HIGH COURT OF SOUTH AFRICA
(GAUTENG DMSION, PRETORIA )
In the matter between: CASE NO: 23500/2020
(1) REPORTABLE: NO.
(2) OF 11\"TEREST TO OTHER JUDGES: 1\0
(3) REVISED.
SOUTH AFRICAN LEGAL PRACTICE COUNCIL Applicant
and
SIMPIDWE FREEMAN DUBE Respondent
Summary: Legal practitioners -Misconduct -Offending conduct had been
established -mostly relating to overreaching, lack of reporting and
accounting to clients and misappropriation of the proceeds of
clients' damages payments received from the Road Accident Fund.
The practitioner had previously been suspended from practice but
offendin~ conduct kept being repeated. Practitioner not fit and
proper to continue practice as a legal practitioner. Sanction of
striking off merited Such an order was granted and, due to the
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nature of the conduct and the manner in which the practitioner had
conducted the litigation a punitive costs order was also justified.
ORDER
1. The respondent, Simphiwe Freeman Dube is struck from the roll of
legal practitioners of this Court and the Legal Practice Council 1s
directed to remove his name from the roll of attorneys.
2. The respondent is ordered to immediately surrender and deliver to the
Registrar of Court his previous certificate of enrolment as an attorney
of this Court.
3. In the event of the respondent failing to comply with the terms of
paragraph 2 above within one week from the date of service of this
order, the sheriff of the relevant district is authorised and directed to
take possession of the certificate and hand it to the Registrar.
4. The respondent is prohibited from handling or operating on the trust
accounts as detailed in paragraph 5 hereof, from date of service of this
order.
5. Ignatius Wilhelm Briel, the Director of the Gauteng Provincial Office
of the applicant, is appointed as curator bonis (curator) to administer
and control the trust accounts of the respondents , including accounts
relating to insolvent and deceased estates and any deceased estate and
any c:statc under curatorship connected with the respondent's practice
as legal practitioner and including , also, the separate banking accounts
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opened and kept by respondent at a bank in the Republic of South
Africa in terms of section 86(1) & (2) of Act No 28 of 2014 and/or
any separate savings or interest-bearing accounts as contemplated by
section 86(3) and/or section 86(4) of Act No. 28 of 2014, in which
monies from such trust banking accounts have been invested by virtue
of the provisions of the said sub-section 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 foUowing powers
and duties:
5 .1. Immediately to take possession of the respondent 's accounting
records, records, files and documents as referred to m
paragraph 7 and subject to the approval of the Legal
Practitioners ' Fidelity Fund Board of Control (hereinafter
referred to as the fund) 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 respondents was acting at the date of
this order.
5.2. Subject to the approval and control of the Legal Practitioners'
F jdelity Fund Board of Control and where monies had 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 respondents in respect of monies
held, received and/or invested by the respondents in terms of
section 86(1) & (2) and/or section B6(3) and/or section ~6(4) of
Act No 28 of 2014 (hereinafter referred to as trust monies), to
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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 the same to the credit of the trust account(s).
5.3. 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 refetTed to
as trust creditors) and to call upon the respondent to furnish
him, within 30 (thirty) days of the date of service of this order
or such further period as he may agree to in writing, with the
names, addresses and amounts due to all trust creditors.
5.4. To call upon such trust creditors to furnish such proof,
information and/or affidavits as he may require to enable him,
acting in consultation with, and subject to the requirements of
the Legal Practitioners ' Fidelity Fund Board of Control, to
determine whether any such trust creditor has claim in respect
of monies in the trust account(s) of the respondent and, if so,
the amount of such claim.
5..5. To admit or reject, in whole or in part, subject to the approval
of the Legal Practitioners ' Fidelity Fund Board of Control, the
claims of any such trust creditor or creditors, without prejudice
to such trust creditor's or creditors' right of access to the civil
courts.
5.6. Having determined the amounts which, he considers are
lawfully due to trust creditors, to pay such claims in full but
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subject always to the approval of the Legal Practitioners'
Fidelity Fund Board of Control.
5.7. 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 claim of the fund in terms of section
86(5) of Act No 28 of 2014 in respect of any interest therein
referred to and, secondly, without prejudice to the rights of the
creditors or the respondent, the costs, fees and expenses
referred to in paragraph 13 of this order, or such portion thereof
as has not already been separately paid by the respondent to the
Legal Practice Counci 1, and, if there is any balance left after
payment in full of all such claims, costs, fees and expenses, to
pay such balance, subject to the approval of the Legal
Practitioners' Fidelity Fund Board of Control, to the
respondent if he is solvent, or, if the respondent is insolvent, to
the trustee(s) if the respondent's insolvent estate.
5.8. In the event of there being insufficient trust monies in the trust
banking account(s) of the respondent , in accordance with the
available documentation and information , to pay in full the
claims of trust creditors who have lodged claims for repayment
and whose claims have been approved , to distribute the credit
balance(s) which may be available in the trust banking
account(s) amongst the trust creditors alternatively to pay the
balance to the Legal Practitioners ' Fidelity Fund.
5.9. Subject to the approval of the chairman of the Legal
Practitioners ' Fidelity Fund Board of Control, to appoint
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nominees or representatives and/or consult with and/or engage
the services of legal practitioners, counsel, accountants and/or
any other persons, where considered necessary, to assist him in
carrying out his duties as curator; and
5.10. To render from time to time, as curator, returns to the Legal
Practitioners' Fidelity Fund Board of Control showing how the
trust account(s) of the respondent has been dealt with, until such
time as the board notifies him that he may regard his duties as
curator as terminated.
6. The respondent is immediately upon service upon him of this order,
ordered to deliver the accounting records, files and documents
containing particulars and information relating to the following to the
curator bonis:
6.1. any monies received, held or paid by the respondent for or on
account of any person while practising as a legal practitioner ;
6.2. any monies invested by the respondent in terms of section 86(3)
and/or section 86(4) of Act No 28 of2014;
6.3. any interest on monies so invested which was paid over or
credited to the respondent;
6.4. 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 curato1-;
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6.5. any insolvent estate administrated by the respondent as trustee
or on behalf of the trustee in terms of the Insolvency Act, No
24 of 1936;
6.6. any trust administered by the respondent as trustee or on behalf
of the trustee in terms of the Trust Properties Control Act, No
57 of 1988;
6.7. any company liquidated in terms of the provisions of the
Companies Act, no 61 of 1973 read together with the provisions
of the Companies Act, no 71 of 2008, administered by the
respondent as or on behalf of the liquidator;
6.8. any close corporation liquidated in terms of the Close
Corporations Act, 69 or 1984, administered by the respondent
as or on behalf of the liquidator.
7. Should the respondent fail to comply with the provisions of the
preceding paragraph of this order on service thereof upon him or after
a return by the person entrusted with the service thereof that he has
been unable to effect service thereof on the respondent (as the case
may be), 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.
8. The curator shall be entitled to:
8.1. hand over to the person entitled Lht::reto all such records, files
and documents provided that a satisfactory written undertaking
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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;
8.2. require from the persons referred to in paragraph 9.1 to provide
any such documentation or information which he may consider
relevant in respect of a claim or possible or anticipated claim,
against his and/or the respondents and/or the respondents '
clients and/or fund in respect of money and/or other property
entrusted to the respondents provided that any person entitled
thereto shall be granted reasonable access thereto and shall be
permitted to make copes thereof;
8.3. publish this order or an abridge version thereof in ay newspaper
he considers appropriate ; and 9.4 wind-up of the respondent's
practice.
9. The respondent is hereby removed from the office as:
9. 1. executor of any estate of which the respondent has been
appointed in terms of section 54(l)(a)(v) of the Administration
of Estates Act, no 66 of 1965 or the estate of any other person
referred to in section 72(1 );
9.2. 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, No 66 of 1965;
9.3. trustee of any insolvent estate in tc;rms of seccion 59 of the
Insolvency Act, No 24 of 1936;
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9.4. liquidator of any company in terms of section 379(2) read with
379(e) of the Companies Act, no 61 or 1973 and read together
with the provisions of the Companies Act, No 71 of2008;
9.5. trustee of any trust in terms of section 20(1) of the Trust
Property Control Act, No 57 of 1988;
9 .6. liquidator of any close corporation appointed in terms of section
74 of the Close Corporation Act, No 69 of 1984; and
9.7. administrator appointed in terms of Section 74 of the Magistrate
Court Act, No 32 of 1944.
10. If there are any trust funds available, 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 foes and disbursements due to the
respondent 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.
11. A certificate issued by a director of the Legal Practitioners ' Fidelity
Fund shall constitute prima facie proof of the curator's costs and that
the registrar be authorised to issue a writ of execution on the strength
of such certificate in order to collect the curator's costs.
12. The respondent is hereby ordered to:
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12.l. pay, in terms of section 87(2) of Act No. 28 of 2014, the
reasonable costs of the inspection of the accounting records of
the respondent;
12.2. pay the reasonable fees of the auditor engaged by applicant;
12.3. pay the reasonable fees and expenses of the curator, including
traveling time.
13. The respondent is ordered to pay the applicant 's costs of the
application on an attorney and client scale.
JU DGMENT
The matter was heard in open court and the judgment was prepared and authored
by the judge whose name is reflected herein and was handed down electronically
by circulation to the parties' legal representatives by email and by uploading it
to the electronic file of the matter on Case lines. The date of the handing-down is
deemed to be 15 April 2025.
DAVIS, J {with Lenvai J concurring)
Introduction
[l] This is an application by the Legal Practice Council (the LPC) for the
striking off of a legal practitioner from the roll of practitioners. The legal
practitioner in question is an attorney, Mr Simphiwe Freeman Dube.
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[2] The matter came before us by way of a direction from the Deputy Judge
President (the DJP) pursuant to an order granted on 27 August 2021 by Tlhapi J
and Mnyovu AJ.
[3] Due to a late interpretati onal attack on the order, it is necessary to refer to
the relevant part thereof in full:
"The application to suspend or strike the respondent from the roll of
attorneys is referred to a freshly constituted bench of this Court for
its determination after hearing such oral evidence, on the following
aspects:
(a) On the bill of costs which respondent alleges he was not given
proper opportunity to prepare his defence;
(b) That the circumstan ces under which the payment of RI00
000.00 was demanded from Mazive; whether this constitutes a
transgressions of the LPC Rules, Code of Conduct of LPA, and
certain sections of the Legal Practice Act;
(c) The applicant is ordered to avail the respondent with all the
documents it acquired from different sources with regard to
the Mazive complaint and the Bill of costs in order to prepare
his defence, within thirty days from date of this order".
[4] We shall deal with the interpretational attack later, but to place it and the
way in which the hearing of the application enfolded before us into perspective,
some context is needed.
Procedural history
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[5] After the above order had been granted, the matter was initially re-enrolled
for hearing on 5 May 2022, but it was then removed from the roll.
[6] On 13 September 2022 the LPC delivered a supplementary founding
affidavit. The respondent did not respond thereto.
[7] On 9 December 2022 the respondent delivered an application for leave to
appeal the referral ruling1 granted on 27 August 2021.
[8] On 29 August 2023 the court (differently constituted) granted condonation
for the more than a year late delivery of the application for leave to appeal and
refused leave.
[9] On 21 June 2024 the LPC delivered a second supplementary affidavit. The
LPC contended that, due to its oversight role of the legal profession, it was
obliged to place further evidence of possible misconduct by a practitioner before
a court and, due to the proceedings before us being of a sui generis nature, no
leave nor condonation for the delivery of such an affidavit was necessary2. In our
view, this contention is correct.
(10] At a re-hearing meeting between the parties, held on 1 August 2024, the
following was recorded in draft minutes: "Mr Stocker recorded that the applicant
has delivered two supplementary founding affidavits, to which the responden t has
thus far not answered. Mr Stocker further recorded that the supplementary
founding affidavits disclosed serious allegations of misconduct on the part of the
respondent, and that he will argue that the respondents should be struck from the
roll based on the contents of those supplementary founding affidavits alone. Mr
1 A refcrrol for the hearing of oral evtaence, is generally considered a "ruling." as opposed to a "judgment " or
"order". See Pfizer Inc, v SA Druggists Ltd 1987(1) SA 295 (T) and Man Truck & Bus (Pty) Ltd v Darby/ Ltd 2004
(5) SA 226 (SCA) par 21.
2 South African Legal Practice Council v Ntsie (52311/19) [2022] ZAGPPHC 131 (8 March 2022) at par 6.
13
Stocker called upon the respondent to deliver answering affidavits to the
supplementary founding affidavit. Adv Mokotedi SC indicated that this is an
issued which can be discussed at the prehearing conference, to which Mr Stocker
agreed".
[11] Before us in open court Adv Mokotedi SC, who appeared for the
respondent, confirmed the correctness of the minutes. He informed us that he had
referred the contents thereof to his instructing attorney.
[12] Despite the above, the instructing attorney failed to sign the draft minutes,
despite having been directed by the DJP to do so on 24 October 2024.
[13] Despite fruitless attempts by the LPC, a further pre-hearing conference
could not be held with the respondent 's representatives.
[14] In the end, the DJP on 20 February 2025 directed in writing that the matter,
including the hearing of oral evidence, be heard by us as a newly constituted full
bench over the course of two days. The DJP's directive also contained the
following admonition: "Should it,for any reason(s) transpire that the matter will
not proceed on the allocated date/s, you are directed to inform the office of the
Deputy Judge President via email .. . immediately. The non-availability of
counsel representing any of the parties shall simply not be allowed as a reason
for the matter not to proceed on the date of hearing arranged with my office".
[15] On 21 February 2025, the LPC's attorney wrote to the respondent's
attorney, copying the respondent and adv Mokotedi SC. In the letter it was again
placed on record that there had been no response to the two supplementary
founding affidavits. The previous minute and the recordal quoted earlier were
also referred t.o. After referring to the ignored requests to hold a further pre
hearing conference , the attorneys concluded as follows: "We are placing the
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above on record because we anticipate that you may ask/or a postponement of
the matter on 13 March 2025 in order to file your answers to our supplementary
founding affidavits. We will oppose any such request/or a postponement. You
have had ample opportunity to deliver such affidavits and you have expressly
been called upon to do so on a number of occasions. A postponement of the
matter at this stage will not be countenanced".
[16] At the commencement of the hearing of the matter, we were informed that
there was some kind of misunderstanding between Adv Mokotedi SC and the
respondent 's attorney. Nevertheless , after standing down for an hour, Adv
Mokotedi SC made his appearance. He confirmed that he had informed the
attorney of his unavailability for 13 March 2025, as he had a separate brief to
attend to, incidentall y at an LPC disciplinary hearing (for a client).
[17] Despite Adv Mokotedi SC's other brief, he was briefed to inform us that
the respondent had delivered a petition to the Supreme Court of Appeal (the SCA)
for leave to appeal the ruling in the main application whereby it had been referred
for the hearing of oral evidence. In response, the LPC referred to an email letter
whereby a correspondent in Bloemfontein had confirmed that the SCA 's registrar
had refused to accept this petition3.
[18] Based on the abovementioned disclosure , Adv Mokotedi SC (and
apparently his attorney and the respondent ) assumed that the hearing of the matter
before us would be suspended and postponed.
[19] We declined to agree with this proposition as it is by now settled law that
a belatedly delivered petition for leave to appeal, does not suspend a prior order.
For this view, we relied on the following dictum4: ''Prior to the enactment of the
3 For "petition", read "application". See:
• Panayioutiou v Shoprite Checkers (Pty) Ltd 2016 (3) SA 110 (GJ) at paras 14 and 15.
15
Superior Courts Act and, in particular, ss 16 -18, rule 49(11) of the Uniform
Rules of Court regulated this matter Rule 49(11) was deleted from the rules on
17 Arif 2015 (GN 317 in GG 38694 of 17 April 2015). Addressing the provisions
of that rule, it was held ;n Modderfontein Squatters, Greater Benoni City Council
v Modderklip Boedery (Pty) Ltd (Agri SA and Legal Resources Centre, amici
Curiae); President of the Republic of the Republic of South Africa and Others v
modderklip Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici
Curiae) 2004 (6) SA 40 (SCA) (200 (8) BCLR 821; [2004] 3 All SA 169) para 46:
'The [argument] was based on Uniform Rule 49(11), which provides that, where
an appeal had been noted or an application for leave to appeal made, the
operation and execution of the order is suspended. Jn this case, as will appear
soon in more detail, the Madder East Squatters lodged their application for leave
to appeal together with an application for condonation some 18 months after the
order had issued. The right to apply for leave to appeal, by then had lapsed.
Rule 49(1 J) presupposes a valid application for leave to appeal to effect the
suspension of an order. Jn this case, there was none'.
[15 J The inherent logic of the position is unassailable. It can be tested by asking
what would happen if many months or years were to pass before an application
for condonation is lodged. It is untenable that upon the service of a condonation
application thejudgmenl would then be suspended".
[20] After having made the ruling that the order of 21 August 2021 had not
been suspended by the belated petition, an oral request for postponement was
made from the bar that the application then be postponed until the condonation
application for the later petition had been heard. It was at that time that we were
informed by Mr Stocker on behalf of the LPC that the petition had in fact not yet
been formally lodged as the Registrar of the Supreme Court of Appeal had refused
such lodgment due to the incompleteness of documentation. The incomplete
16
documentation apparently constituted the judgment or order whereby leave had
initially been refused.
[21] There was no substantive application for this postponement request and no
evidence placed before court by way of affidavit from the respondent , who is an
officer of this court, explaining why this indulgence should be granted, and why
we should not follow the judgment quoted above. Accordingly , we refused the
request for postponement.
[22] Hereafter, another request was made on behalf of the respondent, this time
for an opportunity to obtain alternate counsel. This request was coupled with an
assertion that the attorney and the respondent was allegedly under the impression
that the matter was set down for the next day, Friday 14 March 2025. In view of
the contents of the letter from the DJP dated 20 February 2025, we rejected this
contention , but granted the request for time to brief another counsel and stood the
matter down to 14h00.
[23] To our great surprise, at 14h00 Adv Mokotedi SC appeared for the
respondent , having apparently disposed of his prior brief. We then commenced
the hearing of oral evidence.
The oral evidence
[24] The LPC led the evidence of Mr Carlos Mazive. He was the complainant
in a disciplinary hearing where the respondent had been charged with
contravention of Rule 35.11 read with Rule 40. 7 of the Rules for the Attorney's
professions for having failed to properly account to his client, Rule 49.6 for
having overcharged his client, Rule 40.14 for having misappropriated funds in
the matter of Mr Mazive. The respondent had been found guilty on nll the
charges.
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[25] The issues in question which were addressed by this witness, were the
accounting to him regarding the capital amount and fees in a claim against the
Road Accident Fund (the RAF) handled on his behalf by the respondent and then
the disputed R100 000.00 refen-ed to in the referral order.
[26] In respect of the RAF claim, the evidence was briefly the following : Mr
Mazive was involved in a motor vehicle accident in 2010. He was hospitalized
as a result of the injuries sustained and was visited in hospital by the respondent
who subsequently pursued his claim against the RAF. He attended the High
Court on the trial date of 14 September 2011. During the course of the morning,
he was handed a piece of paper by the respondent, on which the amount of Rl
333 255.00 had been written.
[27] Mr Mazive was told that this was the amount on which the matter could be
settled. When he protested , the respondent told him that if he did not accept the
amount, it would be five years before the matter can be re-enrolled. He then
consented but remembered the judge, upon being presented with the settlement ,
commenting: "Mr Dube, I do not want to see your c/;ent coming back to beg
again". After this the respondent said that he would contact Mr Mazive once the
money is paid out.
[28] On 12 October 2011 Mr Mazive met the respondent at the latter's instance
in an office in a bottle-store. There the respondent handed him a typed page
which read as follows:
TOTAL AMOUNT PAID =
LESS 20% CONTINGENCY =
LESS ADVOCATES FEES
TOT AL DUE TO CLIENT = Rl 333 255.00
R 333 313.00
R 51 000.00
R 94 895.00
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[29] It was cleared up that the amount of R94 895.00 was merely a
typographical error and everyone understood the calculation amount to be R948
942, which is what was paid to Mr Mazive in October 2011.
[30] Mr Mazive testified that the above statement was ''explained" to him by
the respondent as being in accordance with their agreement , although Mr Mazive
later claimed that their agreement was for a 15% and not a 25% contingency fee.
There is some dispute about this, although it featured against in Mr Mazive's
claim to the LPC. However , what he was firm about, is that no other bill on a
party and party scale or amount of disbursements nor any bill on an attorney and
client scale had been shown to him or been discussed with him.
[31] At some time thereafter, around January 2012, the respondent again
telephoned Mr Mazive and demanded that Rl 00 000.00 be paid by Mr Mazive
"for some other attorney's costs". Mr Mazive complied with this request and
identified the deposit slip confirming this.
[32] Mr Mazive's version requesting the deduction of R5 l 000.00 for advocates
fees and the demand for another Rl 00 000.00 remained consistent from his initial
written complainant , his evidence at the disciplinary hearing and before us. The
RSI 000.00 formed part of the overreaching charge before the LPC, but the RIOO
000.00 was, after some haggling, not considered for purposes of conviction by
the disciplinary committee . It did, however, form part of the dispute referred to
oral evidence.
[33] The basis for the dispute, was that the respondent claimed that the Rl 00
000.00 was paid to him by Mr Muive as part of the purchase price of a bottle
store.
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[34] When confronted by this version, both in his evidence in chief and in cross
examination, Mr Mazive said that this version was news to him. He was a pastor
and as such could not and in fact, did not own or operate any bottle store. He had
never purchased a bottle store or part thereof from the respondent and had no
participation in any liquor license for such an enterprise.
[35] This concluded the evidence the LPC produced on the referred issues.
[36] It must be pointed out that, during the preceding disciplinary hearing, it
transpired that the respondent had repaid the R5 l 000.00 referred to in the above
reconciliation and he conceded that the R51 000.00 would have been included in
his contingency fee of 25%. It appeared that the party and party bill amounted to
Rl 19 348.61, which was eventually paid by the RAF and landed up in the hands
of the sheriff. All agreed it was payable to Mr Mazive. but it is somewhat unclear
whether he did in fact receive it in the end.
[37] The respondent then took the stand. On the disputed issue, he confirmed
that he had met Mr Mazive in October 2011 to explain the abovementioned
reconciliation to him. After a full explanation , Mr Mazive thanked him, saying
he had done a good job and had saved Mr Mazive "from hunger".
[38] During the course of the respondent's evidence and cross-examination , the
taxed party and party bill, the attorney and client bill, in the total amount ofR343
423, 79, were also canvassed.
[39] Neither of these two bills nor the amounts reflected therein featured in the
reconciliation, but the respondent was adamant that they had featured in the
discussion he had with Mr Mazive. Although the party and party bill had not
been taxed at the time, he tesLified t:hat he explained to Mr Mazive that the
proceeds thereof would still be recovered from the RAF in due course.
20
(40] The total fees contained in the attorney and client bill amounted to Rl 68
492.00. To this was added an arbitrary 30% in the amount of R50 547.60 as a
"surcharge". The respondent could not explain why or furnish any legal basis for
this, but testified that it was "customary" to do so. The disbursements totaling
R93 718.65 included advocates fees of R51 000.00.
[41] If only the fees ofR168 492.00 were doubled as a success fee, amounting
to R336 984.00 then there could be some basis for limiting it to the 25% amount
mentioned in the reconciliation to Mr Mazive, but none of this or the other
amounts reflected in the attorney and client bill, feature there.
[42] To meet this difficulty , the respondent gave differing and conflicting
versions. These ranged from the respondent immediately after finalization of the
matter handing his file to the tax consultant , Mr Lebo Chaza, to later retrieving
the file to discuss the bill with Mr Mazive, to only having a "skeleton file" during
the discussion. The versions relating to whether the party and party bill had by
then been drafted but not yet taxed, to the version whether only the attorney and
client bill had been drawn, and been ready for discussion or not, also underwent
various permutations during cross-examination. The only aspect which was
undisputed , was that only the reconciliation had been signed by Mr Mazive (and
someone on behalf of Freeman Dube Inc) and no other account or reconciliation.
[43] In respect of the RlOO 000.00 issue, the respondent 's version was the
following: Mr Mazive lived in the area where the respondent operated a bottle
store. One day, shortly after Mr Mazive had been paid out his RAF claim, he and
another erstwhile client of the respondent approached him, wanting to buy shares
in the business, the respondent turned down the offer. He had other businesses
and was not fond of partnerships. From time to time Mr Mazive and the other
person urged the respondent to reconsider. At the time the bottle store was
managed by the respondent 's sister and when she secured a "job" at the South
21
African Police Service, starting end January 2012, he considered that the needed
a trustworthy person. He weighed up his options, including the fact that the
distance of 45km from where he was either staying or working and then
entertained the thought of "selling" the bottle store to them.
[44] As a result of his sister leaving, the respondent "announced to them" that
he was prepared to sell the bottle store, rather than merely selling shares. Mr
Mazive and the other person put their heads together and asked for "an offer"
(presumably a selling price) which the respondent gave to them. He then went
on to explain his motivation for selling and pointed out the assets and the values
thereof. Although the purchasers would "team up", Mr Mazive's money was held
up in a 30-day instrument. Mr Mazive then asked the other person to make the
first payment and then Mr Mazive would make a second payment ofRl 00 000.00.
[45] After Mr Mazive's payment, a stock-take would take place and the
purchasers would be orientated about the business. For this purpose, the
respondent introduced the purchasers to his sister, Mbali. The sister agreed and
this resulted in a "legal and formal coming together". That was the respondent's
last day at the bottle store.
[46] The above narrative was given by the respondent in his evidence in chief
by way of a solo narrative, uninterrupted by questions. When Adv Mokotedi SC
asked, "Anything else?" at the end of the narrative, the respondent responded that
there was "a particular young man living in the vicinity" who was unemployed at
the time, who would have assisted in bottle store.
(47] We noted an objection at the end of this part of the narrative, to the effect
that little of the above version was put to Mr Mazive in cross-examination. What
was puL was limited to the payment of RI 00 000.00 as part of purchase of the
22
bottle store, the assistance of Mr Mbali Masondo, the respondent's sister and that
Mr Mazive and Ms Masondo had counted the bottles in the bottle store.
[48] We shall deal with the evaluation of this evidence at the conclusion of this
judgment.
[49] The next witness was Ms Mbali Masondo. Her evidence was rather brief.
She was a police officer and had been in the South African Police Service since
the commencement of her training on 28 January 2012.
[50] Ms Masondo had indeed worked in the respondent 's bottle store before
becoming a police officer, as the manager thereof, "taking care of everything ".
She was vague about the location of the bottle store though, and was equally
vague about two persons, who the respondent had told her would be purchasers.
[51] Ms Masondo did remember though that the one person was on crutches
and the other was in a wheelchair. She remembered the name of the one on
crutches as Mr Carlos Mazive. During January 2012 she gave this person training
and showed him the ropes. She could not remember the other person, but Mr
Mazive came there "frequently " during January 2012 before Ms Masondo left to
take up employment in the SAPS.
[52] Ms Masondo is not the respondent 's actual sister, but ·'like a sister" as his
mother and Ms Masondo 's mother are sisters. This was as far as her evidence
went.
[53] The next and last witness was Mr Sandile Mbatha. He is currently a metro
Police Office in Ekhurhuleni. He started his evidence very hesitantly and
constantly had to be prodded and prompted.
23
[ 54] Mr Mbatha testified that the respondent had been his employer "a long time
ago". His duties during his employment was stocktaking at the bottle store as
well as the purchasing and replenishment of stock.
[55] Once the respondent "handed over" the bottle store to another person, he
ceased being an employee of the respondent. He was uncertain as to when this
happened , both as to the specific month and even the year. He remembered the
person as one Carlos, but could not remember the surname. After the takeover,
Mr Mbatha worked for Carlos until about July of the takeover year.
[56] An attempt was made by counsel to have Mr Mbatha identify Mr Mazive
by his observance as the first witness when he went into and out of court while
Mr Mbatha was sitting outside. Despite him having been outside court, Mr
Mbatha testified that he had seen Mr Mazive enter the witness stand and leave it
again after giving evidence.
[57] That concluded the oral evidence.
[58] The LPC also relied on the contents of the two supplementary founding
affidavits. These disclosed complaints by thirteen of the respondent 's clients.
The contents and nature of the complaints have been summarised in the said
affidavits and heads of argument delivered on behalf of the LPC. As these facts
have not been controverted , they can be referred to in summary fashion.
[59] First complaint: Mr Mabaso
Mr Mabaso had instructed the respondent to pursue a claim against the RAF. On
22 January 2021 the court granted the claim, the capital portion of which was R2
194 416.25. Despite this. Mr Mabaso had Inst heard from the respondent in 2019.
When Mr Mabaso eventually obtained a copy of the order, it reflected that the
24
order had been the result of a settlement. Mr Mabaso never authorized nor knew
of such a settlement. He had also, at the time of his complaint on 17 March 2022,
not been paid.
[60] Second Complaint: Adv Rakgetsi
Adv Rakgetsi is a legal practitioner of this court, practicing as an advocate. She
had received two briefs from the respondent during March 2020. The first brief,
for a Ms Kunene as client was finalized on 10 March 2020 and the second, for a
Ms Nxumalo as client, was finalized on 13 March 2020. Despite demands at the
time of her complaint on 24 February 2022 Adv Rakgetsi had not been paid in
respect of her respective invoices ofRl 800.00 and Rl 9 200.00.
[ 61] Third Complaint: Adv Thabede
Adv Thabede is similarly a legal practitioner of this court, also practicing as an
advocate. He was owed an amount of Rl .4 million in respect of fees earned on
brief for the respondent during the period from February 2017 to July 2019.
[62] Fourth complaint: Ms Nyoka
The complaint submitted by attorneys 8B Khumalo on behalf of Ms Nyoka on
28 April 2022 was to the effect that the respondent has visited her at her home
"to assist" her with a claim against the RAF. He had introduced himself as
Freeman Dube from Freeman Dube Attorneys. This was after the expiry of two
years additional prohibition from practicing for his own account after his previous
suspension5, but before a formal lifting of his suspension and without the
knowledge of the LPC. The respondent had arranged for medico-legal
assessment of Ms Nyoka during August 2020 and, upon her enquiry, she was told
5 Detailed more fully in par 74 hereunder.
25
by the respondent 's staff in February 2021 that "the firm" was awaiting payment
from RAF. Ms Nyoka subsequently made six further enquiries, up to February
2022, all unsuccessful. After engaging a new attorney, she found out that her
claim had been paid out by the RAF in the amount of R2 350 574.00 at the end
of 2020 already. The respondent, curiously, on 16 March 2022, undertook to
make only an interim payment. He, however, defaulted on this promise.
[63] Fifth complaint: Mr Khumalo
In similar fashion as in the previous complaint , the respondent had instituted
action on behalf of Mr Khumalo, while acting for his own account in 2014, while
still being prohibited from doing so. Despite this, the action instituted on behalf
of Mr Khumalo against the RAF was successful and R2 926 188.20 was paid out
on 29 July 2021. Despite this, the respondent only made piecemeal payments to
Mr Khumalo , who only found out on 15 August 2023 that the full payment had
been made by the RAF. Up to that time, the piecemeal payments only amounted
to R286 000.00. Pursuant to an urgent application launched for payment by Mr
Khumalo, the amount of Rl 659 188.00 was paid by agreement. The further
agreement to render a bill of costs by 19 November 2023, embodied in the
settlement order, has to date been ignored by the respondent.
[64] Sixth complaint: Ms Khubeka
During the respondent 's period of suspension , he undertook to institute a personal
injury claim on behalf of Ms Khubeka against the RAF. This matter had become
settled during September 2020 in an amount ofRl .2 million. Ms Khubeka found
out from the RAF that this amount had been paid to the respondent. when he did
not account to her. Thereafter he started making piecemeal payments , amounting
co only R4.'.50 000.00. In her complaint to the LPC dated 18 July 2023, she stated
26
"I advised the attorney that I would institute Legal action against him, and he
responded by stating this would lead to a further delay in the release of my funds".
[65] Seventh complaint: Ms Mdima
Ms Mdima's complaint was that, despite having instructed the respondent to
pursue a claim on her behalf against the RAF in 2018 and despite having
thereafter arranged for medico-legal appointments in 2022, the respondent had
failed to perform his mandate. She had to resort to new attorney thereafter.
[66] Eighth complaint Ms Gininda
Ms Gininda appointed the respondent in 2019 to pursue a claim against the RAF
on her behalf and failed to advise her of any progress of her matter.
[67] Ninth complaint: Ms Jeqe on behalf of a minor
This matter similarly involved an action against the RAF, but this time on behalf
of a minor. The matter was settled in January 2019 in an amount of R2 932
947.80. Of this, Rl 00 000.00 was to be paid directly to the minor's guardian and
the balance to a trust to be created. The RAF paid the full amount to the
respondent in February 2019, but the client only found out about this from the
RAF. Thereafter the respondent paid the aforementioned RlOO 000.00 on 13
December 2019. Despite the trust having since been created, as of 12 September
2020, no funds had been paid to it by the respondent.
[68] Tenth complaint: Ms Mdaki
This was another matter which involved a claim against the RAF on behalf of a
minor. InsLrucLions had been given to the respondent during February 2013 and
the matter was finally finalized during April 20 l8. An amount ofR5 312 560.14
27
was recovered by the respondent via the Sheriff, Pretoria East, but nothing has
yet been paid to the client or the minor, who had since attained the age of majority
in November 2018.
[69] Eleventh complaint: Mr Mdlalose
Mr Mdlalose had instructed the respondent in 2013 to pursue a claim on his behalf
against the RAF. That claim was finalized in September 2018 and the proceeds
were paid to the respondent. After having heard nothing from the respondent,
despite enquiries, Mr Mdlalose instructed new attorneys to lodge a claim against
the Legal Practitioners Fidelity Fund (LPFF) as the proceeds of the claim are
feared to have been misappropriated. According to Mr Mdlalose's claim
documents , the net amount due to him is R558 815.36.
[70] The twelfth complaint: Ms Shezi
This is yet another matter where a claim had been instituted against the RAF on
behalf of a minor. Cou1t documents indicate that the respondent had settled the
claim for general damages on 1 November 2017 in an amount of R450 000.00,
with the remainder of the claim postponed sine die. R50 000.00 would have been
paid to the minor's mother and the balance in a trust to be created. When the
client, through her new attorneys found out that no monies had been paid into the
trust's bank account, the respondent's mandate was terminated on 29 May 2019.
Despite this, and without authority, the respondent thereafter settled the loss of
earnings claim on 10 June 2019 in an amount ofR2 021 064.50.
[71] The thirteenth complaint: Mr Sithole
In this letter of complaint to the KwaZulu-Nat"! office of the LPC on 1 September
2023 Mr Sithole complains that the respondent had ben instructed in 2018 to
28
proceed with a claim against the RAF for the complainant 's brother. The bother,
however passed away in 2019. The respondent's office obtained the brother's
death certificate from his mother and in May 2023 informed the complainant that
the claim had already been "processed". To date, neither payment nor any further
response had been received from the respondent.
[72] Fidelity Fund Certificates
The LPC confirmed that the respondent had been practicing without a Fidelity
Fund certificate for the years 20 J 5, 2016, 2021, 2022, 2023, 2024 and to date.
The respondent's position
[73] The respondent had been admitted as an attorney in terms of the then
applicable legislation6 on 12 January 2007.
[74] As already mentioned, the respondent has previously been suspended from
practice by this court. The contraventions which formed the basis of the
suspension were practicing without a Fidelity Fund Certificates, theft of client
files as an employee of another attorney's firm, misappropriation of funds and
claiming inflated fees. The suspension was for 1 year from 14 October 2011 and
thereafter the respondent was prohibited from practicing for his own account for
a further two years.
[75] In confirming this court's sanction of suspension (and the imposition of a
limitation for a further two years from practicing for his own account), the
Supreme Court of Appeal commented as follows7 "The court below was very
conscious that /he respondent 's conduct had brought him to the brink of striking
off Jn concluding he should not be pushed over the edge, it looked not at the
6 The Attorneys Act 53 of 1979.
7 Law Society of the Northern Provinces v Dube (2012] 4 All SA 251 (SCA) at par 32.
29
individual offences but at their cumulative effect and it made a value judgment
on the rehabilitation prospects of the respondent ".
The test to be applied
[76] It is trite that applications for the suspension or striking off of a legal
practitioner involves a three-stage enquiry. The first stage is determining whether
the alleged offending conduct had been established on a preponderance of
probabilities. This is a factual enquiry. The second stage is to determine whether
the practitioner is fit and proper to continue to practice. This is a discretionary
exercise. The third stage is to determine whether, in the circumstances, a sanction
should be imposed, whether an order of suspension from practice would suffice
or whether the practitioner should be struck off1!.
[77] At the preceding disciplinary hearing, the respondent had pleaded guilty to
all charges. In his answering affidavit in the present matter, he sought to recant
his pleas. In particular , in respect of the fees and disbursements charged from Mr
Mazive, the respondent submitted an alternate calculation. This was primarily
based on a consideration of the attorney and client and the party and party bills.
[78] Admittedly, the respondent did not have his erstwhile office file with him
when he answered to the charges before the disciplinary committee and neither
was he aware that the proceeds of the taxed bill of costs had been recovered via
the sheriff. These issues impact on both the first and second stages referred to
above.
[79] Alive to those facts, the court preceding ours, pointed out that the LPC's
application was neither an appeal nor a review of the findings of the disciplinary
committee. On the disputed issues, the preceding court found as fol lows =hen it
8 Law Society of the Northern Provinces v Magami 2010 (1) SA 186 (SCA) at par 4 and Summerly v Law Society of
the Northern Provinces 2006 (5) SA 613 (SCA) at par 2.
30
made the ruling referring the matter for the hearing of oral evidence: "In my view
the most important considerat ion in determining whether the respondent is afit
and proper person, relate to the Mazive complaint, and the bill of costs; the
overreaching in respect of the R/00 000.00 and his failure to disclose the
Mazive 's case when his application to uplift his suspension was considered.
These transgressions on their own are sufficient to have the respondent removed
from the roll of practicing attorneys. However, through the proper exercise of
the discretion entrusted on the court, certainty is required before such drastic
action is taken. Jn considering an appropriate sanction, it is my view that the
issues relating to disputes of fact require to be referred to oral evidence".
[80] The LPC took the views of the court to be that the offending conduct had
been established and that the oral evidence which was required only related to
sanction. It seems, with respect, that the preceding court had somewhat conflated
the three stages as is evident from the quoted paragraph and this might have led
to the LPC adopting the aforesaid stance. We were not convinced that this stance
was correct or appropriate in the circumstances.
[81] There are two further aspects of importance , the first is that neither the
determination of whether a practitioner is fit and proper and the determination of
what sanction, including suspension or striking off, can be determined before the
offending conduct has been established. If oral evidence is needed, as has been
determined by the preceding court, then offending conduct can only be
determined after factual findings have been made, which in turn could only be
made after the hearing of such evidence as may be presented.
[82] The second aspect of importance , is that the ruling of the preceding court,
did not limit the issue to be determined by a newly constituted court to be only
lhat of sanctioning. The wording of the order is clear: ''the application to suspend
or strike . .. is referred to a freshly constituted bench" (my underlining for
31
emphasis). This means that the whole matter brought to court by the LPC, is to
be considered by us. Any other interpretation , namely that one court has partly
determined the matter and that we, as a freshly constituted court, should
determine the remainder of the same matter, in a piecemeal fashion, would be
inappropriate to the extent of being absurd.
[83] In order not to unduly prejudice the respondent , we shall therefore, as
directed, as a freshly constituted bench consider the matter in accordance with the
three stages outlined before. We shall therefore consider the comments made by
the preceding court as being obiter only and not otherwise rely thereon.
The offending conduct
(84] We find that the respondent had not properly accounted to Mr Mazive at
the conclusion of the matter. The "account" given to him as quoted in paragraph
28 above, did not address the attorney and client fees and what allegedly entitled
the respondent to 25% of the capital amount.
[85] In addition, the calculation does not properly indicate why a portion of the
disbursements, the advocates fees in the amount of R5 l 000.00, had to be
deducted.
[86] The "accounting " does not address the issue of the party and party costs,
then still to be taxed and recovered at all.
[87] We find that the respondent 's oral evidence, without a smidgen of
corroborative evidence, that he had by then already been in possession of the
attorney and client bill and that he had taken it and either a skeleton or the full
file (which he had given to the cost consultant) to the bottle store to which he had
summoned Mr Mazive, not credible. The respondent's contradictions in this
regard, his prior versions and recalculation of actual fees, all done ex post facto,
32
confirm our impression that the ·'account" quoted in paragraph 28 above was all
that was discussed with Mr Mazive.
[88] The above ·'account" and the manner in which the two bills and the
disbursements had been handled, do not amount to proper accounting to a client
by his attorney. Rule 35.11 read with Rule 40.7 of the Rules9 (corresponding
with Rule 68.2 of the ·'old Rules"10) obliges an attorney to account to his client I
inwriting (and to retain a copy of such account), which account shall contain
details of:
"35.11. l
35.ll.2
35.11.3 all amounts received in connection with he matter concerned,
appropriately explained;
all disbursements and other payments made ... ,·
all fees and other charges charged to or raised against the
client;
35.l l.4the amount owing lo or by the client ... ".
[89] It is therefore clear that the offending conduct relating to a failure to
properly account to Mr Mazive has been established on a balance of probabilities.
[90] In respect of the 30% surcharge which the respondent attempted to recover
from Mr Mazive, this conduct breached Rule 49.6 which prohibits a practitioner
from overreaching, by charging a fee which is "unreasonably high", having
regard to the circumstances of the matter. In the present circumstances the
additional 30% was neither agreed to between the parties, nor was it justifiable.
It was therefore "unreasonably high" and in breach of the Rules.
9 Rules for the Attorneys Profession, Gov Gazette 39740 of 26 February 2016.
10 Rules of the Law Society of the Northern Provinces, Government Gazette No 7164 of 1 August 1980.
33
[91] In view of the above, we find it unnecessary to consider the remainder of
the respondents attempted ex-post facto recalculations of his fees. The offending
conduct had already been established , and no subsequent justification would
detract from those facts.
[92] As to the RlOO 000.00 demanded or paid, we note that Mr Mazive had
testified in an open and straightforward manner. His version had remained
consistent with his original complaint, through his evidence presented at the
disciplinary hearing and in open court. We find no reason to doubt his credibility
or his version.
[93] On the other hand, the respondent 's version was vague in the extreme. It
suffered from a lack of particularity relating to dates and times of the alleged
negotiations for the purchase of the bottle store, the specific terms of the sale, the
alleged total selling price, the itemization of the assets or stock purchased and all
the other essential ia of a sale of that nature.
[94] The alleged sale had been criticized by the respondent 's colleagues who
sat as members of the preceding disciplinary committee, and he has since then
not been able to meet that criticism. These aspects relate to his contention that it
was the landlord, and not the owner and operator of the bottle store, who had to
hold an off-sale liquor license and that he could with impunity and legally have
the bottle store change hands without contravening liquor laws. He also failed to
meet the criticism that it is highly improbable that, had the sale been a genuine
one, an attorney would effect such a sale without the terms being embodied in a
written contract or at the very least, somewhere being noted or reduced to writing.
[95] The evidence of the respondent also suffered from internal contradictions
created by the various versions of the sale presented by him.
34
[96] We also have grave doubts about the veracity of the corroborating
evidence . The evidence of Ms Mabatha, despite having purportedl y identified
Mr Mazive and describing the timing of the alleged sale, verified very little else.
She appeared to have been called by the respondent to confirm an instruction to
corroborate a sale to Mr Mazive and nothing more. That is the most probable
explanation why she could not and did not provide any concrete details which
one would otherwise have expected from the manager of such a lucrative
business.
[97] Similarly, the purported corroboratory evidence of Mr Mabaso was equally
vague, if not even more so.
[98] When weighing up the evidence and by having regard to the manner
presented , the reliability of the evidence and the general probabilities 11, we find
the version of Mr Mazive to be more credible and reject the version presented by
the respondent.
[99] The result is that, in respect of the Rl 00 000.00 offending conduct in
contravention of Rule 49.6 has also been established.
[100] But even if we were to be wrong in our assessment of the oral evidence
regarding the Rl00 000.00 issue and even if that were to be ignored as offending
conduct, then the evidence presented by the LPC in the supplementary affidavits
in the discharge of its obligations, put the issue beyond any doubt.
[101] In addition to the obligation to account to clients, the respondent had the
obligation to pay the proceeds of claims received into his trust account within a
reasonable time to the respective clients (Rule 35.12)12 and to pay other legal
11 As set out in SFW Group & Ano v Mortell et Cie & Others 2003 (1) SA 11 (SCA) at par 3.
12 See also lncorporoted Law Society, Transvaal v Visse 1958 (4) SA 115 (T) at 131 A-C
35
practitioners , timeously (Rule 18.18). This was not done in respect of the first
twelve complaints , thereby establishing offending conduct.
[102] A basic requirement of the discharge of a legal practitioner's duties is to
perform his duties in accordance with his mandate and with such degree of skill
as may reasonably be expected (Rule 49.13). In respect of complaints one and
twelve, the respondent settled matters without a mandate or after his mandate had
been terminated. In respect of complaint s seven, eight, nine, eleven and thirteen,
the mandates have either not been discharged at all or only belatedly so.
[103] There had, in similar fashion as with Mr Mazive not been proper
accounting to the clients in respect of complaints one, four, five, six, nine, ten and
twelve and, in most instances, even more egregiously so by failing to account at
all.
[104] In respect of complaint four, clear touting has been established,
constituting a contravention of Rule 49.1713.
[105] There are further transgressions, which are more minor when compared to
those described above, such as failure to respond to the LPC's queries (Rule 47.2).
[l 06] There is no dispute before us that the "old Rules" have been supplanted by
the "new Rules", which have in turn been supplemented by the Code of Conduct
for All Legal Practitioners , Candidate Legal Practitioners and Juristic Entities14
(the Code).
[107] The respondent 's attitude to the magnitude and seriousness of the
complaints set out in the suppleme ntary affidavits was a curious one. Despite
13 See also the court's attitude toward touting as set out in Cirota v Law Society of the Transvaal 1979 (1) SA 172
(A) and A Malan & F Malan v Low Society of the Northern Provinces 2009 (1) SA 216.
14 Published in GN 168 in Governm ent Gazette 42337 of 29 March 2019.
36
having been urged by the LPC to respond to those accusations , he chose to simply
ignore them. This is not the first time the respondent has done so. He did the
same in respect of the allegations which had led to his previous suspension 15.
[108] The respondent is not a lay person. He is an officer of this court. He had
a duty to assist the court16. He also had the experience of legal proceedings of
this nature brought against him, both in this court and in the Supreme Court of
Appeal. In these circumstances, the belated argument proffered on his behalf in
response to the LPC's argument at the conclusion of the matter (and after this
Court has given him and his counsel a further two days· time to reflect and
prepare) that the LPC had needed condonation or leave for the delivery of the
supplementary affidavits and that, until that was granted, the contents could be
ignored with impunity , must be rejected as being opportunistic and without
foundation.
Fit and proper
(109] Having determined that numerous instances of serious offending conduct
had been established , it is necessary to consider whether the respondent is still fit
and proper to practice law in South Africa.
[11 O] As noted by the Supreme Court of Appeal, this Court has previously found
during the previous application against the respondent, that he had been "nai"ve,
immature , lacked experience and insight"17. That had been fourteen years ago.
The respondent can no longer claim these mitigatory benefits.
[111] In addition to the above, the respondent appears to have not benefitted from
the rehabilitative opportunities presented to him by his previous suspension. He
15 Law Society of the Northern Provinces v Dube (Supra) at par 13
16 Prokureursorde von Tronsvoal v Kleynhans 1995 (1) SA 839 (T) at 853G-H.
17 Law Society of the Northern Provinces v Dube (supra) at par 14.
37
has committed numerous and, in may instances, more serious transgressions than
before.
[ 112] To this must be added the repeated offences of continuing to practice
without a Fidelity Fund Certificate18.
[113] In reaching a conclusion , a court should not look at the instances of
offending conduct individually , but form a cumulative and wholistic view19• In
doing so, we find that the respondent is no longer a fit and proper person to be a
legal practitioner.
Sanction
[114] Although it is often axiomatic that a conclusion reached as above would
lead to the striking off of a practitioner , a court should consider whether the
sanction of suspension from practice would suffice to either protect the public or
as a corrective measure.
[ 115] In the respondent 's case, history has shown that a suspension order is no
longer an appropriate measure. Numerous members of the public who had the
misfortune to become clients of the respondent have suffered harm, either in how
their cases had been handled or by way of actual losses of literally millions of
Rands. Such conduct by a legal practitioner cannot be countenanced.
[ 116] This court would be failing in its duty if it did not find that the respondent
no longer deserves to be an officer of this court. His conduct persistently fell
short of that required by the LPA and the Code, he should be struck off.
tA scc-tion 84(1) obliges a practitioner not to practice without a Fidelity Fund Certificate and, in terms of section
93(8) of the LPA, if he does so, he commits a criminal offence, punishable with a fine or imprisonment not
exceeding two years.
19 Law Society of the Cape of Good Hope v Sega/11975 (1) SA 95 (C) at 99B.
38
Costs
[117] The LPC does not approach the Court as an ordinary litigant, but in the
discharge of a public duty. Apart from the general rule that costs should follow
the event, the LPC should therefore generally be entitled to its costs. As to the
scale of costs, having regard to the subject matter of this litigation and the
offending conduct of the respondent as wel I as the manner in which he had
conducted this litigation as an officer of the court, we are of the view that a
punitive costs order is justified.
Order
[118] In the premises, an order is granted in the following terms:
1. The respondent, Simphiwe Freeman Dube is struck from the roll of
legal practitioners of this Court.
2. The respondent is ordered to immediately surrender and deliver to the
Registrar of his previous certificate of enrolment as an attorney of this
Court.
3. In the event of the respondent failing to comply with the terms of
paragraph 2 above within one week from the date of service of this
order, the sheriff of the relevant district is authorised and directed to
take possession of the certificate and hand it to the Registrar .
4. The respondent is prohibited from handling or operating on the trust
accounts as detailed in paragraph 5 hereof, from date of service of this
order.
5. Ignatius Wilhelm Briel, the Director of the Gauteng Provincial Office
of the applicant , is appointed as curator bonis (curator) to administer
39
and control the trust accounts of the respondents, including accounts
relating to insolvent and deceased estates and any deceased estate and
any estate under curatorship connected with the respondent 's practice
as legal practitioner 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) & (2) of Act No 28 of2014 and/or
any separate savings or interest-bearing accounts as contemplated by
section 86(3) and/or section 86(4) of Act No. 28 of 2014, in which
monies from such trust banking accounts have been invested by virtue
of the provisions of the said sub-section 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:
5.1 Immediately to take possession of the respondent 's accounting
records, records, files and documents as referred to m
paragraph 7 and subject to the approval of the Legal
Practitioners ' Fidelity Fund Board of Control (hereinafter
referred to as the fund) 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 respondents was acting at the date of
this order.
5 .2 Subject to the approval and control of the Legal Practitioners '
Fidelity Fund Board of Control and where monies had 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
40
account(s) and/or against the respondents in respect of monies
held, received and/or invested by the respondents in terms of
section 86(1) & (2) and/or section 86(3) and/or section 86(4) of
Act No 28 of2014 (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 the same to the credit of the trust account(s).
5.3 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. within 30 (thirty) days of the date of service of this order
or such further period as he may agree to in writing, with the
names, addresses and amounts due to all trust creditors.
5.4 To call upon such trust creditors to furnish such proof,
information and/or affidavits as he may require to enable him,
acting in consultation with, and subject to the requirements of
the Legal Practitioners ' Fidelity Fund Board of Control, to
determine whether any such trust creditor has claim in respect
of monies in the trust account(s) of the respondent and, if so,
the amount of such claim.
5.5 To admit or reject, in whole or in part, subject to the approval
of the Legal Practitioners ' Fidelity Fund Board of Control, the
claims of any such trust creditor or creditors, without prejudice
41
to such trust creditor's or creditors' right of access to the civil
courts.
5.6 Having determined the amounts which, he considers are
lawfully due to trust creditors, to pay such claims in full but
subject always to the approval of the Legal Practitioners'
Fidelity Fund Board of Control.
5.7 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 claim of the fund in terms of section
86(5) of Act No 28 of 2014 in respect of any interest therein
referred to and, secondly, without prejudice to the rights of the
creditors or the respondent, the costs, fees and expenses
referred to in paragraph 13 of this order, or such portion thereof
as has not already been separately paid by the respondent to the
Legal Practice Council, and, if there is any balance left after
payment in full of all such claims, costs, fees and expenses, to
pay such balance, subject to the approval of the Legal
Practitioners ' Fidelity Fund Board of Control, to the
respondent , if he is solvent, or, if the respondent is insolvent , to
the trustee(s) if the respondent 's insolvent estate.
5.8 In the event of there being insufficient trust monies in the trust
banking account(s) of the respondent , in accordance with the
available documentation and information , to pay in full the
claims of trust creditors who have lodged claims for repayment
and whose claims have been approved , to distribute the credit
balance(s) which may be available in the trust banking
42
account(s) amongst the trust creditors alternatively to pay the
balance to the Legal Practitioners' Fidelity Fund.
5.9 Subject to the approval of the chairman of the Legal
Practitioners' Fidelity Fund Board of Control, to appoint
nominees or representatives and/or consult with and/or engage
the services of legal practitioners, counsel, accountants and/or
any other persons, where considered necessary , to assist him in
carrying out his duties as curator; and
5.10 To render from time to time, as curator, returns to the Legal
Practitioners ' Fidelity Fund Board of Control showing how the
trust account(s) of the respondent has been dealt with, until such
time as the board notifies him that he may regard his duties as
curator as terminated.
6. The respondent is immediately upon service upon him of this order,
ordered to deliver the accounting records, files and documents
containing particulars and information relating to the following to the
curator bonis:
6.1 any monies received, held or paid by the respondent for or on
account of any person while practising as a legal practitioner;
6.2 any monies invested by the respondent in terms of section 86(3)
and/or section 86(4) of Act No 28 of2014;
6.3 any interest on monies so invested which was paid over or
credited to the respondent;
43
6.4 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;
6.5 any insolvent estate administrated by the respondent as trustee
or on behalf of the trustee in terms of the Insolvency Act, No
24 of 1936;
6.6 any trust administered by the respondent as trustee or on behalf
of the trustee in terms of the Trust Properties Control Act, No
57 of 1988;
6.7 any company liquidated in terms of the prov1s1ons of the
Companies Act, no 61 of 1973 read together with the provisions
of the Companies Act, no 71 of 2008, administered by the
respondent as or on behalf of the liquidator;
6.8 any close corporation liquidated in terms of the Close
Corporations Act, 69 or 1984, administered by the respondent
as or on behalf of the liquidator.
7. Should the respondent fail to comply with the prov1s1ons of the
preceding paragraph of this order on service thereof upon him or after
a return by the person entrusted with the service thereof that he has
been unable to effect service thereof on the respondent (as the case
may be), 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 poss1.,;ssion thereof wherever they may be and to deliver
them to such curator.
44
8. The curator shall be entitled to:
8.1 hand over to the person 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;
8.2 require from the persons referred to in paragraph 9 .1 to provide
any such documentation or information which he may consider
relevant in respect of a claim or possible or anticipated claim,
against his and/or the respondents and/or the respondents '
clients and/or fund in respect of money and/or other property
entrusted to the respondents provided that any person entitled
thereto shall be granted reasonable access thereto and shall be
permitted to make copes thereof;
8.3 publish this order or an abridge version thereof in ay newspaper
he considers appropriate; and 9.4 wind-up of the respondent's
practice.
9. The respondent is hereby removed from the office as:
9.1 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, no 66 of 1965 or the estate of any other person
referred to in section 72( l );
45
9.2 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, No 66 of I 965;
9.3 trustee of any insolvent estate in terms of section 59 of the
Insolvency Act, No 24 of 1936;
9.4 liquidator of any company in terms of section 379(2) read with
379(e) of the Companies Act, no 61 or 1973 and read together
with the provisions of the Companies Act, No 71 of 2008;
9.5 trustee of any trust in terms of section 20(1) of the Trust
Property Control Act, No 57 of 1988;
9 .6 liquidator of any close corporation appointed in terms of section
74 of the Close Corporation Act, No 69 of 1984; and
9.7 administrator appointed in terms of Section 74 of the Magistrate
Court Act, No 32 of 1944.
10. If there are any trust funds available, 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 the
respondent 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.
46
11. A certi licate issued by a director of the Legal Practitioners' Fidelity
Fund shall constitute prima facie proof of the curator's costs and that
the registrar be authorised to issue a writ of execution on the strength
of such certificate in order to collect the curator's costs.
12. The respondent is hereby ordered to:
12.l pay, in terms of section 87(2) of Act No. 28 of 2014, the
reasonable costs of the inspection of the accounting records of
the respondent;
12.2 pay the reasonable fees of the auditor engaged by applicant;
12.3 pay the reasonable fees and expenses of the curator, including
traveling time.
13. The respondent is ordered to pay the applicant's costs of the
application on an attorney and client scale.
I agree Judge of the High Court
Gauteng Division, Pretoria
MLENYAJ
Judge of the High Court
Gauteng Division, Pretoria r
47
Date of Hearing: 13, 14, 17 and 19 March 2025
Judgment delivered: 15 April 2025
APPEARANCES:
For the Applicant:
Attorney for the Applicant:
For the Respondent:
Attorney for the Respondent: Mr R Stocker together with Ms N Collett
Rooth & Wessels Inc., Pretoria
Adv K Mokotedi SC
VM Netshipale Attorneys
c/o Dube (Freeman) Attorneys Inc.,
Pretoria