IN THE HIG H COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Case number: 24020 /2024
In the matter between :
THE SOUTH AFRICAN LEGAL PRACTICE COUNCIL Applicant
and
MARI RENCKEN Respondent
REASONS DELIVERED ON 14 FEBR UARY 2025
VAN ZYL AJ :
Introductio n
1. On 17 January 2025 I granted an order in the following terms after considering
Part A of a two -part application :
1.1. The respondent’s application to strike out is dismissed.
1.2. Part A of the main application is dismissed.
OFF'ICE OF THE CHIEF JUSTICE
REPUBLJ C OF SOUTH AFRJ.CA
1.3. Each party shall be liable for its or her own costs of suit.
2. These are the reasons for the order .
Background
3. The applicant (“the LPC” ) is the body regulating the conduct of legal practitioners
admitted to practice under the Legal Practice Act 28 of 2014. The respondent is
a practicing attorney and conveyancer in Somerset West , having been admitted
as an attorney in 2001 and as a conveyancer during 2007 .
4. The LPC instituted an application for interim interdictory relief1 (as Part A)
pending the hearing of an application for final relief (as Part B) entailing the
striking of the respondent’s name from the roll of legal practitioners. Part A
sought an order that the respondent be suspended from her practice as a legal
practitioner of this Court, and that a curator bonis be appointed to control and
administer the respondent's trust account during the period of her suspension.
The application was brought on the basis of two allegations , namely, first, t hat the
respondent’s t rust account was in debit on 16 September 2024, and , second, the
respondent’s alleged misappropriation of trust funds from such account in the
amount of R350 000 ,00.
5. The respondent, a sole practitioner, opposed the application .
6. The facts giving rise to these proceedings were, briefly, as follows. During April
2024 the respondent was instructed by Mr and Mrs Adonis to act as conveyancer
and to transfer their property in Strand to Mr and Mrs Dlakadlaka , the property
having been sold for the price of R350 000.00.
7. On 3 May 2024, pursuant to the sale, Mr Dlakadlaka paid R35 000,00 into the
respondent’s trust account . On 13 September 2024 he made a further payment
of R311 000 ,00. The transfer of the property was regist ered in the names of Mr
1 Under sections 43 and 89 of the Legal Practice Act, read with the relevant regulations
promulgated under section 10 9 of the Act.
and Mrs Dlakadlaka on 16 September 2024.
8. The respondent failed to pay the purchase price of R350 000,00 to Mr and Mrs
Adonis on transfer of the property. This caused the Adonisse to make various
requests for payment , culminating in a request from their daughter, who
addressed whatsapp correspondence to the respondent enquiring about the
payment of the purchase price. In a further attempt to receive payment, Mr and
Mrs Adonis instructed an attorney who addressed correspondence to th e
respondent on 26 September 2024 and 16 October 2024. The respondent fail ed
to make payment, despite these demand s.
9. On 3 October 2024 the LPC received a formal complaint from Mr and Mrs
Adonis . which resulted in the institution of these proceedings .
The trust debit
10. The LPC argues that there are various inconsistencies in the respondent’s
explanation, and that her version changed in the various supplementary
answering affidavits delivered. I do not intend to go into the details of these
inconsistencies , which are admittedly present. They appear to be the result of a n
increasingly better consideration of the available documentation over the course
of preparation for the hearing and the gathering of more information . What it
comes down to is that it appe ars, as the LPC argued, that the respondent did not
treat separate clients' funds separately. Instead, she treated the funds in her
trust account as a composite whole from which she debited as and when
required.
11. Essentially, the respondent’s explanation – viewed holistically upon a
consideration of all of the affidavit s - boils down to the following. The r espondent
admits that her trust bank account was in debit on 16 September 2024 in the
amount of R170 012 ,00 after the payment of transfer duty in a property transfer
matter to the South African Revenue Service (“SARS”) on that day.
12. The debit lasted, however, only until funds paid into the trust account on the
previous day, 15 September 2024 , were credited to the account on 16
September 2024 . The bank at which the trust account is held, First National
Bank (“FNB”) , has despite numerous queries from the respondent not been able
to explain the delay. It has therefore referred the matter to the online banking
department to explain why the payments made on 15 September 2024 ( and
which were shown in the respondent's account on that day) were only allocated
after the payment of the transfer duty made to SARS on 16 September 2024.
13. It appears from the pap ers that the r espondent did not foresee a debit in her trust
account. The immediate transfers into the account reflected on 15 September
2024 as having been received , and the respondent thought that the money was
there . They were , however, only in revers e allocated on 16 September 2024
after the respondent had paid transfer duty to SARS . This caused the debit. The
business manager of the FNB branch in Somerset West could not explain why
this occurred, a nd referred the matter to the FNB online banking department for
investigation. Unfortunately, the FNB head office and its legal department have
not yet provided a report.
14. An issue that was pointed out in the replying affidavit is the fact that the n ame of
the respondent’s husband , instead of the respondent, appears on the bank
notification of payment of R350 000,00 to Mr Adonis . Although this did not form
part of the case made out in the founding affidavit, the respondent addressed this
aspect in a supplem entary answering affidavit . She indicating that she had
raised the issue with FNB, who has not yet explained the error. This
respondent’s husband is not involved in her practice. The respondent denies that
the inclusion of her husband’s name on this documentation was her doing – it
appears to have been a glitch at FNB. This has also been referred to the online
banking and client services departments , who are yet to provide answers .
The alleged misappropriation of R350 000 ,00
15. After receipt of the Adonisse’s query, the respondent investigated the situation
and discovered that three payments made to another client, Mr Jacobs , on 23
August 2024 , 2 September 2024, and 4 September 2024 from her trust account
in the total amount of R350 000.00 had been made in error . The respondent was
doing work for Mr Jabobs at the time and thought, in error, that R350 000,00 of
the funds that had come into her trust account was in respect of his transaction
and thus owing to him. Mr Jacobs confirmed the fact of the incorrect payments
under oath , and confirmed further that h e had reimbursed the respondent on 31
October 2024 after the she had made several requests to him .
16. On 1 November 2024 t he respondent paid the full amount of R350 000 ,00 from
her trust account to Mr and Mrs Adonis, which resulted in the finalization of the ir
matter.
17. According to the Oxford Advanced Learner's Dictionary, misappropriation means
“taking someone else's property or money for oneself, especially when they have
trusted you to take care of it ”. This is not what happened in the present case. I
accept that the respondent committed a n error (a rather negligent one) in
informing Mr Jacobs of the availability of funds and inaccurately disbursing
payments to him. There is no indication that she appropriated any funds for
personal gain or any other purpose . Mr Jacobs subsequently confirmed the
mistake, and reimbursed the respondent. T he reimbursed funds were forthwith
paid over Mr and Mrs Adonis. N either the respondent nor any other person
benefited from these events, and there was no eventual substantial loss to any
client or party.
18. This matter does not involve a misappropriation o f trust funds in the true sense.
The money paid to the respondent ended up where it should have been. The
problem is how she accounted for the movement of the money. There is no
suggestion of theft.
19. It is unfortunate that the error was rectified only ab out one and a half months
after the Adonis transfer had been registered . The respondent clearly should
have communicated the situation to the Adonisse immediately upon discovery of
her error. It appears from the papers that she did attempt repeatedly to obtain
repayment from Mr Jacobs, wh o eventually reimbursed her only on 31 October
2024. I get the impression that the respondent inadvisedly waited for a response
from Mr Jacobs before she confronted the problem by interacting with the
Adonisse. Perhaps s he felt embarrassed at the time. Whatever the explanation,
this is not a satisfactory situation . In addition, the internal administration by FNB
of the trust account over that time should be investigated , as well as the fact that
the respondent made erroneous payments to Mr Jacobs and did not pay the
requisite attention to the proper administration of her trust account.
20. I think that the respondent has explaining to do as regards the administration of
her trust account (and in this respect she is to act diligently and promptly in
relation to requests from the LPC for information) , as well as to the fact that she
did not respond promptly to the Adonisse when they queried the non -receipt of
their funds . It is not acceptable that they were compelled to instruct an attorney
and address a complaint to the LPC before they received an explanation. The
respondent further needs to provide the LPC with a detailed reconciliation of her
trust account for the period in which the event s complained of in the founding
papers occurred , in particular April 2024 to November 2024 .
21. I agree wholeheartedly with the LPC that the legal profession is, and should be
seen to be, an honourable profession that demands high ethical standards,
including complete honesty and integrity, from its members.2 Yet, I do not regard
an interdict of the drastic nature sought by the LPC as warranted at this stage
without a fuller picture of the respondent 's trust account affairs. Unlike in a
standard case of theft or another plainly unlawful misappropriation, it is not clear
to me, even of a prima facie basis, that such misconduct as appears from the
papers w ould eventually warrant the striking -off of the r espondent’s name from
the roll of attorneys .
22. The respondent still faces disciplinary sanction, up to and perhaps including an
order that she be stuck off. There is a need , however, to explore he r conduct so
as to determine her level of culpability , and ultimately to formulate the appropriate
sanction. Chapter 4 of the Legal Practice Act arms the LPC with a variety of
statutory powers to investigate and discipline legal practitioners, and to determine
2 See, for example, Swartzberg v Law Society of Northern Provinces 2008 (5) SA 322 (SCA) at
para [18].
the extent of their culpab ility. Section 37(3) (a) of the Act, for example, authorises
the LPC to establish a disciplinary committee to oversee “ misconduct
proceedings ” if “prima facie evidence ” of misconduct is found. It has been held
that where the material facts underlying any al legation of misconduct that may
lead to striking -off (or, as in the present case, a suspension) are contested or
obscure, the exercise of these powers will normally be a necessary step before
approaching the court.3 This will, of course, depend upon the facts of each case.
23. The respondent in the present matter argues that the LPC should have engaged
these statutory powers before seeking her suspension on the stringent terms
sought. From the papers it appears that there was one attempt from the LPC to
call and speak to the respondent. The respondent could not take the call at the
time because she was being admitted to hospital after a suspected heart attack.
The rest of the communication between the parties was by way of written
correspondence. There was not yet any serious attempt to meet and discuss the
situation in a constructive manner , and in particular to discuss the relevant
course of events in detail at the hand of the available records . On a
consideration of the particular facts of this case, I agree with the respondent’s
submission. The LPC has ade quate powers to refer what it regards as prima
facie misconduct to a disciplinary committee, which may then recommend that
the LPC seek striking -off relief after a full hearing. From the facts currently on
record there does not appear to be a risk to the public in the respondent’s
continued administration of her trust account to the extent that her suspension
from practice is warranted.
24. In all of these circumstances, and in the exercise of my discretion, I was of the
view that the interim interdictory relief sought should not be granted.4 There are
too many unanswered questions that could have been and can be dealt with
between the parties , and a concerted effort needs to be made by both of them to
discu ss the matter in a constructive manner , which could of course include the
appropriate disciplinary procedures .
3 Legal Practice Council v Louw and others 2025 (1) SA 447 (GJ) at para [12].
4 Networking Technologies v System Publishers (Pty) Ltd 1997 (1) SA 391 (A) at 399A .
The striking -out application
25. The respondent complained that the applicant’s supplementary replying affidavit
contained matter that was new , and applied for such matter to be struck out.
26. On a consideration of the allegations in the replying affidavi t, however, I was of
the view that they constituted comment on the averments set out in the further
supplementary answering affidavit , and did not serve to expand the ambit of the
complaint set out in the founding affidavit. They also, in several instances ,
consist ed of argument that was duly addressed by counsel in the course of the
hearing. I did not regard these replies to have caused prejudice5 to the
respondent, and accordingly refused the application to strike out.
Costs
27. As the LPC was litigating in an official capacity in the exercise of its duties and
obligations under the L egal Practice Act, it should generally not be mulcted in
costs.6 Whilst the respondent’s striking -out application was dismissed, she was
successful in the main application. In the circumstances, I though it fair to direct
that each party should pay their own costs of suit.
Order
28. I accordingly granted an order as set out in the introduction to th ese reasons .
_______________ _______
VAN ZYL AJ
Appearances:
5 University of the Free State v Afriforum 2017 (4) SA 283 (SCA) at 296E -F.
6 See, for example, Law Society of the Northern Provinces v Dube [2012] 4 All SA 251 (SCA)
para [33].
For the applicant: Ms Z. Titus , instructed by Abrahams Kiewitz
Attorneys
For the responden t: Mr J. Crouse , instructed by Rencken
Attorneys