25 March 2024.
[12] It
is the applicant’s case that practicing without a valid
Fidelity Fund certificate and failing to
pay the legal practitioners’
dues constitutes gross professional misconduct. The respondent’
recalcitrant conduct also
impedes on the applicant’s
responsibility to protect the public interest by playing its
oversight role of ensuring that trust
funds are properly managed by
the practitioners whilst a Fidelity Fund Certificate indemnifies
members of the public against theft
of their trust monies. Based on
these facts, the applicant contends that the respondent is not a fit
and proper person to practice
as an attorney, he must thus be
suspended and also ordered to pay the costs of this application on
the scale of attorney and client
scale.
[13] In
the answering affidavit, the respondent disputes the allegations of
misconduct as proffered by the applicant
by attributing the blame for
practicing without the Fidelity Fund certificate to the applicant’s
delay in attending to his
application to be exempted from submitting
the Auditor’s report pertinent to the issuing of the Fidelity
Fund certificate.
[5]
[14]
The respondent states that on 17 December 2023, he addressed an email
to the Free State Provincial Officer
of the applicant requesting the
exemption application forms. When he ultimately received the
application forms, he submitted them
on 31 December 2023.
[6]
Receipt was acknowledged on 3 January 2024 however on 11 January 2024
he was requested to provide his business and trust account
bank
statements, auditor’s letter confirming the dormancy of his
trust account including proof of payment of an amount of
R575.00 in
respect of the application fee. It is the respondent’s case
that it was not even necessary for the applicant to
request the said
information as rule 54.26 makes no provision for the submission of
the auditor’s report. In any event, the
applicant could read
and interpret the bank statements itself, had the applicant granted
him the exemption he would have been able
to timeously obtain the
Fidelity Fund certificate. The respondent admits that he did not pay
the application fee timeously and
explains that his failure to pay
was occasioned by financial constraints. The arrear levies are
also not disputed except
for the amount due. According to the
respondent, he has since paid an amount of R958.33 therefore the
total amount due is the amount
of R4 630.00 which he undertakes to
pay “
as
soon as I am in the financial position to do
.”
[15]
Regarding his absence at the hearing scheduled for 25 March 2024, the
respondent confirms that he was aware
of the hearing but explains
that he did inform the applicant in writing of his unavailability,
see
Annexure AA3.9
the hearing was
nevertheless proceeded with in his absence denying him his right to
be heard.
[16]
The respondent submits that the applicant is oblivious to the main
purpose of the LPA which is to: “…
provide
a legislative framework for the transformation and restructuring of
the legal profession in line with constitutional imperatives
so as to
facilitate and enhance an independent legal profession that broadly
reflects the diversity and demographics of the Republic”
and merely seeks to have him “
as
a black man who is the beneficiary of the Act
”
suspended from practice in the circumstances where it is wholly
inappropriate to do so for the reasons advanced in the founding
affidavit.
[7]
[17]
The principles applicable for the determination of applications of
this nature are trite:
[8]
the
court is enjoined with a discretion to determine a legal
practitioner’s fitness to remain on the roll of practicing
legal practitioners and in exercising its discretion, the court
undertakes a three- stage inquiry involving a factual enquiry in
terms of which the court decides whether or not the alleged offending
conduct has been established on a preponderance of probabilities,
once the court is satisfied that the offending conduct has been so
established, it makes a value judgement on the facts whether
the
legal practitioner is a fit and proper person to continue to practice
and if the court is so satisfied, it then exercises its
discretion
whether it is proper to suspend or remove a legal practitioner from
the roll of legal practitioners.
[18]
Having regard to the facts of this matter, it is indisputable that
the respondent is practicing without being
in possession of a
Fidelity Fund certificate and has also failed to pay his legal
practitioner’s levies thereby contravening
the provisions of
Section 84(1) of the LPA and the LPC Rules.
[19]
The defences raised by the respondent are unsound and basically
disingenuous. Despite his attempt to lay
the blame of practicing
without a Fidelity Fund certificate squarely on the applicant’s
door nonetheless, the respondent
admits that it was only on 17
December 2023 approximately a month after he was reminded about his
obligation to apply for the Fidelity
Fund certificate that he
contacted the applicant requesting the exemption application forms.
The application was thereafter lodged
on 31 December 2023 the last
day on which his application for the issuing of the Fidelity Fund
certificate was due. The respondent
also seeks to infer that pursuant
to the lodgement of his application there was a further delay
occasioned by the applicant’s
request for “unnecessary”
information and this is despite the fact that the information that
was requested by the applicant
is listed on the first page of the
application form where it is also clearly stated that “the
exemption will only be considered
after the necessary documentation
is received…”. It does not end there, on his own
admission, he also did not pay
the required application fee. His
response regarding his failure to pay the annual levies is merely to
fleetingly aver that he
will pay the arrear annual levies as soon as
he is in a financial position to do so. Whenever that is. With regard
to his absenteeism
at the hearing, it is important to note that he
was informed about the hearing on 8 March 2024. His notification of
his unavailability
reflects that it was transmitted to the applicant
on the same day of the hearing on 25 March 2024 at 10:04, less than
an hour before
the hearing. Despite providing all these unsustainable
explanations for his transgressions, the respondent has sought to
disparage
the applicant’s motives for launching these
proceedings by asserting malice and racism.
[20] I
do not detect any malice in the applicant’s founding affidavit
let alone racism in the allegations
levelled against the respondent.
Taking into account the gravity of the transgressions perpetrated by
the respondent,
[9]
the
applicant
would be failing in its public duty if it fails to bring the
respondent’s conduct before the court. It was aptly
pointed out
in
Solomon
v Law Society of the Cape of Good Hope
[10]
that:
“…
in
these proceedings the Law Society claims nothing for itself . . . .
It merely brings the attorney before Court by virtue of a
statutory
right, informs the Court what the attorney has done and asks the
Court to exercise its disciplinary powers over him .
. . . The Law
Society protects the interests of the public in its dealings with
attorneys. It does not institute any action or
civil proceedings
against the attorney. It merely submits to the Court facts which it
contends constitutes unprofessional conduct
and then leaves the Court
to determine how it will deal with this officer [of the court.”
[21]
The respondent’s attempt to avoid accountability by imputing
malice and racial discrimination into
these proceedings indicates his
lack of understanding of the high ethical standards demanded by his
profession. I am thus satisfied
on a preponderance of probabilities
that the respondent is guilty of unprofessional and dishonourable
conduct, he is
not
a fit and proper person continue to practice as a legal practitioner
and
his conduct warrants the order sought by the
applicant. The application succeeds.
ORDER
[22]
In the premises, the following
order is made
:
(1)
The respondent is suspended from the roll of legal practitioners of
this court on the terms recorded
on the order attached hereto and
marked as “X.”
“
X”
1.1.
The Respondent shall immediately surrender and
deliver to the Registrar of this Court his certificate of enrolment
as a legal practitioner
of this Court.
1.2.
In the event of the Respondent failing to comply
with the preceding paragraph of this order, the Sheriff is authori
sed
and directed to take possession of the certificate and to hand it to
the Registrar of this Court.
1.3.
The Respondent is prohibited from handling or operating on his
accounts as
detailed in paragraph 5 hereof;
1.4.
The Director / Acting Director / Nominee of the Applicant of the Free
State
Provincial Legal Council is appointed as the Curator Bonis 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 the
Respondent’s practice as an attorney and including, also, the
separate banking accounts opened and kept by the Respondent
at a bank
in the Republic of South Africa in terms of section 86(1) of the
Legal Practice Act 28 of 2014 (“the 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 hereinafter
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 his 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 an
legal proceedings which may
be necessary for the recovery of monies
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 the 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 thirty (30) 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 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 Legal Practitioners
Fidelity Fund Board (“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 utilise such surplus to settle or reduce (as the
case may be), firstly,
any interest due to the Legal Practitioners
Fidelity Fund (“LPFF”) 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 authorised
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 trust
account(s) of the Respondent has/have been
dealt with.
1.5.
The Respondent immediately delivers his/her 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 while practicing
as an attorney;
[b]
any monies invested by the Respondent in terms of section 86(3)
and/or section 86(4) of the LPA;
[c]
any interest on monies so invested which was paid over or credited to
the Respondent;
[d]
any estate of a deceased person or an insolvent estate or an estate
under Curatorship administered
by the Respondent, whether as executor
or trustee or Curator or on behalf of the executor, trustee or
Curator;
[e]
any insolvent estate administered by the Respondent as trustee or on
behalf of the trustee in
terms of the
Insolvency 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 57 of 1988;
[g]
any company liquidated in terms of the
Companies 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 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 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.
1.6.
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
1.7.
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 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 66 of 1965
;
[c]
trustee of any insolvent estate in terms of
section 59
of the
Insolvency Act 24 of 1936
;
[d]
liquidator of any company in terms of
section 379(2)
read with
section 379(e)
of the
Companies Act 71 of 2008
;
[e]
trustee of any trust in terms of section 20(1) of the Trust Property
Control Act 57 of 1988;
[f]
liquidator of any close corporation appointed in terms of
section 74
of the
Close Corporations Act 69 of 1984
;
[g]
administrator appointed in terms of section 74 of the Magistrates’
Court Act 32 of 1944.
1.8.
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
he/she considers appropriate;
[d]
close the Respondent’s practice insofar as it relates to the
client files, records and trust
accounts;
1.9.
The Respondent shall within six (6) 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/her (Respondent) in respect of
his/her
former practice, and should he/she fail to do so, he/she
shall not be entitled to recover such fees and disbursements from the
Curator without prejudice, however, to such rights (if any) as he/she
may have against the trust creditor(s) concerned for payment
or
recovery thereof;
1.10.
That a bill of costs drawn on the High Court scale of attorney and
client costs taxed by the Registrar
of this Court (who is authorised
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
authorised t issue a writ of execution for payment thereof by the
Respondent;
1.11.
That 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;
1.12.
In the event of the Respondent failing to comply with any if 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, 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.
1.13.
That the Respondent be and is hereby directed:
[a]
to pay, in terms of section 87(2) and/or section 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 on attorney and client
scale;
[c]
to pay the expenses relating to the publication of this order or an
abbreviated version thereof;
and
[d]
to pay the costs of this application on an attorney-and-client scale
to be taxed.
NS DANISO, J
I concur
PR CRONJE, AJ
Appearances
For
the applicant:
Mr.
PHH Badenhorst
Instructed
by:
Badenhorst
Attorneys
BLOEMFONTEIN
For
the Respondent:
In
Person
[1]
Act
28 of 2014.
[2]
Uniform
rule 4A(1)(c).
[3]
Odendaalsrus
Munisipaliteit v Odendaalsrus Gold, General Investment &
Extensions Ltd
1958
(3) SA 111
(O);
Prism
Payment Technologies v Altech information Technologies
2012
(5) SA 267
(GSJ)
at 271H-272A quoting with approval,
United
Reflective Converters (Pty) Ltd v Levine
1988
(4) SA 460
(W)
.
[4]
Annexures
“FA4”, “FA6” to “FA8” of the
applicant’s founding affidavit.
[5]
LPC
rule 54.26.
[6]
Annexure
AA3.3 of the respondent’s answering affidavit.
[7]
Para
18.2 of the respondent’s answering affidavit; see also paras
21 to 23.
[8]
Jasat
v Natal Law Society
2000
(3) SA 44
SCA.
[9]
Section
83(1) of the LPA makes it a criminal offence for an attorney
practicing on his own account to practice without a Fidelity
Fund
certificate.
[10]
1934
AD 401
at 408-409.